P. v. Vickers CA1/5

Filed 3/15/13 P. v. Vickers CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, A135378 v. GEORGE VICKERS, (San Francisco City and County Super. Ct. No. 216844) Defendant and Appellant.

George Vickers admitted that he was a felon in possession of a firearm (Pen. Code, former § 12021, subd. (a)(1)1; current § 29800, subd. (a)(1)), with a prior felony attempted theft conviction (§§ 664, 487). Vickers does not challenge his plea or the prison sentence imposed. His sole contention on appeal is that the trial court imposed $80 too much in fines. Vickers‟s arguments border on the frivolous, and we affirm. I. BACKGROUND On October 24, 2011, San Francisco Police Sergeant Daniel Manning approached Vickers on the street near 835 Ellsworth Street, after receiving information from an informant that an individual matching Vickers‟s description was in possession of a firearm. Vickers ran, but was apprehended after a struggle. A .40 caliber semi-automatic pistol was found in a backpack Vickers was carrying. On January 10, 2012, pursuant to a negotiated disposition, Vickers entered a guilty plea to being a felon in possession of a firearm (Former § 12021, subd. (a)(1)) and

1 All further statutory references are to the Penal Code unless otherwise indicated.

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admitted a prior felony conviction for attempted grand theft (§§ 664, 487). The minute order reflects a “PROPOSED DISPOSITION” including a two-year state prison sentence, and a “VF fine of $240.” The transcript of the plea colloquy reflects discussion only of the possible midterm prison sentence, and Vickers‟s ability to withdraw the plea if the court was unwilling to sentence in accord with that recommendation.2 On March 20, 2012, Vickers received the two-year prison sentence originally proposed. The sentence included imposition of a $240 restitution fine “pursuant to PC 1202.4(b).” The court imposed, but suspended, a parole revocation fine in the same amount. Vickers made no objection. On May 1, 2012, Vickers filed a notice of appeal. The notice states only that Vickers‟s appeal is “based on the denial of a motion to suppress evidence under Penal Code section 1538.5.” II. DISCUSSION Vickers contends that the $240 restitution and parole revocation fines imposed violate state and federal constitutional prohibitions against ex post facto laws. The People argue that the fines were a condition of the plea bargain that Vickers cannot now challenge. They are both wrong. A restitution fine under section 1202.4 is mandatory unless the sentencing court “ „finds compelling and extraordinary reasons for not doing so, and states those reasons on the record.‟ ” (People v. Tillman (2000) 22 Cal.4th 300, 302, quoting § 1202.4, subd. (b).) The parole revocation fine also is mandatory and must be set in the same amount as the restitution fine.3 Section 1202.4. subdivision (b)(1) provides that the amount of the restitution fine “shall be set at the discretion of the court and commensurate with the seriousness of the offense.” At the time of Vickers‟s sentencing 2 No written plea waiver form is included in the record provided to us. 3 “In every case where a person is convicted of a crime and whose sentence includes a period of parole, the court shall at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4 . . . .” (Former § 1202.45; current § 1202.45, subd. (a).)