P. v. Jessen CA6

Filed 6/27/13 P. v. Jessen CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H037830 (Santa Cruz County Plaintiff and Respondent, Super. Ct. No. F21097)

v.

ALVIN AUGUST JESSEN,

Defendant and Appellant.

A jury convicted defendant Alvin August Jessen of possession of methamphetamine for sale. (Health & Saf. Code, § 11378.) The trial court sentenced him to a “split” sentence of five years in county jail and two years of supervised release. (Pen. Code, § 1170, subd. (h).) On appeal, defendant contends (1) he received ineffective assistance of counsel when his trial counsel failed to object to the imposition of a $240 restitution fine that exceeded the statutory minimum of $200; (2) the trial court was not authorized to impose a probation revocation restitution fine because he was found ineligible for probation; and (3) the trial court violated his state and federal constitutional rights by issuing a supplemental sentencing order in his absence.1

1 In his opening brief, defendant set forth the additional claim that the trial court erred in refusing to award him an additional 191 days of conduct credit. The parties agree that the issue is now moot, since the trial court subsequently awarded the claimed conduct credit to defendant. Accordingly, we find the claim moot.

We find no merit to defendant's argument that he received ineffective assistance of counsel, but we agree with defendant and will accept respondent's concession that the court erred by imposing a separate probation revocation restitution fine, although we note that the erroneously imposed fine was a parole revocation restitution fine. We will order that fine stricken and the abstract of judgment corrected to remove it. We also conclude that the trial court erred by modifying defendant’s sentence by ex parte order. Accordingly, that order will be stricken. As so modified, we will affirm the judgment. FACTS At trial, two Santa Cruz police officers involved in defendant’s arrest testified to the following: They observed defendant and a female in an area known for the use of drugs and alcohol. As the officers approached, defendant turned away and dropped a black object into a nearby planter. Defendant then walked quickly through a parking lot and into a nearby bagel shop. One officer searched the planter and found a black pouch with a glass vial, numerous ziplock baggies, and several grams of methamphetamine. The other officer saw defendant watching them from a window at the bagel shop. The officers entered the shop and arrested defendant. A former Santa Cruz police officer testified to the facts of defendant’s prior arrest for possession of methamphetamine for sale in 2002. Defendant stipulated to prior convictions for possession of methamphetamine in 2005, 2007, and 2008. DISCUSSION I. Trial Counsel’s Failure to Object to the Restitution Fine Defendant argues that trial counsel provided ineffective assistance of counsel by failing to object to a restitution fine of $240. He contends that under the version of the statute applicable at the time he committed the offense, the statutory minimum restitution fine was $200. (Former Pen. Code § 1202.4, Stats. 2011 ch 45 § 1 (SB208).) Respondent contends that, notwithstanding the $200 minimum set forth in the statute, the trial court had the discretion to impose a greater fine of $240, and that trial counsel’s