Filed 10/14/14 P. v. Porter 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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,                                                                                  C074767

                   Plaintiff and Respondent,                                     (Super. Ct. No. 12F01443)

         v.

ARMAIL KENYAMA PORTER,

                   Defendant and Appellant.




         In June 2013, defendant Armail Kenyama Porter pled no contest to possessing
identifying information of 10 or more people with intent to defraud. The trial court
sentenced him to five years in prison and imposed a $1,400 restitution fine with another
$1,400 fine suspended pending completion of parole.
         The trial court told defendant it was imposing the fines pursuant to the formula in
subdivision (b)(2) of section 1202.4 of the Penal Code (section 1202.4(b)(2)). This
formula multiplies the applicable minimum fine by the number of years defendant was




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sentenced to serve in prison.1 (Pen. Code, § 1202.4, subd. (b)(1)). The trial court
erroneously believed the minimum fine to be used in the calculation was $280 when in
fact it was $240. The trial court therefore mistakenly multiplied $280 by defendant’s
five-year prison sentence and, as a result, imposed two $1,400 fines. Defense counsel
failed to advise the trial court that the minimum fine was $240, rather than $280.
       On appeal, defendant argues (among other things) that his counsel was ineffective
for failing to notify the court of its mistake regarding the minimum fine. The People
concede and we agree. Accordingly, we will modify the judgment to reduce defendant’s
fines to $1,200 each.
                  FACTUAL AND PROCEDURAL BACKGROUND
       On January 24, 2012, police searched defendant’s home and discovered evidence
that he possessed identifying information of 10 or more people with intent to defraud. In
June 2013, defendant pled no contest to this crime and admitted committing a serious
felony in 1996 and serving prison time in 2005. Both parties waived preparation of a
probation report. At the time of his plea, the trial court told defendant he would be
“required to pay a restitution fine of not less than $280 or more than $10,000.” At his
subsequent sentencing hearing, the trial court sentenced defendant to five years in prison
and announced as follows: “Restitution fine pursuant to Penal Code section 1202.4 is set
in the amount of $1,400. That is calculated pursuant to the formula of Penal Code section
1202.4(b)(2).”2 The court imposed an additional restitution fine in the same amount that


1     The formula then multiplies the product by the number of counts defendant was
convicted of; however, in this case, defendant was convicted of only one count.

2      Penal Code section 1202.4, subdivision (b) provides as follows:

       “(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

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would remain suspended unless defendant’s parole was revoked. Defense counsel did
not object to the fines.
                                        DISCUSSION
       On appeal, defendant argues the trial court intended to calculate the fine using the
minimum fine pursuant to section 1202.4(b)(2), but it mistakenly believed the applicable
minimum fine was $280 when it was actually $240. Defendant argues the $1,400
restitution fine and corresponding parole fine should both be reduced to $1,200 each
because: (1) the trial court violated ex post facto principles by improperly calculating the
fines; (2) defendant was deprived of due process of law because the trial court was not
fully aware of its discretion; and (3) his counsel was ineffective for failing to object to
this miscalculation at sentencing.
                                               I
             Defendant Forfeited His Ex Post Facto And Due Process Claims
       The People argue that defendant forfeited his ex post facto and due process
arguments by failing to object in the trial court. We agree. It is well settled that “a
defendant’s failure to object in the trial court to the imposition of a restitution fine
constitutes a waiver of the right to complain thereof on appeal.” (People v. Gibson
(1994) 27 Cal.App.4th 1466, 1469.) The forfeiture rule applies “to claims involving the
trial court’s failure to properly make or articulate its discretionary sentencing choices.”
(People v. Scott (1994) 9 Cal.4th 331, 353.)




dollars ($300) starting on January 1, 2014, and not more than ten thousand dollars
($10,000). . . .

        “(2) In setting a felony restitution fine, the court may determine the amount of the
fine as the product of the minimum fine pursuant to paragraph (1) 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.”

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       In Gibson we considered the appeal of a restitution fine the defendant claimed he
did not have the ability to pay. (People v. Gibson, supra, 27 Cal.App.4th at p. 1467.) In
that case, we stated that “the need for orderly and efficient administration of the law--i.e.,
considerations of judicial economy--demand that defendant’s failure to object in the trial
court to imposition of the restitution fine should preclude him from contesting the fine on
appeal.” (Id. at p. 1469.) The same considerations apply in this case to defendant’s
arguments that the trial court failed to appreciate the full scope of its discretion and that
the court violated ex post facto principles. By failing to object on these grounds in the
trial court, defendant forfeited his right to object and cannot raise the ex post facto and
due process arguments for the first time on appeal.
                                              II
 Defense Counsel Was Ineffective For Failing To Notify The Trial Court Of Its Mistake
       Defendant contends that if his ex post facto and due process claims were forfeited,
then he was denied effective assistance of counsel for failing to object to the $1,400 fines.
The People concede and we agree.
       To establish ineffective assistance of counsel, a defendant must “demonstrate that
(1) counsel’s representation was deficient in falling below an objective standard of
reasonableness under prevailing professional norms, and (2) counsel’s deficient
representation subjected [the defendant] to prejudice, i.e., there is a reasonable
probability that, but for counsel’s failings, the result would have been more favorable to
[the defendant].” (In re Wilson (1992) 3 Cal.4th 945, 950.)
       Here, the trial court’s statements clearly showed that the court intended to impose
fines based on the formula in section 1202.4(b)(2) but mistakenly believed the minimum
fine to be used in the formula was $280 when it was actually $240. At the plea hearing,
the trial court stated that defendant was “required to pay a restitution fine of not less than
$280 or more than $10,000.” This shows that the court believed $280 was the applicable
minimum fine. More importantly, the court imposed a $1,400 fine that the court said was

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“calculated pursuant to the formula of Penal Code section 1202.4(b)(2).” Under that
formula, the fine is calculated by determining the minimum fine that can be imposed and
multiplying it by the number of years of imprisonment the defendant is ordered to serve
and the number of felony counts of which the defendant is convicted. (Pen. Code,
§ 1202.4, subd. (b)(2).)
       Because defendant committed his crime in 2012, the minimum fine that could be
imposed on him was $240. (Pen. Code, § 1202.4, subd. (b)(1); see People v. Martinez
(2014) 226 Cal.App.4th 1169, 1189 [finding minimum restitution fine based on date of
offenses, not date of sentencing].) Defendant was convicted of one crime and was
sentenced to five years in prison. Therefore, if the court had properly calculated the fine
pursuant to the formula in section 1202.4(b)(2), the restitution fine and corresponding
parole fine would have been $1,200 ($240 x 5 x 1) each.
       Defense counsel should have recognized the trial court’s mistake regarding the
applicable minimum fine and notified the court at sentencing (if not at the plea hearing).
Counsel’s failure to raise a meritorious objection as a result of ignorance or
misunderstanding of the controlling law, rather than because of an informed tactical
determination, constitutes deficient performance. (In re Wilson, supra, 3 Cal.4th at
pp. 955-956.) We can find no conceivable tactical explanation for defense counsel’s
failure to advise the court that the applicable minimum fine was $240 rather than $280.
Defense counsel’s failure to object therefore constitutes deficient performance.
       Furthermore, defense counsel’s deficient representation prejudiced defendant
because there is reasonable probability that, but for counsel’s failure to object, the trial
court would have imposed fines in the amount of $1,200 instead of $1,400. The trial
court conveyed to both parties an unmistakable intent to impose fines based on the
formula set forth in section 1202.4(b)(2), which calculates the amount as “the product of
the minimum.” (Pen. Code, § 1202.4, subd. (b)(2).) If the court had known the
applicable minimum fine was $240, the court likely would have multiplied that amount

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by the five years of defendant’s sentence and imposed a restitution fine and a
corresponding parole fine of $1,200 each.
                                     DISPOSITION
      The judgment is modified to reduce the restitution fine and the corresponding
parole fine from $1,400 to $1,200 each. As modified, the judgment is affirmed. The trial
court is directed to prepare an amended abstract of judgment and to send a copy of the
amended abstract of judgment to the Department of Corrections and Rehabilitation.



                                                       ROBIE                , Acting P. J.



We concur:



      MAURO                , J.



      HOCH                 , J.




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