Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 00F09108
SCOTLAND, P.J.
A 17-year-old girl reported that defendant Joseph Arthur Keith had sexual intercourse with her at least twice when she was under the age of 14 and that he was the father of her four-year-old child. Defendant was convicted of two counts of lewd and lascivious conduct on a child under the age of 14 (Pen. Code, § 288, subd. (a)), with substantial sexual contact as to each count (Pen. Code, § 1203.066, subd. (a)(8)). Finding defendant had two prior serious or violent felonies within the meaning of the three strikes law, the court sentenced him to prison for 50 years to life.
Defendant appealed. He asserted, the People conceded, and this court agreed that one of the prior felony convictions alleged as to count II had to be stricken because it took place after the conduct alleged in count II and, thus, could not be used for sentencing on that count. Accordingly, this court struck the felony conviction in 1994 as to count II only, remanded the matter for resentencing, and otherwise affirmed the judgment. (People v. Keith (Oct. 22, 2004, C039846) [nonpub. opn.].)
On remand, the trial court sentenced defendant on count II to a consecutive sentence of 12 years (the middle term doubled) and, among other things, ordered him to pay a $10,000 restitution fine (Pen. Code, § 1202.4), and another $10,000 restitution fine which was stayed unless parole is revoked (Pen. Code, § 1202.45).
Defendant again appealed, claiming imposition of the Penal Code section 1202.45 fine constituted an impermissible ex post facto punishment because the crime in count II was committed prior to the enactment of the fine. (People v. Callejas (2000) 85 Cal.App.4th 667, 678 [“the ex post facto clause forbids imposing a parole revocation fine on a parolee who committed the underlying crime prior to the enactment of the fine”].)
The People properly concede that the fine must be stricken because Penal Code section 1202.45 became effective on August 3, 1995 (Stats. 1995, ch. 313, § 6, p. 1758) whereas defendant’s crime alleged in count II was committed before July 1995.
It was determined at trial that count I was based on an act of sexual intercourse with the victim in July 1995, nine months before her child was born, and that count II was based on an earlier act of sexual intercourse.
DISPOSITION
The judgment is modified by striking the Penal Code section 1202.45 fine. As modified, the judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect this modification and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur: DAVIS, J., NICHOLSON, J.