Opinion
C072223
08-15-2013
THE PEOPLE, Plaintiff and Respondent, v. CHAD EARL WATTS, Defendant and Appellant.
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. SF116252A)
Defendant Chad Earl Watts pled no contest to second degree robbery, and admitted he was personally armed with a handgun when he committed the robbery. He was sentenced to prison.
On appeal, defendant contends (1) the imposition of restitution and parole revocation fines in the amount of $240 constituted an ex post facto application of the law, and (2) he should have received credit for two additional days spent in presentence custody. The People concede both claims of error. We agree only with defendant's second contention. Accordingly, we remand the matter back to the trial court for recalculation of defendant's presentence custody credits, and otherwise affirm the judgment.
DISCUSSION
We dispense with the facts of defendant's crime as they are unnecessary to our resolution of this appeal.
I. The Restitution Fine was Not Unauthorized and Requires No Modification
At sentencing, the trial court ordered defendant "to pay [a] $240 restitution fine" pursuant to Penal Code section 1202.4. The court also imposed and stayed a parole revocation fine pursuant to section 1202.45 in the same amount. Defense counsel made no objection to either fine.
Further statutory references are to the Penal Code.
On appeal, defendant contends both $240 fines should be reduced to $200 because the minimum was $200 when he committed his offense in 2010. (Compare Stats. 1994, ch. 1106, § 3, p. 6548 with Stats. 2011, ch. 358, § 1; see People v. Holman (2013) 214 Cal.App.4th 1438, 1452, fn. 3.) Defendant essentially contends that using the minimum at the time of the sentencing hearing amounted to an ex post facto violation. The People agree. We do not.
True, an excessive fine may constitute an ex post facto violation and an unauthorized sentence can be challenged for the first time on appeal when the fine imposed exceeds the maximum amount allowed at the time the defendant committed his offense. (See People v. Valenzuela (2009) 172 Cal.App.4th 1246, 1249 [appellate court reduced $300 fine to applicable statutory maximum of $200]; see also People v. Smith (2001) 24 Cal.4th 849, 852.) But the restitution $240 fine was not "unauthorized" when imposed because the Penal Code provision in effect when defendant committed the crime permitted restitution and parole revocation fines to be imposed in a range between $200 and $10,000. Thus, the $240 fines imposed on defendant were not unauthorized but within statutory limits.
Moreover, nothing in the record suggests the trial court intended to impose the applicable statutory minimum. The fact that the court could have imposed restitution and parole revocation fines as small as $200 based on the operative Penal Code provision does not render the $240 fines the court did impose unauthorized. Because the amount of the fines the court imposed was within its power, defendant's failure to challenge the $240 fines in the trial court precludes him from challenging it for the first time on appeal. (Cf. People v. Smith, supra, 24 Cal.4th at p. 852.)
II. The Matter is Remanded for Recalculation of Defendant's Custody Credits
At sentencing, the trial court awarded 134 days' credit for time spent in actual custody (from November 4, 2010, to March 17, 2011), plus 354 days (from August 17, 2011, to August 6, 2012), for a total of 488 actual days spent in custody.
Defendant claims he is entitled to two additional days' credit for time spent in presentence custody -- 356, rather than 354, days for his second "stint" in jail -- because the trial court failed to properly credit each day he spent in custody, including both the day of his arrest and sentencing. The People agree that defendant should have received 356 days' credit, rather than 354, for the second period spent in custody. They ask that we remand the matter to the trial court for recalculation of defendant's custody credits, in accordance with section 2900.5, subdivision (d) [imposing on the trial court the duty of determining the dates spent in custody and the total number of days to be credited]. We shall do so.
DISPOSITION
The matter is remanded for a recalculation of defendant's presentence custody credits. The trial court shall prepare an amended abstract of judgment reflecting the change (if any) in the award of custody credits and shall forward a copy of the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
BLEASE, Acting P. J. We concur:
NICHOLSON, J.
HULL, J.