P. v. Ramirez CA5

Filed 5/14/13 P. v. Ramirez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F064614 Plaintiff and Respondent, (Super. Ct. No. MCR039999B) v.

BENIDO RAMIREZ, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Madera County. Ernest J. LiCalsi, Judge. Matthew A. Siroka, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Louis M. Vasquez, Deputy Attorney General, for Plaintiff and Respondent. -ooOoo-

* Before Cornell, Acting P.J., Kane, J. and Poochigian, J.

This appeal presents the single contention that $40 of the restitution fine imposed on defendant and appellant Benido Ramirez violated the ex post facto provisions of the state and federal Constitutions. Defendant forfeited this contention by not objecting to the fine at the sentencing hearing. Accordingly, we affirm the judgment. FACTS AND PROCEDURAL HISTORY On August 30, 2010, defendant and another man took an SUV from Juan Hernandez at gunpoint. Defendant pled guilty to one count of carjacking in violation of Penal Code section 215, subdivision (a), in a plea bargain that provided for imposition of the middle term of five years in prison. (See id., subd. (b).) On March 15, 2012, the court sentenced defendant to five years in prison and imposed various fines and penalties, including a restitution fine of $240 pursuant to Penal Code section 1202.4, as recommended in the presentencing report. Defendant did not object to the restitution fine. DISCUSSION Penal Code section 1202.4, subdivision (b), at all relevant times has required imposition of a restitution fine in felony cases, with exceptions not relevant here. At all relevant times, the fine could not exceed $10,000. (Ibid.) The issue on this appeal arises because prior to January 1, 2012, the minimum restitution fine under Penal Code section 1204, subdivision (b), was $200 (see Stats. 1996, ch. 629, § 3), but thereafter— and at the time of sentencing in this case—the minimum fine was $240. (Pen. Code, § 1202.4, subd. (b).) Thus, while the fine imposed in this case was well within the statutory maximum at the time of the offense, the fine was higher than the minimum fine in effect at the time of the offense. Defendant contends the court intended to impose the minimum fine and erroneously exercised its discretion in doing so, adopting the higher minimum fine that was created by the Legislature after the date of commission of the crime. Defendant contends this scenario constitutes a violation of the ex post facto