Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC806810
Mihara, J.
Defendant Floyd Robert Thomas appeals from a judgment of conviction entered after he pleaded guilty to four counts of forcible lewd and lascivious acts on a child under the age of 14 (Pen. Code, § 288, subd. (b)(1)). Pursuant to a negotiated agreement, the trial court sentenced defendant to 24 years in state prison. On appeal, defendant contends that the imposition of a $300 fine pursuant to section 290.3 violated state and federal constitutional prohibitions against ex post facto laws. For the reasons stated below, we affirm.
All further statutory references are to the Penal Code.
I. Statement of Facts
Defendant was charged with and admitted committing four counts of forcible lewd and lascivious acts on a child under the age of 14 between November 24, 2002 and November 23, 2006. The parties stipulated that the police report provided a factual basis for the entry of defendant’s plea. The victim reported that the lewd conduct occurred four times per month.
The police reports have not been included in the record on appeal. However, the probation report is based on the police report.
II. Discussion
“Article I, section 10, clause 1 of the federal Constitution and article I, section 9 of the state Constitution prohibit the passage of ex post facto laws. California’s ex post facto law is analyzed in the same manner as the federal prohibition. ‘[T]he ex post facto clauses of the state and federal Constitutions are “aimed at laws that ‘retroactively alter the definition of a crime or increase the punishment for criminal acts.’ ” ’ ” (People v. Alford (2007) 42 Cal.4th 749, 755, internal citations omitted.) The present case does not involve the definition of a crime. However, in determining whether a fine or penalty assessment increases the punishment for a criminal act, this court must consider “ ‘whether the Legislature intended the provision to constitute punishment, and, if not, whether the provision is so punitive in nature or effect that it must be found to constitute punishment despite the Legislature’s contrary intent.’ ” (Ibid.)
Section 290.3, subdivision (a) provides in relevant part: “Every person who is convicted of any offense specified in subdivision (c) of Section 290 shall, in addition to any imprisonment or fine, or both, imposed for commission of the underlying offense, be punished by a fine of three hundred dollars ($300) upon the first conviction....” (§ 290.3, italics added.) Thus, the restitution fine of section 290.3 is punitive on its face.
Section 290.3, as originally enacted, required a $200 fine for a defendant’s first conviction, but the fine was raised to $300 on September 20, 2006. (Stats. 2006, ch. 337, § 18; see Historical and Statutory Notes, 48 West’s Ann. Pen. Code (2008 supp.) foll. § 290.3, pp. 275-276.) When it is alleged that a defendant’s conduct has occurred during a period of time when a statute is amended and the prosecution fails to prove beyond a reasonable doubt when the offenses occurred, punishment under the amended statute constitutes an ex post facto violation. (See People v. Riskin (2006) 143 Cal.App.4th 234, 244-245.)
Here, defendant was charged with and admitted committing four counts of forcible lewd and lascivious acts between November 24, 2002 and November 23, 2006.
Defendant argues, however, that “the plea hearing substituted for trial, and the prosecution bore the burden of proving, at that hearing, that at least one of [his] offenses occurred on or after the date on which the section 290.3 fine was increased to $300. The probation report was not before the court when appellant entered his plea, is not part of the record of that proceeding, and thus cannot be relied upon, after the fact, to prove the dates of [his] offenses.” First, a defendant must provide an adequate record in order to preserve an issue for review on appeal. (People v. Romo (1975) 14 Cal.3d 189, 195.) Since defendant failed to provide the police report in the record, he has not preserved this issue. Second, the probation report, which the trial court read prior to the sentencing hearing, was based on the police report. Because he failed to make a hearsay or any other objection to the probation report at the sentencing hearing, defendant’s challenge to the contents of this report has also been forfeited. (People v. Farnam (2002) 28 Cal.4th 107, 153.)
In sum, the record supports the trial court’s implied finding that defendant committed at least one of the offenses after the effective date of the statute authorizing the $300 fine under section 290.3. Since we find no ex post facto violation, the trial court did not err in imposing the section 290.3 fine and the other fines and penalty assessments that were based on the amount of the section 290.3 fine.
III. Disposition
The judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P. J., Duffy, J.