P. v.
Filed 8/27/13 P. v. Arnold CA4/2
TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
THE COURT OF APPEAL OF THE STATE OF
APPELLATE DISTRICT
TWO
THE PEOPLE,
Plaintiff and
Respondent,
v.
TERRY DARNELL ARNOLD,
Defendant and
Appellant.
E057319
(Super.Ct.No. FWV1200554)
OPINION
APPEAL from the Superior Court of
County. Jon D.
Ferguson, Judge. Affirmed.
Jean Ballantine, under appointment by the Court of
Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette,
Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General,
A. Natasha Cortina, and Kimberley A. Donohue, Deputy Attorneys General, for
Plaintiff and Respondent.
I
INTRODUCTION
After
defendant Terry Darnell Arnold tried to shoplift a television from Walmart, he
pleaded no contest to one count of felony theft with three priors.
(a).) The court sentenced defendant to
four years in prison and imposed various fines and fees, including two
restitution and parole revocation fines in the amount of $240. (§§ 1202.4, subd. (b), and 1202.45.) On appeal, defendant contends the imposition
of the $240 fines constituted an ex post
facto application of the law. We
disagree and we affirm the judgment.
II
STATEMENT OF FACTUAL AND
PROCEDURAL BACKGROUND
We
derive the brief summary of facts from the preliminary
hearing which supplied the basis for defendant’s plea agreement.
On
Christmas Eve in 2011, defendant and his wife visited an Upland Walmart store
to return a bicycle. As recorded by a
surveillance video camera, defendant’s wife waited in the customer service line
while defendant went to the electronics department, selected a television, and
returned to customer service. Defendant
and his wife attempted to return the television without a receipt. The customer service manager checked the
serial number for the television set and determined it had not been sold. The customer service manager contacted the
loss prevention department but processed the return, giving defendant and his
wife a gift card instead of cash because they did not have a receipt. Defendant was subsequently arrested.
On September 21, 2012, defendant entered a plea of no contest to one count
of felony theft with three priors. (§§
484, subd. (a), and 666, subd. (a).)
After defendant stipulated to immediate sentencing, the court imposed
sentence, including a $240 victim restitution fine (§§ 1202.4, subd. (b), and
2085.5) and a suspended $240 parole revocation fine. (§ 1202.45.)
III
DISCUSSION
In 2011, when defendant
committed his offense, the minimum fine under section 1202.4, subdivision (b),
was $200. In 2012, when defendant was
sentenced, the minimum fine had increased to $240. (Stats. 2011, ch. 358, § 1
Cal.App.4th 346, 350, fn. 2.)
The ex post facto clauses of
both the federal and state Constitutions
prohibit any statute which makes more burdensome the punishment for a crime
after its commission. (
282, 294, 295.) “A restitution fine
qualifies as punishment for purposes of the prohibition against ex post facto
laws. [Citations.]†(People
v. Saelee (1995) 35 Cal.App.4th 27, 30.)
Defendant contends the
imposition of the $240 resitution and parole revocation fines violated the
constitutional prohibition against the ex post facto application of a law
because the trial court intended to impose the statutory minimum of $200
effective in 2011 and therefore erroneously imposed the $240 minimum applicable
in 2012. We are not persuaded.
First, there is no ex post
facto application of section 1202.4, subdivision (b)(1), because the court had
discretion to impose a restitution fine up to $10,000 and thus defendant was
not subject to increased punishment when the sentencing court ordered him to
pay $240. In 2011, nothing prohibited a
restitution fine of $240. The maximum
fine in both 2011 and 2012 was $10,000.
“Although the cases are varied, a sentence is generally ‘unauthorized’
where it could not lawfully be imposed under any circumstance in the particular
case. Appellate courts are willing to
intervene in the first instance because such error is ‘clear and correctable’
independent of any factual issues presented by the record at sentencing. [Citation.]â€
(People v. Scott (1994) 9
Cal.4th 331, 354; People v. Garcia (2010)
185 Cal.App.4th 1203, 1218.)
Second, the court is
presumed to have followed the correct law, even if it did not explicitly state
the law it was applying. (
(1983) 34 Cal.3d 554, 562.) An appellant
has the burden of affirmatively showing error, and we cannot find such error on
the basis of mere speculation about what the court intended. Instead, the sentencing court made no
reference to applying the statutory minimum for the restitution fine, and there
is nothing in the record to support such a finding. The sentencing court clearly was within its
discretion when it ordered defendant to pay $40 more than the statutory minimum
applicable at the time defendant committed the offenses. The $240 fines could be lawfully imposed in
2011 and were not unauthorized in 2012.
As such, we conclude the court did not abuse its discretion in ordering
defendant to pay restitution of $240.
Because the $240 fines were
not unauthorized, defendant forfeited any claim that the trial court mistakenly
imposed more than the minimum fine by not raising it at the sentencing
hearing. “Although the court is required
to impose sentence in a lawful manner, counsel is charged with understanding,
advocating, and clarifying permissible sentencing choices at the hearing. Routine defects in the court’s statement of
reasons are easily prevented and corrected if called to the court’s
attention. As in other waiver cases, we
hope to reduce the number of errors committed in the first instance and
preserve the judicial resources otherwise used to correct them.†(People
v. Scott, supra, 9 Cal.4th at p. 353.)
Here, had defendant raised the 2011 minimum fine amount below, the trial
court could have corrected any error in the amount of the fine. Because he did not, he may not challenge the
fine on appeal.
IV
DISPOSITION
The
trial court did not abuse its discretion in imposing two fines of $240. We affirm the judgment.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
RAMIREZ
P. J.
KING
J.
name="_ftn1" title=""> [1] All
statutory references are to the Penal Code.
name="_ftn2" title=""> [2] It
was originally alleged defendant had 11 prison priors (§ 667.5, subd. (b)),
involving theft offenses, and one strike prior (§§ 667, subds. (b)-(i) and
1170.12, subds. (a)-(d).)
