Filed 7/11/13 P. v. Barajas CA6
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H037848
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1082324)

             v.

ELISEO BARAJAS,

         Defendant and Appellant.



         Defendant Eliseo Barajas was convicted of infliction of corporal injury on the
mother of his children. On appeal, defendant contends that the trial court’s calculation of
the restitution fine violated the prohibition against ex post facto laws, and he therefore
requests that we reduce the restitution fine and the corresponding parole revocation fine.
As set forth below, we will modify the restitution and parole revocation fines and affirm
the judgment as modified.
                                  FACTUAL AND PROCEDURAL HISTORY
         On April 19, 2010, defendant argued with Antonia Contreras, the mother of his
two children. Defendant choked Ms. Contreras for 10 seconds. Police officers arrived at
the scene, and they saw red marks on Ms. Contreras’s neck.
       On July 14, 2011, defendant pleaded no contest to one count of infliction of
corporal injury on the mother of his children (Pen. Code, § 273.5 subd. (a)).1 Pursuant to
the plea agreement, defendant was to be placed on probation. The plea agreement was
conditioned on defendant’s appearance in court for the sentencing hearing.
       On September 7, 2011, defendant failed to appear for sentencing. The trial court
issued a bench warrant.
       Defendant appeared in court on November 18, 2011. The court informed
defendant that the plea agreement was void due to his failure to appear for sentencing.
       On January 13, 2012, the court sentenced defendant to two years in prison. After
imposing the sentence, the court stated, “You’ll pay a restitution fine of $720 under the
formula as updated on January 1st under Penal Code section 1202.4(B).” The probation
officer assigned to the case stated, “Your Honor, I’m sorry. I believe that’s based on date
of the offense.” The court responded, “It’s actually not. We’ve been around a couple
times with it. It is on date of sentencing.” The court thereafter imposed a restitution fine
of $720. The court also imposed a $600 parole revocation fine pursuant to section
1202.45.
       Defendant filed a notice of appeal on January 20, 2012. His timely appeal
followed.
                                        DISCUSSION
       Defendant argues that the trial court’s calculation of the restitution fine based on
the January 2012 version of section 1202.4 constituted a violation of the prohibition
against ex post facto laws, and that the trial court was required to calculate the restitution
fine based on the version of section 1202.4 in effect at the time he committed the charged
offense. Defendant contends that application of the appropriate version of section 1202.4


       1
           Subsequent unspecified statutory references are to the Penal Code.

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would have resulted in a $400 restitution fine, and he accordingly requests that we reduce
the restitution fine to $400 and reduce the corresponding parole revocation fine to $400.
The People argue that defendant’s claim is forfeited due to his failure to object to the
restitution fine. The People concede that if defendant’s claim is not found to be forfeited,
the claim is meritorious. As explained below, we conclude that defendant did not forfeit
his claim, and we therefore will reduce the restitution fine and the corresponding parole
revocation fine.
       “Ordinarily, a criminal defendant who does not challenge an assertedly erroneous
ruling of the trial court in that court has forfeited his or her right to raise the claim on
appeal.” (In re Sheena K. (2007) 40 Cal.4th 875, 880; see People v. Gamache (2010) 48
Cal.4th 347, 409 [the defendant forfeited his claim regarding a section 1202.4 restitution
fine because he failed to object at the sentencing hearing].) “However, neither forfeiture
nor application of the forfeiture rule is automatic.” (People v. McCullough (2013) 56
Cal.4th 589, 598.) “Reviewing courts have traditionally excused parties for failing to
raise an issue at trial where an objection would have been futile . . . .” (People v. Welch
(1993) 5 Cal.4th 228, 237.)
       In the instant case, an objection to the trial court’s calculation of the restitution
fine would have been futile. The court stated that it calculated the restitution fine based
on the formula in the January 2012 version of section 1202.4, subdivision (b). The
probation officer informed the court that it should use the formula in the version of
section 1202.4 in effect at the time defendant committed the charged offense. The court
rejected the probation officer’s contention, stating that it was required to apply the
version of section 1202.4 in effect at the time of sentencing. Thus, because the trial court
explicitly rejected the notion that it was required to apply the version of section 1202.4 in
effect at the time defendant committed the charged offense, an ex post facto objection
would have been futile. We therefore conclude that defendant’s claim is not forfeited.

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(See In re Valerie A. (2007) 152 Cal.App.4th 987, 1001 [claim was not forfeited due to
failure to object where the court had previously issued a ruling contrary to the claim].)
       At the sentencing hearing, the trial court expressed an intention to impose a
restitution fine under the formula articulated in section 1202.4, subdivision (b). The
People concede that the trial court should have applied the formula in the version of
section 1202.4 in effect at the time defendant committed the charged offense, and that
modification of the restitution fine in accordance with that formula is appropriate. The
version of section 1202.4, subdivision (b)(2) in effect at the time defendant committed
the charged offense stated: “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 adopted by Stats. 2009, ch. 454, § 1, eff. Oct. 11, 2009 through Sept. 26,
2010].) Here, application of that formula to defendant’s two-year prison sentence and
single felony count results in a restitution fine of $400. We accordingly reduce the
restitution fine to $400.2
       The reduction of the restitution fine necessitates reduction of the corresponding
parole revocation fine. Section 1202.45, subdivision (a) states: “In every case where a

       2
           Although the People concede that the restitution fine should be modified in
accordance with the version of section 1202.4, subdivision (b) in effect at the time
defendant committed the charged offense, they nonetheless contend that the restitution
fine should be reduced to $600. The $600 figure appears to stem from a
misunderstanding of defendant’s argument and a misunderstanding of the facts. The
People frame defendant’s argument as follows: “He contends the restitution fine should
be . . . $600, under the version of section 1202.4 in effect at the time he committed his
crimes.” As previously noted, defendant argues that the restitution fine should be
reduced to $400, not $600. Moreover, contrary to the People’s assertion, defendant
committed only one crime, not multiple crimes. Because a mathematically-correct
application of the appropriate version of section 1202.4, subdivision (b) to defendant’s
offense yields a restitution fine of $400, we reduce the restitution fine to $400, not $600.
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person is convicted of a crime and his or her sentence includes a period of parole, the
court shall, at the time of imposing the restitution fine pursuant to subdivision (b) of
Section 1202.4, assess an additional parole revocation restitution fine in the same amount
as that imposed pursuant to subdivision (b) of Section 1202.4.” Under section 1202.45, a
court “has no choice and must impose a parole revocation fine equal to the restitution
fine.” (People v. Smith (2001) 24 Cal.4th 849, 853, italics in original.) An “invalid
parole revocation fine falls within the narrow class of sentencing errors exempt from the
waiver rule.” (Ibid.) Thus, because we reduce the restitution fine to $400, we must also
reduce the parole revocation fine to $400.
                                       DISPOSITION
       The judgment is modified to reduce the restitution fine from $720 to $400 and to
reduce the parole revocation fine from $600 to $400. As so modified, the judgment is
affirmed.



                                           ______________________________________
                                                      RUSHING, P.J.


WE CONCUR:



____________________________________
           PREMO, J.




____________________________________
           ELIA, J.



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