Filed 2/13/14 P. v. Arraiga CA2/2

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     SECOND APPELLATE DISTRICT
                                                  DIVISION TWO

THE PEOPLE,                                                          B248001

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. KA096683)
         v.

KRISTOPHER JESUS ARRAIGA,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County. Juan
Carlos Dominguez, Judge. Affirmed as modified.


         Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, James William Bilderback II and
Scott A. Taryle, Deputy Attorneys General, for Plaintiff and Respondent.
       Defendant and appellant Kristopher Jesus Arraiga (defendant) appeals from his
felony convictions, challenging the amount of the restitution fine and parole revocation
fine as an unauthorized ex post facto imposition of punishment, and claiming ineffective
assistance of counsel. Defendant also seeks correction of the award of presentence
custody credits. We modify the award of presentence custody credits, but finding no
merit to defendant’s remaining contentions, we affirm the judgment.
                                     BACKGROUND
       Defendant was charged in count 1 with attempted willful, deliberate murder with
premeditation, in violation of Penal Code sections 187, subdivision (a), and 664,
subdivision (a);1 and in count 2 with aggravated mayhem in violation of section 205. The
information also alleged that defendant personally inflicted great bodily injury on the
victim within the meaning of section 12022.7, subdivision (a); that defendant had a prior
serious felony conviction within the meaning of Penal Code section 667, subdivision (a),
and the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)); and that
defendant had served five prior prison terms within the meaning of section 667.5,
subdivision (b).
       The evidence presented at defendant’s jury trial showed that he struck Juan
Ramirez multiple times in the face, head, and hands with a crowbar, inflicting lacerations,
a broken finger, and a ruptured eyeball. Ramirez required surgery, seven days of
hospitalization, stitches, and a cast, and was left with scars and permanent blindness in
one eye. The jury found defendant guilty of attempted murder and found true the
allegations of premeditation and great bodily injury, but acquitted defendant of
aggravated mayhem, convicting him instead of the lesser included offense of simple
mayhem, in violation of section 203. Defendant waived a jury trial on the prior
conviction allegations and admitted them all.
       On January 31, 2013, after denying defendant’s motions for new trial and to
dismiss the strike conviction, the trial court sentenced defendant to a total of 26 years to

1
       All further statutory references are to the Penal Code, unless otherwise indicated.

                                              2
life in prison, as follows: an indeterminate term of life for the attempted murder, with the
minimum parole period of seven years doubled as a second strike to 14 years; a three-
year great bodily injury enhancement; a five-year recidivism enhancement; and four one-
year enhancements due to prior prison terms. The court struck one of the five prior
prison terms alleged. As to count 2, the court imposed the high term of eight years,
doubled as a second strike to 16 years, and stayed the term pursuant to section 654. In
addition to mandatory fees, the court imposed a restitution fine of $280 pursuant to
section 1202.4, subdivision (b), and imposed a parole revocation fine in the same amount,
but stayed it under section 1202.45. Defendant was given 337 days of actual presentence
custody credit and 57 days of conduct credit, for a total of 394 days. The court ordered
defendant to provide print impressions and biological samples, and reserved jurisdiction
to determine victim restitution.
       Defendant filed a timely notice of appeal.
                                       DISCUSSION
I. Ex post facto and restitution fine
       Defendant contends that the imposition of a $280 restitution fine was unauthorized
and violated the ex post facto clauses of the state and federal constitutions, as well as
defendant’s right to due process.
       Ex post facto laws are prohibited by both the California and United States
Constitutions. (U.S. Const., art. I, § 10; Cal. Const., art. I, § 9.) An ex post facto law is a
statute that punishes as a crime an act which was not a crime when committed, or that
inflicts greater punishment than permitted by the law applicable when the crime was
committed. (Collins v. Youngblood (1990) 497 U.S. 37, 42-43.) Thus, an amendment
that increases the punishment associated with a crime after its commission is prohibited.
(People v. Acosta (2009) 176 Cal.App.4th 472, 475.) “[T]he imposition of restitution
fines constitutes punishment, and therefore is subject to the proscriptions of the ex post
facto clause and other constitutional provisions. [Citations.]” (People v. Souza (2012) 54
Cal.4th 90, 143.)



                                               3
       Restitution fines pursuant to section 1202.4 are to be “set at the discretion of the
court and commensurate with the seriousness of the offense.” (§ 1202.4, subd. (b)(1).)
Defendant committed his crimes in December 2011. At that time, section 1202.4,
subdivision (b)(1), provided that the minimum allowable restitution fine for a felony was
$200, with a permissible maximum of $10,000. (Stats. 2011, ch. 45, § 1, eff. July 1,
2011.) The minimum was raised to $240 beginning January 1, 2012, and to $280
beginning January 1, 2013, while the maximum has remained at $10,000. (Stats. 2011,
ch. 358, § 1, eff. Jan. 1, 2012.)
       Defendant argues that the imposition of the $280 restitution fine was a violation of
the constitutional prohibition against ex post facto penalties and must be reduced to $200
to reflect the statutory minimum in effect at the time of his offense. Similarly, because
the probation revocation restitution fine must match the restitution fine (§ 1202.44), he
asks that this fine also be reduced to $200.
       Respondent contends that defendant failed to preserve this contention with the
appropriate objection in the trial court. We agree. Generally, in the interests of fairness
and judicial economy, only “claims properly raised and preserved by the parties are
reviewable on appeal.” (People v. Scott (1994) 9 Cal.4th 331, 354 (Scott).) “‘It is both
unfair and inefficient to permit a claim of error on appeal that, if timely brought to the
attention of the trial court, could have been easily corrected or avoided.’ [Citations.]”
(People v. Earp (1999) 20 Cal.4th 826, 882.) The forfeiture rule reaches claims that a
ruling violated constitutional rights, unless the claim of error was of the kind that
required no action by the defendant to preserve it, or defendant contends that errors that
were properly preserved for review had the additional legal consequence of violating the
Constitution. (People v. Boyer (2006) 38 Cal.4th 412, 441, fn. 17.) Unauthorized
sentences fall into the first category. (People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6;
Scott, supra, at p. 354.)
       Defendant cites authority permitting the correction of an unauthorized sentence for
the first time on appeal. (E.g., People v. Walz (2008) 160 Cal.App.4th 1364, 1369;
People v. Barnwell (2007) 41 Cal.4th 1038, 1048, fn. 7; People v. Saelee (1995) 35

                                               4
Cal.App.4th 27, 30; People v. Zito (1992) 8 Cal.App.4th 736, 741-742 (Zito).) Defendant
contends that Zito, in particular, held that a restitution fine imposed in violation of ex post
facto principles constitutes an unauthorized sentence which is not subject to forfeiture.
The holding of Zito was not so broad, but merely held there was no forfeiture of an ex
post facto violation that resulted in an unauthorized sentence in that case, because the
penalty imposed exceeded the maximum allowed under prior law. (Zito, supra, at pp.
741-742; see also People v. Valenzuela (2009) 172 Cal.App.4th 1246, 1249-1250 [fine
exceeded maximum allowed under prior law].) In general, an erroneous fine within the
limits of the court’s discretion under the prior statute is not jurisdictional and is thus not
unauthorized. (People v. Walz, supra, at p. 1369.)
       “[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.]” (Scott, supra, 9 Cal.4th at p.
354.) Here, as the restitution fine imposed was well within the range specified in the
version of the statute in effect at the time of defendant’s offense, and as there is no
indication in the record that the trial court intended to impose the minimum fine or that
the court was relying on the new statute, there is no clear and correctable error without
regard to the facts. Further, because setting the amount of a restitution fine was a matter
of the court’s discretion, $280 was a penalty that could lawfully be imposed in this case.
Accordingly, a fine of $280 was not unauthorized and defendant was required to raise the
issue in the trial court. As he failed to do so, the issue may not be reviewed on appeal.
II. Assistance of counsel
       Defendant contends that if the issue is deemed forfeited, his counsel provided
ineffective assistance by failing to object.
       The Sixth Amendment right to counsel includes the right to the effective
assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668, 686-694
(Strickland); see also Cal. Const., art. I, § 15.) To obtain a reversal on the ground of
ineffective assistance of counsel, the defendant must show that counsel’s performance

                                               5
was deficient and resulted in prejudice. (Strickland, supra, at pp. 688, 694; People v.
Rodrigues (1994) 8 Cal.4th 1060, 1126.) “To prevail, defendant must overcome the
strong presumption that counsel’s actions were sound trial strategy under the
circumstances prevailing at trial. [Citations.]” (People v. Freeman (1994) 8 Cal.4th 450,
498; see also Strickland, supra, at p. 689.)
       When counsel’s reasons for not objecting do not appear in the record, claims of
tactical errors must be rejected “unless there simply could be no satisfactory explanation”
for counsel’s action or inaction, or unless “‘the record on appeal affirmatively discloses
that counsel had no rational tactical purpose for his act or omission.’” (People v. Hart
(1999) 20 Cal.4th 546, 623-624; see also, People v. Mendoza Tello (1997) 15 Cal.4th
264, 266-267.) As respondent observes, it is possible that defense counsel did not want
to draw undue attention to the amount of the fine, considering the victim’s grievous
injuries, which might have prompted the court to reconsider and impose a higher amount.
Thus, it cannot be said there could be no satisfactory explanation for counsel’s inaction.
       Defendant dismisses respondent’s observation as speculation and attempts to
demonstrate the absence of a rational tactical purpose by speculating that because the trial
court reserved jurisdiction to order direct victim restitution, it probably intended only to
impose the minimum restitution fine “to assure the victim would be compensated from
[defendant’s] inmate trust fund.” Defendant’s argument falls short of demonstrating that
the record affirmatively discloses that counsel had no rational tactical purpose for his
failure to object to the fine. We must therefore reject defendant’s claim of ineffective
assistance of counsel. (People v. Mendoza Tello, supra, 15 Cal.4th at p. 266.)
III. Parole revocation fine
       Defendant contends that because section 1202.45, subdivision (a) requires the trial
court to set a parole revocation fine at the same amount as the restitution fine, the parole
revocation fine imposed here must be reduced to $200, for the same reasons as set forth
in his ex post facto argument. As we rejected those reasons, we also reject this
contention.



                                               6
IV. Custody credits
       Defendant contends that the trial court miscalculated his actual days in custody,
which began on January 19, 2012. Both parties agree that the court should have awarded
379 actual days, not the 337 days awarded. Both parties also agree that defendant was
entitled to conduct credits calculated at 15 per cent, which should have been 56 days, not
the 57 days awarded, for a total award of 435 days. We thus modify the judgment
accordingly.
                                      DISPOSITION
       The judgment is modified to provide for 379 actual days of presentence custody
credit, plus 56 days of conduct credit, for a total of 435 days. The trial court is directed to
prepare an amended abstract of judgment reflecting the modified presentence custody
credit, and to forward a copy of the amended abstract to the Department of Corrections
and Rehabilitation. As so modified and in all other respects, the judgment is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


                                                   ____________________________, J.
                                                   CHAVEZ
We concur:



__________________________, P. J.
BOREN



__________________________, J.*
FERNS




________________________________________________________________________
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

                                              7
