Filed 6/27/13 P. v. House CA2/1
Opinion following remand from Supreme Court
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                          B212057

         Plaintiff and Respondent,                                   (Los Angeles County Super. Ct.
                                                                      Nos. NA076708, VA104177)
         v.

SHANTAL HOUSE,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County. Gary J.
Ferrari, Judge. Affirmed.
         Sharon Fleming, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Stephanie C.
Brenan and Peggy Z. Huang, Deputy Attorneys General, for Plaintiff and Respondent.




                               ____________________________________
                                DECISION ON REMAND
       Defendant/Appellant Shantal House was charged in two separate informations
with numerous theft-related offenses. Following plea negotiations, appellant entered
guilty pleas to one count from each information: (1) making a false financial statement,
and (2) grand theft of an automobile, with the allegation that the property’s value
exceeded $50,000. (Pen. Code, §§ 487, subd. (d)(1), 532a, subd. (1), 12022.6, subd.
(a)(1).)1
       Appellant challenges the amounts of the restitution and parole revocation fines
imposed by the trial court, contending that the trial court did not realize that it had the
discretion to impose lower fines. In this decision we hold that by failing to object in the
trial court Appellant has forfeited her right to object on appeal to the amounts of the
fines, and that she has failed to establish that her counsel provided ineffective assistance
in failing to object.
       During our initial consideration of Appellant’s appeal from the judgment,
Appellant contended, and this court ruled, that she was entitled to additional presentence
custody credit pursuant to an amendment to Penal Code section 4019 that had became
effective after her sentencing. In People v. Brown (2012) 54 Cal.4th 314, however, our
Supreme Court held that former section 4019 must be applied prospectively, and that the
equal protection clauses of the federal and state Constitutions (U.S. Const., 14th Amend.;
Cal. Const., art. I, § 7, subd. (a)) do not require retroactive application. (Id. at pp. 318,
325-329.) Accordingly, on May 15, 2013, the Supreme Court transferred the case back to




  1 Since Appellant was sentenced on September 17, 2008, the Legislature has amended
various of the Penal Code provisions cited in this opinion. Except as otherwise set forth,
these amendments are not relevant to this decision, and this opinion’s citations refer to
the provisions in effect at the time Appellant was sentenced.

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this court with directions to vacate our former decision in this case, and to reconsider the
cause in light of its decision in People v. Brown, supra.2
         In accord with these directions, the former decision of this court, filed in this cause
on April 9, 2010, is vacated. We reconsider and redetermine the cause in light of the
People v. Brown decision, as set forth below.
                                       BACKGROUND
I.       Factual Background
         A. Case Number NA076708
         In April 2007, Appellant purchased a 2007 red Chrysler Sebring from Jerad
Pressley, a salesman at a Long Beach Chrysler Jeep dealership. Appellant provided a
social security number and what appeared to be a temporary license from the Department
of Motor Vehicles (DMV) in order to complete the credit application. It was
subsequently learned that the social security number Appellant provided belonged to
someone who had died over 10 years earlier and that the DMV did not issue temporary
licenses such as the one Appellant showed Pressley.
         A Chrysler financial fraud investigator received information that three payments
were made on the car, using a Washington Mutual account number belonging to the Long
Beach Chrysler dealership. Appellant was seen driving the car, which she subsequently
sold for $7,000. A repossessor for Chrysler stated that the car, which was valued at
$24,000, was never recovered.
         In February 2007, Appellant moved into an apartment building called the Enclave
Apartments. It was subsequently learned that the social security number Appellant
provided for the rental agreement belonged to someone who did not know Appellant and
who did not give her permission to use his social security number. Sometime after June
2007, Appellant attempted to pay the rent on her apartment using two checks with the

     2
   No party has filed a supplemental brief in this court following the Supreme Court’s
May 15, 2013 order transferring the cause to this court for further proceedings. (See Cal.
Rules of Court, rule 8.200(b).)

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Long Beach Chrysler dealership’s Washington Mutual account number on them.
Although the checks displayed the dealership’s bank account number, they did not have
the dealership’s logo and return address on them. Appellant was evicted from the
apartment in September 2007, and at the time of the preliminary hearing in July 2008,
Appellant owed Enclave Apartments $7,000 in rent.
       B. Case Number VA104177
       In June 2007, Appellant purchased a white Cadillac Escalade, completing the
credit application in the name of Chantal Dee Love. The check she used was returned by
the bank, and when the Cadillac dealer attempted to contact Appellant, they learned that
the information she had provided on the credit application was false. Appellant had used
the social security number of someone who lives in Indiana; this victim was forced to
correct his credit reports.
       In September 2007, police found the car and arrested Appellant. Officers searched
Appellant’s purse and found several fraudulent checks and a fraudulent driver’s license in
the name of Chancey Baker.
II.    Procedural Background
       In July 2008, Appellant was charged by information in NA076708 with twelve
theft-related offenses: two counts of identity theft (Pen. Code, § 530.5); one count of
grand theft auto (Pen. Code, § 487, subd. (d)(1)); two counts of false financial statement
(Pen. Code, § 532a, subd. (1)); three counts of forgery (Pen. Code, § 476); one count of
grand theft of personal property (Pen. Code, § 487, subd. (a)); two counts of theft of
access card information (Pen. Code, § 484e, subd. (d)); and one count of grand theft of
real property (Pen. Code, § 487, subd. (a)). Appellant pleaded not guilty to all counts.
       In July 2008, Appellant filed a Marsden motion (People v. Marsden (1970) 2
Cal.3d 118), seeking to discharge her attorney. The court denied her motion.
       In August 2008, Appellant was charged by separate information in VA104177
with ten counts: one count of second degree commercial burglary, with the allegation
that the property’s value exceeded $50,000 (Pen. Code, §§ 459, 12022.6, subd. (a)(1)

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(2007)3); one count of grand theft auto, with the same allegation that the property’s value
exceeded $50,000 (Pen. Code, §§ 487, subd. (d)(1), 12022.6, subd. (a)(1)); one count of
unlawful taking of a vehicle (Veh. Code, § 10851); one count of false financial statement
(Pen. Code, § 532a, subd. (1)); four counts of forgery (Pen. Code, § 476); one count of
identity theft (Pen. Code, § 530.5); and one count of perjury on her application for a
driver’s license (Pen. Code, § 118, subd. (a)). This case was transferred to Long Beach to
be considered with the first case.
       Appellant filed another Marsden motion, but she withdrew the motion and entered
into plea negotiations. Appellant subsequently withdrew her not guilty plea in case
NA076708 and entered a guilty plea to count three, false financial statement. (Pen. Code,
§ 532a, subd. (1).) As to case VA104177, Appellant agreed to plead guilty to count two,
grand theft auto, and admitted the allegation that the property’s value exceeded $50,000.
(Pen. Code, §§ 487, subd. (d)(1), 12022.6, subd. (a)(1).)
       Appellant’s plea agreement included a Harvey waiver (People v. Harvey (1979) 25
Cal.3d 754), which allows the trial court to consider dismissed counts in determining a
sentence. Thus, when Appellant was advised of her rights at the hearing, she specifically
was asked if she understood that the court would order her to pay “certain fines and fees
associated with [her] change in plea.” Appellant also was advised as follows:
“Furthermore, you’re also going to have to pay money to the victims in this case. Now,
that’s called restitution. And you are agreeing to pay restitution on the counts that you
are going to be convicted of and the counts that will be dismissed.” Appellant indicated
that she understood that she would have to pay the fines and the restitution on all the
counts.
       At sentencing, the trial court sentenced Appellant to the upper term of three years
on the false financial statement count of NA076708. Appellant was given credit for 92

 3  Penal Code section 12022.6, subdivision (a)(1) was amended in 2007 to increase the
loss amount to $65,000 (Pen. Code, § 12022.6, subd. (a)(1)), as amended by Stats. 2007,
ch. 420, § 1), and has since been further amended in ways not relevant here.

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days in actual custody and 46 days of good time/work time credit. Appellant was ordered
to pay a $200 restitution fine per year, for a total of $600, restitution of $23,848.01 to
Chrysler Financial, restitution of $2,900 to Enclave Apartments, and a $20 court security
assessment fee.
       As to the grand theft auto count of VA104177, Appellant was sentenced to the
upper term of three years, plus a one-year enhancement, for a total of four years, to run
concurrently with the sentence in NA076708. Appellant received credit for 88 days in
actual custody and 44 days of good time/work time credit. The court ordered Appellant
to pay a $200 restitution fine per year, for a total of $800, a $20 court security fee, and a
$200 per year parole revocation restitution fine, again totaling $800, that was suspended
unless parole is revoked.
       Appellant filed a notice of appeal, seeking reversal based on ineffective assistance
of counsel. Appellant’s request for a certificate of probable cause was denied. This court
therefore granted Appellant’s motion to amend her notice of appeal to include language
indicating that her appeal is based on grounds occurring after entry of the plea which do
not affect its validity. Appellant subsequently filed a motion for leave to file a
supplemental brief regarding an amendment to Penal Code section 4019, effective
January 25, 2010. Appellant’s motion was granted, and we sought briefing by
Respondent.
                                       DISCUSSION
       Appellant challenges the amounts of the restitution and parole revocation
restitution fines, contending that the trial court did not know that it had discretion to
impose lower fines. Appellant acknowledges that she did not object to the amounts of the
fines in the trial court, but she contends that her claim is not forfeited because she did not
have a meaningful opportunity to object, and, in the alternative, that her counsel’s failure
to object constituted ineffective assistance of counsel. Finally, Appellant contends that
the recent amendment to Penal Code section 4019 should be applied retroactively to
entitle her to additional presentence custody credits.

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I.     Forfeiture of Claim
       As an initial matter, Appellant acknowledges that she failed to object to the court’s
imposition of the restitution fines. A party who fails timely to assert a right forfeits that
claim. (Greer v. Buzgheia (2006) 141 Cal.App.4th 1150, 1158, fn. 4.) “Although the
loss of the right to challenge a ruling on appeal because of the failure to object in the trial
court is often referred to as a ‘waiver,’ the correct legal term for the loss of a right based
on failure to timely assert it is ‘forfeiture,’ because a person who fails to preserve a claim
forfeits that claim. In contrast, a waiver is the ‘“intentional relinquishment or
abandonment of a known right.”’ [Citations.]” (In re S.B. (2004) 32 Cal.4th 1287, 1293,
fn. 2.) “[A]pplication of the forfeiture rule is not automatic. [Citations.]” (Id. at
p. 1293.) Nonetheless, “the appellate court’s discretion to excuse forfeiture should be
exercised rarely and only in cases presenting an important legal issue.” (Ibid.)
       Here, Appellant contends that she was not informed of the amounts of the fines the
court would impose. She argues that the probation report prepared for case number
VA104177 recommended a fine of $500, not the $800 that was actually imposed.
Although Appellant might not have been advised of the exact amount of the restitution
she would be ordered to pay, there is no question that, when Appellant was advised of her
rights in changing her plea, she explicitly agreed to pay restitution on the counts of
conviction as well as on the dismissed counts. Appellant has failed to establish that her
case is one of those rare cases presenting an important legal issue. We therefore decline
to exercise our discretion to excuse her forfeiture of her claim.
II.    Ineffective Assistance of Counsel
       Appellant argues that, in the alternative, her claim should be addressed in the
context of a claim of ineffective assistance of counsel. We disagree with Appellant’s
contention that her counsel’s failure to object to the amounts of the fines constituted
ineffective assistance of counsel.
       “In assessing claims of ineffective assistance of trial counsel, we consider whether
counsel’s representation fell below an objective standard of reasonableness under

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prevailing professional norms and whether the defendant suffered prejudice to a
reasonable probability, that is, a probability sufficient to undermine confidence in the
outcome. [Citations.] A reviewing court will indulge in a presumption that counsel’s
performance fell within the wide range of professional competence and that counsel’s
actions and inactions can be explained as a matter of sound trial strategy. Defendant thus
bears the burden of establishing constitutionally inadequate assistance of counsel.
[Citations.] If the record on appeal sheds no light on why counsel acted or failed to act in
the manner challenged, an appellate claim of ineffective assistance of counsel must be
rejected unless counsel was asked for an explanation and failed to provide one, or there
simply could be no satisfactory explanation. [Citation.] Otherwise, the claim is more
appropriately raised in a petition for writ of habeas corpus. [Citation.]” (People v.
Carter (2003) 30 Cal.4th 1166, 1211; see also People v. Stewart (2004) 33 Cal.4th 425,
459 [citing the well-established principle that, “if the record does not preclude a
satisfactory explanation for counsel’s actions, we will not, on appeal, find that trial
counsel acted deficiently. [Citations.]”].)
       Here, the record sheds no light on why counsel did not object to the amounts of
the fines. The record does not preclude the possibility that counsel did not object because
the amounts simply did not appear unreasonable. Appellant’s claim accordingly “is more
appropriately decided in a habeas corpus proceeding. [Citations.]” (People v. Mendoza
Tello (1997) 15 Cal.4th 264, 266-267.)
       Appellant relies on People v. Le (2006) 136 Cal.App.4th 925, 935-936, in which
the appellate court agreed with the defendant’s ineffective assistance of counsel claim
and reduced the amount of the restitution fine. People v. Le, however, is inapposite
because, in that case, trial counsel failed to object to an improper consecutive sentence
and to the trial court’s improper inclusion of a conviction in calculating the amount of the
fine. (Id. at p. 935.) The court accordingly found that trial counsel’s error was
prejudicial. (Id. at p. 936.)



                                              8
       Here, by contrast, there was no error in imposing Appellant’s sentence and no
error in calculating the amount of the fine. There is nothing in the record to support
Appellant’s contention that it is highly probable that the court would have imposed a
lower fine had counsel raised an objection to the fines. Appellant accordingly has failed
to establish that she was prejudiced by counsel’s failure to object to the amounts of the
fines. Appellant’s counsel did not render ineffective assistance.
III.   Amounts of Restitution Fines
       Even if Appellant did not forfeit her challenge to the fines by failing to object in
the trial court, her contentions are unmeritorious. Appellant contends that the trial court
did not realize that it had the discretion to impose a lower fine, and that, even if the court
was aware of its discretion, the court abused its discretion by failing to impose a lower
fine. We disagree. There is no indication that the trial court was unaware of its
discretion to set a lower fine, and the amounts that the trial court imposed do not indicate
that the court abused its discretion.
       The trial court’s restitution order is reviewed for an abuse of discretion. (People v.
Millard (2009) 175 Cal.App.4th 7, 26.) “‘“‘Where there is a factual and rational basis for
the amount of restitution ordered by the trial court, no abuse of discretion will be found
by the reviewing court.’” [Citations.]’ [Citation.]” (Ibid.) We “will not disturb the trial
court’s determination unless it is arbitrary, capricious and exceeds the bounds of reason.”
(People v. Maheshwari (2003) 107 Cal.App.4th 1406, 1409.)
       At the time of Appellant’s offenses, Penal Code section 1202.4 provided, in
pertinent part, as follows: “(b) In every case where a person is convicted of a crime, the
court shall impose a separate and additional restitution fine, unless it finds compelling
and extraordinary reasons for not doing so, and states those reasons on the record. [¶]
(1) The restitution fine shall be set at the discretion of the court and commensurate with
the seriousness of the offense, but shall not be less than two hundred dollars ($200), and
not more than ten thousand dollars ($10,000), if the person is convicted of a felony, and
shall not be less than one hundred dollars ($100), and not more than one thousand dollars

                                              9
($1,000), if the person is convicted of a misdemeanor. [¶] (2) 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. [¶] (c) The court shall impose the restitution fine unless it finds compelling
and extraordinary reasons for not doing so, and states those reasons on the record. . . .”
(Pen. Code, § 1202.4, subds. (b) & (c); see People v. Hamilton (2003) 114 Cal.App.4th
932, 940, fn. 5 [applying the version of Penal Code section 1202.4 in effect at the time of
the crime].)
       In support of her contention that the trial court did not realize it had the discretion
to impose the minimum fine of $200, Appellant cites the court’s statement that Appellant
was ordered to “pay a mandatory $200 restitution fine per year.” Appellant’s contention
is unavailing.
       “It is a basic presumption indulged in by reviewing courts that the trial court is
presumed to have known and applied the correct statutory and case law in the exercise of
its official duties. [Citations.]” (People v. Mack (1986) 178 Cal.App.3d 1026, 1032.)
There is no indication in the record that the trial court was unaware of its discretion to
impose a lower fine. The court’s description of the fine as “a mandatory $200 restitution
fine per year” is merely a reflection of the fact that the fine is mandatory pursuant to the
statute.
       The statute states that “[t]he court shall impose the restitution fine unless it finds
compelling and extraordinary reasons for not doing so, and states those reasons on the
record.” (Pen. Code, § 1202.4, subd. (c), italics added.) “[T]he usual rule with California
codes is that ‘shall’ is mandatory and ‘may’ is permissive unless the context requires
otherwise.” (Walt Rankin & Associates, Inc. v. City of Murrieta (2000) 84 Cal.App.4th
605, 614.) The trial court’s statement does not indicate that the court erroneously
believed that it lacked discretion to impose a lower fine.



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         We also reject Appellant’s contention that the trial court abused its discretion in
choosing the amounts of the fines. It is true that the statute provides that, in determining
the amount of the fine, “the court shall consider any relevant factors, including, but not
limited to, the defendant’s inability to pay, the seriousness and gravity of the offense and
the circumstances of its commission, any economic gain derived by the defendant as a
result of the crime, [and] the extent to which any other person suffered any losses as a
result of the crime, . . . .” (Pen. Code, § 1202.4, subd. (d).) Nonetheless, the statute
further provides that “[e]xpress findings by the court as to the factors bearing on the
amount of the fine shall not be required.” (Ibid.)
         Appellant has failed to establish that the amounts of the fines were arbitrary,
capricious, or exceeded the bounds of reason. (People v. Maheshwari, supra, 107
Cal.App.4th at p. 1409.) Although the trial court did not articulate its reasons for the
amounts of the fines, the record indicates that the court could have taken into account
factors such as “the seriousness and gravity of the offense and the circumstances of its
commission, any economic gain derived by the defendant as a result of the crime, the
extent to which any other person suffered any losses as a result of the crime, and the
number of victims involved in the crime.” (Pen. Code, § 1202.4, subd. (d).) Appellant
certainly derived economic gain from her offenses, and she caused large financial losses
to several victims. The trial court did not abuse its discretion in imposing the restitution
fines.
IV.      Penal Code Section 4019
         Under Penal Code section 2900.5, a defendant sentenced to imprisonment is
entitled to presentence custody credit pursuant to Penal Code section 4019, which sets
forth the formula to determine the accrual of work and conduct presentence credits. At
the time of Appellant’s sentencing on September 17, 2008, section 4019 provided for one
day of work time credit and one day of conduct credit for each six-day period of custody.
(Pen. Code, § 4019, subds. (b) & (c) (2008).)



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       The statute was amended, effective January 25, 2010, to provide for one day each
of work time and conduct credit for every four-day period of custody. (Pen. Code,
§ 4019, subds. (b) & (c), as amended by Stats. 2009, ch. 28, § 50 (Sen. Bill No. 18).)
Appellant contended that the statute should be applied retroactively, entitling her to the
additional credits afforded by the provisions of section 4019 in effect at the time of her
appeal.4
       In People v. Brown, supra, 54 Cal.4th 314, however, our Supreme Court held that
former section 4019 must be applied prospectively, and that the equal protection clauses
of the federal and state Constitutions (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7,
subd. (a)) do not require retroactive application. (Id. at pp. 318, 325-329.) We therefore
hold in accord with that decision that the 2009 amendment to Penal Code section 4019
does not apply retroactively, and that Appellant is not entitled to the benefit of the
amended statute. (Ibid.)
                                      DISPOSITION
       The judgment is affirmed.
       NOT TO BE PUBLISHED.



                                                                 CHANEY, J.

We concur:



              ROTHSCHILD, Acting P. J.



              JOHNSON, J.



 4The Legislature has since enacted a number of further amendments, with
modifications not relevant here.

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