P. v. Barajas

 

 

 

 

 

 

 

 

 

 

 

 

Filed 7/11/13  P. v. Barajas CA6

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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.

 

 

 

 

IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

SIXTH
APPELLATE DISTRICT

 

 
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THE PEOPLE,   Plaintiff and Respondent,       v.   ELISEO BARAJAS,   Defendant and Appellant.

H037848      (Santa Clara County       Super. Ct. No. C1082324)

 

            Defendant
Eliseo Barajas was convicted of infliction of corporal injury on the mother of
his children.  On appeal, defendant
contends that the trial court’s calculation of the restitution fine violated
the prohibition against ex post facto laws,
and he therefore requests that we reduce the restitution fine and the corresponding
parole revocation fine.  As set forth
below, we will modify the restitution and parole revocation fines and affirm
the judgment as modified. 

Factual and Procedural History

            On April 19, 2010, defendant argued with
Antonia Contreras, the mother of his two children.  Defendant choked Ms. Contreras for 10
seconds.  Police officers arrived at the
scene, and they saw red marks on Ms. Contreras’s neck.

            On July 14, 2011, defendant pleaded no
contest to one count of infliction of corporal injury on the mother of his
children (Pen. Code, § 273.5 subd. (a)).href="#_ftn1" name="_ftnref1" title="">>[1]  Pursuant to the plea agreement, defendant was
to be placed on probation.  The plea
agreement was conditioned on defendant’s appearance in court for the sentencing
hearing.

            On September 7, 2011, defendant failed to
appear for sentencing.  The trial court
issued a bench warrant.

            Defendant
appeared in court on November 18,
2011.  The court informed
defendant that the plea agreement was
void due to his failure to appear for sentencing.

            On January 13, 2012, the court sentenced
defendant to two years in prison.  After
imposing the sentence, the court stated, “You’ll pay a restitution fine of $720
under the formula as updated on January 1st under Penal Code section
1202.4(B).”  The probation officer
assigned to the case stated, “Your Honor, I’m sorry.  I believe that’s based on date of the
offense.”  The court responded, “It’s
actually not.  We’ve been around a couple
times with it.  It is on date of
sentencing.”  The court thereafter
imposed a restitution fine of $720.  The
court also imposed a $600 parole revocation fine pursuant to section 1202.45.

            Defendant
filed a notice of appeal on January 20, 2012.  His timely appeal followed.

Discussion

            Defendant argues that the trial
court’s calculation of the restitution fine based on the January 2012 version
of section 1202.4 constituted a violation of the prohibition against ex post
facto laws, and that the trial court was required to calculate the restitution
fine based on the version of section 1202.4 in effect at the time he committed
the charged offense.  Defendant contends
that application of the appropriate version of section 1202.4 would have
resulted in a $400 restitution fine, and he accordingly requests that we reduce
the restitution fine to $400 and reduce the corresponding parole revocation
fine to $400.  The People argue that
defendant’s claim is forfeited due to his failure to object to the restitution
fine.  The People concede that if
defendant’s claim is not found to be forfeited, the claim is meritorious.  As explained below, we conclude that
defendant did not forfeit his claim, and we therefore will reduce the
restitution fine and the corresponding parole revocation fine. 

            “Ordinarily,
a criminal defendant who does not challenge an assertedly erroneous ruling of
the trial court in that court has forfeited his or her right to raise the claim
on appeal.”  (In re Sheena K. (2007) 40 Cal.4th 875, 880; see >People v. Gamache (2010) 48 Cal.4th
347, 409 [the defendant forfeited his claim regarding a section 1202.4
restitution fine because he failed to object at the sentencing hearing].)  “However, neither forfeiture nor application
of the forfeiture rule is automatic.”  (>People v. McCullough (2013) 56 Cal.4th
589, 598.)  “Reviewing courts have
traditionally excused parties for failing to raise an issue at trial where an
objection would have been futile . . . .” 
(People v. Welch (1993) 5
Cal.4th 228, 237.)

            In the
instant case, an objection to the trial court’s calculation of the restitution
fine would have been futile.  The court
stated that it calculated the restitution fine based on the formula in the
January 2012 version of section 1202.4, subdivision (b).  The probation officer informed the court that
it should use the formula in the version of section 1202.4 in effect at the
time defendant committed the charged offense. 
The court rejected the probation officer’s contention, stating that it
was required to apply the version of section 1202.4 in effect at the time of
sentencing.  Thus, because the trial
court explicitly rejected the notion that it was required to apply the version
of section 1202.4 in effect at the time defendant committed the charged
offense, an ex post facto objection would have been futile.  We therefore conclude that defendant’s claim
is not forfeited.  (See >In re Valerie A. (2007) 152 Cal.App.4th
987, 1001 [claim was not forfeited due to failure to object where the court had
previously issued a ruling contrary to the claim].) 

            At the
sentencing hearing, the trial court expressed an intention to impose a
restitution fine under the formula articulated in section 1202.4, subdivision
(b).  The People concede that the trial
court should have applied the formula in the version of section 1202.4 in
effect at the time defendant committed the charged offense, and that
modification of the restitution fine in accordance with that formula is
appropriate.  The version of section
1202.4, subdivision (b)(2) in effect at the time defendant committed the
charged offense stated:  “In setting a
felony restitution fine, the court may determine the amount of the fine as the
product of two hundred dollars ($200) multiplied by the number of years of
imprisonment the defendant is ordered to serve, multiplied by the number of
felony counts of which the defendant is convicted.”  (Former § 1202.4, subd. (b)(2), as
adopted by Stats. 2009, ch. 454, § 1, eff. Oct. 11, 2009 through Sept. 26, 2010].) 
Here, application of that formula to defendant’s two-year prison
sentence and single felony count results in a restitution fine of $400.  We accordingly reduce the restitution fine to
$400.href="#_ftn2" name="_ftnref2" title="">[2]>  

            The
reduction of the restitution fine necessitates reduction of the corresponding
parole revocation fine.  Section 1202.45,
subdivision (a) states:  “In every case
where a person is convicted of a crime and his or her sentence includes a
period of parole, the court shall, at the time of imposing the restitution fine
pursuant to subdivision (b) of Section 1202.4, assess an additional parole
revocation restitution fine in the same amount as that imposed pursuant to
subdivision (b) of Section 1202.4.” 
Under section 1202.45, a court “has no choice and must
impose a parole revocation fine equal to the restitution fine.”  (People
v. Smith (2001) 24 Cal.4th 849, 853, italics in original.)  An “invalid parole revocation fine falls
within the narrow class of sentencing errors exempt from the waiver rule.”  (Ibid.)  Thus, because we reduce the restitution fine
to $400, we must also reduce the parole revocation fine to $400. 

Disposition

            The judgment is modified to
reduce the restitution fine from $720 to $400 and to reduce the parole
revocation fine from $600 to $400.  As so
modified, the judgment is affirmed.

 

 

 

                                                                        ______________________________________

                                                                                                RUSHING, P.J.

 

 

WE CONCUR:

 

 

 

____________________________________

PREMO, J.

 

 

 

 

____________________________________

ELIA,
J.