1 

Filed 7/31/13 P. v. Lyons CA6 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 This opinion has not been certified for publication 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 

SIXTH APPELLATE DISTRICT 

THE PEOPLE, 

Plaintiff and Respondent, 

v. 

RICHARD LEWIS LYONS, JR., 

Defendant and Appellant. 

 H038698 

 (Monterey County 

 Super. Ct. No. SS102712A) 

INTRODUCTION

 Defendant Richard Lewis Lyons, Jr., pleaded guilty to a felony count of 

dissuading a witness (Pen. Code, § 136.1, subd. (b)(1)) and no contest to misdemeanor 

counts of residential trespass (Pen. Code, § 602.5) and simple assault (Pen. Code, § 240).1

 

He also admitted to having a prior strike conviction. In exchange for his plea, defendant 

received a four-year state prison sentence. 

 On appeal, defendant asserts he is entitled to dual credits under People v. Bruner 

(1995) 9 Cal.4th 1178 (Bruner), for time served in presentence custody for his parole 

violation. Additionally, he contends the trial court improperly imposed a $240 

“minimum” restitution fine pursuant to Penal Code section 1202.4 because the minimum 

amount at the time he committed his crime was only $200. Defendant argues that his 

 

1

 Further unspecified statutory references are to the Penal Code. 
2 

trial counsel rendered ineffective assistance by failing to object to the incorrect minimum 

amount imposed. 

 We reject defendant’s contention that he is entitled to presentence credits for time 

served for his parole violation. But we hold defendant’s trial counsel prejudicially erred 

in failing to object to the restitution fine. We therefore modify the judgment to reduce 

the fine to $200. As modified, the judgment is affirmed. 

FACTUAL AND PROCEDURAL BACKGROUND2

On December 9, 2010, a woman reported that a male matching the description of 

defendant entered her residence. Seaside police officers responded to the call and found 

defendant near the residence with his pants unzipped and his belt unbuckled. The woman 

recounted she had been asleep, but awoke when she felt her shirt lifted and saw defendant 

standing over her, rubbing her stomach. Defendant held her down, told her to remain 

quiet, and lifted his hand as if he was going to hit her. The woman called her mother, 

who ran upstairs and found defendant on the floor of the bedroom. He appeared 

intoxicated at the time of the incident. He later admitted to the officers he had been 

drinking earlier that day. Defendant was arrested the same day. Four days later, on 

December 13, 2010, a criminal complaint was filed and defendant was arraigned. 

 On December 10, 2010, a parole hold was placed on defendant based on five 

different alleged parole violations. Three of the allegations were based on the charges 

contained in the police report that led to the criminal prosecution: burglary, sexual 

battery, and false imprisonment. The fourth allegation was based on the consumption of 

alcohol, which was substantiated by defendant’s admission and the arresting officer’s 

observations. The fifth allegation was based on defendant’s use of cocaine, which was 

supported by a positive urinalysis test done on December 10, 2010. On December 23, 

2010, each of the five alleged parole violations were found true, and defendant received a 

 

2

 As defendant pleaded no contest, the factual background is derived from the probation 

report and other documents in the record of appeal. 
3 

12-month sentence in prison. He was placed in custody from the time period of 

December 10, 2010, to December 9, 2011, for his parole violations. 

 On February 2, 2011, defendant was charged by information with two counts of 

first degree burglary (Pen. Code, § 659; count one and two), one count of assault with 

intent to commit rape (Pen. Code, § 220; count three), one count of false imprisonment 

(Pen. Code, §§ 236/237; count four), and one count of dissuading a witness by force or 

threat (Pen. Code, § 136.1, subd. (c)(1); count five). The prosecution also alleged two 

prior strike convictions. 

 On June 4, 2012, the prosecution amended the charges and defendant pleaded 

guilty to one felony count of dissuading a witness (§136.1, subd. (c)(1)) and no contest to 

misdemeanor counts of residential trespass (§ 602.5) and simple assault (§ 240). 

Defendant also admitted one of the prior strike convictions. Pursuant to the plea 

agreement, defendant was sentenced to four years in state prison: two years for the felony 

conviction, doubled for the prior strike conviction. Defendant later filed a Romero3

motion to strike the prior conviction, which was denied. 

 Defendant brought a motion in the trial court, arguing he was entitled to additional 

credits under Bruner, for the time served for his parole violation. He argued that the time 

served must be credited against his four-year prison sentence because his parole violation 

stemmed from the same conduct as his criminal charges. The trial court denied the 

motion, finding that the use of cocaine was an independent violation of parole that was 

separate from the conduct underlying his criminal prosecution. After excluding the time 

served for his parole violation, the trial court awarded 364 days of presentence credits, 

consisting of 243 custody credits and 121 days of conduct credits. 

 The court also ordered defendant to pay various fines and fees, including a 

restitution fine pursuant to Penal Code section 1202.4. In imposing that fine, the trial 

 

3 People v. Superior Court (1996) 13 Cal.4th 497 (Romero). 
4 

court stated: “You are also required to pay restitution fine of $240—I am going to make 

a minimum of $240. . . .” Defendant’s trial counsel did not raise an objection to the fine 

at the time of the proceedings. 

DISCUSSION

Defendant contends he is entitled to presentence credits for his parole term 

because his parole violation was based solely on the conduct underlying his criminal 

charges. He also asserts that his trial counsel rendered ineffective assistance for failing to 

object to the amount of the restitution fine. He requests we reduce the restitution fine to 

the statutory minimum at the time of the offense, which was $200, and to modify the 

judgment accordingly. 

A. Defendant is Not Entitled to Dual Credits 

 Penal Code section 2900.5, subdivision (a) provides in relevant part: “In all 

felony and misdemeanor convictions, either by plea or by verdict, when the defendant has 

been in custody . . . all days of custody of the defendant, including days served as a 

condition of probation in compliance with a court order, . . . shall be credited upon his or 

her term of imprisonment . . . .” However, section 2900.5, subdivision (b) specifies, 

“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. . . .” 

 In Bruner, supra, 9 Cal.4th at p. 1194, the California Supreme Court 

acknowledged that it is not always a straightforward matter to determine a defendant’s 

entitlement to presentence credits under section 2900.5 where multiple proceedings are in 

play. But in order “ ‘to provide for section 2900.5 a construction which is faithful to its 

language, which produces fair and reasonable results in a majority of cases, and which 

can be readily understood and applied by trial courts’ ” (Bruner, supra, at p. 1195), the 

Bruner court developed a rule of strict causation for cases where the same conduct is 

implicated in multiple proceedings. It said, “where a period of presentence custody stems 

from multiple, unrelated incidents of misconduct, such custody may not be credited 
5 

against a subsequent formal term of incarceration if the prisoner has not shown that the 

conduct which underlies the term to be credited was also a ‘but for’ cause of the earlier 

restraint. Accordingly, when one seeks credit upon a criminal sentence for presentence 

time already served and credited on a parole or probation revocation term, he cannot 

prevail simply by demonstrating that the misconduct which led to his conviction and 

sentence was ‘a’ basis for the revocation matter as well.” (Id. at pp. 1193-1194.) The 

Bruner court further approved of a number of decisions which reasoned that a prisoner’s 

“criminal sentence may not be credited with jail or prison time attributable to a parole or 

probation revocation that was based only in part upon the same criminal episode.” (Id. at 

p. 1191.) In other words, “a prisoner is not entitled to credit for presentence confinement 

unless he shows that the conduct which led to his conviction was the sole reason for his 

loss of liberty during the presentence period.” (Ibid.) 

 In Bruner, a warrant issued for the defendant’s arrest for three alleged parole 

violations: absconding from parole supervision, theft of a credit card, and cocaine use 

based on a positive urine test. (Bruner, supra, 9 Cal.4th at p. 1181.) When parole agents 

served the warrant, they found rock cocaine in the defendant’s possession. The defendant 

was cited for possession of cocaine and released on that charge on his own recognizance. 

Nonetheless, he remained in custody under a parole hold. The Board of Prison Terms 

revoked the defendant’s parole based on the three alleged violations and his possession of 

cocaine, and imposed a prison term of 12 months. While the defendant was serving that 

term, he pleaded guilty to the charge that he possessed cocaine, and was sentenced to 

prison for 16 months. The trial court found that the defendant was not entitled to any 

presentence custody credits on the current charge. (Id. at pp. 1181-1182.) The defendant 

appealed and the Court of Appeal agreed in part with the defendant that he was entitled to 

presentence custody credit, but only from the time of the formal parole revocation. (Id. at 

p. 1182.) The Supreme Court reversed the judgment of the Court of Appeal. (Id. at 

p. 1180.) 
6 

 After acknowledging the potential unfairness of the strict causation rule it applied, 

the Supreme Court explained, “it arises from the limited purposes of the credit statute 

itself. The alternative is to allow endless duplicative credit against separately imposed 

terms of incarceration when it is not at all clear that the misconduct underlying these 

terms was related. . . . [S]uch credit windfalls are not within the contemplation of 

section 2900.5.” (Bruner, supra, 9 Cal.4th at p. 1193.) Responding to the suggestion that 

a rule of strict causation in these circumstances worked an undue hardship on defendants, 

the Court noted a “defendant’s burden, while onerous, is not necessarily impossible.” 

(Id. at p. 1193, fn. 10.) Thus, a defendant in custody on multiple causes, such as parole 

violations and new charges, bears the burden of establishing that he is entitled to 

presentence custody credits. (Id. at pp. 1193-1194.) 

People v. Stump (2009) 173 Cal.App.4th 1264 (Stump) is particularly instructive 

here. In Stump, the defendant was convicted of driving under the influence of alcohol 

with a prior felony within 10 years (Veh. Code, § 23152, subd. (a)), and driving with a 

blood-alcohol content of at least .08 percent with a prior felony within 10 years (Veh. 

Code, § 23152, subd. (b)). Stump was arrested on July 16, 2006. At the time of his arrest 

he was on parole with special conditions prohibiting him from, among other things, 

drinking alcohol or driving without his parole officer’s permission. Stump was found to 

have violated the terms of his parole not just by committing the two charged offenses, but 

also for drinking alcohol and not obtaining the permission of his parole officer before 

driving. (Stump, supra, at p. 1268.) 

 Stump was arraigned “with respect to the July 16, 2006 incident” on December 20, 

2006, and remained in custody through the date of sentencing in May 2008. (Stump, 

supra, 173 Cal.App.4th at p. 1268.) He was awarded credits for the period of 

December 20, 2006, through sentencing, but denied credits for the period of his 

prearraignment custody (i.e., from July 16, 2006, through December 20, 2006). (Ibid.) 
7 

 On appeal, Stump challenged the court’s failure to award credits for his 

prearraignment custody, asserting that this period, “was ‘attributable to proceedings 

related to the same conduct for which’ he was convicted” because “there was only one 

‘single, uninterrupted, incident of misconduct,’ and ‘. . . a single episode of criminal 

behavior may [not] be parsed into separate acts in order to deny the award of credit for 

revocation custody . . . .’ ” (Stump, supra, 173 Cal.App.4th at pp. 1268, 1271.) 

 The Fourth District Court of Appeal noted that Bruner was not “directly on point” 

because “[t]he decision in [that case], inasmuch as it addressed only a fact pattern with 

completely unrelated incidents—alleged parole violations and a subsequent cocaine 

possession—did not address a fact pattern such as the one before us, where all of the acts 

in question were temporally related.” (Stump, supra, 173 Cal.App.4th at p. 1271.) The 

question presented, the court stated, was “how the Bruner ‘but for’ test should be applied 

when a defendant engages in a course of illegal conduct, such as drunk driving, that 

encompasses certain independent acts, none of which would be illegal per se, but each of 

which happens to be a separate ground for a parole violation, such as driving (without 

parole officer permission), or consuming alcoholic beverages in any amount?” (Ibid.) 

 The court answered that question as follows: “In the case before us, the conduct 

for which defendant was arrested gave rise to two drunk driving charges (violations of 

Veh. Code, § 23152, subds. (a), (b)). It is not the case that ‘but for’ a drunk driving 

charge defendant would have been free of parole revocation custody. He still would have 

been held for driving, which is not necessarily a crime in and of itself but may be, and 

was here, a parole violation. Likewise, he still would have been held for consuming 

alcohol, which is not necessarily a crime in and of itself but may be, and was here, a 

parole violation. [¶] Penal Code ‘section 2900.5 did not intend to allow credit for a 

period of presentence restraint unless the conduct leading to the sentence was the true 

and only unavoidable basis for the earlier custody.’ (Bruner, supra, 9 Cal.4th at p. 

1192.) [ . . .] the conduct of driving under the influence of alcohol, for which defendant 
8 

was sentenced in the underlying action, was not the ‘only unavoidable basis’ for the 

custody. The act of driving without permission was a basis for the earlier custody. The 

act of drinking alcohol, irrespective of driving, was a basis for the earlier custody. 

‘ “Section 2900.5 does not authorize credit where the pending proceeding has no effect 

whatever upon a defendant’s liberty.” [Citation.]’ (Id. at p. 1184.)” (Stump, supra, 173 

Cal.App.4th at p. 1273.) 

 Similarly here, defendant would not have been free of parole revocation custody 

“but for” his charged criminal conduct. The conduct forming the basis for two of his 

parole violations occurred before he entered the residence, whereas the information 

charged him with crimes that occurred after he entered the residence. Indeed, as the trial 

court found, defendant’s parole violation was based, in part, on his use of cocaine, which 

was not one of the charged crimes, and there is nothing in the record to suggest that his 

use of cocaine occurred in the residence when his crimes were being committed. 

Defendant’s consumption of alcohol was another separate ground for his parole 

revocation, and nothing in the record suggests he consumed alcohol while he committed 

his crimes. As in Stump, defendant would have been held in custody for consuming 

alcohol, which is not illegal per se, but was here, a parole violation. Thus, defendant fails 

to show that the conduct leading to his conviction was the “sole reason for his loss of 

liberty during the presentence period.” (Bruner, supra, 9 Cal.4th at p. 1191.) 

Accordingly, he is not entitled to dual credits for the custody period of December 10, 

2010 to December 9, 2011. 

B. Defense Counsel Rendered Ineffective Assistance by Failing to Object to the 

Restitution Fine 

At sentencing, the trial court imposed a $240 restitution fine pursuant to Penal 

Code section 1202.4, stating that it was “going to make a minimum of $240.” Defendant 

contends that his trial counsel provided ineffective assistance by failing to object to the 

$240 restitution fine. He argues the fine should be reduced to $200, the minimum 
9 

amount under the version of the statute at the time he committed his crimes. He asserts 

that the trial court mistakenly used the minimum amount in effect at the time of 

sentencing rather than the amount at the time he committed his offenses; hence, imposing 

a $240 fine was an ex post facto violation. Respondent counters that the trial court’s 

intent to impose the minimum fine is mere speculation. Further, under the statute, the 

trial court has the discretion to set the restitution fine at an amount greater than the 

minimum. (Former Pen. Code § 1202.4, subd. (b)(1), Stats. 2009, ch. 45, § 1.) Thus, 

imposing a $240 fine was well within the court’s discretion. 

 Here, defendant committed his crimes on December 9, 2010, but was sentenced on 

August 8, 2012. At the time defendant committed his crime, the minimum restitution 

fine under Penal Code section 1202.4 subdivision (b) was $200. (Former Pen. Code 

§ 1202.4, Stats. 2009, ch. 45, § 1.) The statute was then amended effective January 1, 

2012, and the minimum fine was increased to $240. (Stats. 2011, ch. 358, §1.) Applying 

a later version of the statute constitutes an error and an ex post facto violation. “A 

restitution fine qualifies as punishment for purposes of the prohibition against ex post 

facto laws.” (People v. Saelee (1995) 35 Cal.App.4th 27, 30; see also People v. Downing 

(1985) 174 Cal.App.3d 667, 672.) 

 We conclude from our review of the record that the trial court intended to impose 

the minimum fine. Although the trial court had the discretion to set the restitution fine as 

it did, it stated that it was “going to make a minimum of $240.” Based on the court’s 

language, it appears that it believed that the minimum fine it could impose under the 

statute was $240. Nothing in the record suggests that the court intended to impose more 

than the statutory minimum. Thus we reject the People’s claim that the court at its 

discretion imposed a fine greater than the minimum. 

 Because no objection was made to the imposition of a $240 fine, defendant has 

forfeited his claim of error. (People v. McCullough (2013) 56 Cal.4th 589, 599.) But 

defendant asserts that his trial counsel rendered ineffective assistance as he had no 
10 

reasonable basis for failing to object to the court’s use of the wrong formula. To prevail 

on an ineffective assistance of counsel claim, defendant must prove two elements: 

(1) trial counsel’s deficient performance and (2) prejudice as a result of that performance. 

(In re Resendiz (2001) 25 Cal.4th 230, 239, abrogated on another ground in Padilla v. 

Kentucky (2010) 559 U.S. 356; Strickland v. Washington (1984) 466 U.S. 668, 687 

(Strickland).) 

1. Deficient Performance 

 Deficient performance is established if the record demonstrates that counsel’s 

representation “fell below an objective standard of reasonableness under the prevailing 

norms of practice.” (In re Alvernaz (1992) 2 Cal.4th 924, 937.) In assessing 

performance, there is a “strong presumption that counsel’s conduct falls within the wide 

range of reasonable professional assistance.” (Strickland, supra, 466 U.S. at p. 689.) 

Courts are “highly deferential” to the tactical decisions made by counsel. (Ibid.) 

 Generally, “the failure to object is a matter of trial tactics that an appellate court 

will seldom second-guess [citation] . . . .” (People v. Carter (2003) 30 Cal.4th 1166, 

1209.) But an exception exists where “there simply could be no satisfactory explanation” 

for counsel’s failure to object. (People v. Carter, supra, 30 Cal.4th at p. 1211.) 

Furthermore, with respect to unfavorable sentencing issues, “a defense attorney who fails 

to adequately understand the available sentencing alternatives, promote their proper 

application, or pursue the most advantageous disposition for his client may be found 

incompetent. [Citations.]” (People v. Scott (1994) 9 Cal.4th 331, 351; see also People v. 

Le (2006) 136 Cal.App.4th 925, 936 [finding ineffective assistance of counsel where 

counsel failed to object to a fine calculation in which the court added counts where a 

punishment should have been stayed per Penal Code section 654].) 

 Here, trial counsel failed to object to the trial court’s mistaken statement of the 

minimum statutory fine. We find there was no tactical reason for counsel’s failure to 

object. On the record before us, it appears likely that the court would have imposed the 
11 

minimum fine of $200 had counsel raised an objection at the sentencing hearing. We 

therefore conclude that trial counsel’s performance was deficient. 

2. Prejudice 

 In assessing whether there was prejudice, there must be a reasonable probability 

that the result would have been different in the absence of counsel’s deficient 

performance. (People v. Lucas (1995) 12 Cal.4th 415, 436.) 

 Although the fine difference at dispute is not a large amount, we nonetheless find 

a reasonable probability that the result would be different had trial counsel alerted the 

court to its error. Indeed, having concluded that the trial court intended to impose the 

statutory minimum, it is likely the court would have reduced the amount to $200. 

 Under the circumstances of this case, we conclude that trial counsel rendered 

prejudicially ineffective assistance by failing to object to the $240 restitution fine that 

was erroneously imposed as the “minimum” under section 1202.4 subdivision (b). 
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DISPOSITION

 The judgment is modified to reduce the restitution fine from $240 to $200. The 

trial court shall prepare an amended abstract of judgment reflecting this modification. As 

modified, judgment is affirmed. 

 _______________________________ 

 Márquez, J. 

 WE CONCUR: 

 ______________________________ 

 Elia, Acting P. J. 

 ____________________________________________ 

 Bamattre-Manoukian, J.