Filed 1/30/14 P. v. Galan CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.


               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H039526
                                                                    (Monterey County
         Plaintiff and Respondent,                                   Super. Ct. Nos. SS130110, SS121656)

         v.

EMMANUEL BARRERA GALAN,

         Defendant and Appellant.


         Defendant Emmanuel Barrera Galan appeals from a judgment entered after he
pleaded no contest to a count of possession of methamphetamine (Health & Saf. Code, §
11377, subd. (a)) and a count of residential burglary (Pen. Code, § 459).1 His sole
contention on appeal is that the restitution fund fine imposed under section 1202.4,
subdivision (b) should be reduced from $280 to $240. For the reasons set forth below,
we reject defendant’s arguments and affirm the judgment.
                              FACTUAL AND PROCEDURAL BACKGROUND
         The underlying facts of defendant’s offenses are not relevant to his arguments on
appeal. We therefore only provide a summary of the relevant procedural background
pertaining to defendant’s case.
         On August 29, 2012, the district attorney filed a complaint (No. SS121656A)
charging defendant with a count of possession of methamphetamine (Health & Saf. Code,

         1
             Further unspecified statutory references are to the Penal Code.
§ 11377, subd. (a), count 1), a count of possession of controlled substance paraphernalia
(id. § 11364.1, subd. (a), count 2), and a count of using or being under the influence of a
narcotic (id. § 11550, subd. (a), count 3).
       On January 15, 2013, the district attorney filed a complaint (No. SS130110A)
charging defendant with a count of residential burglary (§ 459, count 1).
       Defendant signed and initialed a waiver of rights and plea form in case Nos.
SS121656A and SS130110A on February 6, 2013. For both cases, defendant placed his
initials next to the statement reading, “I understand that I will be ordered to pay a state
restitution fine of not less than $200 nor more than $10,000 and may have a like amount
suspended.” Defendant also placed his initials next to the statement reading, “I hereby
waive and give up all rights regarding state and federal writs and appeals. This includes,
but is not limited to, the right to appeal my conviction, the judgment, and any other
orders previously issued by this court. I agree not to file any collateral attacks on my
conviction or sentence at any time in the future. I further agree not to ask the Court to
withdraw my plea for any reason after it is entered.” During the change of plea hearing
on February 6, 2013, the trial court informed defendant that there was a “minimum
restitution fine as to each of the felonies of $280 and a maximum fine of $10,000.”
       The trial court suspended imposition of sentence on March 15, 2013, and placed
defendant on three years probation for both cases, subject to various terms and conditions.
The court further ordered defendant pay a $280 restitution fund fine pursuant to section
1202.4, subdivision (b) in both cases. Defendant accepted the terms of probation and did
not object to the imposition of the restitution fund fine.
       Defendant did not seek a certificate of probable cause and filed a timely notice of
appeal.
                                        DISCUSSION
       On appeal, defendant argues that the trial court specifically intended to impose the
minimum restitution fund fine under section 1202.4, subdivision (b); therefore, the

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imposition of the $280 restitution fund fine violates the prohibition against ex post facto
laws. In the alternative, defendant contends that his trial counsel rendered ineffective
assistance for his failure to object to the $280 restitution fund fine. The People counter
that defendant’s failure to obtain a certificate of probable cause and his waiver of his
right to appeal pursuant to his plea bargain bars this appeal. The People also assert that
defendant’s claims are meritless as the imposition of the $280 restitution fund fine was
authorized under the applicable law and that there is no evidence the trial court intended
to impose the minimum fine.
       Defendant’s failure to obtain a certificate of probable cause does not bar his claim
on appeal. A defendant must obtain a certificate of probable cause to challenge the
validity of a guilty plea. (§ 1237.5; People v. Panizzon (1996) 13 Cal.4th 68, 74.)
However, a defendant need not obtain a certificate if the appeal does not challenge the
validity of the plea, but instead relates to discretionary sentencing matters that occurred
after entry of the plea. (People v. Mendez (1999) 19 Cal.4th 1084, 1096; People v.
Villalobos (2012) 54 Cal.4th 177, 183.) Here defendant challenges the imposition of the
$280 restitution fund fine, which was a discretionary sentencing choice made by the trial
court after defendant entered his plea.
       Next, we address the issue of waiver. Defendant and the People agree that a
defendant may waive the right to appeal as part of a plea bargain. (People v. Panizzon,
supra, 13 Cal.4th at p. 80.) However, such waivers typically do not apply to future errors
that the defendant may not have contemplated at the time the waiver was executed. (Id.
at pp. 84-86.) At the time defendant executed the waiver of his right to appeal, he had
agreed to pay a restitution fund fine in an amount to be determined by the trial court.
However, the error alleged by defendant (that the restitution fine violated the prohibition
against ex post facto laws) occurred after defendant executed the waiver. Given the
ambiguity of the scope of defendant’s waiver, we address defendant’s claims on the
merits and explain why we reject them.

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       At the time defendant committed his offenses in 2012, section 1202.4, subdivision
(b)(1) provided that starting on January 1, 2012, in every case where a person is
convicted of a crime, the trial court shall impose a restitution fine of not less than $240
and not more than $10,000. (§ 1202.4, subd. (b); Stats. 2011, ch. 358, § 1.) Section
1202.4, subdivision (b)(1) also specified that starting on January 1, 2013, the minimum
restitution fine would be $280. Since defendant committed his offenses in 2012, the trial
court could have imposed a minimum restitution fund fine of $240. However, the
maximum restitution fund fine the trial court could have imposed was $10,000. (§ 1202.4,
subd. (b)(1).)
       The trial court stated during the change of plea hearing on February 6, 2013, that
each of defendant’s offenses carried a “minimum” restitution fine of $280 and a
maximum restitution fine of $10,000. Contrary to defendant’s claims, during the
sentencing hearing on March 15, 2013, which occurred weeks after the change of plea
hearing, the trial court did not state that it intended to impose the minimum restitution
fine. The trial court simply ordered defendant to “[p]ay a $280 restitution fine,” and
made no mention of a minimum fine. The prohibition against ex post facto laws applies
to restitution fines (People v. Valenzuela (2009) 172 Cal.App.4th 1246, 1248), but the
$280 restitution fund fine was well-within the statutory range. Therefore, the fine was
not an unauthorized sentence or an ex post facto violation.
       Furthermore, defendant’s failure to object to the $280 fine during the sentencing
hearing forfeited this issue on appeal. (People v. Turrin (2009) 176 Cal.App.4th 1200,
1207.) Defendant therefore insists that his trial counsel’s failure to object to the $280
fine rendered his assistance ineffective. However, in order to succeed on a claim of
ineffective assistance of counsel, defendant must show that his counsel failed to act in a
manner to be expected of a reasonably competent attorney acting as a diligent advocate
and that he was prejudiced thereby. (People v. Ledesma (1987) 43 Cal.3d 171, 216-217;
Strickland v. Washington (1984) 466 U.S. 668, 684 [discussing federal constitutional

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rights]; People v. Pope (1979) 23 Cal.3d 412, 422 [discussing both state and federal
constitutional rights].)
       We “ ‘need not determine whether counsel’s performance was deficient before
examining the prejudice suffered by the defendant as a result of the alleged
deficiencies . . . . If it is easier to dispose of an ineffectiveness claim on the ground of
lack of sufficient prejudice, . . . that course should be followed.’ ” (In re Jackson (1992)
3 Cal.4th 578, 604, quoting Strickland v. Washington, supra, 466 U.S. at p. 697.)
       A defendant establishes prejudice by demonstrating that without the deficient
performance there is a reasonable probability the result would have been more favorable.
In other words, even if a defendant’s counsel’s actions fall below the threshold of
reasonableness, he must still show that his counsel’s actions were prejudicial. (People v.
Ledesma, supra, 43 Cal.3d at p. 218.) Prejudice must be a “ ‘demonstrable reality,’ not
simply speculation.” (People v. Williams (1988) 44 Cal.3d 883, 937; People v. Fairbank
(1997) 16 Cal.4th 1223, 1241.)
       Defendant fails to carry his burden to establish prejudice, as his contention that the
trial court intended to impose the minimum fine under section 1202.4, subdivision (b) is
speculative. As previously discussed, during the sentencing hearing the trial court did not
state that it intended to impose the minimum fine. “ ‘A judgment or order of the lower
court is presumed correct. All intendments and presumptions are indulged to support it
on matters as to which the record is silent, and error must be affirmatively shown.’ ”
(Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Given that the record does not
unequivocally indicate that the trial court intended to order the minimum restitution fine
under section 1202.4, subdivision (b), defendant has not met his burden to show that if
his trial counsel had objected, it was reasonably probable that the trial court would have
imposed a lower restitution fine. He therefore fails to demonstrate prejudice, and his
claim of ineffective assistance of counsel fails.



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                            DISPOSITION
The judgment is affirmed.




                                          Premo, J.




WE CONCUR:




      Rushing, P.J.




      Márquez, J.




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