Filed 4/10/15 P. v Martinez 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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,

                   Plaintiff and Respondent,                                                 C072529

         v.                                                                      (Super. Ct. No. 11F03439)

JUAN MARTINEZ,

                   Defendant and Appellant.


         A jury found defendant Juan Martinez guilty of possessing a sharp instrument
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while an inmate. (Pen. Code, § 4502, subd. (a).) The trial court then found true
allegations defendant had sustained a prior strike conviction, and defendant was
sentenced to serve six years in prison.
         On appeal, defendant contends imposition of restitution and parole revocation
restitution fines in the amount of $240 constituted an ex post facto application of the law
and must be reduced to the minimum amount of $200. The People agree the fines should
be reduced to $200 because the trial court intended to impose the minimum restitution




1
         Undesignated statutory references are to the Penal Code.

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fine. We conclude defendant forfeited his contention because he failed to object in the
trial court. Accordingly, we affirm the judgment.
                                  Imposition of Sentence
       The probation report originally recommended a restitution fine of $1,200. The
trial court indicated at the sentencing hearing that it had read the report. Defense counsel
stated she had received and reviewed the report with defendant. At sentencing, defense
counsel asked, because defendant “is currently serving a life term . . . that the Court
impose a restitution fine of the statutory minimum of $200.” The People made no
comment on the request to reduce the fine from $1,200 to $200. The trial court ordered
defendant to “pay a restitution fine pursuant to . . . Section 1202.4 in the amount of $240,
the minimum went up, to be paid forthwith.” The court also imposed and stayed a parole
revocation restitution fine in the same amount pursuant to section 1202.45. At the end of
the hearing, the trial court asked both counsel if there was “[a]nything else,” to which
both responded, “No.”
                                          Analysis
       Claims of error relating to sentences permitted by law but “imposed in a
procedurally or factually flawed manner” are forfeited if not objected to in the trial court.
The “unauthorized sentence exception” is a narrow exception to the forfeiture doctrine
that applies where the sentence could not lawfully be imposed under any circumstances
in a particular case. (People v. Garcia (2010) 185 Cal.App.4th 1203, 1218; People v.
Scott (1994) 9 Cal.4th 331, 353-354.)
       Here, the sentence was “imposed in a procedurally or factually flawed manner”
because the trial court made a mistake in assuming the minimum fine was $240 rather
than $200.2 While the result was a slight increase to defendant’s restitution fine over his




2    The offense was committed on March 29, 2011. Sentencing took place on
November 9, 2012. Although the minimum fine was increased to $240 as of January 1,

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actual minimum fine, the fine imposed was within the statutory range and no one
objected to the amount of the fine imposed. We note the $240 fine imposed was a
significant reduction from the $1,200 fine recommended in the probation report. It is
quite possible defense counsel made a tactical decision not to object to the imposition of
a $240 fine, in lieu of the $1,200 recommendation, after the People did not comment
earlier on the request for a reduction. By bringing the $40 difference to the trial court’s
attention, it is possible the People would have argued against any reduction from the
$1,200 recommendation and the trial court could have increased the fine. Based on the
record, we conclude defendant’s claim of error is forfeited.
                                        DISPOSITION
       The judgment is affirmed.



                                                        HOCH          , J.



We concur:



      MURRAY           , Acting P. J.



      DUARTE          , J.




2012 (Stats. 2011, ch. 358, § 1), the minimum fine at the time defendant committed the
offense was $200 (Stats. 1996, ch. 629, § 3, pp. 3465-3469).

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