Opinion
B335455
12-27-2024
THE PEOPLE, Plaintiff and Respondent, v. DAMON EDWARD SWANIGAN, Defendant and Appellant.
Cindy Brines, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County Super. Ct. No. KA038012, Juan Carlos Dominguez, Judge.
Cindy Brines, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.
BENDIX, J.
In 1998, a jury convicted appellant Damon Edward Swanigan of two counts of robbery and found he personally used a firearm. Pursuant to the "Three Strikes" law (Pen. Code,§§ 1170.12, subds. (a)-(d) and 667, subds. (b)-(i)), the original sentencing court sentenced appellant to two concurrent 45 year-to-life indeterminate terms, which included a firearm enhancement and two section 667, subdivision (a)(1) enhancements. After the secretary of the California Department of Corrections and Rehabilitation (CDCR) recommended resentencing appellant, the resentencing trial court struck the section 667, subdivision (a)(1) and firearm enhancements and sentenced him to concurrent 25 year-to-life indeterminate terms, rendering him immediately eligible for parole. The trial court, however, refused to strike one of appellant's strike convictions. It is this denial that is before us for review.
Undesignated statutory citations are to the Penal Code.
Appellant argues the trial court abused its discretion when it failed to understand and therefore exercise its discretion to strike his prior strike conviction. We conclude appellant's argument is premised on a mischaracterization of the record. In fact, the record demonstrates the trial court understood its discretion, carefully considered whether to strike a strike conviction, and exercised its discretion to sentence appellant as a third strike offender, while at the same time making appellant immediately eligible for parole by striking the firearm and prior serious felony enhancements.
Appellant also argues the court erred in failing to apply section 1385, subdivision (c) mitigation factors when deciding whether to strike the prior strike conviction. Those factors are inapplicable because they apply to enhancements, not to alternate sentences under the Three Strikes law.
Finally, appellant contends the trial court's imposition of a $300 restitution fine violates the prohibition against ex post facto laws. Because the $300 fine was within the range then authorized by statute, appellant fails to demonstrate error.
In sum, we affirm.
BACKGROUND
1. The jury convicts appellant of two counts of robbery and the court sentences him pursuant to the Three Strikes law
In 1998, the jury convicted appellant of two robbery counts and found true that appellant personally used a firearm in each robbery. Appellant states, "In addition, two prior robbery convictions were found true as prior serious felony convictions and 'strikes.' "
The trial court sentenced appellant to concurrent 45 year-to-life indeterminate sentences for the two robberies and the firearm and section 667, subdivision (a) enhancements. The sentence for each robbery consisted of a 25 year-to-life indeterminate term plus 10 years for the firearm enhancement and 10 years for the two section 667, subdivision (a)(1) prior serious felony convictions. The court ordered appellant pay a $200 restitution fine. In 2015, the court amended the sentence as to one of the robberies and ordered a 35-year-concurrent sentence.
2. The secretary of the CDCR recommends resentencing
In a July 13, 2022 letter, the secretary of the CDCR recommended recalling appellant's sentence pursuant to section 1170.03, subdivision (a)(1) (later renumbered as 1172.1).The secretary indicated that effective January 1, 2019, courts were authorized to strike section 667, subdivision (a)(1) enhancements. In light of "the court's newfound authority to not impose a consecutive enhancement pursuant to [section] 667(a)(1)," the secretary recommended resentencing appellant. The secretary's letter made no reference to striking a prior strike conviction and no recommendation that the trial court do so.
Section 1172.1, subdivision (a)(1) provides: "When a defendant, upon conviction for a felony offense, has been committed to the custody of the Secretary of the [CDCR] or to the custody of the county correctional administrator pursuant to subdivision (h) of Section 1170, the court may, on its own motion, within 120 days of the date of commitment or at any time if the applicable sentencing laws at the time of original sentencing are subsequently changed by new statutory authority or case law, at any time upon the recommendation of the secretary or the Board of Parole Hearings in the case of a defendant incarcerated in state prison, the county correctional administrator in the case of a defendant incarcerated in county jail, the district attorney of the county in which the defendant was sentenced, or the Attorney General if the Department of Justice originally prosecuted the case, recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if they had not previously been sentenced, whether or not the defendant is still in custody, and provided the new sentence, if any, is no greater than the initial sentence. Recall and resentencing under this section may be initiated by the original sentencing judge, a judge designated by the presiding judge, or any judge with jurisdiction in the case."
Section 667, subdivision (a)(1) provides: "A person convicted of a serious felony who previously has been convicted of a serious felony in this state or of any offense committed in another jurisdiction that includes all of the elements of any serious felony, shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately. The terms of the present offense and each enhancement shall run consecutively."
In his supplemental brief filed in the trial court, appellant incorrectly states the secretary recommended appellant be sentenced to a determinate sentence.
The letter describes the facts underlying appellant's two 1998 robbery convictions as follows: "On October 15, 1997 . . . Swanigan entered a Ross Dress for Less store . . . armed with a handgun. He contacted two female employees at gunpoint, and ordered them to give him the money from the store safe. The employees feared for their safety and complied with Swanigan's orders."
The secretary reported that the trial court sentenced appellant as a third-strike offender, and he received an enhancement for using a firearm and two enhancements pursuant to section 667, subdivision (a)(1). Under that sentence, appellant's minimum parole eligibility date would have been on February 26, 2037.
Appellant's criminal history included the following crimes: 1988 assault with a deadly weapon, 1989 carrying a concealed weapon, 1989 robbery, 1991 giving false information to a peace officer, and 1991 robbery. The CDCR attached to the secretary's letter an evaluation describing appellant's current offense as "includ[ing] violent acts...." Additionally, the CDCR reported appellant was on parole when he committed the offenses underlying his current commitment. The CDCR also reported appellant is a "Level II inmate, with a classification placement score of 19." The CDCR did not further explain these classifications. According to the prosecutor, the classifications reflect a low recidivism risk.
The prosecutor represented appellant acted as a lookout in both prior robberies. A 1990 probation report states that in the 1989 robbery, appellant and a companion entered a store and the companion pointed a gun at the cashier and demanded money while appellant acted as a lookout. As he was driving away, appellant refused to yield to a police vehicle causing a high speed chase to ensue. The 1990 probation report describes appellant as a then "19-year-old gang-oriented individual ...."
According to the CDCR evaluation, while incarcerated, appellant had 19 reported rules violations, including two in 2021 and two in 2017. Also while incarcerated, appellant enrolled in college programs. Reports of appellant's work history most recently showed "above satisfactory marks" and that he "improved greatly, became dependable, was always on time, and got along well with others." Entries in 2021 included "below average marks" and "unsatisfactory marks." For example, on February 26, 2021, "Swanigan received unsatisfactory marks in all reviewable categories for his performance as a main kitchen cook's helper. The CDRC noted appellant showed no interest in working and had a lack of motivation. When counseled about his work ethic, appellant would respond," 'You can send me home.' "
3. Appellant filed a motion to dismiss a strike offense and the firearm enhancement
Appellant argued based on section 1385, subdivision (a) and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) that striking one of appellant's prior felony convictions would be in furtherance of justice. Appellant contended appellant "continuously worked to better himself" while incarcerated and that his 45-year sentence "does not fit within the spirit of the three strikes law" because the robberies did not involve violence and appellant did not fire his firearm.
The People agreed the trial court should strike a prior strike conviction and requested the court sentence appellant as a second strike offender. The People argued since 2017, appellant has demonstrated a "true transformation." According to the People, a risk assessment showed appellant received "the lowest score possible for someone serving a life sentence." The People explained, "When Mr. Swanigan was sentenced to an indeterminate life sentence in 1998, Mr. Swanigan's sentence was aligned with what was considered the best public safety practices. What is considered best practices for public safety, however, has evolved. We now understand that public safety is not best achieved through overly harsh punishments that ignore rehabilitation." The People also relied on mitigating factors set forth in section 1385, subdivision (c).
The People's recommendation was based on appellant waiving time credits and securing a comprehensive reentry plan upon release. In a supplemental brief, appellant indicated he would agree to any conditions the court believed were necessary for his release.
The People cited "ERMS" and "SOMS" for their assertions about appellant's background. Those documents are not further identified or included in the appellate record.
The People attached to their brief an exhibit showing that in November 2020, appellant denied gang affiliation and was a dropout of the Crips gang.
4. Resentencing hearing
At the start of the September 27, 2023 hearing, the trial court acknowledged appellant was entitled to a full resentencing. The court also recited the People were requesting the court to strike one of the strikes and sentence him as a second striker if appellant stipulated to certain aggravating factors and waiver of time credits. The court summarized appellant's criminal history and disciplinary history. The court then stated, "I'm on the fence on striking the strike based on he hasn't had a great history in the Department of Corrections. For [the] last five years, apparently he's done okay."
The court asked defense counsel to describe whether appellant followed the rules while incarcerated and was likely to follow the rules if released from incarceration. The court stated, "[T]his was an individual who was given plenty of opportunities to conform, doesn't conform, goes to state prison, and then goes through a lengthy period of time of nonconformance." Defense counsel responded by noting appellant was working and educating himself while incarcerated. Defense counsel also noted appellant's risk assessment was low and appellant was a "50-something-year-old" with family support.
The prosecutor agreed with defense counsel in asserting appellant had a low risk assessment for recidivism and improved his work ethic while incarcerated. The prosecutor based her observations on her reading of appellant's "C-file," which she does not further identify. The prosecutor also asserted appellant sought treatment for mental health issues and was stable.
The trial court then stated, "I'm trying to flesh out everything. And it may sound that I'm on a particular track here, which I'm absolutely not, because I do see his work history ...." The court pointed out appellant was lawfully convicted as a "third striker" and would be sentenced pursuant to the Three Strikes law if currently convicted. The court further indicated, "I have to make that decision based on the interest of justice, and I'll do that." The court added that it needed to make sure it "looked at everything"; the court continued the hearing for its further review.
At the continued hearing, the court stated, "I reviewed carefully the information that I have ...." The court asked about violations occurring in 2021, and defense counsel responded those violations concerned "the requirement for a Covid vaccine ...."
The court asked about a February 26, 2021 entry of "unsatisfactory marks" for appellant's performance as a cook's helper. The court noted that on June 6, 2021, appellant again received below average marks for his performance as a cook's helper but that in August 2021, appellant received satisfactory remarks for his role as a cook's helper.
The court asked if striking all enhancements would render appellant immediately eligible for parole. Defense counsel argued that any concern over who should decide whether appellant should reenter society had been addressed by the prosecutor. The prosecutor indicated appellant would be immediately eligible for parole if the court struck all enhancements. Defense counsel and the prosecutor again requested the court strike a prior strike offense.
The court explained that although the People argued appellant posed a "minimum" risk of recidivism, the court lacked information from the CDCR about appellant's risk. The court also stated appellant's strike prior was "almost identical" to the instant offense.
The court further observed," '[A] court's great power to dismiss a prior strike conviction should be only used in extraordinary circumstances when the ends of justice demand it.'" The court explained, a trial court" 'abuses its discretion when it dismisses a defendant's prior strike conviction[ ] in the absence of extraordinary circumstances that would take the defendant outside the spirit of the Three Strikes law.'" The court continued, "I don't know that Mr. Swanigan's performance while in prison is extraordinary circumstances ...." The court reiterated, "With Mr. Swanigan, his ability to follow the rules is what concerns me. [¶] And I think that the parole board would be best positioned to make a determination of whether he should be released back to the community."
Appellant addressed the court: "I've been working hard to go home. You know what I mean? It's great that you read about me, about the job performance. You know? It was complicated. There was a bunch of stuff going on that wasn't comfortable to me. I wasn't being disrespectful to nobody. I just was trying to coexist without getting angry or fighting or anything like that."
The court told appellant, "I've taken into consideration all of the good things that you've done, and I've taken, also, into consideration the things that were not so good ...." The court stated it had considered appellant's hard work. The court also stated it would reduce appellant's sentence by 20 years. The court explained that with that reduction, appellant would be immediately eligible for parole.
The court the resentenced appellant to concurrent life terms with a 25-year minimum eligibility date. The court struck all enhancements. The court ordered appellant pay a $300 restitution fine.
DISCUSSION
A court abuses its sentencing discretion when it acts arbitrarily and capriciously, relies on improper matter in reaching its decision, or is unaware of the scope of its discretion so that it does not exercise informed discretion at all. (People v. Panozo (2021) 59 Cal.App.5th 825, 837.) To demonstrate an abuse of discretion in the context of an appeal from the denial of a motion to strike a prior strike conviction, appellant must demonstrate an "extraordinary case" where the relevant factors, "manifestly support the striking of a prior conviction and no reasonable minds could differ ...." (People v. Carmony (2004) 33 Cal.4th 367, 378 (Carmony).) The burden is on the party challenging the sentencing decision to show the trial court abused its discretion. (People v. Lee (2017) 16 Cal.App.5th 861, 866.) A"' "decision [whether to strike a prior strike offense] will not be reversed merely because reasonable people might disagree. 'An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.'"' [Citation.]" (Carmony, at p. 377.)
A. Appellant's Argument the Trial Court Failed To Exercise Its Discretion When Denying Appellant's Motion to Strike a Strike Conviction Is Not Supported by the Record
The Three Strikes law requires all third strike offenders to receive a life sentence with the "minimum term" (the amount of time they must serve before becoming eligible for parole) as the longest of three options, one of which is the sentence appellant received-an indeterminate life term with a minimum of 25 years. (§ 667, subd. (e)(2)(A); People v. Dotson (1997) 16 Cal.4th 547, 550, 552.) The trial court may, either on its own motion or on application of the parties, dismiss a prior felony conviction allegation under the Three Strikes law "in furtherance of justice." (§ 1385, subd. (a); Romero, supra, 13 Cal.4th at pp. 529-530.)" '[T]he court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.' [Citation.]" (Carmony, supra, 33 Cal.4th at p. 377.)
Appellant recognizes that he "comes with[in] the strict parameters of the three strikes law ...." He argues, "In denying the Romero motion, the trial court prejudicially failed to exercise its discretion, and thereby abused its discretion." (Boldface &some capitalization omitted.)
In considering appellant's request to strike a strike offense, the trial court acknowledged it had the power to dismiss a prior felony conviction" 'when the ends of justice demand it.'" The trial court also said it would strike a prior strike conviction if it found doing so would serve the interest of justice. The court ultimately found no extraordinary circumstances supporting striking a strike conviction. The fact the court ultimately concluded not to strike one of appellant's strike convictions does not demonstrate the court misunderstood its discretion or did not exercise its discretion in the first place. In sum, the court's statements demonstrate the court was aware of its discretion and the findings it had to make to support striking a prior strike convictions.
To support his argument to the contrary, appellant relies on premises not supported by the record. For example, he states, the "court questioned its power to dismiss a strike ...." As explained above, the record shows the court was well-aware of its discretion to strike a strike. Indeed, the court continued the hearing to review the information the parties provided in aid of that discretion. Appellant also contends, "[T]here is no clear indication in the record that the trial court would not have reduced appellant's sentence had it understood the proper scope of its discretion." (Boldface &some capitalization omitted.) This argument depends on the premise that the court did not understand its discretion, which as we have explained is not supported by the record.
The record also does not support appellant's contention the trial court delegated its authority to decide whether to dismiss a prior strike conviction to the Board of Parole Hearings (parole board). The trial court did not direct the parole board to decide whether to strike a prior strike conviction. Instead, it noted its sentencing decisions to strike the enhancements rendered appellant immediately eligible for parole and given that eligibility, the parole board would decide whether to release appellant.
Finally, appellant argues the "nature" of his prior strikes, "the circumstances of the current offense," and his "personal characteristics and prospects supported striking his prior strike conviction." (Boldface &apitalization omitted.) Appellant's arguments fail to consider our standard of review.
To reiterate, to demonstrate an abuse of discretion in an appeal from the denial of a motion to strike a prior strike conviction, appellant must show that this is an "extraordinary case" such that the relevant factors, "manifestly support the striking of a prior conviction and no reasonable minds could differ ...." (Carmony, supra, 33 Cal.4th at p. 378.) Appellant does not make that showing. Instead, he reargues facts marshalling only evidence in his favor. Significantly, appellant fails to acknowledge the trial court's concern that appellant failed to follow rules, particularly noting his recidivism and unsatisfactory performance while incarcerated, including as recently as in 2021.
B. Section 1385, Subdivision (c) Does Not Apply to Requests To Strike a Strike Conviction
Effective January 1, 2022, Senate Bill No. 81 (2021-2022 Reg. Sess.) added section 1385, subdivision (c)(1) to require that a trial court "dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute." "In exercising its discretion [under subdivision (c)] the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in subparagraphs (A) to (I) are present. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety." (§ 1385, subd. (c)(2).)
Appellant argues the trial court erred in failing to apply these factors when evaluating whether to strike his prior strike conviction. We conclude because section 1385, subdivision (c) applies only to enhancements, not to an alternate sentence under the Three Strikes Law, appellant has failed to demonstrate error.
Section 1385, subdivision (c) expressly provides it applies to "enhancements": "Notwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute." (§ 1385, subd. (c)(1).) (Italics added.) A three-strikes sentence is not an enhancement but a sentence pursuant to an alternate sentencing scheme. (Romero, supra, 13 Cal.4th at p. 527; People v. Carbajal (2013) 56 Cal.4th 521, 534 [stating that the Three Strikes law is alternate sentencing scheme].) Appellant's indeterminate term under the Three Strikes law "is an alternative sentence" imposed because he was a recidivist offender. (People v. Turner (2005) 134 Cal.App.4th 1591, 1597.)
Appellate courts have uniformly rejected appellant's argument that section 1385 subdivision (c)'s factors apply to a trial court's exercise of its discretion to strike a prior strike conviction. (People v. Dowdy (2024) 107 Cal.App.5th 1; People v. Burke (2023) 89 Cal.App.5th 237, 243-244; People v. Olay (2023) 98 Cal.App.5th 60, 66-67 (Olay); People v. Dain (2024) 99 Cal.App.5th 399, 411, review granted May 29, 2024, S283924.) We agree with these cases holding that the plain language of section 1385, subdivision (c) applies only to enhancements, not an alternative sentence under the Three Strikes law.
The Supreme Court limited its review to the following issue: "Did the Court of Appeal err in remanding the case with directions to reinstate the strike finding and to resentence defendant as a person who has suffered a prior strike conviction under the Three Strikes Law?"
California Rules of Court defines base term as "the determinate or indeterminate sentence imposed for the commission of a crime, not including any enhancements that carry an additional term of imprisonment." (Cal. Rules of Court, rule 4.405(2).) The same rule defines enhancement as an "additional term of imprisonment added to the base term." (Id., rule 4.405(5).)" 'By definition, a sentence enhancement is "an additional term of imprisonment added to the base term."' [Citation.]" (People v. Gonzalez (2008) 43 Cal.4th 1118, 1124; see also Robert L. v. Superior Court (2003) 30 Cal.4th 894, 898 (Robert L.).) A sentencing provision that requires a longer base term is not an enhancement because it does not require an additional term of imprisonment added to the base term. (Robert L., at p. 899.)
Rather than relying on this legal definition of enhancement, appellant urges us to adopt a dictionary definition. According to him, "enhancement" means "raise" or "make greater" or "the process of improving the quality, amount, or strength of something" or "a change, or a process of change, that improves something or increases its value" or "[t]he increase of a criminal defendant's punishment base ...."
"Where the language of a statute uses terms that have been judicially construed,' "the presumption is almost irresistible"' that the terms have been used' "in the precise and technical sense which had been placed upon them by the courts."' [Citations.]" (People v. Weidert (1985) 39 Cal.3d 836, 845-846; People v. Taggart (2019) 31 Cal.App.5th 607, 612.) We conclude appellant's reliance on dictionary definitions unpersuasive given the judicially well-established meaning of "enhancement." Specifically, more than two decades ago, Robert L. held that a provision requiring a longer base term is not a sentencing enhancement.
Assuming for the sake of argument section 1385, subdivision (c)'s definition of "enhancement" is ambiguous, as our sister court has explained that the Legislative history makes clear the Legislature did not equate an alternate sentence with an enhancement: "The June 2021 bill analysis of Senate Bill [No.] 81 by the Assembly Committee on Public Safety distinguished an 'enhancement' from 'an alternative penalty scheme' like the Three Strikes law. (Assem. Com. on Public Safety, Analysis of Sen. Bill No. 81[ 2021-2022 Reg. Sess.], as amended Apr. 27, 2021, at pp. 5-6, citing Cal. Rules of Court, rule 4.405(3), Robert L.[, supra, 30 Cal.4th ] at pp. 898-899, 135 Cal.Rptr.2d 30, 69 P.3d 951, and People v. Jefferson (1999) 21 Cal.4th 86, 101, 86 Cal.Rptr.2d 893, 980 P.2d 441].)." (Olay, supra, 98 Cal.App.5th at p. 67.) The bill analysis expressly rejects equating a strike with an enhancement:" '[T]he presumption created by this bill applies to enhancements [ ] but does not encompass alternative penalty schemes.' (Assem. Com. on Public Safety, Analysis of Sen. Bill No. 81, supra, as amended Apr. 27, 2021, at p. 6, italics added.) A more unambiguous statement of the Legislature's intent to adopt the legal meaning of enhancement for section 1385, subdivision (c) can hardly be imagined." (Olay, at p. 67.) Although appellant emphasizes other portions of the legislative history, he cites no legislative history that includes in the definition of enhancement a sentence under the Three Strikes law.
Appellant also contends a "definition of 'enhancement' that excludes alternative sentencing schemes would render portions of [Senate Bill No.] 81 mere surplusage." Olay rejected this argument in concluding, "If the Legislature had wanted section 1385, subdivision (c) to apply to prior strikes as well as to enhancements as legally defined, it would have said so." (Olay, supra, 98 Cal.App.5th at p. 67.) Put differently, the Olay court observed, if "the Legislature intended to depart from existing law by adopting a more expansive understanding of" the term enhancement "the legislative history would have expressed this intent far less obliquely." (Id. at p. 69.) "More notably, the legislative history would not have expressed the exact opposite: an intent to adopt the narrower, legal meaning of the term enhancement ...." (Ibid.) Appellant does not cite Olay, which we find persuasive. Because section 1385, subdivision (c) does not apply, we need not consider appellant's argument that the trial court abused its discretion in not striking one of appellant's prior convictions pursuant to that subdivision.
For example, section 1385, subdivision (c)(2)(G) identifies as a mitigating factor: "criminal conviction[ or] juvenile adjudication[ ] that trigger[s] the enhancement or enhancements applied in the current case." Appellant argues, "The only juvenile adjudications that may 'trigger' an enhancement [applied in the] adult case are prior strike adjudication" rendering the provision surplusage.
C. Appellant Fails To Demonstrate That Imposing a $300 Restitution Fine Violates the Ex Post Facto Clause
Appellant argues because the minimum restitution fine in 1997 was $200, the trial court violated the ex post facto clause in both the California and United States Constitutions when it imposed a $300 fine. Appellant acknowledges that at the relevant time, the "maximum fine permissible . . . was $10,000."
In 1997, when appellant committed the robberies, section 1202.4 gave the trial court discretion to impose a restitution fine of not less than $200 and not more than $10,000. (Former § 1202.4, subd. (b)(1).)
An ex post facto law is" 'any statute [1] which punishes as a crime an act previously committed, which was innocent when done; [2] which makes more burdensome the punishment for a crime, after its commission, or [3] which deprives one charged with crime of any defense available according to law at the time when the act was committed ....' [Citation.]" (Collins v. Youngblood (1990) 497 U.S. 37, 42; see also John L. v. Superior Court (2004) 33 Cal.4th 158, 172.) Appellant demonstrates no ex post facto violation because-as he acknowledges-the trial court had discretion to impose a $300 fine given the statutory $10,000 maximum fine.
See footnote 10, ante.
To the extent appellant is arguing the trial court meant to impose a $200 fine, he forfeited that contention when he did not object below to that discretionary sentencing choice. (People v. Brannon-Thompson (2024) 104 Cal.App.5th 455, 465.)
DISPOSITION
The trial court's resentencing order is affirmed.
We concur: ROTHSCHILD, P. J., M. KIM, J.