Filed 8/6/13 P. v. Leyva 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
                                                                                           F064921
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. BF139004C)
                   v.

ALEXANDER LEYVA,                                                                         OPINION
         Defendant and Appellant.



                                                   THE COURT
         APPEAL from a judgment of the Superior Court of Kern County. Michael E.
Dellostritto, Judge.

         John L. Staley, 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, Stephen G. Herndon and Alice
Su, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-

        Before Gomes, Acting P.J., Kane, J., and Detjen, J.
                                    INTRODUCTION
       On April 10, 2012, a jury found Alexander Leyva (appellant) guilty of possession
of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), and not guilty of
participation in a criminal street gang (Pen. Code, § 186.22, subd. (a)).1 In a bifurcated
proceeding, the trial court found true allegations that appellant had a prior serious felony
conviction within the meaning of the three strikes law (§§ 667, subds. (c)–(j); 1170.12,
subds. (a)-(e)) and a prior prison term enhancement (§ 667.5, subd. (b)).
       On May 8, 2012, the trial court struck the prior prison term enhancement and
sentenced appellant to the low term of 16 months, doubled to 32 months pursuant to the
three strikes law. The court imposed a restitution fine pursuant to section 1202.4,
subdivision (b) of $240 and a suspended fine of the same amount pursuant to section
1202.45.
       On January 1, 2012, an amendment to section 1202.4, subdivision (b) by the
Legislature became operative and increased the minimum restitution fine from $200 to
$240. Appellant contends, and respondent concedes, that his offense occurred prior to
the operative date of the amendment and therefore imposition of the increased fine
constitutes a violation of the ex post facto clause of the United States and California
Constitutions. We agree and will reverse the trial court’s restitution fine.
                                      DISCUSSION
       An amendment to section 1202.4, subdivision (b) was passed as urgency
legislation on July 1, 2011, and set the minimum restitution fine at $240 to become
operative on January 1, 2012. (Stats. 2011, ch. 45, § 1, p. 1830, eff. July 1, 2011; Stats.
2011, ch. 358, § 1, p. 3759.) Appellant’s offense occurred on October 17, 2011, prior to
the operative date of the statutory amendment.




1      All further statutory references are to the Penal Code.


                                             2.
       Under ex post facto principles, the amount of a fine is determined as of the date of
the offense. (See People v. Saelee (1995) 35 Cal.App.4th 27, 30.) In this case, the trial
court erred in imposing $240 fines pursuant to sections 1202.4, subdivision (b) and
1202.45. The fines must be reduced to $200 in accordance with the provisions of statutes
in effect at the time appellant committed the offense.
                                      DISPOSITION
       The trial court’s restitution fine is vacated and the judgment is modified to reduce
the fine imposed pursuant to section 1202.4, subdivision (b) to $200 and to set the stayed
fine pursuant to section 1202.45 in the same amount. The trial court is directed to amend
the abstract of judgment accordingly and to send a certified copy of it to the appropriate
authorities. In all other respects, the judgment is affirmed.




                                             3.
