People v. Jenkins CA3 ( 2014 )

Filed 1/31/14 P. v. Jenkins 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Butte)
----
THE PEOPLE, C072795
Plaintiff and Respondent, (Super. Ct. Nos.
CM035912, CM036513)
v.
KENNETH LEE JENKINS,
Defendant and Appellant.
Defendant Kenneth Lee Jenkins’s sole contention in this appeal is that the trial
court violated the prohibition against ex post facto laws when it imposed a restitution fine
of $240. We affirm.
We dispense with a detailed recitation of the facts as they are unnecessary to the
disposition of this appeal.
On August 30, 2012, a jury found defendant guilty of driving under the influence
of alcohol and driving with a blood-alcohol level of .08 percent or higher (DUI) --
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offenses committed on November 5, 2011. On September 20, 2012, defendant pleaded
no contest to failing to appear -- an offense committed in May 2012.
Sentencing took place on November 14, 2012. In addition to a five-year eight-
month prison term, the trial court imposed a $240 felony restitution fine in each case
under Penal Code section 1202.4, subdivision (b), which it characterized as “the
minimum restitution fine.” At the time of defendant’s DUI, November 5, 2011, that
statute provided for a fine between $200 and $10,000, “at the discretion of the court and
commensurate with the seriousness of the offense.” (Stats. 2011, ch. 45, § 1.) But
effective January 1, 2012, prior to trial and sentencing, the minimum fine was increased
to $240.1 (Stats. 2011, ch. 358, § 1.)
The ex post facto clauses of both the federal and state Constitutions prohibit any
statute which makes more burdensome the punishment for a crime after its commission.
(Tapia v. Superior Court (1991) 53 Cal. 3d 282, 294, 295.) “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, 30.)
Therefore, defendant was actually eligible for the earlier minimum fine of $200
for the DUI offense, given that he committed the offense before the minimum amount
was raised to $240. Furthermore, it appears from the trial court’s remarks that it would
have imposed a $200 fine for the DUI offense had defendant’s eligibility been brought to
its attention. There was, however, no objection to the $240 fine below.
“Although the cases are varied, a sentence is generally ‘unauthorized’ where it
could not lawfully be imposed under any circumstance in the particular case. Appellate
courts are willing to intervene in the first instance because such error is ‘clear and
correctable’ independent of any factual issues presented by the record at sentencing.
1 Defendant committed the failure to appear offense after the effective date of the
statutory revision and does not claim the $240 fine in that case is improper.
2
[Citation.]” (People v. Scott (1994) 9 Cal. 4th 331, 354.) The $240 fine could be lawfully
imposed on November 14, 2012 -- the date of defendant’s sentencing -- and was,
therefore, not unauthorized when imposed.
Because the fine was not unauthorized, defendant forfeited any claim that the trial
court mistakenly imposed more than the minimum fine by not raising it at the sentencing
hearing. “Although the court is required to impose sentence in a lawful manner, counsel
is charged with understanding, advocating, and clarifying permissible sentencing choices
at the hearing. Routine defects in the court’s statement of reasons are easily prevented
and corrected if called to the court’s attention. As in other waiver cases, we hope to
reduce the number of errors committed in the first instance and preserve the judicial
resources otherwise used to correct them.” (People v. Scott, supra, 9 Cal.4th at p. 353.)
Here, had defendant raised the 2011 minimum fine amount below, the trial court could
have corrected any error in the amount of the fine. Because he did not, he may not
challenge the fine on appeal.
DISPOSITION
The judgment is affirmed.
NICHOLSON , Acting P. J.
We concur:
DUARTE , J.
HOCH , J.
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