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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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,

Plaintiff and Respondent,

v.

ALEXANDER LEYVA,

Defendant and Appellant.

F064921

(Super. Ct. No. BF139004C)

OPINION

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.
2.

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. 
3.

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.