Filed 3/21/14 P. v Moore CA3
                                          NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                     THIRD APPELLATE DISTRICT
                                                    (Sacramento)
                                                            ----



THE PEOPLE,                                                                             C071767

                   Plaintiff and Respondent,                                     (Super. Ct. Nos.
                                                                               08F08496, 10F06388)
         v.
                                                                       ORDER MODIFYING OPINION
JESSIE TREVON MOORE,
                                                                       [NO CHANGE IN JUDGMENT]
                   Defendant and Appellant.




THE COURT:


         It is ordered that the nonpublished opinion filed herein on March 10, 2014, be
modified as follows.

         At page 15, amend the last sentence at the end of part V. of the Discussion (just
prior to the Disposition), which reads: “We will modify the judgment to reduce the two
fines to $200.” to add the following inadvertently omitted footnote 8 so that it now reads:


                                                             1
      We will modify the judgment to reduce the two fines to $200.8
      ____________
      8 In any event, as the concurring opinion properly notes, there could not be
      a conceivable tactical basis (other than inadvertence) for defense counsel to
      fail to object to the imposition of a restitution (and parole revocation) fine
      greater than the minimum in effect at the time of sentencing when the trial
      court had clearly indicated its intention to impose the absolute minimum
      fines. While it is true defendant has not asserted on appeal the ground of
      ineffective assistance of counsel, the People have had the opportunity to
      address the issue indirectly: They note trial counsel might reasonably have
      feared incurring an objection from the prosecutor. (The assertion is
      unavailing; if the prosecutor was inclined to object to a minimum set below
      the guideline in the statute for a sentence as lengthy as defendant’s, he
      would have done so in response to the court’s setting the fines at $240.)
      Given that we are not precluded from reaching an issue of law in the first
      instance on appeal in the exercise of our discretion (other than the
      admission or exclusion of evidence (People v. Williams, supra, 17 Cal.4th
      at p. 161, fn. 6; see People v. Rosas (2010) 191 Cal.App.4th 107, 115), and
      the People are not caught unawares as a result, we would need to reduce the
      fine to the correct minimum on this alternative basis.


                                There is no change in judgment.

                                   BY THE COURT:



         ROBIE                    , Acting P. J.



         BUTZ                     , J.



         MAURO                    , J.


Copies to: All parties


                                            2
Filed 3/10/14 P. v. Moore CA3 (unmodified version)
                                          NOT TO BE PUBLISHED
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
                                     THIRD APPELLATE DISTRICT
                                                    (Sacramento)
                                                            ----



THE PEOPLE,                                                                             C071767

                   Plaintiff and Respondent,                                     (Super. Ct. Nos.
                                                                               08F08496, 10F06388)
         v.

JESSIE TREVON MOORE,

                   Defendant and Appellant.



         A jury found defendant Jessie Trevon Moore guilty of attempted voluntary
manslaughter (as a lesser offense of attempted premeditated murder, a gesture of
surprising leniency), firing a gun at an occupied car, and being a convicted felon in
possession of a gun. It also sustained enhancements that alleged personal infliction of
great bodily injury in circumstances of domestic violence and various types of gun use.

         The trial court found defendant to be in violation of probation in a 2008 case based
on the evidence at trial and revoked the order of probation. The trial court sentenced
defendant to state prison for an indeterminate life term, with a concurrent prison term for
the 2008 drug offense.


                                                             1
          Although included in his notice of appeal, defendant does not raise any issues
regarding the revocation of his probation in the 2008 case. We accordingly deem the
appeal of case No. 08F08496 to be abandoned and shall dismiss it. (In re Sade C. (1996)
13 Cal.4th 952, 994.)

          Regarding his current offenses, defendant contends the trial court erred when it
allowed the prosecutor to impeach his testimony with his failure (on advice of counsel) to
bring exculpatory facts earlier to the attention of the police; did not instruct sua sponte on
lesser offenses in connection with the charge of shooting at an occupied car; improperly
instructed the jury with respect to the gun use enhancements; did not adequately reply to
a question from the jury; and imposed the wrong minimum amount for the restitution and
parole revocation fines. (We have reordered defendant’s arguments to reflect the
chronology in which they arose in the trial court.) We shall affirm the judgment in case
No. 10F06388 as modified.

                    FACTUAL AND PROCEDURAL BACKGROUND

          We resolve all explicit evidentiary conflicts in favor of the judgment and presume in
its favor all reasonable inferences. (People v. Mack (1992) 11 Cal.App.4th 1466, 1468.)
“We include this reminder because defendant’s rendering of the facts highlights what he
deems to be inconsistencies and credibility issues with respect to the . . . witnesses. . . .
[However], the jury resolved these credibility issues against defendant and we are bound
by that resolution. Accordingly, we set forth the evidence without defendant’s extensive
[emphasis of facts] regarding its reliability.” (People v. Curl (2009) 46 Cal.4th 339, 342,
fn. 3.)

          Defendant and his girlfriend, T.W., began dating in June 2010, and he had
physically abused her on other occasions (the circumstances of which we do not need to
detail). Although T.W. initially denied being a victim of domestic violence when she
was questioned in May 2011, she reported these incidents to the prosecution in April

                                                2
2012. Defendant and T.W. jointly shoplifted merchandise, returning it to the stores for
gift card credit and then selling the gift cards for cash. A couple of days before the
shooting, T.W. had just gotten $150 for selling gift cards.

       On the morning of the shooting, August 12, 2010, defendant and T.W. quarreled in
the garage of his mother’s house (where he was living), which became physical after
T.W. told him she wanted to end their relationship and he told her to give him all the
money she had with her, grabbing for her purse. T.W. broke away from defendant and
went into the house. Defendant drove off to the store. After he left, T.W. called a friend
for a ride. When T.W. went outside to get in the friend’s car, she encountered defendant
and another fight ensued when he tried to prevent her from leaving. The friend drove off.
The fight continued until defendant’s mother intervened and agreed to drive T.W. to her
friend’s home.

       T.W. sat in the locked car while waiting for defendant’s mother to retrieve
something she had left inside. Defendant shouted that he was going to shoot T.W. in the
head and kill her. Defendant followed them to a gas station with his brother and cousin.
When defendant’s mother went into the store to pay for gas, defendant again came up to
the car and threatened to shoot and kill T.W. When defendant’s mother returned,
defendant told her that T.W. owed him money. Defendant’s brother got into the car with
the mother and T.W., and they drove to the home of T.W.’s friend without further
incident. Defendant phoned T.W. later in order to inform her that his brother had told
him where she was staying.

       T.W. decided to go shopping with her friend, her friend’s sister, and her friend’s
mother. When the group went to get into the friend’s car, they1 saw defendant’s car




1 The friend did not testify.



                                             3
across the street; T.W. and the sister saw defendant sitting in the driver’s seat with other
people in the car, one of whom T.W. recognized as defendant’s cousin.

       As the friend drove off in her car, defendant drove his car at an angle toward the
passenger side, where T.W. was sitting. The friend stopped the car down the block
because she was afraid defendant was going to run into them. T.W. and the sisters’
mother testified that defendant shouted for T.W. to get out of the car and give him his
money. T.W. and the sisters’ mother saw defendant aiming a gun at T.W. The sisters’
mother testified that the gun “started shooting.”2 T.W. turned away and heard several
shots, the first of which struck her in the shoulder. The sister did not see who was
shooting, and dropped to the floor after the first shot. The bullet fractured T.W.’s
shoulder blade and C7 vertebra, and bruised her lung.

       As the friend tried to flee down the street in her car, her sister and mother could
hear more shots being fired from behind them. The rear window of their car shattered,
and the friend stopped the car. When she started to move the car again, defendant’s car
drove past them one more time and the shooting resumed. Defendant’s car then drove off.

       Seven months later, in March 2011, defendant was arrested in Redding; according
to the probation report, police saw him leaving the area of a possible car burglary and he
resisted the officers, at which point they found a gun in his backpack. He entered a plea
inter alia to being a convicted felon in possession of a gun, and was sentenced to state
prison. Forensic testing could not connect this gun with the one used in the shooting.
This gun had a “King Cobra” emblem on it; T.W. had seen a gun in defendant’s
possession three or four times, which resembled the gun he used in the shooting, but she
did not remember it having this emblem.

2 In her initial statement to the police, the sisters’ mother said she saw defendant fire the
gun. However, at the preliminary hearing, she said she saw the gun in the driver’s hand
and then ducked without seeing who actually fired the shots.


                                              4
          Defendant testified. He had given money to T.W. to get an apartment, and wanted
it back but she refused. He had been driving the car, but it was his cousin (who was
sitting behind him in the back seat) who fired the shots from the car out of pique because
T.W. had sold the cousin a gift card that did not have any balance on it and would not
return his money. Defendant had his own gun in the car, but never aimed or fired it. He
had not been aware his cousin had also been carrying a gun. Defendant drove to the
home of his great-grandaunt3 and dropped off his cousin. He never saw the cousin in
person again. Later that day, defendant got a ride to Redding, where he remained (except
for visits to Sacramento) until his arrest and conviction for the unlawful possession of the
gun. (We will incorporate additional facts relating to his testimony in the Discussion).

                                       DISCUSSION

                       I. The Impeachment Testimony Was Proper

          Toward the end of his cross-examination, the prosecutor began to ask defendant
why he had not called the police after dropping off his cousin at the great-grandaunt’s
home immediately after the shooting. Defendant asserted that he was sure someone
would report the cousin to the police and did not think it was his place to do so; he did
not want to get involved. Defense counsel lodged an ongoing “right to silence”
objection, which the trial court overruled. Defendant admitted that he became aware of
an October 2010 warrant for his arrest for the shooting when he visited Sacramento in
November 2010, but still did not want to get involved and simply hoped the police would
catch the right person. He had tried to persuade his cousin over the phone to turn himself
in. The prosecutor asked defendant why, if he had returned to Sacramento to “clear his




3 The cousin’s grandmother, making him defendant’s second cousin once removed (to be
exact).


                                              5
name,”4 he had never volunteered any information about his cousin’s involvement to
Sacramento jail officials while he was awaiting trial in this matter or contact his family to
urge the cousin to surrender. Defendant said he had provided this information to defense
counsel (at which point the trial court directed him not to testify any further about any
conversations with defense counsel about this case). Defendant also stated that he had
asserted his innocence generally to jail personnel, but no one ever questioned him about
the basis for this claim.

       In subsequent argument regarding the continuing objection, defense counsel stated
that he indeed had told defendant not to speak to anyone regarding his case before trial.
Defense counsel thus also objected to the entire line of questioning because defendant
could not answer without waiving the attorney-client privilege. The trial court indicated
it might agree with this line of argument regarding the point in time after defendant was
in custody in Sacramento, but it did not apply beforehand. The court ruled that the earlier
period was relevant to the issues of flight and consciousness of guilt, the privilege against
self-incrimination was not involved because defendant had not invoked it in the course of
any questioning after he was in custody (either in Redding or in Sacramento), and the
issue of breaching the attorney-client privilege was not a problem any longer because the
jury was now aware defendant had been acting under the advice of counsel5 without the
need for any further exploration of defense work product. The court also denied a request
for mistrial or admonishment.


4 This was a reference to defendant’s demand in March 2011 to be tried on the present
charges (Pen. Code, § 1381; undesignated statutory references will be to this code) after
his Redding conviction; he was transferred to the Sacramento County jail in May 2011.
5 This point actually was conveyed only inferentially. Although the trial court had asked
defendant a question to this effect in the course of reining in defendant’s testimony on the
subject of his conversations with defense counsel, defendant never directly responded; he
only reasserted that he had told defense counsel about the cousin and this did not result in
anyone asking him about the cousin.

                                              6
       On appeal, defendant asserts that we should analogize to the principle of Doyle
v. Ohio (1976) 426 U.S. 610 [49 L.Ed.2d 91] (Doyle)—which precludes any adverse use
of a defendant’s invocation of his privilege against self-incrimination after receiving the
advisements prescribed in Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694]
before custodial interrogation—and also preclude adverse use of a defendant’s failure
to provide exculpatory evidence of his innocence to authorities before trial on advice of
counsel. He concedes the record lacks any evidence that he was ever advised of the
privilege against self-incrimination in the course of any custodial interrogation, and
thus Doyle does not apply directly. (Fletcher v. Weir (1982) 455 U.S. 603, 605-606
[71 L.Ed.2d 490, 493-494] (Fletcher) [noting also that Doyle does not apply to pre-arrest
silence].) He thus argues that because the prosecutor’s questions about his failure to tell
anyone about the cousin’s involvement included the period after defense counsel’s
appointment in this matter, this was a violation of due process that defendant declares
ipse dixit to be prejudicial.

       In the first place, defendant has forfeited this argument (People v. Homick (2012)
55 Cal.4th 816, 861; Paterno v. State of California (1999) 74 Cal.App.4th 68, 106), as he
has failed to elaborate how the purported error could possibly be prejudicial in light of
the fact that his failure to make an effort to clear his name—from the time of the crime
(August 2010) until appointment of counsel—is admissible under traditional rules of
evidence allowing impeachment with silence under circumstances where one naturally
would assert a fact. (Fletcher, supra, 455 U.S. at p. 606 [71 L.Ed.2d at pp. 493-494].)

       In light of this forfeiture, it is sufficient for us to observe that defendant’s analogy
fails. The violation of due process in Doyle is premised on the fundamental unfairness of
the state promising that a suspect can invoke the privilege against self-incrimination
without penalty, and then breaching that promise through using silence to impeach a
defendant at trial. (People v. Hughes (2002) 27 Cal.4th 287, 332.) That defense counsel,


                                               7
as a matter of strategy, wishes to keep a client muzzled about alleged exculpatory
evidence until trial does not pose a similar unfairness on a fundamental level.6 Defendant
also attempts to rely on the Doyle rationale that the irresolvable ambiguity of silence after
being advised of the right to remain silent without penalty drains that silence of any
rational probative value. (Doyle, supra, 426 U.S. at p. 617 & fn. 8 [49 L.Ed.2d at p. 97 &
fn. 8]; People v. Hunt (2011) 196 Cal.App.4th 811, 817 [noting that due process is violated
where evidence is admitted that does not give rise to any rational probative value].)
However, subsequent holdings have referred to this observation as being mere “added
weight” to the core holding premised on fundamental unfairness. (Wainwright v.
Greenfield (1986) 474 U.S. 284, 294 [88 L.Ed.2d 623, 632]; see South Dakota v. Neville
(1983) 459 U.S. 553, 564-565 [74 L.Ed.2d 748, 759-760].) We therefore reject the claim.

               II. Instructions on Lesser Offenses Were Not Warranted

       Regarding the conviction for shooting at an occupied vehicle, defendant argues the
trial court erred in failing to instruct sua sponte on the lesser offenses of firing a gun with
gross negligence or assault with a gun, because it is possible the jury could have found on
the evidence that defendant’s cousin fired the initial shots directly at T.W. and defendant
only fired the subsequent shots while the friend was trying to drive her car away from
defendant’s car (as defense counsel urged the jury to find).

       A court is obligated to instruct on lesser offenses only where there is substantial
evidence that a defendant is guilty only of the lesser offense but not the greater, i.e.,
where reasonable persons could conclude that the facts establish only the lesser offense.



6 People v. Eshelman (1990) 225 Cal.App.3d 1513, 1520, involving a defendant who
had received advisements and then refused to talk to a private party on advice of counsel
is not apposite, nor does it provide any persuasive explanation why the advice of counsel
to remain silent should be a factor playing any role in determining whether a defendant’s
silence with a private party after advisements comes within the protections of Doyle.


                                               8
(People v. Wyatt (2012) 55 Cal.4th 694, 704.) Speculation is insufficient to establish
substantial evidence. (People v. Mendoza (2000) 24 Cal.4th 130, 174; People v. Herrera
(2006) 136 Cal.App.4th 1191, 1205 [inference cannot flow from nonexistence of a fact,
must be affirmative evidence].)

       As the People correctly assert, the record lacks any substantial evidence that there
was any victim other than the occupants of the friend’s car, and therefore substantial
evidence does not support an instruction on assault with a gun. Defendant does not have
any cogent response to this argument other than to assert the People did not cite any
authority for this proposition. No authority is required other than the element of assault
with a gun and the evidence at trial. We therefore reject this contention.

       As for firing a gun with gross negligence, assuming that a jury reasonably could
reject the testimony of T.W. and the sisters’ mother that only the driver of the other car
was pointing a gun at them before the shots were fired, there is otherwise an absence of
any substantial evidence that defendant fired any shots. Defendant testified that only his
cousin shot at the victims and fired other shots as defendant drove away, and his own gun
remained under the driver’s seat the entire time. Neither the occupants of the friend’s car
nor anyone else identified any other person affirmatively as firing any of the shots after
the initial series aimed at T.W. It therefore is utter speculation (except by way of
inference from the testimony that defendant in fact fired the initial round of shots) that
defendant fired the subsequent shots; disbelieving defendant’s testimony does not entitle
a trier of fact to infer the opposite of the testimony. (People v. Drolet (1973)
30 Cal.App.3d 207, 217; People v. Samarjian (1966) 240 Cal.App.2d 13, 18.) Defendant
again does not have any cogent response to this evidentiary lacuna. We accordingly
reject this contention as well.




                                              9
           III. The Trial Court Properly Responded to the Jury’s Question

       A little more than an hour after retiring to deliberate, the jury requested to have a
readback of the testimony of the sister and her mother, which the jury then heard on the
following morning. About an hour after the completion of the readback, the jury sent the
following question to the trial court: “We would like to know whether the fact that no
one actually saw the gun go off is enough reasonable doubt.” Pursuant to the stipulation
of the parties (which allowed for a response in writing without reconvening after notice to
counsel and the opportunity for input), the trial court proposed the following reply, which
the clerk sent to counsel by e-mail: “That is a question for you to decide, not the court.
Please refer to the definition of reasonable doubt . . . .” Defense counsel asked that the
court also refer the jury to the provided instruction on the use of circumstantial evidence
to prove intent or mental state, in particular the requirement that the jury must be
convinced beyond a reasonable doubt about any underlying facts before it can rely on
circumstantial evidence to establish a fact necessary to a conviction. The court declined
the request and delivered its response to the jury in the form it had originally proposed.
The jury returned its verdicts about a half-hour later.

       In an argument headed, “The Trial Court Failed to Adequately Answer the Jury’s
Question During Deliberations About the Fact No Witness Actually Observed the Firing
of the Gun” (italics added), defendant asserts two arguments. The first is the express
subject of the heading: Because the jury’s inquiry implicated the use of circumstantial
evidence, the trial court erred in simply referring the jury to the general concept of
reasonable doubt. The second is the claim that the court erred in failing to instruct sua
sponte with the general pattern instruction on the use of circumstantial evidence, because
the jury would not otherwise understand that the principles in the mental state
instruction—in particular, that equivocal circumstantial evidence must be interpreted in a
defendant’s favor—applied to any circumstantial proof of an essential fact (a point



                                             10
People v. Rogers (2006) 39 Cal.4th 826, 885 (Rogers) makes, which defendant does not
cite).

         To address defendant’s first argument, while section 1138 imposes a duty on a
trial court to respond to jury inquiries, where the instructions are otherwise complete the
court has discretion to fashion a response to jury questions about applying them to the
evidence; however, even if the court abuses its discretion, a defendant must demonstrate
prejudice. (People v. Beardslee (1991) 53 Cal.3d 68, 97.) A deviation from the pattern
instructions is “risky” (ibid.), especially where an inquiry indicates the jury is focusing on
a particular issue; at that point, the court must avoid giving an appearance of advocacy.
(People v. Moore (1996) 44 Cal.App.4th 1323, 1331.)

         In jurisdictions other than California, the instruction on the general concept of
reasonable doubt is sufficient guidance for the jury in applying it to the specific context
of circumstantial evidence. (Holland v. United States (1954) 348 U.S. 121, 139-140
[99 L.Ed. 150, 166] [“better rule” is that instructing circumstantial evidence must point
unequivocally to guilt “is confusing and incorrect” where jury adequately instructed on
standards for reasonable doubt]; Rogers, supra, 39 Cal.4th at p. 886; see People v.
Magana (1990) 218 Cal.App.3d 951, 955, fn. 2 [“large number of jurisdictions” do not
require special instruction on circumstantial evidence where proper instructions on
reasonable doubt included].) The trial court can hardly be considered to have abused its
discretion where it fashioned a response that would have the approval of the high court or
a substantial number of other jurisdictions; where the inquiry was in effect asking for a
quantitative measure of reasonable doubt, the trial court needed to tread carefully. Nor,
for that matter, has defendant articulated prejudice. The only circumstantial evidence at
issue established that only defendant was seen with a gun pointed at the victim and the car.
(Defendant’s testimony is direct evidence to the contrary and thus not part of the calculus.)
The inference he actually fired the shot is thus the only rational one that a reasonable juror


                                               11
could draw from this evidence. It is as if defendant were seen leaning over a roof with a
potted plant, and a victim was found directly afterward on the sidewalk below with a
shattered skull and the plant next to him. Accordingly, we reject this claim.

       Initially, defendant’s other claim appeared to be a “lurking” argument (i.e., one that
does not have any logical connection with the heading), which would forfeit our duty
to give a plenary response to it. (Imagistics Internat., Inc. v. Department of General
Services (2007) 150 Cal.App.4th 581, 593, fn. 10; Smith v. City of Napa (2004)
120 Cal.App.4th 194, 202.) However, as his reply brief makes clearer, it is a subsidiary
argument that the instructions were not otherwise complete. While a trial court has a duty to
give the general instruction where the prosecution case rests substantially on circumstantial
evidence, a court should not give the instruction where the circumstantial evidence is not
equivocal but rather is convincing evidence of a defendant’s guilt. (People v. Heishman
(1988) 45 Cal.3d 147, 167; cf. People v. Honig (1996) 48 Cal.App.4th 289, 341[same
principle applied to mental state circumstantial evidence instruction].) The instructions
were thus complete and, in any event, the lack of this instruction could not possibly be
prejudicial to defendant for the same reasons we have previously stated. We therefore reject
this argument as well.

                         IV. The Enhancements Must Be Stricken

       The instructions allowed the jury to sustain allegations of alternative gun use
enhancements (use, firing, and firing with great bodily injury under § 12022.53, subds.
(b), (c) & (d), respectively) as to both the charge of attempted voluntary manslaughter
and the charge of firing a gun at an occupied car. However, attempted voluntary
manslaughter is not a predicate offense for any subdivision of the statute (see id., subd.
(a)), and firing a gun at an occupied car comes within only subdivision (d).

       Defense counsel called the error to the trial court’s attention in connection with the
conviction for attempted voluntary manslaughter. The trial court directed the court clerk

                                             12
to omit the enhancements as to that count in the abstract of judgment, and to reflect in the
minutes that the court was striking the enhancements with a “clarification” that defendant
was in fact armed during the commission of the offense.7 In connection with defendant’s
conviction for shooting at an occupied car, the minutes and abstract show the court stayed
(under § 654) enhancements pursuant to section 12022.53, subdivisions (b), (c), and
“(e),” imposing only the enhancement pursuant to subdivision (d) of the statute.

       Defendant maintains that we should “reverse” the invalid section 12022.53
findings for both convictions, initially ignoring the fact that the trial court already struck
three of them (and then unaccountably asserting in his reply brief that we should ignore
the sentencing proceedings). The People properly concede the invalidity of these
findings, pointing out that further ameliorative action is unnecessary with respect to the
conviction for attempted voluntary manslaughter. Neither party discusses the error in the
minutes and abstract of judgment that identifies a stayed enhancement of count two
pursuant to section “12022.53(e)” rather than the actual finding pursuant to section
12022.7, subdivision (e).

       We therefore will modify the judgment to strike the two stayed findings under
section 12022.53 on count two. We will direct the trial court to amend its minutes and
the abstract accordingly, and also to amend them to reflect a stayed enhancement in count
two pursuant to the correct statute, section 12022.7, subdivision (e).

          V. The Restitution and Parole Revocation Fines Must Be Reduced

       Defendant maintains that we must reduce the restitution and parole revocation
fines to $200. The People contend this issue is forfeited on appeal because defendant did




7 Defendant does not raise any argument regarding the inclusion of this “clarification” in
the minutes (to which defense counsel objected), and therefore forfeits any claim of error.


                                              13
not object at sentencing. We disagree that the issue is forfeited and agree that we must
modify the judgment to reduce the fines.

       At the time of defendant’s offenses in August 2010, the minimum restitution fine a
trial court could impose pursuant to section 1202.4 was $200. (Former § 1202.4, subd.
(b) [as amended by Stats. 2009, ch. 454, § 1].) Effective 2012, the minimum was $240.
(See § 1202.4, subd. (b)(1) [also scheduling increases to $280 in 2013 and to $300 for
2014].)

       The probation report recommended that defendant pay a $10,000 restitution fine
(and parallel parole revocation fine). However, at sentencing, the trial court stated, “I’m
going to order that [defendant] pay a restitution fine under [section] 1202.4 in the amount
of $240. I’m going to give him the minimum. He’s getting a life sentence and I don’t
know when he’ll be released, if at all. The chances of paying this back are rather remote,
and I think that’s one thing I can do and I’m willing to exercise my discretion in that
regard. [¶] I’m going to impose the same amount under [section] 1202.45 . . . .” (Italics
added.) The probation report reflects a handwritten strikeout of the recommended
$10,000 figure, and contains handwritten figures in the margin of “200” and “240.” We
thus find that the trial court intended to impose the minimum possible restitution fine as
an act of leniency.

       Because this statute is considered punishment for purposes of ex post facto
analysis (People v. Valenzuela (2009) 172 Cal.App.4th 1246, 1248 (Valenzuela)), the
minimum fine in effect at the time of defendant’s offenses was controlling (see John L. v.
Superior Court (2004) 33 Cal.4th 158, 182, citing Lindsey v. Washington (1937) 301 U.S.
397, 400 [81 L.Ed. 1182, 1185] (Lindsey) [cannot increase minimum punishment after
commission of offense]).

       Defense counsel failed to raise this issue at the time of sentencing. However, this
was an unauthorized sentence, i.e., one that “could not lawfully be imposed under any

                                             14
circumstance in the particular case.” (People v. Scott (1994) 9 Cal.4th 331, 354.) While
the $240 restitution fine is within the lawful discretionary statutory range of the present
statute, the trial court announced an intention to impose the minimum fine, and the only
lawful minimum fine that could be imposed constitutionally under any circumstance was
the $200 amount in effect at the time of defendant’s offenses. (Lindsey, supra, 301 U.S.
at pp. 400-401 [81 L.Ed. at pp. 1185-1186] [cannot impose new minimum of 15 years
under statute as amended after commission of offense, even if sentence was within range
authorized under former statute]; cf. Valenzuela, supra, 172 Cal.App.4th at p. 1248 [even
though sex offender fine was amount presently authorized under statute, it was in excess
of amount in effect at time of offense and thus constitutionally unauthorized for purposes
of ex post facto principles; issue thus could be raised initially on appeal].) As a result,
the $240 fine was a constitutionally unauthorized minimum fine under any circumstances
and defendant did not forfeit the issue. We will modify the judgment to reduce the two
fines to $200.

                                      DISPOSITION

       The appeal in case No. 08F08496 is dismissed. The judgment in case
No. 10F06388 is modified to strike the stayed enhancements (§ 12022.53, subds. (b) &
(c)) on count two, and to reduce the restitution and parole revocation fines to $200. As
thus modified, the judgment is affirmed. The trial court shall prepare an amended minute
order and abstract of judgment both reflecting these changes in the judgment and also
specifying that the other stayed enhancement on count two (§ 12022.53, subd. “(e)”) is in
fact pursuant to section 12202.7, subdivision (e). The trial court shall forward a certified
copy of the amended abstract to the Department of Corrections and Rehabilitation.




                                                              BUTZ              , J.



                                              15
Robie, J. and Mauro, J., concurring:


       We concur with parts I through IV of the majority opinion. Regarding part V, we
concur in the result, but we disagree with certain portions of the analysis.
       We disagree with the statement in part V that imposition of the $240 restitution
fine and the $240 parole revocation fine constituted an unauthorized sentence.
The $240 amount was within the lawful statutory discretionary range at the time of
defendant’s offenses. (Former Pen. Code, § 1202.4, subd. (b) [as amended by Stats.
2009, ch. 454, § 1].) Therefore, it would not be accurate to say that the $240 fines
“ ‘could not lawfully be imposed under any circumstance in the . . . case.’ ” (People v.
Smith (2001) 24 Cal.4th 849, 852 [defining “ ‘ “unauthorized sentences” ’ ”].)
       Because the sentence was not unauthorized, and because defendant did not object
to the amount of the restitution fine and parole revocation fine in the trial court, his
challenge to the amount of those fines is forfeited. (People v. Smith, supra, 24 Cal.4th at
p. 852 [claims raised for the first time on appeal regarding the trial court’s failure to
properly make discretionary sentencing choices are not subject to review].) Nonetheless,
“[a]n appellate court is generally not prohibited from reaching a question that has not
been preserved for review by a party.” (People v. Williams (1998) 17 Cal.4th 148, 161,
fn. 6.) Whether or not it should reach the question is entrusted to its discretion. (Ibid.)
On this record we conclude that, in the interests of justice and judicial economy, it is
appropriate for us to exercise our discretion to address his challenge to the amount of the
fines notwithstanding defendant’s forfeiture.
       As the majority opinion explains, although defendant did not assert ineffective
assistance of counsel in this appeal, the record establishes that the trial court clearly
intended to impose the minimum fine, and was simply mistaken regarding the applicable
minimum. It is likely the trial court would have imposed the correct minimum if it had
been so informed, and there was no justifiable reason for defendant’s trial counsel not to

                                               1
inform the trial court of the correct minimum amount. We agree that the restitution fine
and parole revocation fine should be modified from $240 to $200.



We concur:


             ROBIE                  , Acting P. J.


             MAURO                  , J.




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