People v. Miguel CA3

Filed 9/7/16 P. v. Miguel 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent, C080164
v. (Super. Ct. No. 14F05926)
GUILLERMO LOPEZ MIGUEL,
Defendant and Appellant.
Defendant Guillermo Lopez Miguel pleaded no contest to lewd and lascivious
conduct upon the same victim under the age of 14 years. (Pen. Code, § 288, subd. (a) --
counts two, eight, and seventeen.)1 In connection with count seventeen, defendant
admitted inflicting great bodily injury. (§ 12022.7.) The parties stipulated to a minimum
sentence of 13 years and a maximum sentence of 15 years. The trial court sentenced
defendant to an aggregate term of 13 years in prison and dismissed the remaining
14 counts on the prosecutor’s motion.
1 Undesignated statutory references are to the Penal Code.
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Defendant now contends the trial court violated ex post facto principles in
imposing a $300 restitution fine (§ 1202.4, subd. (b)(1)) and a $300 parole revocation
fine (§ 1202.45, subd. (a)) because his count two offense was committed between June 1,
2012, and July 30, 2012, his count eight offense was committed between November 28,
2012, and September 30, 2013, and his count seventeen offense was committed between
October 1, 2013, and November 3, 2013. In the alternative, defendant contends his trial
counsel rendered ineffective assistance in failing to object to the restitution and parole
revocation fines.
DISCUSSION
We dispense with a further recitation of the facts because they are not relevant
to defendant’s contentions on appeal. Section 1202.4, subdivision (b)(1) provides in
relevant part: “The restitution fine shall be set at the discretion of the court and
commensurate with the seriousness of the offense. If the person is convicted of a felony,
the fine shall not be less than two hundred forty dollars ($240) starting on January 1,
2012, two hundred eighty dollars ($280) starting on January 1, 2013, and three hundred
dollars ($300) starting on January 1, 2014, and not more than ten thousand dollars
($10,000).”
Defendant asserts that $300 was not the minimum fine amount for his offenses
committed in 2012 and 2013. He argues the minimum amount was $240 for 2012 and
$280 for 2013. According to defendant, the trial court “clearly” intended to impose the
minimum statutory amounts for the fines because it said it would “impose only the
mandatory fees and fines” but “waive any discretionary fees and fines.” Defendant
claims only the minimum amount of each fine is mandatory; any higher amount is
discretionary.
The People counter that defendant forfeited this contention because he did not
object in the trial court. We will address the merits of the contention because defendant
also asserts ineffective assistance of counsel. The People add that there was no ex post
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facto violation because the $300 amount was within the authorized range for the fines,
and defense counsel was not deficient in not objecting because probation was
recommending $4,500 fines.
We conclude there was no ex post facto violation and defendant has not
established ineffective assistance. Defendant does not point us to anywhere in the record
where the trial court said it intended to impose the “minimum” amount of the mandatory
fines. Based on our reading of the record, the trial court expressed its intent to impose
mandatory fines, e.g., a restitution fine and a parole revocation fine. It did not express
the intent to impose a minimum mandatory fine. The $300 amount was not unauthorized
because it was within the authorized range. Moreover, defendant cannot show that
defense counsel’s failure to object was deficient or resulted in prejudice, given that
probation recommended significantly higher fines and the trial court did not indicate that
it intended to impose minimum amounts.
DISPOSITION
The judgment is affirmed.
/S/
MAURO, J.
We concur:
/S/
HULL, Acting P. J.
/S/
MURRAY, J.
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