1

Filed 3/11/14 P. v. Salc i do 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent,

v. GEORGE BERUMO N SALCIDO, Defendant and Appellant. E057457 (Super.Ct.No. FVA1200013)
OPINION

APPEAL from the Superior Court of San Bernardino County. Ingrid Adamson Uhler, Judge. Affirmed with directions. John L. Staley, under appointment by the Court of A ppeal , for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, James D. Dutton and Donald W. Ostertag, Deputy Attorneys Genera l, for Plaintiff and Re spondent.2

This is an appeal by defendant and appellant, George Berumon Salcido (defendant) , from the judgment entered after a jury found him guilty of an attempt to kidnap his wife (Pen. Code, §§ 664, 207, subd. (a)) , 1 a lesser included offense to the char ged crime of kidnapping, and of inflicting corporal inj ury on a spouse (§ 273.5, subd. (a).) The jury also found defendant had a prior strike conviction within the meaning of the three st rikes law (§§ 667, subds. (b)

- (i), 1170.12, subds. (a )

- ( d )), and a
p rior serious felony conviction (§ 667 , subd. (a)(1)). The trial court sentenced defendant to serve a total term of 13 years in state prison, the details of which we recount in our discussion of defendant’s claims o n appeal

. Defendant asserts two claims of error in this appeal . First, he contends the trial court violated section 654 by imposing a concurrent sentence on count two , his conviction for inflicting corporal injury on a spouse

. Next , defendant contends the restitution and parole revocation fines of $240 , the minimum fines at the time of sentencing, violate the state and federal constitutional prohibitio ns against ex post facto laws because at the time he committed his crimes the statutory minimum fine was $200

. The Attorney General concedes defe ndant’s first claim of error , and we conclude that concession is appropriate. We disagree with defendant’s second claim of error. Therefore, for reasons we now explain, we will direct the trial court to modify defendant’s se ntence by staying execution of the sentence imposed on count 2.

1 All statutory ref

erences are to the Penal Code unless indicated otherwise.3 FACTS 2 Yolanda, defendant’s wife of three years, left defendant and moved with their two

year - old son, Jorge, to a homeless shelter after defendant physically abused her. Yolanda also obtained a restraining order that re quired defendant to stay at least 100 feet from her
and Jorge . After four months in the shelter, Yolanda and Jorge moved into an apartment with another family and Yolonda’s 18

- year - old son, Elias. In December 2011, d efendant violated the restraining orde r by assaulting Yolanda
in the parking lot of the apartment complex, and forcing her into his car. Yolanda was able to lock the car doors , but defendant broke the pass enger window with a metal bar. Defendant got in the driver’s seat and was trying to bac k up when Yolanda put the vehicle in park and a nother resident of the apartment complex interceded . He pulled defendant from the car and threw him to the ground. When the police arrived, Yolanda had blood on her mouth, a cut on the side of her lip, and a brasions on her chest and arm. They arrested defendant.

2 Because the facts of defendant’s crimes are not in dispute and, in any event, are not pertinent to the issues he raises on appeal, we rely on the parties’ briefs for the relevant details, which we briefly recount.4 DISCUSSION 1. SECTION 654 ISSUE The trial court sentenced defendant on count 1 to serve four years in state prison, doubled to eight years as a result of his prior strike conviction. On count 2, t he trial court imposed the same sentence, but ordered it be served concu rrently to count 1. Defendant, as previously noted, c ontends his concurrent sentence on count 2 violates section 6 54, which prohibits multiple punishment for multiple crimes that aris e out of a single act or an indivisible course of conduct. ( People v. Miller (1977) 18 Cal.3d 873, 885

. ) The trial court in this case was aware of the section 654 issue and purported to address it by ordering the sentence impos ed on count 2 be served con currently to the

sentence imposed on count 1. “ However, under section 654, concurrent sentences for such offenses are prohibited, since they may have collateral consequences amounting to increased punishment. [Citations.]” ( People v. Cole (1985) 165 Cal .App.3d 41, 53.)

“ When confronted with offenses within the ambit of section 654, the procedure is to stay the execution of sentence on all but one of the o ffenses subject to section 654. [Citation.]” ( Ibid .) We will direct the trial court to amend the sentence on count 2 by staying
execution of that sentence.5 2. EX POST FACTO ISSUE In sentencing defendant, t he trial court imposed the minimum restitutio n fine of $240 under section 1202.4, subdivision (b). In a ccordance with the provision i n section
12 02.45, subdivision (a), which requires the trial court to assess a parole revocation restitution fine in the same amount if the trial court assesses a restitution fine, the trial court also imposed a so - called parole revocation fine in the amount of $240 , the payment of which the trial court stayed pending defendant’s successful completion of parole, at
which time it would be permanently stayed. Defendant contends the trial court should have imposed fines of $200 because that
was the minimum fine under the pertinent statutes in effect at the time defendant
committed his crimes in December 2011. The Attorney General argues defendant forfeited the claim because he did not raise it in the trial court. We do not share the Attorney General’s view. “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.) “[T]he forfeiture rule applies in
the context of sentencing as in other areas of criminal law.” ( Id . at p. 881.) “‘The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected. [Citation.]’ [Citations.]” ( Ibid .) The f orfeiture rule is subject to recognized exceptions, one of which is that forfeiture will not be applied to pure questions of law because resolution of a legal issue does not depend on facts6

co ntained in the record. ( Id . at pp. 881

- 882 ; see also People v. McCullough (2013 ) 56 Cal.4th 589, 597 [defendant who did not raise factual issue of ability to pay booki ng fee forfeits issue on appeal ]

. ) Defendant does not raise the factual issue of his ability to pay the restitution fine; he raises only the legal issue of whether the minimum fine proscribed by the pertinent statutes is subject to the ex post facto prohibition. Because his claim raises only an issue of law, we conclude defendant has not forfeited that claim on appeal. “A restitution fine qualifies as pu nishment for purposes of the prohibition against ex post facto laws. [Citations.]” ( People v. Saelee (1995) 35 Cal.App.4th 27, 30

- 31.) Just as the 1992 increase in the minimum fine from $100 to $200 made more burdensome the punishment for a crime, the i ncrease from $200 to $240 had the same effect. ( Ibid .)
In December 2011, when defendant committed his crime , the minimum restitution fine was $200. (See Stats. 2011, ch. 45, § 1 [Sen. Bill No. 208], eff. July 1, 2011.) At the time of sentencing the min imum fine was $240.
Defendant would have us assume fr om the fact the trial c ourt imposed fines of $240, the minimum fine specified under the statute s in effect at the time of sentencing, the trial court intended to impose the minimum fine authorized by law

. However, we are not at liberty to engage in that assumption. T he court is presumed to have followed 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 app ellant has the burden of affirmatively showing error, and we cannot find such error on the basis of speculation about what the court intended. Because the trial court gave no other indication of its7

intent to impose the statutory minim um for the restituti on fine, there is nothing in the record to support such a finding. The sentencing court clearly was within its discretion when it ordered defendant to pay $40 more than the stat utory minimum applicable at the time defendant committed his offenses.

DISPOSI TION

The trial court is directed to modify defendant’s sentence by staying execution of the eight

- year sentence imposed on count 2, in accordance with section 654

. The trial court is further directed to prepare and forward to the appropriate agencies and entities an amended abstract of judgment that reflects defendant ’s modified sentence. As modified the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER J.
We concur:

RAMIREZ P. J.

HOLLENHORST J.