People v. Joseph CA3 ( 2015 )

Filed 4/3/15 P. v. Joseph 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Sutter)
----
THE PEOPLE, C074168
Plaintiff and Respondent, (Super. Ct. No. CRF120234)
v.
TIMOTHY MICHAEL JOSEPH,
Defendant and Appellant.
In Sutter County case no. CRF120234, a jury found defendant Timothy Michael
Joseph guilty of possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a)),
knowingly bringing a controlled substance into a county jail (Pen. Code, § 4573),1
misdemeanor resisting a peace officer (§ 148, subd. (a)(1)), misdemeanor possession of
paraphernalia used to smoke a controlled substance (Health & Saf. Code, § 11364.1), and
misdemeanor possession of marijuana in an amount exceeding 28.5 grams (Health & Saf.
1 Undesignated statutory references are to the Penal Code in effect at the time of the
charged offenses.
1
Code, § 11357, subd. (c)). Defendant then admitted to committing a felony while
released from custody. (§ 12022.1.)
When defendant appeared for sentencing on his conviction in case
No. CRF120234, he also pleaded no contest to the following: grand theft (§ 487,
subd. (a)) in case No. CRF110836; willful failure to appear (§ 1320, subd. (b)) in case
No. CRF122310; and felony dissuasion of a witness (§ 136.1, subd. (a)) in case
No. CRF131039. The trial court dismissed numerous other pending misdemeanor cases2
and sentenced defendant to an aggregate term of five years eight months in state prison.
The trial court also ordered defendant to pay numerous fines and fees. Regarding the
mandatory restitution fines, the court said: “In each of these four cases, . . . the court is
required to order a minimum of $280 in restitution fines, and I’m going to select that
minimum amount, but that’s times four, so that’s a total of $1,120.” Defendant raised no
objection.
On appeal, defendant contends the trial court “violated [his] ex post facto rights
when it imposed restitution fines enacted after the dates of the offenses of which he was
convicted . . . .” He argues the restitution fines and parole revocation restitution fines
should be reduced to the statutory minimum that was in effect at the time he committed
those crimes. Specifically, defendant contends the fines in case No. CRF110836 should
be reduced to $200, and the fines in case Nos. CRF120234 and CRF122310 should be
reduced to $240.
DISCUSSION
A restitution fine is considered punishment for purposes of ex post facto analysis.
(People v. Hanson (2000) 23 Cal.4th 355, 360-362; People v. Valenzuela (2009)
2 On the People’s motion, the trial court dismissed the following, unrelated cases in the
interest of justice: CRTR130225, CRM111734, CRM121642, CRM121786, and
CRM111269.
2
172 Cal.App.4th 1246, 1248.) In Tapia v. Superior Court (1991) 53 Cal.3d 282, the court
held that a change in the law making conduct a crime when it had not been a crime prior
to the change, or increasing punishment for a crime, or eliminating a defense, violate ex
post facto principles if the new law is applied retrospectively. (Tapia, at p. 298.)
However, the $280 restitution fines and parole revocation restitution fines here
were within the lawful statutory discretionary range at the time of defendant’s offenses in
2011 and 2012. (§§ 1202.4, subd. (b) [$200/$240 minimum, $10,000 maximum],
1202.45.) Because the amount was not unauthorized, and because defendant did not
object to the amount of the restitution fine and parole revocation fine in the trial court, his
belated challenge to the amount of those fines is forfeited. (People v. Smith (2001)
24 Cal.4th 849, 852 [claim raised for the first time on appeal regarding the trial court’s
failure to properly make discretionary sentencing choice is forfeited].)
“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 (1994) 9 Cal.4th 331, 353.) Here, had
defendant raised the 2011 and 2012 minimum fine amounts 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.
3
DISPOSITION
The judgment is affirmed.
MURRAY , J.
We concur:
NICHOLSON , Acting P. J.
DUARTE , J.
4