Filed 12/6/13 P. v. Aguilar 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
                                                                                           F066541
         Plaintiff and Respondent,
                                                                            (Super. Ct. Nos. F11904337 &
                   v.                                                                F11903816)

BENITO ALFREDO AGUILAR,
                                                                                         OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. Alvin M.
Harrell III, Judge.
         James M. Crawford, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Brook A. Bennigson and Jennevee H. de Guzman, Deputy Attorneys General,
for Plaintiff and Respondent.
                                                        -ooOoo-

*        Before Kane, Acting P.J., Detjen, J. and Franson, J.
       Defendant Benito Alfredo Aguilar pled guilty on November 1, 2012, to second
degree commercial burglary (Pen. Code, §§ 459, 460, subd. (b))1 for an offense he
committed on November 14, 2010, in Fresno Superior Court case No. F11903816. The
trial court sentenced him to two years in prison, to run concurrently with the sentence the
court imposed on an unrelated case (Fresno Super. Ct. case No. F11904337). The court
also imposed various fees and fines, including a $1,440 restitution fine pursuant to
section 1202.4. The court stated only the following regarding the restitution fine:
“Furthermore, pursuant to Penal Code Section 1202.4, the court orders a restitution fine
of 1,440 dollars.” According to the minute orders and abstract of judgment, the
restitution fine was divided into a $240 fine in the present case and a $1,200 fine in the
unrelated case.
       On appeal, defendant challenges only the $240 fine. He contends the trial court
applied section 1202.4 retroactively because it relied on the amended version of the
statute, effective on January 1, 2012, to impose the $240 fine—which, he claims, the
court intended to be the minimum allowed under the statute. Defendant asserts the
court’s alleged reliance on the amended statute was a violation of the prohibition against
ex post facto laws.
       Effective January 1, 2012, section 1202.4 was amended to increase the minimum
restitution fine from $200 to $240. (§ 1202.4, subd. (b)(1), as amended by Stats. 2011,
ch. 358, § 1, p. 3759.) “A restitution fine qualifies as punishment for purposes of the
prohibition against ex post facto laws. [Citations.]” (People v. Saelee (1995) 35
Cal.App.4th 27, 31.) But there is nothing in the record to support defendant’s supposition
that the trial court relied on the most recent version of section 1202.4 when it imposed the
restitution fine, or that the court intended to impose only the minimum fine allowed under
the statute. The court merely imposed the fine without comment. Because the fine was
1      All statutory references are to the Penal Code unless otherwise noted.



                                             2.
well within the range of fines authorized at the time of defendant’s commission of the
2010 offense, and there is nothing in the record indicating that the court imposed the fine
pursuant to the amended version of the statute, defendant’s ex post facto claim fails.
                                     DISPOSITION
       The judgment is affirmed.




                                             3.
