Filed 12/26/13 P. v. Tunstall 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                         (Yolo)
                                                            ----




THE PEOPLE,                                                                                  C072686

                   Plaintiff and Respondent,                                    (Super. Ct. No. CRF113354)

         v.

ROBERT LEE TUNSTALL, JR.,

                   Defendant and Appellant.




         Defendant Robert Lee Tunstall pled no contest to a charge of assault by means of
force likely to produce great bodily injury and was sentenced to seven years in prison.
On appeal, defendant contends he is entitled to additional presentence custody credit and
his restitution fine violates the constitutional prohibition against ex post facto laws. He
also contends his trial counsel was ineffective for failing to raise the ex post facto issue at
sentencing. We agree in part and remand.




                                                             1
                    FACTUAL AND PROCEDURAL BACKGROUND
       On March 27, 2011, defendant punched victim Earl Shanahorn in the mouth
without provocation. Earl Shanahorn “sustained a serious upside down ‘v’ shaped
laceration to his upper lip and his two upper front teeth were loose.”
       Defendant was charged with mayhem, battery with serious bodily injury, assault
by means of force likely to produce great bodily injury, and a great bodily injury
sentencing enhancement (among others).
       On November 3, 2011, the trial court found defendant incompetent to stand trial
and ordered him to Atascadero State Hospital for treatment. At the time this
determination was made, defendant was already in custody serving a six-month term for
an unrelated parole violation. Since Atascadero did not have a space immediately
available for him, defendant remained in the Yolo County Jail.
       While defendant was awaiting transport to Atascadero, the court held several
hearings regarding his case. At a hearing on December 2, 2011, the trial judge stated, “I
know there’s an issue of a parole hold that’s apparently resolved.” At a subsequent
hearing on December 16, 2011, defense counsel stated, “It is my understanding that
[defendant’s] parole violation term has already expired. . . . [I]t is not a case where he
has a pending parole violation. He was just serving a parole violation term for this
incident.” Defense counsel elaborated further as follows: “Your Honor, I called and
spoke to Ms. Landeros with sheriff’s transport. She indicated that the issue with CDC
has been resolved. There’s no longer a CDC hold preventing [defendant] to go [sic] to
the state hospital. They’re simply awaiting a bed. . . . So it is not an issue with CDC.”
       Defendant was finally transported and admitted to Atascadero State Hospital on
January 26, 2012.
       In July 2012, defendant was found competent to stand trial. Defendant returned to
the Yolo County Jail on July 26, 2012, and criminal proceedings were reinstated.



                                              2
       On September 5, 2012, defendant pled no contest to the charge of assault by
means of force likely to produce great bodily injury and admitted the related great bodily
injury sentencing enhancement. In exchange, all remaining charges and enhancements
were dismissed.
       In advance of the sentencing hearing, a probation report was prepared that
addressed (among other things) presentence custody credits and a restitution fine.
According to the probation report, defendant did not start accruing any presentence
custody credit until December 21, 2011, because prior to that date, “defendant was
serving a six-month parole violation as an alternative basis for custody and gets no actual
or conduct credits.” The probation report contains only a single sentence regarding the
details of defendant’s parole violation: “05-16-11: VOP, rtn to CDR.” No further
explanation is provided.
       The probation report calculated defendant’s presentence credits beginning from
December 21, 2012, and recommended defendant receive 288 days of actual custody
credit. The 288 days of actual custody credit accounted for 36 days in Yolo County Jail
awaiting transport to Atascadero State Hospital (December 21, 2011, to January 25,
2012); 182 days in Atascadero (January 26, 2012, to July 25, 2012); and 70 days in Yolo
County Jail after discharge from Atascadero (July 26, 2012, to October 3, 2012).
       The probation report also recommended that defendant receive 12 days of conduct
credit (calculated at a rate of 15 percent of days of actual custody credit). The report
explained defendant did not earn conduct credit during the time he was serving his parole
violation or during the time he was committed due to incompetency. Thus, the report
recommended no conduct credits during the December 2, 2011, to December 20, 2011,
period because of the parole revocation term and no conduct credits during the December
21, 2011, to July 25, 2012, period because defendant was committed due to
incompetency. According to the report, defendant was not eligible to start earning
conduct credit until July 17, 2012, when criminal proceedings were reinstated. Thus, the

                                              3
report recommended defendant receive conduct credit only for the 79 days he was in
custody after criminal proceedings were reinstated (July 17, 2012, through October 3,
2012). By the report’s calculation, this amounted to 12 days of conduct credit (15
percent x 79 days of actual custody).
       The probation report also recommended a $240 restitution fine be imposed on
defendant.
       At the sentencing hearing on October 3, 2012, the trial court sentenced defendant
to an aggregate term of seven years in prison and then addressed whether defendant was
entitled to presentence custody credits for the time he spent in jail and at Atascadero prior
to the sentencing hearing. The court “adopt[ed] the analysis by probation which gives
[defendant] . . . 288 [days of actual custody credit] plus 12 [days of conduct credit] for a
total of 300 [credits].” In awarding these credits, the judge explained that defense
counsel “disagree[d] with the analysis of probation” and that the credits issue would be
addressed again after further briefing by both parties.
       Also at the sentencing hearing, the trial court imposed a $240 restitution fine and a
$240 parole revocation fine. At the hearing, the following conversation transpired
regarding the amount of the restitution fine:
       “MS. PALUMBO [for the prosecution]: Your Honor, the fine under 1202.4, was
that 200, 220, or 240?
       “THE COURT: It was 240. What --
       “MS. PALUMBO: Well, it’s a November case. I mean, it’s a 2011 case, so I
don’t know if it’s 220 or 240.
       “THE COURT: Well, I -- the probation report said 240, so I didn’t question it.
       “MR. HUTCHINSON [for the defendant]: It did change. Thank you, Ms.
Palumbo, for catching that.




                                                4
       “THE COURT: Well, do you want to address that? If that’s an incorrect amount,
we’ll modify it on the same day we address the credits unless probation has some input
right now.
       “THE DEFENDANT: Is the fine in lieu of time? (Whereupon, Mr. Hutchinson
conferring with defendant.)
       “MR. HUTCHINSON: Your Honor, I will - it’s 240. I will address that in my
brief, and if it should be lower, that can be addressed at the next hearing.”
       There is nothing in the record indicating that defense counsel provided any further
briefing regarding the amount of the restitution fine.
       Defense counsel subsequently filed a motion to amend the presentence credits to
include five additional days of conduct credit. These additional days accounted for the
December 21, 2011, to January 25, 2012, period during which defendant was held in the
Yolo County Jail awaiting transport to Atascadero.1 Defense counsel argued that
defendant should have accrued conduct credit during this period and that the trial judge
was wrong to award only actual custody credit during this time. The trial court granted
defendant’s motion and awarded five additional days of conduct credit. Defendant thus
received 288 days of actual custody credit plus 17 days of conduct credit for a total of
305 days of presentence credit.
                                       DISCUSSION
                                              I
                               Presentence Custody Credits
       Defendant contends the trial court “incorrectly calculated” his presentence custody
credits because the court relied on the probation report’s representation that his six-month
parole revocation term expired on December 20, 2011, when in fact it had expired earlier.



1     The five additional days of conduct credits “reflect[] 15% of the 36 days of pretrial
confinement in a county jail.”

                                              5
Defendant contends that by failing to award him any presentence custody credits prior to
December 21, 2011, the trial court deprived him of additional custody credits to which he
is entitled. Specifically, defendant contends his six-month parole revocation term expired
on November 12, 2011. In support of this assertion, defendant explains, “the probation
report states that [defendant]’s parole violation term commenced on May 16, 2011. . . . If
six months is added to May 16, 2011 on the basis of 180 days (six times 30), then
[defendant]’s parole term would have ended even earlier -- by November 12, 2011.” In
the alternative, defendant contends his six-month parole term expired on December 2,
2011, because on that date the judge recognized, “there’s an issue of a parole hold issue
that’s apparently resolved.” Defendant argues “[u]nder either scenario, it is evident that
[defendant] did not receive sufficient credits” and “the matter should be remanded to the
trial court so that the precise date of the expiration of [defendant]’s parole revocation
term may be determined, and [his] credits may be accordingly recalculated.”
       The People “agree[] that the record is ambiguous regarding the last day of
[defendant]’s six-month parole violation term” and “that remand is necessary in order to
determine the appropriate number of presentence custody credits.” We also agree.
       “A criminal defendant is entitled to accrue both actual presentence custody credits
. . . and conduct credits . . . for the period of incarceration prior to sentencing.” (People
v. Kennedy (2012) 209 Cal.App.4th 385, 395.) “[C]ustody credits are constitutionally
required and awarded automatically on the basis of time served.” (Id. at p. 396.) “A
sentence that fails to award legally mandated custody credit is unauthorized and may be
corrected whenever discovered.” (People v. Taylor (2004) 119 Cal.App.4th 628, 647;
People v. Acosta (1996) 48 Cal.App.4th 411, 428 fn. 8 [“The failure to award an adequate
amount of credits is a jurisdictional error which may be raised at any time”].)
       “[C]redit shall be given only where the custody to be credited is attributable to
proceedings related to the same conduct for which the defendant has been convicted.”
(Pen. Code, § 2900.5, subd. (b).) Thus, where a defendant is already incarcerated serving

                                               6
time for an unrelated offense, he will not begin accruing presentence credit for the new
offense until his first term has expired. (See In re Marquez (2003) 30 Cal.4th 14, 20-21.)
       Here, it is unclear when defendant should have started accruing presentence
credits because the record is ambiguous as to when he was serving time related to the
conduct of the instant conviction. The trial court is best suited to determine when
defendant was serving time attributable to the instant offense. (See People v. Kennedy,
supra, 209 Cal.App.4th at p. 394 [remanding determination of presentence custody credit
because it “involves factual determinations more properly resolved [in the trial court]”];
People v. Torres (2012) 212 Cal.App.4th 440, 447 [remanding to trial court to determine
presentence custody credits].) Accordingly, we remand to the trial court to determine
when defendant was serving time attributable to the instant offense and to adjust his
presentence custody credits accordingly (if necessary).
                                               II
                         Restitution Fine And Ex Post Facto Claim
       When defendant committed his crime on March 27, 2011, the minimum restitution
fine for a felony offense was $200 and the maximum fine was $10,000. (Pen. Code,
§ 1202.4, subd. (b)(1), as amended by Stats. 2010, ch. 351, § 9.) Penal Code
section 1202.4, subdivision (b)(1) provides that “[t]he restitution fine shall be set at the
discretion of the court and commensurate with the seriousness of the offense.” The trial
court thus had discretion to impose a restitution fine within the $200 to $10,000 range.
As we have noted, the court imposed a restitution fine of $240.
       Defendant claims that imposition of a $240 restitution fine when the minimum
fine was $200 violates the prohibition against ex post facto laws. Defendant, however,
did not object to the amount of the restitution fine in the trial court. Despite his failure to
object, defendant contends the issue is not forfeited because: (1) the fine is an
unauthorized sentence and may be raised for the first time on appeal; (2) “the purposes of
the forfeiture rule do not apply” because the trial court was alerted to the issue; and

                                               7
(3) the trial court “sidestepped” its “duty to pass sentence and to do so correctly.”
Finally, defendant contends even if the issue is forfeited, “this Court should exercise that
discretion [to hear the claim] . . . in order to head off a claim of ineffective assistance of
counsel.”
       The People contend defendant forfeited his challenge to the amount of the
restitution fine by failing to object in the trial court. We agree with the People. By not
objecting to the amount of the restitution fine at his sentencing hearing, defendant
forfeited his claim. (See People v. Gamache (2010) 48 Cal.4th 347, 409 [defendant
forfeited his restitution challenge by failing to object during sentencing].)
       Despite his failure to object, defendant attempts to circumvent the forfeiture rule
by characterizing his restitution fine as an unauthorized sentence that “may be corrected
at any time even without objection in the trial court.” Specifically, defendant contends
that because the minimum restitution fine at the time of his crime was $200, the $240 fine
amounts to an unauthorized sentence. Defendant is wrong.
       An unauthorized sentence is a sentence that “could not lawfully be imposed under
any circumstances in the particular case.” (People v. Scott (1994) 9 Cal.4th 331, 354.)
As we have noted, when defendant committed his crime the minimum restitution fine was
$200 and the maximum fine was $10,000. As defendant’s $240 fine clearly falls within
the permissible range, the fine is not a sentence that “could not lawfully be imposed
under any circumstances.” The unauthorized sentence exception to the forfeiture rule
does not apply.
       Defendant next contends his restitution challenge is not forfeited because “the
purposes of the forfeiture rule do not apply in these circumstances because the trial court
was alerted to the gist of the problem: the amount of the restitution fine was tied to the
date of the crime.” He argues that although “requiring objections at sentencing alerts a
trial court to the problem, encourages careful exercise of discretion, decreases the risk of
error and provides reviewing courts with information to adequately review a claim[,] . . .

                                               8
those policies do not apply here where the prosecutor alerted the trial court to the fact that
the amount of restitution depended upon the date of the crime and that the minimum
restitution fine amounts had changed . . . .” Defendant’s argument is not persuasive.
          The purpose of the forfeiture rule is “to bring errors to the attention of the trial
court so they may be corrected or avoided.” (People v. Gibson (1994) 27 Cal.App.4th
1466, 1468.) It “is founded on considerations of fairness to the court and the opposing
party, and on the practical need for an orderly and efficient administration of the law.”
(Ibid.)
          As we understand it, the crux of defendant’s argument here is that the trial court
knew the minimum fine might be less than $240 and had the opportunity to change the
fine, but failed to do so. In making this argument, defendant attempts to place the burden
of clarifying the applicable law on the trial court, rather than on defense counsel. This
type of burden shifting is not permitted under our case law: “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.” (People v.
Scott, supra, 9 Cal.4th at p. 353.) It was defense counsel’s obligation to object to the
amount of the fine if it was improper. Defense counsel made no such objection. In
addition, defendant cites no authority for the proposition that in the absence of a timely
objection, the forfeiture rule does not apply if the trial court was “alerted” to the issue.
          Defendant next contends the forfeiture rule should not apply because, given that
the trial court was aware of the problem, “it was improper for the trial court to indicate
that it would wait and consider the issue when the credit issue was decided.” He
contends “it is the trial court’s primary duty to pass sentence and to do so correctly” and
“the trial court should not have sidestepped the issue.”
          This argument is unpersuasive and defendant’s reliance on People v. Surplice
(1962) 203 Cal.App.2d 784, is misplaced. In Surplice, the Court of Appeal concluded the
sentence imposed was void because the sentencing judge expressly stated he had not

                                                  9
exercised his independent judgment before imposing the sentence. (Id. at pp. 790-791.)
Surplice is not analogous to defendant’s case.
       Defendant’s reliance on Penal Code sections 12 and 13 is likewise unavailing.
Section 12 provides there is a “duty upon the court authorized to pass sentence, to
determine and impose the punishment prescribed.” Section 13 provides: “Whenever . . .
the punishment for a crime is left undetermined between certain limits, the punishment
inflicted in a particular case must be determined by the court authorized to pass sentence .
. . .” Defendant appears to argue that the court did not actually impose a sentence at the
October 3, 2012, hearing and instead left the sentence undetermined. The record belies
this assertion. The court imposed the $240 fine at the sentencing hearing and merely
indicated the amount could be “modified” at a later date. Accordingly, defendant’s
challenge to the amount of the restitution fine is forfeited.
       We proceed to the analysis of the ineffective assistance of counsel claim.
                                              III
                             Ineffective Assistance Of Counsel
       Defendant’s ineffective assistance of counsel claim is premised on his assertion
that imposition of a $240 restitution fine when the minimum fine was $200 violated the
constitutional prohibition against ex post facto laws. Defendant contends that because
“the $240 amount[] imposed violate[d] ex post facto principles,” his trial counsel
rendered ineffective assistance of counsel by failing to object to the amount of the fine.
       “The standard for establishing ineffective assistance of counsel is well settled. A
defendant must demonstrate that: (1) his attorney’s performance fell below an objective
standard of reasonableness; and (2) there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been more
favorable to the defendant.” (People v. Stanley (2006) 39 Cal.4th. 913, 954.)
       To the extent defendant argues his counsel was ineffective for failing to raise the
ex post facto issue at the trial level, we disagree. Because defendant was subject to a

                                              10
restitution fine between $200 and $10,000 based on the date of his crime, and because
defendant’s $240 restitution fine was well within that range, any objection based on an ex
post facto violation would have been meritless. Trial counsel is not required to advance
meritless arguments. (See People v. Jones (1979) 96 Cal.App.3d 820, 827.)
                                      DISPOSITION
       We remand to the trial court with directions to calculate and award any additional
presentence credit to which defendant is entitled. In all other respects, the judgment is
affirmed.



                                                        ROBIE                 , Acting P. J.



We concur:



      DUARTE                , J.



      HOCH                  , J.




                                             11
