Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Monterey County Super.Ct.No. SS063219
Duffy, J.
A jury convicted the defendant herein, José Manuel Ibáñez, of the forcible rape of a 16-year-old and assault on her that was likely to cause great bodily injury. The trial court sentenced him to life in prison with a 15-year minimum term. He contends on appeal that a fine should be reduced and his aggravated sentence was unconstitutional under the Sixth Amendment to the United States Constitution.
We will direct a modification of the judgment to lower the amount of a statutory fine, and with that modification will affirm it.
Defendant also seeks relief by way of petition for writ of habeas corpus in a separate matter, In re José Manuel Ibáñez on Habeas Corpus (H033005). In an order filed today, we have denied the habeas corpus petition.
FACTS AND PROCEDURAL BACKGROUND
A jury convicted defendant of forcible rape (Pen. Code, § 261, subd. (a)(2)) and assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)). Regarding the rape conviction, the jury found true an enhancement allegation that defendant personally inflicted great bodily injury on the victim (§ 12022.8) and, in addition, an allegation under the “One Strike” law that he personally inflicted great bodily injury on the victim during a forcible rape (§ 667.61, subd. (e)(3); id., former subd. (c)(1); Stats. 1998, ch. 936, § 9, No. 12 West’s Cal. Legis. Service, p. 5429). Regarding the aggravated assault conviction, the jury found true an enhancement allegation that he personally inflicted great bodily injury on the victim (§ 12022.7, subd. (a)). As noted, the trial court sentenced defendant to 15 years to life in prison under the One Strike law. (See § 667.61, subd. (b).) As relevant here, it also ordered defendant to pay a $1,080 fine under former section 290.3, subdivision (a) (Stats. 1995, ch. 91, § 121, pp. 346-347) as a sex offender who committed forcible rape in violation of section 261, subdivision (a)(2) (see former § 290, subd. (a)(2)(A); Stats. 2004, ch. 429, § 1, No. 2, West’s Cal. Session Law, p. 2915; ch. 731, § 1, No. 3, West’s Cal. Session Law, p. 4343; ch. 761, § 1.3, No. 3, West’s Cal. Session Law, p. 4518).
All statutory references are to the Penal Code unless otherwise indicated.
I. Prosecution Case
On September 10, 2005, defendant accosted a 16-year-old girl as she was walking on a sidewalk. He approached her and repeatedly asked her to go to a party with him. She declined. He also asked her name and she gave him her correct name, Rachelle. Defendant lay in wait for her as she continued to walk, grabbed her, and punched her in the face, breaking her jaw. He then pulled her pants and underwear down and raped her.
The victim ran to her sister’s nearby apartment and said she had been raped. Emergency personnel took her to a hospital. A medical examination yielded evidence of sexual assault, including bleeding around the victim’s external genital area, her broken jaw, the presence of sperm in her internal genitalia, and vegetation that coated her and also was found in her internal genitalia. Swabs were taken for deoxyribonucleic acid (DNA) analysis. The DNA evidence conclusively showed that defendant had engaged in sexual intercourse with the victim. Questioned by police, he denied any involvement.
II. Defense Case
Defendant testified on his own behalf. He told the jury that while driving his car down the street at which the rape took place, and on the day of the rape, he exchanged smiles with one Yesenia Romero, a stranger who was on foot, and the two ended up having consensual sex on a lawn. After engaging in sex they exchanged phone numbers, defendant returned to his car to go to a quinceañera party (a celebration in the Latino community of a girl’s fifteenth birthday), and Romero resumed her walk down the street. These events began about 5:30 p.m. and ended sometime around 6:30 to 7:00 p.m. When questioned by police about the rape he did not mention his encounter with Romero because the police were asking only about someone with the rape victim’s name, Rachelle, which was different, and the rape victim was younger than Romero. He did not commit any sexual assault.
Defendant’s testimony left unclear whether his version of events was that he had a consensual sexual encounter with the victim, Rachelle, or whether by coincidence he had a consensual sexual encounter with a different person, Yesenia Romero, on the same street and an hour or two before Rachelle was raped and beaten. His testimony lent support to both propositions. At closing argument, however, defense counsel offered the former version to the jury and did not rely on the latter possibility. Counsel argued that Rachelle had consensual sexual intercourse with defendant and then, contrary to her testimony that she did not have a boyfriend at the time of the attack, did have a boyfriend and went to visit him immediately after the consensual encounter with defendant, and he broke her jaw in a fight.
There was testimony from two other witnesses that defendant was at the quinceañera between 7:00 and 10:00 p.m. on the day of the rape. The significance of this evidence is that during the prosecution case the victim testified that she was attacked in the five o’clock hour of the afternoon, but the victim’s sister’s testimony suggested that the attack occurred in the seven o’clock hour. Also, the victim testified that dusk was descending about the time of the attack, and sunset that day occurred at 7:23 p.m. The police were summoned about 8:20 p.m.
DISCUSSION
I. Imposition of $1,080 Sex-Offender Fine
Defendant claims that the $1,080 fine the trial court imposed on him as a sexual offender under former section 290.3 is not legally authorized and that the fine should be reduced to the $200 that was in effect at the time. The People argue that defendant has forfeited this claim by failing to object to the amount during the proceedings below. But they agree that defendant is liable only for $200 plus penalty assessments.
We will entertain defendant’s claim on the merits. (People v. Barnwell (2007) 41 Cal.4th 1038, 1048, fn. 7.) Defendant’s claim presents “a pure question of law, easily remediable on appeal” (In re Sheena K. (2007) 40 Cal.4th 875, 888) and thus amenable to review even if no objection was raised below (see id. at p. 887, fn. 7).
We agree with the parties that the fine must be $200. The statute, former section 290.3, authorized only a $200 fine for a first conviction “of any offense specified in subdivision (a) of Section 290” (Stats. 1995, ch. 91, § 121, p. 346), which the parties agree is defendant’s situation, and conferred no discretion on a trial court to impose a greater amount on the basis of factual findings. (Cf. People v. Welch (1993) 5 Cal.4th 228, 235-237.) The court could have imposed no fine if it found that defendant could not pay the $200. (Stats. 1995, ch. 91, § 121, pp. 346-347.) Here, however, the court increased the fine beyond the authorized amount. We note in passing that the court gave no reason for imposing the $1,080 sum. Evidently it was relying on the probation report, which recommended imposing that charge under former section 290.3. But the probation report did not state a factual basis for the probation officer’s calculation. The parties have not identified any place in the record that might provide a factual basis for the $1,080 figure. But even if there were such a factual basis, there was no authorization under former section 290.3 for the $1,080 amount.
The People argue that a number of penalty assessments apply to increase the amount owed beyond the $200 fine. We will remand this case to the trial court to recalculate any penalty assessments and forward an amended abstract of judgment to the Department of Corrections and Rehabilitation.
II. Imposing Upper Term For Assault
Defendant claims that the trial court violated the federal and state constitutional guaranties against ex post facto laws and his constitutional right to due process of law by sentencing him to an aggravated term on one count, because it did so in reliance on the version of section 1170 in effect at the time of sentencing rather than the version in effect in 2005, when he committed his crimes. He also claims that the Legislature’s action in amending section 1170 to provide for more punishment violates the constitutional guaranties against ex post facto laws.
The trial court sentenced defendant to seven years’ imprisonment following his conviction of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)). Leaving aside a three-year enhancement that defendant does not challenge, the sentence reflects a four-year sentence for the crime, which is the upper term. (Ibid.)
Sentence was stayed on the aggravated assault count, but the People do not argue that the stay affects defendant’s claim, and we will assume that it does not. (Cf. People v. Martinez (2008) 166 Cal.App.4th 1598, 1604, 1606 [considering a claim ultimately based on Apprendi v. New Jersey (2000) 530 U.S. 466, even though sentence was stayed on certain counts].)
In 2005, when defendant raped his victim and broke her jaw, former subdivision (b) of section 1170 provided that “When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime.” (Stats. 2004, ch. 747, § 1, No. 3, West’s Cal. Session Law, p. 4448.) Section 245, subdivision (a)(1), is a statute of that type. In 2007, in response to the United States Supreme Court’s ruling in Cunningham v. California (2007) 549 U.S. 270 (Stats. 2007, ch. 3, § 1, No. 1 West’s Cal. Session Laws p. 4), the Legislature revised that provision to provide that the term to be imposed “shall rest within the sound discretion of the court.” (Stats. 2007, ch. 3, § 2, No. 1 West’s Cal. Session Laws, p. 4; § 1170, subd. (b).)
With commendable candor in a well-briefed appeal, defendant concedes that his claim may be foreclosed by People v. Sandoval (2007) 41 Cal.4th 825, which held that when a conviction is remanded for resentencing under the current version of section 1170, the trial court is to follow the current law and that doing so does not violate the ex post facto clauses of the California or United States Constitutions on which defendant relevantly relies here (U.S. Const., § art. I, § 10, cl. 1; Cal. Const., art. I, § 9). (Sandoval, supra, at pp. 853, 857.) Defendant argues that even if that is true, he is challenging Sandoval’s rationale so as to preserve the claim for federal review.
Defendant is correct to present a due process claim as well as an ex post facto claim. (See U.S. Const., amends. V, XIV; Cal. Const., art. I, §§ 7, 15.) Insofar as he is challenging the actions of the trial court (as noted, he challenges both the legislative change insofar as it applies to him and the sentence he received following that change), his claim is properly categorized as a due process claim. “ ‘On its face the ex post facto clause [citations] operates as a check only on the exercise of legislative power, but similar limitations apply to judicial enlargement of a criminal act under principles of due process.’ ” (People v. Huggins (2006) 38 Cal.4th 175, 213.) To be sure, such a due process claim is undergirded by ex post facto principles; for purposes of analysis, there is no difference. (See ibid.)
Therefore, we reject the claim that defendant’s sentence to the upper term for the aggravated assault charge violated ex post facto and due process constitutional guaranties.
DISPOSITION
The judgment is modified to reduce defendant’s fine under former section 290.3 of the Penal Code to $200, the fine then in effect (Stats. 1995, ch. 91, § 121, pp. 346-347). The trial court shall direct the parties to present their views on the application of penalty assessments to that fine. When the court has determined the total of the fine and any penalty assessments, it shall prepare a modified abstract of judgment reflecting the amount of the fine and any penalty assessments and forward the same to the Department of Corrections and Rehabilitation. With this modification, the judgment is affirmed.
WE CONCUR: Mihara, Acting P. J. McAdams, J.