Filed 2/11/14 P. v. Hernandez CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


THE PEOPLE,                                                          B244959

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA388322)
         v.

SAUL HERNANDEZ,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Laura F.
Priver, Judge. Affirmed as modified with directions.
         Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, and James William
Bilderback II, Deputy Attorney General, for Plaintiff and Respondent.


                                              __________________
                                    INTRODUCTION


       A jury found Hernandez guilty of the first degree murder of Jildardo “Hilo”
Mariano (Pen. Code,1 § 187, subd. (a); count 1) and possession of a firearm by a felon
(former § 12021, subd. (a)(1); count 2). The jury also found true the allegations in count
1 that Hernandez personally used and intentionally discharged a firearm (§ 12022.53,
subds. (b), (c), (d), (e)(1)), as well as the allegation in each count that he committed the
crime for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)).2
       The trial court sentenced defendant to state prison for 25 years to life for the
murder, plus a consecutive term of 25 years to life pursuant to section 12022.53,
subdivisions (d) and (e)(1), and a consecutive term of 10 years for the criminal street
gang enhancement. The court also imposed a 10-year term pursuant to section 12022.53,
subdivisions (c) and (e)(1), and a 10-year term pursuant to section 12022.53,
subdivisions (b) and (e), but stayed those terms pursuant to section 654. On count 2 the
court imposed the middle term of two years to be served concurrently with the sentence
imposed on count 1. The court also imposed a 10-year criminal street gang enhancement
but stayed it pursuant to section 654. The court imposed various fines and declined to
award Hernandez any presentence credit.
       On appeal Hernandez argues that the trial court erred (1) in failing to instruct the
jury on voluntary manslaughter, (2) in imposing a 10-year criminal street gang
enhancement on count 1 pursuant to section 186.22, subdivision (b)(1)(C), (3) in denying
him credit for actual time served prior to sentencing, and (4) in imposing unauthorized
restitution and parole revocation fines pursuant to sections 1202.4 and 1202.45,


1      All further statutory references are to the Penal Code unless otherwise noted.
2      The People charged Hernandez in count 1 jointly with codefendant Rodrigo
Aceves Estrada. The People further charged Estrada with evading an officer (§ 2800.2,
subd. (a); count 3) and hit and run (Veh. Code, § 20002, subd. (a); count 4). The trial
court severed the trials, and a jury acquitted Estrada of all charges.


                                              2
respectively. We reject Hernandez’s contentions of instructional error but conclude that
two of his sentencing contentions have merit.


                                         FACTS


       A.     The Shooting
       On August 26, 2011 Mariano was visiting his wife’s aunt. Mariano and his family
did not live in the area. Hilo was the nickname Mariano’s family gave him because his
first name, Jildardo, was long. Mariano had his nickname tattooed on his arm. He also
had a tattoo of his daughter’s name and the initial of his wife’s first name. Mariano did
not have any gang tattoos, and he was not a member of any gang.
       Sujey Zavala and her mother, Elva Zavala,3 lived on East 35th Street in Los
Angeles. At approximately 8:00 p.m. Sujey was walking down the driveway toward her
car when she heard two or three gunshots. Although she was not certain, it sounded as if
all the shots were fired from one gun. Sujey turned around and saw the front of a white
van stopped in the middle of the street between a nearby house and some apartments.
Sujey grabbed her son and ran back into the house. Half an hour later she went outside
and saw Mariano, whom she knew as Hilo, on the ground. Sujey had not seen Hilo
earlier that evening.
       That same evening, also at approximately 8:00 p.m., Elva saw a white van parked
near 330 East 35th Street but did not pay much attention to it. A few minutes later Elva
heard three or four gunshots, after which the van sped away toward Trinity Street. Elva
saw the back portion of the van as it drove away. Elva went outside and saw someone
lying on the ground. She went to check on him and recognized him as Hilo, whom she
had met through family members.




3      We will refer to the Zavalas by their first names to avoid confusion.


                                             3
          B.    The Arrest of Hernandez and Estrada
          Los Angeles Police Officers Guillermo Calleros and Darius Bone were on routine
patrol in the area. While at a stoplight at the intersection of Jefferson Boulevard and
Trinity Street, Officer Calleros heard four to five gunshots south of Jefferson.4 Officer
Bone heard four gunshots. Officer Calleros drove in the direction of the shots, turning
southbound onto Trinity. While on Trinity Street the officers saw a white van driving
towards them. Officer Calleros drove in the van’s path to see if the person or persons in
the van were involved in the shooting. The van’s headlights were off, and it had no front
license plate. The van stopped about 10 to 15 feet in front of the patrol car. The officers
shined their spotlights on the van and made eye contact with the driver and passenger.
The passenger was “real nervous” and “started fumbling [with] something in his lap.”
Believing they were going to stop, Officer Calleros got out of the car, pointed his gun at
them, and gave them orders. At that point the driver put the van in reverse and
accelerated. The tires screeched, and the van collided with parked cars. Officer Calleros
got back in his car. While he attempted to start his car, the driver of the van put it back
into drive and drove past Officers Calleros and Bone, who then pursued the van. The
pursuit ended when the van crashed into a parked green truck on 25th Street near Main
Street.
          Estrada, the driver of the van, complied with officers’ commands and was taken
into custody. Hernandez, who was the passenger, did not comply and got out of the van.
Officers found Hernandez lying on his stomach underneath the green truck and saw a
blue steel revolver next to him. Officers took Hernandez into custody and recovered the
revolver. The police found five casings inside the cylinder of the revolver.5




4      Officer Calleros could not tell whether the shots were fired from one gun or
multiple guns.
5         Officers did not recover any casings in the area where the shooting had occurred.


                                               4
         Inside the van officers found a black hat with an “L.A. symbol on it,” Estrada’s
identification, and a little bit of marijuana. Hernandez was wearing a black Chicago
baseball cap with a red bill.
         Officer Brendy Ponce accompanied Hernandez, who was injured during the
collision, to U.S.C. Medical Center. In response to questions by medical personnel,
Officer Ponce stated that Hernandez was a shooting suspect who had been in a collision
following a pursuit. At that point, Hernandez spontaneously stated, “We only shot one
fool sir and the 36er shot us back.”


         C.    The Police Investigation
         After the police had arrested Hernandez and Estrada, Officer Todd Bracht and his
partner drove to the site of the shooting on East 35th Street. Officer Bracht spoke with
Sujey who stated that she saw the passenger door of the white van open, heard three to
four shots, and saw the van drive eastbound on East 35th Street and then turn left onto
Trinity Street out of sight. Sujey included these observations in a written statement.
Officer Bracht then took Sujey to view the van that had crashed into the green truck.
Sujey said the van looked like the vehicle she had seen.6 In her written statement to
police, Sujey stated that she saw the front passenger door open and heard three or four
shots.
         Los Angeles Police Officer Mario Flores interviewed Elva, who stated that she
was in her front yard on East 35th Street when she saw a white van parked in front of 330
East 35th Street. Elva observed the front passenger door of the white van open, and she
heard gunshots after which she ran back inside her home. Officer Flores later took Elva



6       At trial, Sujey had no present memory of seeing anyone in the van, nor did she
remember seeing anyone get out of or into the van. She also denied seeing it drive away.
Although Sujey acknowledged that she accompanied a police officer to another location
to see if she could identify a white van, Sujey was unsure whether it was the same van
because she had only seen the front of it.


                                              5
to see if she could identify the white van. She was able to do so after seeing a sticker
bearing an “On Trac” logo on the rear left side of the door.
       Officer Daniel Hayashi spoke to Y.H., a minor. Y.H., though scared, nervous, and
reluctant to talk to police, said he saw a male wearing a black L.A. hat get out of a white
van and shoot the victim about seven to eight times then return to the van and flee
eastbound. Y.H. did not make a written statement, however, because he was scared.7
       Mariano died on August 30. An autopsy revealed that he had been shot three
times. A gunshot wound he suffered to his back was fatal.8 An analysis of Hernandez’s
revolver recovered at the time of his arrest, the five casings that remained in the revolver,
and the fatal bullet recovered from Mariano’s body revealed that Hernandez’s revolver
fired the fatal bullet.


       D.      Gang Evidence
       Los Angeles Police Officer Kenneth Ahn, a gang expert, identified Hernandez and
Estrada as members of the Ghetto Boyz Gang. The Ghetto Boyz Gang and the 36th


7      At trial Y.H. recounted that on the day of the shooting he was visiting his aunt
who lived in an apartment. Y.H. did not live in the area. Y.H. was with his “little
cousin” when Y.H. heard “[p]robably six” shots. Y.H. told his cousin who was scared to
be quiet, and the two of them got down on the ground. Y.H. remembered seeing a cap as
he got down. Y.H., however, was unable to identify the baseball cap found in the van or
worn by Hernandez. Y.H. acknowledged that he spoke to a police officer after the
shooting and told him what he saw and heard. He denied telling the officer that he saw a
white van parked on the street, that he saw someone get out of the van, that he saw a man
get out of the van and shoot the victim seven to eight times, that he saw the shooter get
back into the van, and that he saw the van drive toward Trinity. When asked whether he
told the police that the man who got out of the van was wearing an cap, Y.H. said,
“Something like that.” He denied telling the officer that it was an L.A. hat. Y.H. only
recalled telling the officer he saw a cap and heard gunshots.
8      The coroner also collected a gunshot residue kit from Mariano. While such kits
are routinely collected, they are not routinely analyzed. The detectives did not request an
analysis of the kit because there was no evidence that Hernandez and Mariano had
exchanged gunfire.


                                              6
Street Gang are rivals. The shooting took place in territory claimed by the 36th Street
Gang.9


                                      DISCUSSION


       A.     The Trial Court Did Not Err by Refusing to Instruct on Voluntary
              Manslaughter Based on Imperfect Self-Defense
       “Manslaughter is a lesser included offense of murder. [Citations.] The mens rea
element required for murder is a state of mind constituting either express or implied
malice. A person who kills without malice does not commit murder.” (People v. Beltran
(2013) 56 Cal.4th 935, 942.) “[A] defendant who intentionally commits an unlawful
killing without malice is guilty only of voluntary manslaughter.” (People v. Blacksher
(2011) 52 Cal.4th 769, 832.) “For purposes of voluntary manslaughter, an intentional
unlawful killing can lack malice when the defendant acted under a ‘“‘sudden quarrel or
heat of passion’”’ or when the defendant acted under ‘“[an] unreasonable but good faith
belief in having to act in self-defense.”’ [Citation.]” (Ibid.; see People v. Valenzuela
(2011) 199 Cal.App.4th 1214, 1231 [“[i]mperfect self-defense is not a ‘true’ defense, but
a ‘shorthand description of one form of voluntary manslaughter’”].)
       “Unreasonable self-defense, also called imperfect self-defense, ‘obviates malice
because that most culpable of mental states “cannot coexist” with an actual belief that the
lethal act was necessary to avoid one’s own death or serious injury at the victim’s hand.’
[Citation.] A killing in imperfect self-defense constitutes, by definition, unreasonable
conduct because the belief in the need to defend is not reasonable. The killing is
nevertheless mitigated because of the defendant’s misguided but good faith belief. Thus,
the societal recognition of mitigation is the same. In both heat of passion and imperfect
self-defense scenarios, the killer who acts unreasonably commits a crime. Yet the degree


9       Hernandez does not challenge the jury’s finding that his crimes were committed
for the benefit of a criminal street gang within the meaning of section 186.22.


                                             7
of culpability is reduced from murder to manslaughter. Adequate provocation or an
unreasonable but good faith belief in the need to defend operates on the killer’s mental
state to prevent the formation of malice.” (People v. Beltran, supra, 56 Cal.4th at p.
951.)
        At trial counsel for Hernandez asked the court to instruct the jury on voluntary
manslaughter based on imperfect self-defense, relying on Hernandez’s spontaneous
statement at the hospital, “We only shot one fool sir and the 36er shot us back.” The trial
court denied the request. Hernandez now contends that the trial court erred by refusing to
give the requested instruction. “On appeal, we review independently the question
whether the trial court failed to instruct on a lesser included offense.” (People v. Cole
(2004) 33 Cal.4th 1158, 1215; see People v. Millbrook (2014) 222 Cal.App.4th 1122,
1137 [“[w]e review de novo a trial court’s failure to instruct on a lesser included offense”
and “in doing so we view the evidence in the light most favorable to the defendant”].)
        “‘“The trial court is obligated to instruct the jury on all general principles of law
relevant to the issues raised by the evidence, whether or not the defendant makes a formal
request.” [Citations.] “That obligation encompasses instructions on lesser included
offenses if there is evidence that, if accepted by the trier of fact, would absolve the
defendant of guilt of the greater offense but not of the lesser.” [Citations.]’ [Citations.]
‘Nevertheless, “the existence of ‘any evidence, no matter how weak’ will not justify
instructions on a lesser included offense . . . .” [Citation.] Such instructions are required
only where there is “substantial evidence” from which a rational jury could conclude that
the defendant committed the lesser offense, and that he is not guilty of the greater
offense. [Citations.]’ [Citation.]” (People v. Whalen (2013) 56 Cal.4th 1, 68; see People
v. Cole, supra, 33 Cal.4th at p. 1215 [“even on request, the court ‘has no duty to instruct
on any lesser offense unless there is substantial evidence to support such instruction’”].)
Thus, in a murder case the trial court need only instruct on imperfect self-defense
“‘where there is substantial evidence that the defendant killed in unreasonable self-
defense, not when the evidence is “minimal and insubstantial.” [Citation.]’ [Citation.]”
(People v. Valenzuela, supra, 199 Cal.App.4th at pp. 1231-1232.)

                                               8
       Hernandez’s spontaneous statement in the hospital, “We only shot one fool sir and
the 36er shot us back”, was an admission that he was the instigator, making the defense
of imperfect self-defense unavailable to him to negate malice. For example, in People v.
Enraca (2012) 53 Cal.4th 735, the defendant argued that “there was no factual basis for
instructing the jury that the doctrines of perfect and imperfect self-defense cannot be
invoked by a defendant whose own wrongful conduct created the circumstances in which
the adversary’s attack was legally justified.” (Id. at p. 761.) The California Supreme
Court rejected this argument: “‘The concepts of perfect and imperfect self-defense are
not entirely separate, but are intertwined. . . . “[T]he ordinary self-defense doctrine—
applicable when a defendant reasonably believes that his safety is endangered—may not
be invoked by a defendant who, through his own wrongful conduct (e.g., the initiation of
a physical attack or the commission of a felony), has created circumstances under which
his adversary’s attack or pursuit is legally justified. [Citations.] It follows, a fortiori, that
the imperfect self-defense doctrine cannot be invoked in such circumstances.”
[Citation.]’ [Citations.]” (Ibid.)
       Here, even if there were evidence to support the inference that there was another
shooter who returned fire, because Hernandez entered rival gang territory and admittedly
was the first to shoot “‘a claim of imperfect self-defense would be unavailable because a
claim of perfect self-defense would have been unavailable had the belief been
reasonable.’” (People Enraca, supra, 53 Cal.4th at p. 761.) In other words, “‘not every
unreasonable belief will support a claim of imperfect self-defense but only one that, if
reasonable, would support a claim of perfect self-defense.’ [Citations.]” (Ibid.)
       In support of his claim of instructional error, Hernandez also relies on the
differences in the witnesses’ accounts of the number of shots they heard, particularly
Y.H.’s statement to Officer Hayashi that he heard seven or eight shots. Hernandez
suggests that because his revolver was incapable of firing that many shots, there had to be
another shooter. This suggestion is pure speculation. (See People v. Valdez (2004) 32
Cal.4th 73, 116 [“‘“[s]peculation is an insufficient basis upon which to require the giving
of an instruction on a lesser included offense”’”]; People v. Berryman (1993) 6 Cal.4th

                                                9
1048, 1081 [court has no obligation to instruct on lesser included offense unless
supported by substantial evidence, and “speculation is not evidence, less still substantial
evidence”], overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823,
fn. 1; People v. McCloud (2012) 211 Cal.App.4th 788, 807 [“‘[s]peculation is not
substantial evidence’”].) Y.H. was a minor who was very frightened by the shooting and
even more afraid to talk to the police. Each of the other witnesses heard fewer than five
shots. Moreover, the police searched the crime scene and found no shell casings or
evidence suggesting that a gun other than Hernandez’s had been fired, thus dispelling the
speculative suggestion that there was another shooter. There also was no evidence that
one or more members of the 36th Street gang were out on the street when Hernandez
fired his revolver. Finally, as explained above, even if there were any return fire from
another shooter, as the instigator Hernandez was not entitled to an instruction on
imperfect self-defense.
       Therefore, the trial court properly denied Hernandez’s request to instruct the jury
on voluntary manslaughter based on a theory of imperfect self-defense. (See People v.
Avila (2009) 46 Cal.4th 680, 707 [request for voluntary manslaughter instruction based
on heat of passion properly denied in the absence of substantial evidence of provocation];
People v. Oropeza (2007) 151 Cal.App.4th 73, 81-82 [request for instructions on self-
defense and imperfect self-defense properly denied absent evidence that the defendant
had a good faith belief in the need to defend himself].)


       B.     The 10-year Criminal Street Gang Enhancement Imposed on Count 1
              Must Be Stricken
       Hernandez argues that the 10-year criminal gang enhancement imposed on the
murder count must be reversed because section 186.22, subdivision (b)(1)(C), does not
authorize imposition of an enhanced term for first degree murder, a violent felony subject
to imprisonment for life. As the People concede, Hernandez is correct.
       Section 186.22, subdivision (b)(1), provides: “Except as provided in
paragraphs (4) and (5), any person who is convicted of a felony committed for the benefit

                                             10
of, at the direction of, or in association with any criminal street gang, with the specific
intent to promote, further, or assist in any criminal conduct by gang members, shall, upon
conviction of that felony, in addition and consecutive to the punishment prescribed for
the felony or attempted felony of which he or she has been convicted, be punished as
follows: [¶] . . . [¶] (C) If the felony is a violent felony, as defined in subdivision (c) of
Section 667.5, the person shall be punished by an additional term of 10 years.”
Subdivision (b)(5) of section 186.22 states: “Except as provided in paragraph (4), any
person who violates this subdivision in the commission of a felony punishable by
imprisonment in the state prison for life shall not be paroled until a minimum of 15
calendar years have been served.”
       In People v. Lopez (2005) 34 Cal.4th 1002 the California Supreme Court
addressed the question of “whether a first degree murder committed for the benefit of a
gang is subject to the 10-year enhancement in section 186.22[, subdivision] (b)(1)(C) or
whether such a murder falls within that subdivision’s excepting clause and is governed
instead by the 15-year minimum parole eligibility term in section 186.22[, subdivision]
(b)(5).” (Id. at p. 1006.) The Supreme Court held that the “plain language of section
186.22[, subdivision] (b)(5) governs” and that it is error to “apply[] the 10-year gang
enhancement to [a] defendant’s first degree murder conviction.” (Id. at p. 1011.)
Therefore, the 10-year criminal street gang enhancement imposed on count 1 must be
stricken and replaced with the 15-year minimum term of section 186.22,
subdivision (b)(5).


       C.     Hernandez Is Entitled to Presentence Custody Credits for Actual
              Time Served
       Hernandez argues that the trial court erred in failing to award him credit for time
served. As the People concede, Hernandez is correct again.
       At the sentencing hearing, the trial court stated “[t]here is no presentence credits
under the Penal Code.” When trial counsel for Hernandez stated, “421 actual days I



                                              11
believe,”10 the trial court responded that Hernandez was not entitled to presentence credit
under section 2933 because he had been convicted of murder.
       Section 2933, however, pertains only to work time credits, and while it is true that
a defendant who is convicted of murder “shall not accrue any credit, as specified in
Section 2933 . . .” (§ 2933.2, subd. (a)), a defendant is entitled to presentence custody
credit for actual time served pursuant to section 2900.5. “In all felony and misdemeanor
convictions, . . . when the defendant has been in custody, including, but not limited to,
any time spent in a jail, . . . all days of custody of the defendant, including days . . .
credited to the period of confinement pursuant to Section 4019, . . . shall be credited upon
his or her term of imprisonment . . . .” (§ 2900.5, subd. (a).) Such credit “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” and “shall be given only once for a
single period of custody attributable to multiple offenses for which a consecutive
sentence is imposed.” (Id., subd. (b).) Thus, “‘[p]ersons who remain in custody prior to
sentencing receive credit against their prison terms for all of those days spent in custody
prior to sentencing, so long as the presentence custody is attributable to the conduct that
led to the conviction. [Citation.] This form of credit ordinarily is referred to as credit for
time served.’” (People v. Jacobs (2013) 220 Cal.App.4th 67, 77.) “Calculation of
custody credit begins on the day of arrest and continues through the day of sentencing.
[Citation.]” (People v. Rajanayagam (2012) 211 Cal.App.4th 42, 48.)
       At the time of sentencing, trial counsel for Hernandez claimed that Hernandez was
entitled to 421 days of actual credit. On appeal, Hernandez argues that he is entitled to
433 days of actual credit.
       Contrary to the People’s assertion, the record on appeal sufficiently demonstrates
that Hernandez was in continuous custody from the date of his arrest to the date of his
sentencing. Hernandez was arrested on August 26, 2011. At his preliminary hearing on



10     The People incorrectly assert that the prosecutor made the 421-day calculation.


                                               12
December 19, 2011 the court held Hernandez to answer, set bail at $2,205,000 (which
Hernandez did not post), committed him to the custody of the Los Angeles Sheriff, and
set his arraignment for January 3, 2012. The trial court arraigned Hernandez on
January 3, and he remained in custody thereafter.
       In a pre-conviction report prepared on December 30, 2011 for the arraignment, the
probation officer listed Hernandez’s “estimated days in jail [in] this case” as “131.”
Because this is the precise number of days to which Hernandez would have been in
custody on the date of his arraignment, January 3, 2012, if he remained in custody
following his arrest on August 26, 2011, and because, as the People concede and the
record reflects, Hernandez was in continuous custody from his arraignment date to his
October 31, 2012 sentencing date, Hernandez was in continuous custody from the date of
his arrest on August 26, 2011 until his sentencing on October 31, 2012. Therefore on the
date of sentencing Hernandez had spent 433 days in custody.
       While a reviewing court may resolve a miscalculation of custody credits in the
interest of economy where other issues are presented for resolution on appeal (People v.
Florez (2005) 132 Cal.App.4th 314, 318, fn. 12; People v. Jones (2000) 82 Cal.App.4th
485, 493), we decline to do so in this case. The record reflects that Hernandez was on
formal probation at the time of his arrest in case number BA378808. The court revoked
his probation and scheduled a probation violation. Although two March 2012 minute
orders reference the trailing probation violation, the record is thereafter silent on the
matter. Because credit for time served “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” and “shall be given only once for a single period of
custody attributable to multiple offenses for which a consecutive sentence is imposed”
(§ 2900.5, subd. (b)), we believe that the trial court is in the best position to calculate the
presentence custody credits to which Hernandez is entitled. (See People v. Mitchell
(2001) 26 Cal.4th 181, 187 [“a trial court may sometimes be in a better position than an
appellate court to correct a particular error”].) Therefore, we remand for calculation of
credits for actual time served.

                                              13
       D.     Restitution and Parole Revocation Fines
       At sentencing the trial court imposed a $240 restitution fine pursuant to
section 1202.4, subdivision (b)(1), and a $240 parole revocation restitution fine pursuant
to section 1202.45. The latter fine was stayed pending the successful completion of
parole. Hernandez did not object to the imposition of either fine. Hernandez argues that
because the minimum fine under the applicable statute was $200 and the minimum fee
under the amended version of the statute was $240, the trial court’s imposition of the
$240 fee was unauthorized and violated the ex post facto clause, and therefore must be
reduced to $200.
       “It is well established that the imposition of restitution fines constitutes
punishment, and therefore is subject to the proscriptions of the ex post facto clause and
other constitutional provisions. [Citations.]” (People v. Souza (2012) 54 Cal.4th 90, 143;
accord, People v. Nuckles (2013) 56 Cal.4th 601, 608.) A parole revocation fine is
viewed similarly. (People v. Cruz (2012) 207 Cal.App.4th 664, 672, fn. 8; People v.
Flores (2009) 176 Cal.App.4th 1171, 1181-1182.) “The proscription against the ex post
facto application of laws . . . is designed to prevent a criminal defendant from being
unfairly disadvantaged by a change in the law occurring between the time of the crime
and the time of trial. [Citations.]” (Flores, supra, at p. 1176.) “‘[T]he central concern to
the ex post facto prohibition is “‘the lack of fair notice and governmental restraint when
the legislature increases punishment beyond what was prescribed when the crime was
consummated.’”’ [Citation.]” (People v. Acosta (2009) 176 Cal.App.4th 472, 476.)
       When Hernandez committed his crimes on August 26, 2011, section 1202.4,
subdivision (b)(1), mandated the imposition of a restitution fine of “not . . . less than two
hundred dollars ($200), and not more than ten thousand dollars ($10,000), if the person is
convicted of a felony . . . .” (Stats. 2011, ch. 45, § 1 [eff. July 1, 2011 to Dec. 31, 2011].)
Before Hernandez’s trial commenced, however, the Legislature amended section 1202.4,
subdivision (b)(1), by raising the minimum restitution fine to $240. (Stats 2011, ch. 358,
§ 1 [eff. Jan. 1, 2012 to Dec. 31, 2012].) At all times relevant to this appeal,
section 1202.45 mandated the imposition of a parole revocation fine in the same amount

                                              14
as the restitution fine in cases where the defendant’s sentence included a period of parole.
(Stats. 2007, ch. 302, § 15 [eff. Jan. l, 2008 to Dec. 31, 2012].)
       Hernandez forfeited his challenges to the trial court’s order imposing the
restitution and parole revocation fines because he did not object to either of them before
or at his sentencing. (See In re Sheena K. (2007) 40 Cal.4th 875, 881 [“the forfeiture rule
applies in the context of sentencing as in other areas of criminal law”]; People v. Garcia
(2010) 185 Cal.App.4th 1203, 1218 [“[a]n objection to the amount of restitution may be
forfeited if not raised in the trial court”]; cf. People v. McCullough (2013) 56 Cal.4th
589, 594 [“[o]ur application of the forfeiture bar to sentencing matters is of recent
vintage”].) Nevertheless, a defendant may challenge an unlawful or unauthorized
sentence on appeal even if he or she did not object in the trial court. (People v. Smith
(2001) 24 Cal.4th 849, 852; People v. Cropsey (2010) 184 Cal.App.4th 961, 965, fn. 3.)
The unauthorized sentence exception to the forfeiture doctrine that normally applies,
however, is “‘“a narrow exception”’” and only applies where the sentence “‘“could not
lawfully be imposed under any circumstance in the particular case[]” . . . .’ [Citation.]”
(People v. Turrin (2009) 176 Cal.App.4th 1200, 1205; see People v. Brach (2002) 95
Cal.App.4th 571, 578.) Here, the version of section 1202.4, subdivision (b)(1), in effect
at the time of Hernandez’s crime provided that the court had discretion to set the
restitution between the minimum of $200 and the maximum of $10,000, “commensurate
with the seriousness of the offense.” (See People v. Kramis (2012) 209 Cal.App.4th 346,
349-350 & fn. 2.) Thus, the $240 restitution fine and the $240 parole revocation fine the
court imposed were authorized fines, and Hernandez forfeited his argument that the trial
court erred in imposing them.
       Moreover, on the merits there was no error. Hernandez’s argument assumes that
the trial court applied the amended version of section 1202.4, subdivision (b)(1), rather
than the version in effect when Hernandez committed his crimes, and that the trial court
intended to impose only the minimum fine. Because the court imposed the fine without
making any comment indicating it was imposing the minimum amount, we must presume
that the court in its discretion considered and rejected the imposition of the minimum fee

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of $200, and chose a fine of $240. (See Evid. Code, § 664 [“[i]t is presumed that official
duty has been regularly performed”]; In re Julian R. (2009) 47 Cal.4th 487, 499 [“‘“a
trial court is presumed to have been aware of and followed the applicable law”’”]; People
v. Adanandus (2007) 157 Cal.App.4th 496, 503 [reviewing court is entitled to presume
that trial court knew and applied the appropriate governing law].) Because the maximum
authorized restitution fine was $10,000, and the trial court imposed a fine of $240,
Hernandez was not subjected to increased punishment and the fine did not violate the ex
post facto prohibition.


                                     DISPOSITION


       The judgment is modified by (1) striking the 10-year criminal street gang
enhancement imposed pursuant to section 186.22, subdivision (b)(1)(C), on count 1 and
imposing the 15-year minimum parole eligibility requirement under section 186.22,
subdivision (b)(5), and (2), awarding Hernandez presentence custody credits for actual
time served in an amount to be determined by the trial court. As modified, the judgment
is affirmed. The matter is remanded to the trial court to determine the amount of actual
custody credits to which Hernandez is entitled and to prepare a corrected abstract of
judgment and forward a copy to the Department of Corrections and Rehabilitation.



                                                 SEGAL, J.*


We concur:



              PERLUSS, P. J.                            ZELON, J.


*       Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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