Filed 1/27/16 P. v. Hensley CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                    (San Joaquin)
                                                            ----




THE PEOPLE,                                                                                  C079067

                   Plaintiff and Respondent,                                    (Super. Ct. No. SC054773A)

         v.

PAUL LOYDE HENSLEY,

                   Defendant and Appellant.



         In this appeal we hold the trial court violated the ex post facto clause of the
Constitution by imposing a parole revocation fine and a 10-year term for a firearm use
enhancement, when, at the time the instant crimes were committed, parole revocation
fines had not yet been enacted, and the maximum upper term for a firearm use
enhancement was five years.
                         FACTUAL AND PROCEDURAL BACKGROUND
         Defendant Paul Loyde Hensley was convicted in 1994 of: (a) first degree murder
and robbery of Larry Shockley, burglary of his home, and theft of his car; (b) first degree
murder and robbery of Gregory Renouf and burglary of his home; (c) attempted murder
and robbery of Stacy Copeland; (d) robbery of Scott Rooker; and (e) escape from county
jail. (People v. Hensley (2014) 59 Cal.4th 788, 792.) Relevant to this appeal, the jury
“also found that defendant used a firearm in the commission of every offense except the
burglary and escape charges.” (People v. Hensley, supra, 59 Cal.4th at p. 792; see former
Pen. Code1 § 12022.5, as amended by Stats. 1990, ch. 41, § 3.)
       The murders, attempted murder, robberies, burglaries, and vehicle theft were all
committed in October 1992. The escape occurred in June 1993. (People v. Hensley,
supra, 59 Cal.4th at pp. 793-794.)
       In October 1995, the trial court sentenced defendant to death on the capital murder
counts and sentenced defendant on the noncapital offenses. In 2014, our Supreme Court
reversed the death sentence due to prejudicial jury misconduct. (People v. Hensley,
supra, 59 Cal.4th at p. 792.) The court also found sentencing errors unrelated to the
death sentence, and remanded the matter for retrial on the penalty phase and for
resentencing on the noncapital portion of the sentence. (Id. at pp. 792, 829.)
       In March 2015, after the People elected not to retry defendant’s penalty phase, the
trial court sentenced defendant to two life terms without the possibility of parole, plus an
unstayed total of 40 years eight months. Relevant to this appeal, the sentence included
firearm use enhancements (§ 12022.5, subd. (a)) and a suspended $330 parole revocation
fine (§ 1202.45), which was reflected in the abstract of judgment.
                                       DISCUSSION
       In October 1992, when defendant committed his crimes, the prescribed additional
sentence for a firearm use enhancement was three, four, or five years. (Former
§ 12022.5, subd. (a), as amended by Stats. 1990, ch. 41, § 3.) In 1994, the terms were




1      Further undesignated references are to the Penal Code.
changed to three, four, or ten years. (Stats. 1994, First Ex. Sess. 1994, ch. 31, § 3; see
also People v. Hall (1994) 8 Cal.4th 950, 954, fn. 3.) In addition, the Legislature did not
authorize parole revocation fines until 1995. (§ 1202.45, added by Stats. 1995, ch. 313,
§ 6.)
        A statute that retroactively increases the punishment for criminal acts violates the
federal and California constitutional prohibitions against the ex post facto application of
laws. (U.S. Const., art. I, § 10, cl. 1; Cal. Const., art. I, § 9; Collins v. Youngblood (1990)
497 U.S. 37, 42-43 [111 L.Ed.2d 30, 38-39]; People v. Snook (1997) 16 Cal.4th 1210,
1220-1221.) Because the upper term for a firearm use enhancement was five years at the
time, it was improper to impose a 10-year term. It was also improper to impose three
years four months as one-third of an upper term for a firearm use enhancement, when, in
1992, one-third of the upper term was 20 months.
        In addition, it was improper to impose a parole revocation fine when the
underlying offense was committed before this fine was enacted. (People v. Callejas
(2000) 85 Cal.App.4th 667, 676-678.)
                                       DISPOSITION
        The conviction is affirmed. The sentence is vacated and the matter is remanded to
the trial court for resentencing in accordance with this opinion. In all other respects, the
judgment is affirmed.

                                                   /s/
                                                   Robie, J.
We concur:


/s/
Blease, Acting P. J.


/s/
Hull, J.
