Filed 1/31/14 P. v. Willard CA1/3
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                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A137561
v.
LONDON WILLARD,                                                      (Alameda County
                                                                     Super. Ct. No. H51760)
         Defendant and Appellant.


         Defendant London Willard was convicted by a jury of grand theft. His sole claim
on appeal is that his restitution fine should be reduced from $720 to $600. We affirm.
                                         PROCEDURAL BACKGROUND
         Because the only issue raised on appeal concerns the calculation of the restitution
fine, it is unnecessary to summarize the facts supporting Willard’s conviction.
         Willard was charged with first degree robbery (Pen. Code, § 211)1 in an
information filed on March 12, 2012. As set forth in the information, Willard committed
the robbery in August 2011. Following a jury trial, Willard was convicted of the lesser
included offense of grand theft (§ 487, subd. (c)). The trial court sentenced Willard to
serve three years in state prison, composed of the middle term of two years for grand
theft plus a consecutive one-year term for having served a prior prison term within the
meaning of section 667.5, subdivision (b).




         1
             All further statutory references are to the Penal Code.

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       The trial court ordered Willard to pay a restitution fine of $720 pursuant to
section 1202.4. The court also ordered Willard to pay a parole revocation fine of $720
pursuant to section 1202.45, which was suspended pending successful completion of
parole. Willard filed a timely notice of appeal following sentencing.
                                        DISCUSSION
       Willard’s sole claim of error on appeal is that the trial court erred in imposing a
restitution fine of $720. He claims the fine should be reduced to $600, which represents
the applicable minimum fine of $200 multiplied by three—the number of years of
imprisonment he was ordered to serve. According to Willard, the trial court mistakenly
calculated his restitution fine based upon a minimum fine of $240, even though the
increased minimum fine did not go into effect until after the date he committed the crime
of which he was convicted.
       At the time of Willard’s offense in August 2011, section 1202.4, subdivision
(b)(1) provided in relevant part as follows: “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 that two hundred dollars ($200), and not more than ten thousand dollars
($10,000), if the person is convicted of a felony . . . .” (Former § 1202.4, subd. (b)(1), as
amended by Stats. 2009, ch. 454, § 1.) At the time of Willard’s offense, subdivision
(b)(2) of section 1202.4 provided the following, optional formula for calculating the
restitution fine: “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.” (Former § 1202.4, subd. (b)(2), as
amended by Stats. 2009, ch. 454, § 1.) Thus, subdivision (b)(1) of section 1202.4 sets the
minimum and maximum restitution fine, while subdivision (b)(2) of that same section
establishes a formula the court may choose to use in setting the restitution fine.
       At the time Willard was sentenced in 2012, section 1202.4, subdivision (b)(1)
provided that the applicable minimum restitution fine was $240. (Former section 1202.4,
subd. (b)(1), as amended by Stats. 2011, ch. 358, § 1.) As set forth in subdivision (b)(2)


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of section 1202.4, the court could still choose to calculate the restitution fine as the
product of the minimum fine established in subdivision (b)(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.” (Former section 1202.4, subd. (b)(2),
as amended by Stats. 2011, ch. 358, § 1.)
       The crux of Willard’s claim is that, in order to avoid an ex post facto violation, the
court was bound to use the restitution formula in effect at the time he committed the
crime, not the formula in effect when he was sentenced. (See People v. Souza (2012) 54
Cal.4th 90, 143 [restitution fine constitutes punishment and is subject to the proscription
of the ex post facto clause].) Willard contends the record clearly indicates it was the
court’s intention to apply the formula set forth in subdivision (b)(2) of section 1202.4.
       As an initial matter, Willard forfeited the claim by failing to object at the time of
sentencing. In order to preserve a challenge to the setting of a restitution fine, “a
defendant must make a timely objection in the trial court in order to give that court an
opportunity to correct the error; failure to object should preclude reversal of the order on
appeal.” (People v. Gibson (1994) 27 Cal.App.4th 1466, 1468; see also People v. White
(1997) 55 Cal.App.4th 914, 917.)
       Willard contends that because his claim rests on a constitutional violation, it is not
forfeited on appeal as a result of the failure to object in the trial court. Even assuming the
issue was not forfeited on appeal, there was no ex post facto violation. The restitution
fine of $720 was well within the court’s discretion to impose under the law as it existed at
the time Willard committed his offense. (See former § 1202.4, subd. (b)(1), as amended
by Stats. 2009, ch. 454, § 1 [giving court discretion to set restitution fine between $200
and $10,000].) The restitution fine was not unauthorized and its imposition did not
violate any constitutional principle. (Cf. People Valenzuela (2009) 172 Cal.App.4th
1246, 1248 [unauthorized restitution fine constituted ex post facto violation].)
       Willard’s claim on appeal appears to be based on a misapprehension that the court
expressly intended to use the formula set forth in subdivision (b)(2) of section 1202.4.
Indeed, Willard argues that the probation report, upon which the court relied,


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recommended that a “restitution fine of $720 be imposed pursuant to Penal Code section
1202.4(b)(2).” As Willard acknowledges in his reply brief on appeal, the probation
report made no mention of subdivision (b)(2) of section 1202.4. Rather, the report
referred to subdivision (b)(1) of section 1202.4, which simply sets forth the range within
which the restitution fine may be set. Nowhere in the probation report or in the court’s
pronouncement of sentence is there a reference to subdivision (b)(2) of section 1202.4 or
the formula contained in that subdivision.
       Willard contends it “beggars belief” to suggest the court “pulled the strange
number of $720 out of thin air.” According to Willard, the only explanation must be that
the court employed the formula contained in subdivision (b)(2) of section 1202.4—
multiplying $240 by three, representing the number of years of imprisonment to which he
was sentenced. While the selection of $720 as the restitution fine certainly supports that
inference, we are mindful that “ ‘[a] judgment or order of the lower court is presumed
correct. All intendments are presumptions are indulged to support it on matters as to
which the record is silent, and error must be affirmatively shown. This is not only a
general principle of appellate practice but an ingredient of the constitutional doctrine of
reversible error.’ ” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; see also People
v. Alvarez (1996) 49 Cal.App.4th 679, 694.) “The general rule is that a trial court is
presumed to have been aware of and followed the applicable law.” (People v. Mosley
(1997) 53 Cal.App.4th 489, 496.)
       In this case, the record is silent as to why the trial court chose to impose a
restitution fine of $720. In the absence of an affirmative expression that the probation
officer or court intended to apply the formula set forth in subdivision (b)(2) of section
1202.4, we cannot simply assume the court (1) intended to apply the statutory formula,
and (2) erred in its application of the formula. If we were to indulge these assumptions,
we would effectively turn on its head the general rules that a judgment is presumed
correct and that a trial court is presumed to have known and followed the law.
       Willard’s reliance on People v. Le (2006) 136 Cal.App.4th 925 is misplaced. In
Le, the record showed that the trial court relied on the formula provided by section


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1202.4, subdivision (b)(2). (Le, supra, at p. 935.) Indeed, the trial court there
specifically stated at the time of sentencing that the fine was imposed “ ‘under the
formula permitted by [section] 1202.4.’ ” (Le, supra, at p. 932, italics added.) Here, by
contrast, there was no showing that the trial court or the probation officer expressed an
intention to rely on the formula contained in section 1202.4, subdivision (b)(2).
       Finally, Willard contends his counsel was ineffective for failing to object to the
restitution fine at the time of sentencing. We disagree. In order to establish a claim of
ineffective assistance of counsel, a defendant bears the burden of demonstrating both that
counsel’s performance fell below an objective standard of reasonableness (Strickland v.
Washington (1984) 466 U.S. 668, 687–688) and that “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” (Id. at p. 694; People v. Ledesma (2006) 39 Cal.4th 641, 746.)
       Even assuming counsel was deficient for failing to object, Willard cannot
demonstrate prejudice. His claim of prejudice is premised upon the assumption the court
intended to apply the formula in section 1202.4, subdivision (b)(2) and would have
continued to apply that formula, albeit correctly, in response to an objection by defense
counsel. However, the court never expressed an intention to apply the statutory formula
and gave no indication it was willing to reduce the fine below the amount proposed by
the probation officer. Moreover, it is far from clear that the court would have lowered the
restitution fine if challenged. The court had the power to set a restitution fine as low as
$200 under former section 1202.4, subdivision (b)(1) but instead chose to follow the
probation officer’s recommendation of $720. The probation officer’s report reflects that
the theft supporting Willard’s conviction was captured by a surveillance camera and was
an “unprovoked and random [act] toward an unsuspecting victim he cornered” on a bus.
The probation officer stated that Willard had an extensive criminal history and was facing
charges for murder and robbery at the time he committed the offense resulting in his
conviction. Under the circumstances, there was no guarantee the court would have
agreed to reduce the already modest restitution fine in response to an objection by
defense counsel.


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       Because the defendant bears the burden of demonstrating ineffective assistance of
counsel, and because the record is silent as to why the court chose to impose the
challenged restitution fine, we do not find it reasonably probable that the court would
have lowered the restitution fine if defense counsel had interposed an objection.
                                      DISPOSITION
       The judgment is affirmed.




                                                 _________________________
                                                 McGuiness, P.J.


We concur:


_________________________
Siggins, J.


_________________________
Jenkins, J.




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