Filed 3/24/15 P. v. Shaba CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D065501

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. Nos. SCD232237,
                                                                     SCD233745)
RANSE SHABA,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Jeffrey F.

Fraser, Judge. Affirmed.

         Steven J. Carroll, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Lynne G.

McGinnis and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and

Respondent.
          This appeal is from a sentencing involving two different cases. In case No.

SCD233745, Ranse Shaba entered a guilty plea to one count of first degree robbery in

concert (Pen. Code,1 §§ 211 & 213, subd. (a)(1)(A)). He also admitted personal use of a

firearm (§ 12022.53, subd. (b)). The parties agreed to a stipulated sentence of 13 years in

prison.

          In case No SCD232237, Shaba entered a guilty plea to first degree robbery and

admitted the personal use of a firearm. The parties agreed the total sentence for the two

cases would be 18 years four months in prison.

          In case No. SCD232237 the court imposed a restitution fine of $1,540 (§ 1202.4).

In case No. SCD233745 the court imposed a restitution fine of $3,640. Shaba did not

object to either of the restitution fines.

          Shaba appeals challenging only the amounts of the restitution fines. He argues,

for the first time on appeal, that at the time of his offenses the minimum restitution fine

under the statute was $200. At the time of sentencing the minimum fine was $280.

Shaba speculates that the fines imposed were erroneously based on the trial court's

mistaken view that the minimum fine was $280. Thus Shaba contends the fines violate

the state and federal prohibitions against ex post facto punishment. (U.S. Const., art. I,

§ 10; Cal. Const., art. I, § 9.) We will first determine that Shaba has forfeited his claim

by failing to make a timely objection in the trial court. In any event, since the fines

imposed are well below the statutory maximum the court could have imposed and there is



1         All further statutory references are to the Penal Code unless otherwise specified.
                                                2
nothing in the record to suggest the trial court was unaware of the correct amount of the

minimum fine applicable to these crimes, Shaba has failed to provide a record which

would justify reversal of the trial court's decision.2

                                       DISCUSSION

       Shaba recognizes that ordinarily sentencing issues not raised in the trial court are

forfeited on appeal. (People v. Scott (1994) 9 Cal.4th 331, 352-353; People v. Gibson

(1994) 27 Cal.App.4th 1466, 1468.) He contends, however the sentence imposed is

"unauthorized" and thus is not forfeited by failing to timely raise it in the trial court. He

claims the fines imposed were outside the jurisdiction of the trial court. Shaba is wrong

on both points.

       Since there is no discussion of the basis of the fines in the record, Shaba speculates

they were both based on an erroneous assumption of the minimum amount. He notes

both fines are divisible by $280, thus the trial court must have erred in its calculations.

The difficulty with Shaba's position, as he recognizes in his briefs, we presume the trial

court was aware of the law and properly applied it, in the absence of a record that

demonstrates the contrary. (People v. Braxton (2004) 34 Cal.4th 798, 814; Denham v.

Superior Court (1970) 2 Cal.3d 557, 564.)

       At the time of the offenses in this case section 1202.4, subdivision (b)(1) provided

in part: "(b) 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


2     Since the facts of the offenses are not relevant to the very narrow issue on appeal
we will omit the traditional statement of facts
                                               3
reasons for not doing so, and states the 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."

       Nothing in the statute, nor in case law presented to us compels a trial court to

calculate a fine using a particular base amount. The court had the jurisdiction under the

statute to impose fines of up to $10,000 in this case. The fines imposed fall well within

the jurisdiction of the court. That they may be divisible by $280, does not demonstrate

the trial court's lack of knowledge of the applicable law. Of course, a timely objection

would have clarified the issue, and if there was a misconception on the part of the trial

court, it could have been corrected. By failing to raise the issue, the appellant has

deprived the trial court of the opportunity to correct any possible error, and has deprived

this court of a record which would permit meaningful review. The issue has been

forfeited.

       In any event, as we have pointed out, the total of the fines is well below the

maximum authorized by statute. The calculation of the fines was within the trial court's

discretion. Nothing in this record shows either legal error or abuse of discretion.

Accordingly, we reject Shaba's contention that the fines at issue violated the protection

against ex post facto punishments.




                                              4
                                 DISPOSITION

    The judgment is affirmed.




                                               HUFFMAN, Acting P. J.

WE CONCUR:


                   AARON, J.


                     IRION, J.




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