Filed 3/13/14 P. v. Scottzsha CA1/5
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A137284
v.
SALAAM SCOTTZSHA,                                                    (Contra Costa County
                                                                     Super. Ct. No. 51204478)
         Defendant and Appellant.


         Appellant Salaam Scottzsha received a sentence of 44 years to life in state prison
after a jury found him guilty of attempted murder and second degree robbery and other
sentencing enhancement allegations were found true. Scottzsha contends that the
prosecutor committed prejudicial misconduct by commenting in final argument on
Scottzsha’s postarrest, pre-Miranda1 silence; that the court committed sentencing error in
imposing a concurrent term for his robbery conviction rather than staying sentence on
that offense; and that the court imposed an unauthorized restitution fine. We will order a
reduction in the restitution fine but otherwise affirm.
                                            I.        BACKGROUND
         On December 12, 2011, Deven Jackson was shot three times during an abortive
sale of marijuana. He identified Scottzsha as the prospective buyer, who shot him and
absconded with the marijuana. Jackson survived but was severely injured. He was flown
to the hospital by helicopter for surgery and was initially hospitalized for about 30 days,


         1
             Miranda v. Arizona (1966) 384 U.S. 436.


                                                             1
returning to the hospital for another two weeks after his wounds became infected. At
trial, Jackson still had scars from the gunshot wounds and the surgeries performed to treat
them. Since sufficiency of the evidence to support Scottzsha’s conviction is not in issue,
we need only briefly summarize the details of the shooting.
       On the day of the shooting, Scottzsha called an acquaintance, Tharon Roberts, and
told Roberts that he wanted to purchase a large quantity of marijuana. Roberts called
Jackson, a close friend, to arrange a transaction for three pounds of marijuana at a price
of $2,000 per pound. Jackson and Roberts arrived in Jackson’s car at the In-N-Out
Burger parking lot in Pinole, along with Jackson’s girlfriend and two other men.
Scottzsha arrived in a Nissan Altima, accompanied by another man. Scottzsha and
Jackson got into the backseat of Jackson’s car to discuss the terms of the marijuana sale.
Jackson testified that Scottzsha said that he was going to get money for the purchase from
his car, but returned with a semiautomatic handgun, pointing it directly at Jackson and
saying “ ‘My thang ain’t on safety, what you going to do?’ ” Jackson attempted to push
the barrel of the gun away, but was shot by Scottzsha first in the abdomen and then in the
left ribcage. Jackson was shot a third time in the back. Scottzsha fled with the
marijuana.
       Police recovered three nine-millimeter shell casings from the scene, and found a
trail of marijuana debris leading from Jackson’s parked car to the area where Scottzsha’s
car had been parked.
                                     Scottzsha’s Arrest
       Pinole Police Department Detectives Wallace and Combong located and
interviewed Roberts on the day following the shooting. Roberts told the detectives that
he knew Scottzsha as “Boobie,” that he had a distinctive tattoo of a rosary around his
neck with a biblical verse reference, and that he lived in the Sobrante Park neighborhood
in East Oakland.
       On December 14, 2011, Scottzsha was detained by Oakland police, driving the
Nissan Altima he had used the night of the shooting. Pinole detectives were notified and
came to the scene, where they contacted Scottzsha in custody. Combong testified that


                                             2
Scottzsha “looked calm” when he first observed him, but once he identified himself as a
Pinole police officer, Scottzsha “became more profane, started swearing. [I] can’t
remember the specifics, but I just remember him yelling profanity.” Scottzsha “backed
away, slumped against the vehicle, appeared nervous, could not maintain eye contact, and
had difficulty swallowing . . . .” When Combong and other Pinole officers arrested
Scottzsha, telling him that the charges stemmed from a shooting at the In-N-Out Burger
in Pinole, Scottzsha told the officers that he “never heard of Pinole and didn’t know
where Pinole was.” Marijuana debris was found on the front seat of Scottzsha’s car.
                                Scottzsha’s Trial Testimony
       Scottzsha admitted that he had arranged, through Roberts, to purchase three
pounds of marijuana from Jackson for $6,000. Jackson arrived at the In-N-Out Burger
parking lot with three separately wrapped one-pound packages of marijuana in a black
trash bag. Scottzsha told Jackson that he only had $5,400 and asked to “slide” until the
next day to pay the remaining $600. When Jackson refused, Scottzsha said that he could
give him a gun worth $600. Jackson asked to see the gun, and Scottzsha got it from his
car. Scottzsha said that Jackson grabbed the gun, which had been converted to full
automatic, and that it discharged during a struggle over the weapon. Scottzsha ran to his
car and drove away. He denied taking the marijuana. Scottzsha claimed that he did not
intend to shoot Jackson, saying “I don’t know if he triggered it or I triggered it. I know I
was wrestling with him for a gun and I heard it go off.”
                             Prosecution’s Closing Argument
       After closing argument by defense counsel, the prosecutor in rebuttal told the jury:
“Defense argues that Mr. Scottzsha never had the opportunity to explain what happened
and that, of course, he had to wait until after everybody else had testified. And you
know, based on the evidence, that’s absolutely false. That in direct proximity to all other
witnesses being interviewed, in which all those witnesses say that there was a black male,
dreadlocks, A’s hat, some of them know about a tattoo, shot . . . Jackson, stole [a] black
bag containing marijuana. We know that those are the statements that are given to law
enforcement by the witnesses on scene. [¶] And in direct proximity to that, without sitting


                                             3
in a room to hear what those people are saying, the defendant, Mr. Scottzsha, has an
opportunity to tell the police when they say, ‘We’re arresting you for a robbery and an
attempted murder at the Pinole In-N-Out,’ and his response is, ‘I don’t know anything
about Pinole,’ words to [that] effect. And so it’s disingenuous for defense counsel to
stand up here and say, ‘Well, this is the first time that he got to say anything, and of
course, it’s going to look like he’s lined everything up because he’s never had a chance to
say what he did.’ ” Defense counsel made no objection.
                                     Verdict and Sentence
       The jury returned verdicts finding Scottzsha guilty of attempted murder and
second degree robbery. (Pen. Code, §§ 664, 187, subd. (a), 211, 212.5, subd. (c).)2 The
jury also found that Scottzsha personally and intentionally used a firearm causing great
bodily injury, and that he personally inflicted great bodily injury. (§§ 12022.53,
subds. (b)–(d), 12022.7, subd. (a).) After a court trial on prior conviction enhancements,
the trial court found that Scottzsha had suffered a serious felony prior conviction (§§ 667,
subd. (a)(1), 1170.12), and that he had served a sentence enhancing prior prison term
(§ 667.5, subd. (b)).
       The court sentenced Scottzsha to a term of 44 years to life in state prison
including: 14 years for attempted murder (the middle term of seven years doubled
pursuant to § 667, subd. (e)(1)); a consecutive indeterminate term of 25 years to life for
personally and intentionally discharging a firearm causing great bodily injury; and a
consecutive term of five years for the serious felony prior conviction enhancement. The
midterm sentence of three years for the robbery was ordered to run concurrently. Other
enhancements were stayed, and the section 667.5, subdivison (b) prior prison term
enhancement was stricken. Scottzsha was ordered to pay a $10,560 restitution fine
(§ 1202.4, subd. (b)), and he received 379 days presentence custody credits (330 actual
days, plus 49 days conduct credits).



       2
           All further statutory references are to the Penal Code unless otherwise indicated.


                                               4
                                   II.    DISCUSSION
A.     Prosecutorial Misconduct
       Scottzsha contends that the prosecutor committed prejudicial misconduct by
commenting on his postarrest, pre-Miranda silence (failure to offer his testimonial trial
explanation at the time of his arrest) during final argument. He also asserts that the
prosecutor was guilty of misconduct in violating an in limine order requiring that he first
allow the trial court to determine the admissibility of the evidence before commenting to
the jury. We disagree with both contentions.
       1.     Defense In Limine Motion
       The defense filed a pretrial motion in limine asking the trial court to require the
prosecution to provide “[a]ny statements of the defendant, including but not limited to all
statements that prosecution intends to use in its case-in-chief or as impeachment. (Evid.
Code, § 402; Pen. Code, § 1054.1[, subd. ](b).)” The defense also moved “[t]hat no
reference be made during the trial to any statements made by [Scottzsha] to any police
officer, loss prevention officer, or other member of law enforcement prior to a hearing
concerning the admissibility of those statements pursuant to [Miranda] and the due
process clauses of the United States and California Constitutions.” At the hearing on the
motions, the prosecutor indicated that he did not intend to use any statements to law
enforcement by Scottzsha in his case in chief. The trial court found that it was not “a ripe
issue at this point. If any statements do become an issue, I’d just ask you to approach so
we can have a 402 outside the presence of the jury if need be.”
       Scottzsha alleges that the prosecutor committed misconduct and violated an in
limine order when he commented to the jury on Scottzsha’s postarrest silence without
allowing the court to first determine whether the evidence was admissible under Fletcher
v. Weir (1982) 455 U.S. 604 (Fletcher). “[A] prosecutor’s conduct violates the
Fourteenth Amendment to the federal Constitution when it ‘infects the trial with such
unfairness as to make the conviction a denial of due process.’ [Citations.] In other
words, the misconduct must be ‘of sufficient significance to result in the denial of the
defendant’s right to a fair trial.’ [Citation.] A prosecutor’s conduct ‘ “that does not


                                              5
render a criminal trial fundamentally unfair” ’ violates California law ‘ “only if it
involves ‘ “the use of deceptive or reprehensible methods to attempt to persuade either
the court or the jury.” ’ ” ’ [Citation.]” (People v. Coffman and Marlow (2004)
34 Cal.4th 1, 119.)
       We see no evidence of misconduct by the prosecutor. The first problem with
Scottzsha’s argument is that the trial court made no direct ruling on the in limine motion,
only finding that the issue was not “ripe” at the time presented, and asking the
prosecution “to approach so we can have a 402 outside the presence of the jury if need
be.” As discussed post, we find that the evidence Scottzsha contests was admissible
under Fletcher and so far as the record reflects, Scottzsha never asserted that an Evidence
Code section 402 hearing was required. Further, we find no readily apparent basis which
would have required the court to exclude the evidence had such a hearing been held, and
nothing in the record indicates that the trial court considered the prosecution’s conduct to
have violated any of its orders.
       2.       Doyle3 Error
       The Fifth Amendment generally “forbids either comment by the prosecution on
the accused’s silence or instructions by the court that such silence is evidence of guilt.”
(Griffin v. California (1965) 380 U.S. 609, 615, fn. omitted.) Moreover, Miranda
warnings contain an implicit assurance that no penalty will attach to silence in the face of
police interrogation, and “[i]n such circumstances, it would be fundamentally unfair and a
deprivation of due process to allow the arrested person’s silence to be used to impeach an
explanation subsequently offered at trial.” (Doyle, supra, 426 U.S. at p. 618, fn.
omitted.) Consequently, the Supreme Court in Doyle held that “the use for impeachment
purposes of [a defendant’s] silence, at the time of arrest and after receiving Miranda
warnings, violated the Due Process Clause of the Fourteenth Amendment.” (Id. at
p. 619.) But the Supreme Court also subsequently held that the same rationale did not
apply, and that there is no constitutional prohibition on inquiry about postarrest silence,

       3
           Doyle v. Ohio (1976) 426 U.S. 610.


                                                6
where no Miranda warnings were given following the arrest. (Fletcher, supra, 455 U.S.
at p. 607.) “In the absence of the sort of affirmative assurances embodied in the Miranda
warnings, we do not believe that it violates due process of law for a State to permit cross-
examination as to postarrest silence when a defendant chooses to take the stand.” (Ibid.)
       Scottzsha made no contemporaneous objection to the prosecution’s argument he
now challenges on appeal. Failure to object in the trial court results in waiver of the
claim of Doyle error that Scottzsha seeks to pursue here. (People v. Coffman and
Marlow, supra, 34 Cal.4th at p. 118.) However, since Scottzsha alleges in the alternative
that failure to object resulted in ineffective assistance of counsel, we nevertheless address
the merits. To establish ineffective assistance of counsel, a defendant must show not only
that counsel’s performance was deficient and fell below an objective standard of
reasonableness, but that it is reasonably probable that a more favorable result would have
been reached absent the deficient performance. (Strickland v. Washington (1984)
466 U.S. 668, 687–688.) Absent a showing of prejudice, the claim of ineffective
assistance fails and inquiry into the adequacy of counsel’s performance is unnecessary.
(People v. Sanchez (1995) 12 Cal.4th 1, 40–41, disapproved on other grounds in People
v. Doolin (2009) 45 Cal.4th 390, 421 & fn. 22.)
       Scottzsha first contends that Fletcher requires cross-examination on a defendant’s
postarrest silence, and that comment to the jury on postarrest silence in the absence of
such cross-examination is impermissible. He argues that Fletcher is “limited to holding
that the state may cross-examine a defendant on his post-arrest silence when the
defendant chooses to take the witness stand.” The underlying factual premise for this
argument is incorrect to the extent Scottzsha contends that he was not asked about his
statements. Scottzsha was asked on cross-examination about his false claim never to
have been to Pinole, and he conceded that he in fact knew “exactly what [the Pinole
detectives] were talking about.”4 Further, we find no legal support for this contention.


       4
         After Scottzsha testified in his own defense, the prosecutor recalled Combong as
a rebuttal witness. Combong testified, without objection, that when told that he was

                                              7
The context in which postarrest pre-Miranda silence was used in Fletcher was cross-
examination. The defendant had testified in his own defense, admitted stabbing the
victim, but claimed that he acted in self-defense and that the stabbing was accidental.
The prosecution cross-examined Fletcher as to why he had, when arrested, failed either to
advance his exculpatory explanation to the arresting officers or to disclose the location of
the knife he had used to stab the victim. (Fletcher, supra, 455 U.S. at pp. 603–604.) In
discussing its post-Doyle decisions, the high court observed that it had “consistently
explained Doyle as a case where the government had induced silence by implicitly
assuring the defendant that his silence would not be used against him” (id. at p. 606) and
reiterated its statement in Jenkins v. Anderson (1980) 447 U.S. 231, 239 (a case dealing
with prearrest silence): “ ‘Common law traditionally has allowed witnesses to be
impeached by their previous failure to state a fact in circumstances in which that fact
naturally would have been asserted. [Citation.] Each jurisdiction may formulate its own
rules of evidence to determine when prior silence is so inconsistent with present
statements that impeachment by reference to such silence is probative.’ ” In its per
curiam opinon, the Fletcher court made no suggestion that impeachment by use of
postarrest, pre-Miranda silence was limited to cross-examination, nor do we perceive any
logical reason why it would be so limited. “The point of the Doyle holding is that it is
fundamentally unfair to promise an arrested person that his silence will not be used
against him and thereafter to breach that promise by using the silence to impeach his trial
testimony.” (Wainwright v. Greenfield (1986) 474 U.S. 284, 292.) Absent such an
implied promise, once the defendant has elected to testify to a version of events, whether
the defendant is impeached by cross-examination, or is subject to comment by the
prosecution on failure to earlier offer such evidence would appear to make little
difference.




being arrested for a shooting at the In-N-Out Burger in Pinole, Scottzsha said that he
“never heard of Pinole and didn’t know where Pinole was.”


                                             8
       Scottzsha can point to no case that has adopted his assertion that Fletcher is
“limited to holding that the state may cross-examine a defendant on his post-arrest silence
when the defendant chooses to take the witness stand.” In fact, the only California case
that Scottzsha cites in support of his argument, People v. Evans (1994) 25 Cal.App.4th
358, implicitly recognizes that use of a defendant’s postarrest silence can occur “either by
questioning or by reference in closing argument.” (Id. at p. 368 & fn. 6 [“depending on
the context, the use can be attacked as evidentiary error, prosecutorial misconduct, or . . .
both”].)
       Citing United States v. Cummiskey (3rd Cir. 1984) 728 F.2d 200 (Cummiskey),
Scottzsha next argues that the prosecution failed to meet its burden to affirmatively
establish that appellant’s postarrest silence was admissible under Fletcher. Scottzsha
insists that the prosecution must show, by record evidence, that Miranda warnings were
not given prior to the silence relied upon for impeachment purposes, and that the
prosecution made no effort to do so here. (See Cummiskey, at p. 206 [“[a]bsent record
evidence [that Miranda warnings were not given] the prosecutor may not, during cross-
examination or argument, rely, for impeachment, on the fact that the witness’s statement
to the arresting officer was not as complete as that made on the stand”]; cf. Weir v.
Wilson (6th Cir. 1984) 744 F.2d 532, 535 [“[w]e believe . . . it is necessary that the
defense make such a showing [that Miranda warnings were given prior to his silence]
before Doyle . . . comes into play].) Thus, Scottzsha contends, the Doyle prohibition
applies here. However, as the People correctly note, Cummiskey premised its holding
upon the burden allocated to the prosecution under the Federal Rules of Evidence,
rule 104(b), and not on constitutional grounds. Further, the burden only shifts to the
prosecution under the Federal Rules of Evidence “when a testifying defendant makes an
objection to the prosecutor’s cross-examination with respect to post-arrest silence . . . .”
(Cummiskey, at p. 206.) Scottzsha made no such objection. Cummiskey is in any event,
not binding on this court. (People v. Williams (1997) 16 Cal.4th 153, 190 [“[d]ecisions
of lower federal courts interpreting federal law are not binding on state courts”].)



                                              9
       Both sides also argue at some length about whether the prosecution’s rebuttal
argument was a direct response to defense argument.5 (See United States v. Robinson
(1988) 485 U.S. 25, 26, 34 [declining to apply Griffin v. California, supra, 380 U.S. 609
where defense argued in closing that the government had not allowed defendant to
explain his side of the story, and the prosecution’s response was that defendant “ ‘could
have taken the stand and explained it to you’ ”].) We need not attempt to parse the
defense argument, or determine whether the prosecution’s argument was, or was not, a
fair response, because it is irrelevant here. Scottzsha testified and offered a sworn
version of events at odds with his pre-Miranda statement to police that he “never heard of
Pinole and didn’t know where Pinole was.” “A violation of due process does not occur
where the prosecutor’s reference to defendant’s postarrest silence constitutes a fair
response to defendant’s claim or a fair comment on the evidence. [Citations.]” (People
v. Champion (2005) 134 Cal.App.4th 1440, 1448, italics added.)
       There was nothing improper in the prosecution’s comment that Scottzsha had the
opportunity to provide his story at the time of his arrest, but instead chose to falsely deny
that he had any knowledge of the location where the shooting occurred. There was no
Doyle violation, because there is no evidence that “the government . . . induced silence by
implicitly assuring the defendant that his silence would not be used against him.”

       5
          Defense counsel said: “Imagine the task—imagine the task of being accused of a
serious crime. You have to understand that you have the burden of proof on your side,
but that’s not very comforting because, the way the system works, the prosecution
presents its case first. Your foundation for this case was laid before Mr.Scottzsha ever
got to open his mouth.” Counsel later, in discussing how to evaluate Scottzsha’s
testimony, said: “The other thing you have to keep in mind is that Mr. Scottzsha heard
all the testimony. So to the extent—and I assume the suggestion, if not outright, at least
implied—is that he’s perjuring himself, or perjured himself when he testified. Keep in
mind that if you say, well what about this detail? He got that wrong. Well, he heard all
the testimony before. If he wanted to craft his testimony so that it fit seamlessly with the
other testimony, he would have. . . . [¶] So, my suggestion is, to the extent that you can
say that Mr. Scottzsha’s testimony did not coincide with this testimony, that then drawing
the conclusion that therefore this shows that Mr. Scottzsha lied, would be incorrect. It
just means that his memory of what happened is different or it means on that point
perhaps he was mistaken or the other person was mistaken.”


                                             10
(Fletcher, supra, 455 U.S. at p. 606.) Scottzsha’s derivative claim of ineffective
assistance of counsel therefore also lacks merit.
B.      Concurrent Sentences and Section 654
        Scottzsha challenges his concurrent sentences for attempted murder and robbery.
He contends that the crimes occurred during a single, continuous course of conduct with
a single criminal objective, and that the robbery term must be therefore be stayed under
section 654.
        Section 654, subdivision (a), provides, in relevant part: “An act or omission that is
punishable in different ways by different provisions of law shall be punished under the
provision that provides for the longest potential term of imprisonment, but in no case
shall the act or omission be punished under more than one provision.” The purpose of
the statute “is to prevent multiple punishment for a single act or omission, even though
that act or omission violates more than one statute and thus constitutes more than one
crime.” (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.) “ ‘[T]he protection
against multiple punishment is to insure that the defendant’s punishment will be
commensurate with his criminal liability.’ [Citation.]” (People v. Cleveland (2001)
87 Cal.App.4th 263, 268.)
        Section 654 precludes multiple punishment for a single act and also for multiple
acts constituting an indivisible course of conduct. (People v. Hester (2000) 22 Cal.4th
290, 294.) “If all of the offenses are incident to one objective, the court may punish the
defendant for any one of the offenses, but not more than one. [Citation.]” (People v.
Cleveland, supra, 87 Cal.App.4th at p. 267.) “If, on the other hand, defendant harbored
‘multiple criminal objectives,’ which were independent of and not merely incidental to
each other, he may be punished for each statutory violation committed in pursuit of each
objective, ‘even though the violations shared common acts or were parts of an otherwise
indivisible course of conduct.’ [Citation.]” (People v. Harrison (1989) 48 Cal.3d 321,
335.)
        Whether a defendant entertained multiple criminal objectives presents a question
of fact for the trial court. (People v. Osband (1996) 13 Cal.4th 622, 730–731.) The trial


                                             11
court’s implicit factual determination, that robbery and attempted murder were not
subject to section 654, is reviewed on appeal for substantial evidence. (People v.
Osband, at pp. 730–731; People v. Martin (2005) 133 Cal.App.4th 776, 781.) Where the
evidence is conflicting, we must “ ‘ “view the evidence in a light most favorable to the
[trial court’s determination] and presume in support of the [sentencing] order the
existence of every fact the trier could reasonably deduce from the evidence. [Citation.]”
[Citation.]’ [Citation.]” (People v. Hutchins, supra, 90 Cal.App.4th at pp. 1312–1313.)
       People v. Cleveland, supra, 87 Cal.App.4th 263, presented a challenge to
consecutive sentences for robbery and attempted murder. The defendant took a Sony
Walkman from a 66-year-old feeble, unresisting victim, repeatedly hitting him on the
head and body with a board, breaking the board and leaving the victim unconscious. (Id.
at pp. 271–272.) The court observed that “[w]hile it is true that attempted murder can,
under some circumstances, constitute the ‘force’ necessary to commit a robbery, here, it
was not the necessary force.” (Id. at p. 272.) “[A]n act of ‘gratuitous violence against a
helpless and unresisting victim . . . has traditionally been viewed as not ‘incidental’ to
robbery for purposes of . . . section 654.’ [Citations.]” People v. Bui (2011)
192 Cal.App.4th 1002, 1016.)
       Scottzsha insists that this case involved no such “gratuitous” acts of violence, and
that he pointed a gun at Jackson in the midst of the robbery, and when Jackson tried to
push the gun away, three shots were fired in rapid succession. But Jackson’s testimony
was that when Scottzsha pointed the gun at him and he attempted to push the barrel of the
gun away, Scottzsha shot him in the abdomen, the left ribcage, and then a third time in
the back. “ ‘[A]t some point the means to achieve an objective may become so extreme
they can no longer be termed “incidental” and must be considered to express a different
and more sinister goal than mere successful commission of the original crime.’ ” (People
v. Cleveland, supra, 87 Cal.App.4th at p. 272.) There was substantial evidence, including
the third shot in Jackson’s back before Scottzsha fled, from which the trial court could
conclude that Scottzsha engaged in gratuitous acts of violence, separate and apart from



                                             12
the force required to effectuate the robbery, and that concurrent punishment was therefore
commensurate with his criminal liability.
C.     The Restitution Fine
       The trial court imposed a section 1202.4, subdivision (b) restitution fine in the
amount of $10,560. The court calculated the fine by multiplying a base minimum fine of
$240 by the number of years of commitment (44), consistent with the base minimum fine
amount in effect at the time of sentencing. (§ 1202.4, subd. (b), as amended by Stats.
2011, ch. 358, § 1.) Scottzsha, however, was convicted of crimes committed before
January 1, 2012, when the base minimum fine was $200. (§ 1202.4, subd. (b), as
amended by Stats. 2011, ch. 45, ch. 1.)6 Scottzsha contends the $10,560 restitution fine
was an unauthorized sentence that should be corrected by remand for resentencing. The
People concede that the fine imposed exceeds the applicable statutory maximum of
$10,000.7
       Scottzsha insists that the court’s multiplication of the minimum fine by the number
of years of imprisonment to reach the total amount of the fine, “affirmatively
demonstrates that the trial court did not understand the scope of its sentencing
discretion”; that the record does not reflect that the trial court intended to impose the




       6
         At the time Scottzsha’s crimes were committed, section 1202.4, subdivision (b)
provided 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, 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 . . . .
[¶] (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.” (Stats. 2011, ch. 45, ch. 1.)
       7
         “A restitution fine qualifies as punishment for purposes of the prohibition against
ex post facto laws. [Citations]” (People v. Saelee (1995) 35 Cal.App.4th 27, 30.)


                                              13
maximum possible sentence; and that remand to determine the amount of the restitution
fine is therefore required.8 We disagree.
       A restitution fine under section 1202.4 is mandatory unless the sentencing court
“ ‘finds compelling and extraordinary reasons for not doing so, and states those reasons
on the record.’ (§ 1202.4, subd. (b).)” (People v. Tillman (2000) 22 Cal.4th 300, 302.)
Section 1202.4, subdivision (b)(1), provides that the amount of the restitution fine “shall
be set at the discretion of the court and commensurate with the seriousness of the
offense.” We do not, as Scottzsha suggests, presume that the trial court was unaware of
its discretionary authority in imposing the fine and disagree that the record “affirmatively
demonstrates” otherwise. “Pursuant to Evidence Code section 664, ‘Court and counsel
are presumed to have done their duty in the absence of proof to the contrary.’
[Citations.]” (People v. Sullivan (2007) 151 Cal.App.4th 524, 549.) The only
demonstrated error was that the court mistakenly relied upon a different version of the
statute in its calculations.
       We see no indication that the court intended to impose anything other than the
base restitution amount multiplied by the number of years of imprisonment,9 and thus
remand for resentencing is not necessary. Instead, we modify the judgment to reduce the
restitution fine imposed on Scottzsha to $8,800, the maximum amount permissible under
the court’s formula ($200 multiplied by 44), and will direct the clerk of the court to
amend the abstract of judgment accordingly. (See People v. Blackburn (1999)
72 Cal.App.4th 1520, 1534.)




       8
          The People equivocate on whether remand is required: they suggest at one point
that this court should simply direct correction of the abstract of judgment to reflect the
maximum allowable fine of $10,000, but then conclude that remand for resentencing
appears warranted.
       9
        In setting the restitution fine using a formula based on section 1202.4,
subdivision (b)(2), the court necessarily rejected the lesser amount of $5,000
recommended by the probation department.


                                             14
                                  III.   DISPOSITION
       The judgment is modified to reduce the amount of the restitution fine imposed
under section 1202.4, subdivision (b) to the amount of $8,800. The clerk of the superior
court is directed to prepare, and forward to the Department of Corrections and
Rehabilitation, an amended abstract of judgment reflecting the modified restitution fine.
In all other respects, the judgment is affirmed.




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                                 _________________________
                                 Bruiniers, J.


We concur:


_________________________
Jones, P. J.


_________________________
Needham, J.




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