Filed 8/25/15 P. v. Michael 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                      (El Dorado)
                                                            ----




THE PEOPLE,                                                                                  C078558

                   Plaintiff and Respondent,                                   (Super. Ct. No. S13CRF0144)

         v.

JORDAN JOSEPH MICHAEL,

                   Defendant and Appellant.




         On August 25, 2014, defendant Jordan Joseph Michael pleaded no contest to
assault by means of force likely to produce great bodily injury—an offense that occurred
on June 28, 2013. (Pen. Code, § 245, subd. (a)(4).)1 He also admitted inflicting serious
bodily injury. (§ 12022.7, subd. (a).) Defendant appeared for sentencing on January 23,



1   Undesignated statutory references are to the Penal Code.

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2015, and was sentenced to six years in prison. Defendant’s sole contention on appeal is
that the trial court’s imposition of a $300 restitution fine at sentencing violated ex post
facto principles and must be reduced. We affirm.
                                       DISCUSSION
       At sentencing, the trial court imposed a $300 restitution fine pursuant to
section 1202.4, subdivision (b)(1), which provides in relevant part: “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. If the person is convicted of a felony,
the fine shall not be less than two hundred forty dollars ($240) starting on January 1,
2012, two hundred eighty dollars ($280) starting on January 1, 2013, and three hundred
dollars ($300) starting on January 1, 2014, and not more than ten thousand dollars
($10,000).” Restitution is imposed under the law applicable at the time of the offense,
not at the time of sentencing. (People v. Souza (2012) 54 Cal.4th 90, 143.)
       Defendant argues that the imposition of the $300 restitution fine was a violation of
the constitutional prohibition against ex post facto penalties and must be reduced to $280
to reflect the statutory minimum in effect at the time of his June 2013 offense. We
disagree, as defendant forfeited any claim of error.
       The ex post facto clauses of both the federal and state Constitutions prohibit any
statute that makes more burdensome the punishment for a crime after its commission.
(Tapia v. Superior Court (1991) 53 Cal.3d 282, 294-295.) “A restitution fine qualifies as
punishment for purposes of the prohibition against ex post facto laws.” (People v. Saelee
(1995) 35 Cal.App.4th 27, 30.)
       At the time of defendant’s offense, section 1202.4 provided for a fine between
$280 and $10,000, “at the discretion of the court and commensurate with the seriousness

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of the offense.” (§ 1202.4, subd. (b)(1).) Although the minimum fine had been increased
to $300 by the time of defendant’s sentencing, defendant was actually still eligible for the
earlier minimum fine of $280 based on the date of his offense. (Ibid.) Further, it appears
from the trial court’s remarks that it was imposing the minimum restitution fine, that it
would have imposed a $280 fine had defendant’s eligibility been brought to its attention.
There was, however, no objection to the $300 fine below.
        Defendant argues that he did not forfeit the claim of error. We disagree because
the sentence was not unauthorized when imposed.
        “Although the cases are varied, 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.”
(People v. Scott (1994) 9 Cal.4th 331, 354 (Scott).) The $300 fine could be lawfully
imposed in June 2013 and was therefore not unauthorized when imposed in January
2015.
        Because the fine was not unauthorized, by not raising it at the sentencing hearing,
defendant forfeited any claim that the trial court mistakenly imposed more than the
minimum fine. “Although the court is required to impose sentence in a lawful manner,
counsel is charged with understanding, advocating, and clarifying permissible sentencing
choices at the hearing. Routine defects in the court’s statement of reasons are easily
prevented and corrected if called to the court’s attention. As in other waiver cases, we
hope to reduce the number of errors committed in the first instance and preserve the
judicial resources otherwise used to correct them.” (Scott, supra, 9 Cal.4th at p. 353.)
Here, had defendant raised the 2013 minimum fine amount below, the trial court could
have corrected any error in the amount of the fine. Because he did not, he may not
challenge the fine on appeal.



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                                 DISPOSITION
     The judgment is affirmed.



                                               RAYE   , P. J.



We concur:



       MAURO            , J.



       DUARTE           , J.




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