1 Filed 8/27/13 P. v. Arnold CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOURTH APPELL ATE DISTRICT DIVISION TWO

THE PEOPLE, Plaintiff and Respondent,

v. TERRY DARNELL ARNOLD, Defendant and Appellant. E057319 (Super.Ct.No . FWV1200554) OPINION

APPEAL from the Superior Court of Sa n Bernardino County. Jon D. Ferguson, Judge. Affirmed. Jean Ballantine, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Atto rney General, A. Natasha Cortina, and Kimberley A. Donohue, Deputy Attorneys Ge neral, for Plaintiff and Respondent.2 I
INTRODUCTION 1 After defendant Terry Darn ell Arnold tried to shoplift a television from Walmart, he pleaded no contest to one count of felony theft with three priors. 2 (§§ 484, subd. (a), 666, subd. (a).) The court sentenced defend ant to four years in prison and imposed various fines and fees, includi ng two restitution and parole re vocation fines in the amount of $240. (§§ 1202.4, subd. (b), and 1202. 45.) On appeal, defendant contends the imposition of the $240 fines constituted an ex post facto application of the law. We disagree and we affirm the judgment.
II STATEMENT OF FACT UAL AND PROCEDUR AL BACKGROUND We derive the brief summary of facts from the preliminary hearing which supplied the basis for defendant’s plea agreement. On Christmas Eve in 2011 , defendant and his wife visited an Upland Walmart store to return a bicycle. As recorded by a surveillance vi deo camera, defendant’s wife waited in the customer service line while defe ndant went to the electronics department, selected a television, and returned to customer service. Defendant and his wife attempted to return the television without a receipt. The customer service manager checked the

1 All statutory references are to the Penal Code.

2 It was originally alleged defendant ha d 11 prison priors (§ 667.5, subd. (b)), involving theft offenses, and one strike prio r (§§ 667, subds. (b)-(i) and 1170.12, subds. (a)-(d).)3 serial number for the television set and determ ined it had not been sold. The customer service manager contacted the loss preventio n department but processed the return, giving defendant and his wife a gift card inst ead of cash because they did not have a receipt. Defendant was subsequently arrested. On September 21, 2012, de fendant entered a plea of no contest to one count of felony theft with three priors . (§§ 484, subd. (a), and 666, subd. (a).) After defendant stipulated to immediate sentencing, the cour t imposed sentence, including a $240 victim restitution fine (§§ 1202.4, subd. (b), a nd 2085.5) and a susp ended $240 parole revocation fine. (§ 1202.45.)
III DISCUSSION In 2011, when defendant co mmitted his offense, the minimum fine under section 1202.4, subdivision (b), wa s $200. In 2012, when defendant was sentenced, the minimum fine had increased to $2 40. (Stats. 2011, ch. 358, § 1 ; People v. Kramis (2012) 209 Cal.App.4th 346, 350, fn. 2.) The ex post facto clauses of both the fe deral and state Constitutions prohibit any statute which makes more burdensome the puni shment for a crime after its commission. ( Tapia v. Superior Court (1991) 53 Cal.3d 282, 294, 295.) “A restitution fine qualifies as punishment for purposes of th e prohibition against ex post facto laws. [Citations.]” ( People v. Saelee (1995) 35 Cal.App.4th 27, 30.)4 Defendant contends the im position of the $240 resitutio n and parole revocation fines violated the constitutional prohibition against the ex post facto application of a law because the trial court intend ed to impose the statutory mi nimum of $200 effective in 2011 and therefore erroneously imposed the $2 40 minimum applicable in 2012. We are not persuaded. First, there is no ex post facto applica tion of section 1202.4, subdivision (b)(1), because the court had discre tion to impose a restitution fi ne up to $10, 000 and thus defendant was not subject to increased puni shment when the sentencing court ordered him to pay $240. In 2011, nothing prohibited a restitution fine of $240. The maximum
fine in both 2011 and 2012 was $10,000. “Although the ca ses are varied, a sentence is generally ‘unauthorized’ where it could not la wfully be imposed under any circumstance in the particular case. Appellate courts are willing to intervene in the first instance because such error is ‘clear and correctable’ independent of any fact ual issues presented by the record at sentencing. [Citation.]” ( People v. Scott (1994) 9 Cal.4th 331, 354; People v. Garcia (2010) 185 Cal.App.4th 1203, 1218.) Second, the court is presumed to have foll owed the correct law, even if it did not explicitly state the law it was applying. ( Wilson v. Sunshine Meat & Liquor Co. (1983) 34 Cal.3d 554, 562.) An appella nt has the burden of affirm atively showing error, and we cannot find such error on the basis of mere speculation about what the court intended. Instead, the sentencing court made no refere nce to applying the statutory minimum for the restitution fine, and there is nothing in the record to support such a finding. The sentencing court clearly was within its disc retion when it ordered defendant to pay $405 more than the statutory mi nimum applicable at the time defendant committed the offenses. The $240 fines could be lawfully imposed in 2011 and were not unauthorized in 2012. As such, we conclude the cour t did not abuse its di scretion in ordering defendant to pay restitution of $240. 3 Because the $240 fines were not unauthorized, defendant forfeited any claim that the trial court mistakenly imposed more than the minimum fine by not raising it at the sentencing hearing. “Although the court is required to impose sentence in a lawful manner, counsel is charged with understandin g, advocating, and clarifying permissible sentencing choices at the hearing. Routine de fects in the court’s statement of reasons are easily prevented and corrected if called to the c ourt’s attention. As in other waiver cases, we hope to reduce the number of errors committed in the firs t instance and preserve the judicial resources otherwise used to correct them.” ( People v. Scott, supra , 9 Cal.4th at p. 353.) Here, had defendant raised the 2011 minimum fine amount below, the trial court could have corrected any error in the amount of the fine. Because he did not, he may not challenge the fine on appeal.

3 We also reject defendant’s puzzling ar gument, raised for the first time in his reply brief, that the trial court was confused because the statutory minimum for defendant should actually have been $8 00, not $200, under the discre tionary provisions of section 1202.4, subdivision (b)(2).6 IV DISPOSITION The trial court did not abuse its discre tion in imposing two fines of $240. We affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:

RAMIREZ P. J.

KING J.