Filed 7/8/15 P. v. Garges 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.



                                                       COPY

              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                       (Siskiyou)
                                                            ----




THE PEOPLE,                                                                                  C076566

                   Plaintiff and Respondent,                                       (Super. Ct. No. 120960)

         v.

CHARLES RAY GARGES,

                   Defendant and Appellant.




         Defendant Charles Ray Garges appeals the judgment imposed following his
conviction for escape from custody. Specifically, he appeals the trial court’s order that he
pay a restitution fund fine of $1,800, and the imposition of the corresponding $1,800
parole revocation fine. Based on counsel’s failure to object, we find this issue forfeited.
Anticipating this conclusion, defendant also contends he received ineffective assistance



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of counsel. On this point, we agree with defendant. We will correct the fines and order
the abstract of judgment amended accordingly.

                                 FACTS AND PROCEEDINGS

       In April 2012 defendant was an inmate at the Deadwood Conservation Camp, an
institution within the California Department of Corrections and Rehabilitation.
Defendant had been repeatedly advised of the boundaries of the camp and the
consequences of being outside the boundaries. The boundaries are well marked.
       One April evening, Correctional Officer Chad Tupman was conducting a
perimeter check of the camp. He noticed an inmate near the roadway. Tupman
confronted the inmate, defendant, and asked what he was doing. Defendant appeared
nervous and answered he was looking for a “drop.” A “drop” is a term used to describe a
package of contraband left by a noninmate for an inmate just outside of camp limits.
Tupman ordered defendant back to camp. Defendant apologized, complied with
Tupman’s order, and returned to camp. Tupman looked for the drop but could not find it.
       An information charged defendant with escape from custody, a felony. (Pen.
Code, § 4530, subd. (b); unless otherwise set forth, statutory references that follow are to
the Penal Code.) The information also alleged defendant had a prior strike conviction
(§§ 667, subd. (e), 1192.7) and had served five prior prison terms (§ 667.5, subd. (b)).
       A jury found defendant guilty and, in bifurcated proceedings, defendant admitted
the prior strike conviction and admitted that he had served three prior prison terms. On
the People’s motion, the trial court struck the remaining enhancement allegations. The
trial court sentenced defendant to an aggregate term of six years in prison. The trial court
also ordered defendant to pay various fines and fees including a restitution fund fine
pursuant to section 1202.4, subdivision (b) and a matching parole revocation fine under
section 1202.45. In imposing that fee, the trial court stated, “There is a restitution fine
pursuant to Penal Code 1202.4(b), and that’s $200 times the number of years. So that’s


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$1200.” The clerk advised the court, “Your Honor, I believe that’s been changed to
$300.” The court then stated, “Oh, I have the old form. I’m sorry. $1800.”

                                         DISCUSSION

       Section 1202.4, subdivision (b)(2) states: “In setting a felony restitution fine, the
court may determine the amount of the fine as the product of the minimum fine . . .
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.” Here, at
sentencing, the trial court indicated it intended to impose a restitution fine “that’s $200
times the number of years. So that’s $1200.” When the clerk advised the court the
minimum fine amount was now $300, the court recalculated the fine to $1,800, or $300
times the number of years.
       Defendant contends the imposition of an $1,800 restitution fund fine, and
corresponding $1,800 parole revocation fine, was an unauthorized sentence. He argues
by utilizing the 2013 version of section 1202.4, which has a $300 minimum, rather than
2012 version, which had a $240 minimum, the trial court violated the prohibition against
ex post facto laws. He further asserts that, because the sentence was unauthorized, the
issue is not forfeited by counsel’s failure to object.
       Defendant committed his crime in April 2012. At the time he committed his
crime, the minimum restitution fine under section 1202.4, subdivision (b) was $240.
(Former § 1202.4, Stats. 2011, ch. 358, § 1.) The statute was amended effective
January 1, 2013, to provide: “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).” (§ 1202.4, subd. (b)(1).)
       Generally, a sentence is “ ‘unauthorized’ where it could not lawfully be imposed
under any circumstance in the particular case.” (People v. Scott (1994) 9 Cal.4th 331,


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354 (Scott).) The $1,800 restitution fund fine does not meet this definition, because the
$1,800 restitution fund fine was within the statutory limits. Thus, the trial court had the
legal authority to impose a fine in that amount. (§ 1202.4, subd. (b); see People v. Lewis
(2009) 46 Cal.4th 1255, 1321.) Because the sentence could lawfully be imposed,
defendant was required to object in the trial court to preserve the issue for appeal. (Scott,
at p. 354; People v. Smith (2001) 24 Cal.4th 849, 851-852.) In the absence of an
objection, defendant has forfeited his claim of error. (People v. McCullough (2013)
56 Cal.4th 589, 599.)
       “[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; see also People v.
Downing (1985) 174 Cal.App.3d 667, 672.) Applying a later version of the statute
constitutes an error and an ex post facto violation. “Nevertheless, the rule of forfeiture is
applicable to ex post facto claims [citation], particularly where any error could easily
have been corrected if the issue had been raised at the sentencing hearing.” (People v.
Martinez (2014) 226 Cal.App.4th 1169, 1189.)
       Anticipating this conclusion, defendant also contends trial counsel rendered
ineffective assistance of counsel by failing to object to the trial court’s use of the
incorrect minimum amount to calculate the restitution fund fine. The People properly
concede this issue.
       To prevail on an ineffective assistance of counsel claim, appellant must prove two
elements: (1) trial counsel’s deficient performance; and (2) prejudice as a result of that
performance. (Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674]
(Strickland).) Deficient performance is established if the record demonstrates that
counsel’s representation “fell below an objective standard of reasonableness under the
prevailing norms of practice.” (In re Alvernaz (1992) 2 Cal.4th 924, 937.) With respect
to unfavorable sentencing issues, “a defense attorney who fails to adequately understand
the available sentencing alternatives, promote their proper application, or pursue the most

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advantageous disposition for his client may be found incompetent. [Citations.]” (Scott,
supra, 9 Cal.4th at p. 351; see also People v. Le (2006) 136 Cal.App.4th 925, 936
[finding ineffective assistance of counsel where counsel failed to object to a fine
calculation in which the court added counts where a punishment should have been stayed
per § 654].) Further, “[e]ven where deficient performance appears, the conviction must
be upheld unless the defendant demonstrates prejudice, i.e., that, ‘ “ ‘but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.’ ” ’ [Citations.]” (People v. Anderson (2001) 25 Cal.4th 543, 569.)
       Here, both prongs of Strickland are satisfied. The record before us indicates the
trial court relied on the formula in section 1202.4, subdivision (b)(2) to calculate the
amount of the restitution fund fine, the minimum fine times the number of years times the
number of felony counts. Trial counsel failed to object to the trial court’s mistaken
statement of the minimum statutory fine. It is reasonably probable the court would have
imposed a smaller restitution fund fine, and corresponding parole revocation fine, if trial
counsel had objected at sentencing to the use of the wrong minimum in the formula.
Specifically, the trial court would have used the $240 minimum and imposed a restitution
fund fine and corresponding parole revocation fine of $1,440, rather than $1,800 fines
respectively. We therefore conclude that defendant here suffered ineffective assistance of
counsel.




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                                      DISPOSITION

      The judgment is modified to reduce the restitution fund fine, and corresponding
parole revocation fine, from $1,800 to $1,440. The trial court shall prepare an amended
abstract of judgment reflecting this modification and forward the amended abstract to the
Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.



                                                      HULL                  , J.



We concur:



      NICHOLSON            , Acting P. J.



      RENNER               , J.




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