THE PEOPLE v. DARYL RAGSDALE (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

INTRODUCTION

A jury convicted defendant and appellant Daryl Ragsdale of murder and kidnapping and found true personal use of firearm allegations under Penal Code section 12022.5.¹  On appeal, he contends only that there were two errors in his sentence:  first, the four year-terms imposed for his personal use of a firearm should be reduced to two-year terms and, second, the parole revocation fine must be stricken.   The Attorney General concedes the errors, and we agree.   We therefore modify the judgment and affirm it as modified.

BACKGROUND 2

On the evening of December 15, 1989, Ragsdale, Charles Grisham, and Ronald Johnson kidnapped Irene Franco and Jesus Martinez from a drive-in movie theatre and took them to a salvage yard.   Ragsdale, Grisham, and Johnson raped Franco.   She was then shot, execution style, in the head.   Years later, as a result of a cold case investigation, Ragsdale was ultimately charged with murder and kidnapping for robbery, and, on August 2, 2010, a jury found Ragsdale guilty of:  count 1, the first degree murder of Franco (§ 187, subd. (a)) and counts 2 and 6, kidnapping for robbery of Franco and Martinez (§ 209, subd. (b)).  As to each of the three counts, the jury found true personal gun use allegations under section 12022.5, subdivision (a).

On August 17, 2010, the trial court sentenced Ragsdale to 25 years to life on count 1 and to two consecutive life terms on counts 2 and 6. The court also sentenced defendant to three 4–year terms on each count under section 12022.5, subdivision (a), for the personal use of a firearm.

DISCUSSION

I. The four-year terms must be reduced to two-year terms.

In December 1989, when Ragsdale committed these crimes, section 12022.5, subdivision (a), provided that any person who personally used a firearm in the commission or attempted commission of a felony would be punished by an additional two-year term of imprisonment.   Although section 12022.5, subdivision (a), was amended in 1989 to change the term of imprisonment to a range of three, four or five years, that amendment was not effective until January 1990.  (Stats.1989, ch. 1044, § 5.) Because Ragsdale could only be punished under the version of section 12022.5 in effect at the time he committed the crimes in December 1989, the four-year terms imposed must be reduced to two-year terms.

II. The parole revocation fine must be stricken.

The trial court, although stating it was uncertain whether the parole revocation restitution fine statute (§ 1202.45) was in effect in 1989, imposed and stayed a fine in the amount of $10,000.   Section 1202.45, however, was not enacted until 1995.  (Stats.1995, ch. 313, § 6.) Imposition of the fine on Ragsdale violates ex post facto principles, and it therefore must be stricken.  (People v. Callejas (2000) 85 Cal.App.4th 667, 678.)

DISPOSITION

The clerk of the superior court is directed to modify the judgment to reflect that defendant is sentenced to two-year terms under section 12022.5, subdivision (a), on counts 1, 2, and 6, instead of four-year terms, and to strike the $10,000 parole revocation restitution fine imposed under section 1202.45.   The clerk

is directed to forward a copy of the modified abstract of judgment to the Department of Corrections.   The judgment is otherwise affirmed as modified.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. All further undesignated statutory references are to the Penal Code..  FN1. All further undesignated statutory references are to the Penal Code.

FN2. We briefly state the facts because they are not relevant to the sentencing issues..  FN2. We briefly state the facts because they are not relevant to the sentencing issues.

CROSKEY, Acting P. J. KITCHING, J.