Filed 12/12/14 P. v. Lara 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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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.

RENE MIGUEL LARA,

 Defendant and Appellant.

 H039842

 (Santa Cruz County

 Super. Ct. No. F22718) 

In May 2012, a complaint was filed charging defendant Rene Miguel Lara with 

three felonies, namely, possession of a firearm by a felon (Pen. Code, § 29800, subd. 

(a)(1));1possession of ammunition by a prohibited person (§ 30305, subd. (a)(1)); and 

possession of a controlled substance (methamphetamine) for sale (Health & Saf. Code, 

§ 11378). It was further alleged that defendant had been convicted of two felonies, both 

of which resulted in his having served prison terms, and he had not remained free of 

prison custody (or the imposition of a term of jail custody) for a period of five years 

(§ 667.5, subd. (b); prison priors). As to the third count, it was alleged, pursuant to 

Health and Safety Code section 11370.2, subdivision (c), that defendant had previously 

been convicted of having violated Health and Safety Code section 11351. 

Defendant moved to suppress seized evidence pursuant to section 1538.5. After 

the motion was denied and defendant was held to answer on all charges, an information 

 

1 All further statutory references are to the Penal Code unless otherwise stated.
2

was filed containing the same charges and special allegations. Defendant renewed his 

motion to suppress. After the renewed motion was denied, defendant pleaded guilty to 

count 1 and count 3 and admitted the two prison prior allegations. (Count 2 was 

dismissed.) He was sentenced to an aggregate term of five years in prison.

Defendant challenges the conviction entered on his guilty plea by contesting the 

court’s denial of his suppression motion. Defendant asserted in that motion that the 

warrant that was the basis for the search of his Watsonville residence was not supported 

by sufficient facts establishing probable cause. Because the affidavit included facts from 

a confidential informant, a portion of the affidavit was sealed and not available to 

defendant. The trial court, after considering an unredacted version of the search warrant 

affidavit in camera, concluded that there were sufficient facts to support the magistrate’s 

issuance of the search warrant. Defendant challenges that ruling. He requests that this 

court, under People v. Hobbs (1994) 7 Cal.4th 948 (Hobbs), perform an independent 

review of the entire search warrant and affidavit, including the sealed materials, to 

ascertain whether the trial court properly denied the suppression motion. 

Defendant also challenges the court’s imposition of a restitution fine in the amount 

of $280 pursuant to section 1202.4 (and a corresponding fine under section 1202.45). He 

contends that the court erred in that it purportedly intended to impose the statutory 

minimum, which was $240.

We conclude, after performing an independent review of the record pursuant to 

Hobbs, supra, 7 Cal.4th 948, that the affidavit presented “sufficient competent evidence”

to support the magistrate’s finding of probable cause. The trial court therefore properly 

denied the motion to suppress. We conclude further that defendant forfeited his 

challenge to the imposition of the restitution fine and corresponding parole revocation 

restitution fine, and we reject his contention that his challenge should nonetheless be 

considered and found meritorious based upon his assertion of ineffective assistance of 

counsel. We will therefore affirm the judgment.
3

FACTUAL BACKGROUND

I. The Search Warrant and Accompanying Affidavit2

In his affidavit, Officer Scott Parsons of the Watsonville Police Department 

(Department) sought the issuance of a search warrant for a residence located at 130 

Riverside Drive in Watsonville. He also sought in the requested warrant the inclusion of 

an authorization to search defendant’s person and any vehicles registered to him. The 

personal property sought in the affidavit included methamphetamine, various indicia of 

sales of methamphetamine, and firearms. Officer Parsons indicated that he had been a 

California police officer since 2008; had been, until July 2010, a patrol officer for the 

Department where he had investigated, among other crimes, narcotics use, sales, and 

possession; and was currently assigned to the Santa Cruz County Gang Task Force (Task 

Force) where his duties included the investigation of gang-related crimes and

performance of surveillance operations (including the buying and selling of narcotics and 

working with confidential informants). 

Officer Parsons averred that he had met with a confidential reliable informant 

(CRI) within 10 days of his execution of the affidavit. He stated that the CRI was tested 

because he/she in the past (1) had assisted law enforcement with information about illegal 

activity; (2) had helped in several cases with narcotics and gang involvement; and (3) had 

not given misleading information to law enforcement in any past cases while acting as an 

informant. Officer Parsons suggested that it be assumed the CRI had prior felony 

convictions and was assisting law enforcement “for case consideration and monetary 

gain.” The officer indicated further that he did not want to reveal the identity of the CRI 

because of the threat of bodily harm to the CRI or the CRI’s family members. The CRI 

 

2

The summary information recited herein is from the search warrant and search 

warrant affidavit—including a six-page exhibit that contains a redacted version of sealed 

materials available to defendant—that were introduced as exhibits at the preliminary 

hearing and which are a part of the appellate record. 
4

advised Officer Parsons that he/she was fearful of retaliation by the persons about whom 

he/she was informing law enforcement. 

The CRI told Officer Parsons that he/she knew defendant, was aware that 

defendant was involved in the sale of methamphetamine in Watsonville, and had 

personally bought methamphetamine from defendant on several occasions. (After 

speaking to the CRI, Officer Parsons performed a records check and determined that 

defendant had a 1997 conviction for possession for sale of a controlled substance.) The 

CRI also informed Officer Parsons that defendant lived at 130 Riverside and had been 

residing there for approximately one year. Officer Parsons stated that he had personally 

seen a Honda registered to defendant parked in front of that house several times, and that 

another Task Force officer had observed defendant in front of the house within two 

weeks of the affidavit’s execution. 

Within 10 days of the affidavit’s execution, Officer Parsons drove the CRI to the 

Riverside Drive area and the CRI pointed out 130 Riverside Drive as defendant’s 

residence. The CRI also identified defendant from a booking photograph Officer Parsons 

showed him/her. 

Officer Parsons met with the CRI within 10 days of the affidavit’s execution at a 

specified location to perform “a controlled buy of [m]ethamphetamine.” Officer Parsons 

searched the CRI and confirmed that he/she had no drugs, money, or contraband on 

his/her person. The officer checked to confirm the CRI was not under the influence of 

drugs. Officer Parsons then gave the CRI some Task Force funds to be used to buy 

drugs. Officer Parsons kept the CRI under “constant surveillance” and directed that the 

CRI go to 130 Riverside to complete the transaction. The CRI walked to the residence, 

making no stops along the way. A short time later, the CRI walked away from 

130 Riverside Drive, and Officer Parsons observed the CRI walk to a predetermined 

location. The officer met the CRI, obtained a baggie of suspected methamphetamine 
5

from him/her, and searched the CRI and found him/her to possess no money or any other 

contraband. 

Officer Parsons indicated in his affidavit that the amount of methamphetamine in 

the baggie was consistent with the amount of funds given to the CRI to complete the 

controlled buy. He stated that he spoke to the CRI, and he/she informed him that 

defendant had handed the CRI the baggie containing the suspected methamphetamine. 

Officer Parsons later performed a test of the material in the baggie given to him by the 

CRI. It tested presumptively positive for methamphetamine. 

II. Execution of the Search Warrant3

On the evening of May 4, 2013, Officer Parsons, along with other officers from 

the Department, executed a search warrant at 130 Riverside Drive in Watsonville. 

Officer Parsons, in an undercover vehicle, observed defendant and another man arrive at 

the location in defendant’s truck, which he parked in the driveway. Officer Parsons, in 

coordination with other officers, contacted, detained, and handcuffed defendant. Officer 

Parsons told defendant he had a warrant to search his home and vehicle. 

After knocking and giving notice, Officer Parsons and two other officers entered 

the residence through the unlocked front door. In response to Officer Parsons’s request, 

defendant identified his room as one that had two locks on the door. Defendant said he 

had the keys, which were retrieved from his truck. During a search of defendant’s room, 

the officers located six grams of methamphetamine wrapped in plastic; a used 

methamphetamine pipe; various pieces of plastic consistent with the packaging of 

narcotics; 20 rounds of Winchester .44-caliber ammunition in the original box; a gun 

cleaning kit; one “.38 Special” round; and a .44-caliber firearm. After Officer Parsons

arrested and Mirandized (Miranda v. Arizona (1966) 384 U.S. 436) defendant, he

 

3

The factual background is derived from the reporter’s transcript of the 

preliminary hearing on October 15, 2012. 
6

admitted that “he had been selling [methamphetamine] for the past one to two months 

outside of his house at 130 Riverside.” Defendant said that no one else used his room. 

He also acknowledged that he owned the firearm and the .44-caliber rounds that were 

found in his room. 

PROCEDURAL HISTORY

Defendant was charged by a felony complaint filed May 10, 2012, with possession 

of a firearm by a felon (§ 29800, subd. (a)(1)), possession of ammunition by a prohibited 

person (§ 30305, subd. (a)(1)), and possession of methamphetamine for sale (Health & 

Saf. Code, § 11378). As to the drug possession charge, it was further alleged that,

pursuant to Health and Safety Code section 11370.2, subdivision (c), defendant had 

previously been convicted of having violated Health and Safety Code section 11351. It 

was also alleged in the complaint as to all three counts that defendant had two prison

priors (§ 667.5, subd. (b)). 

At the preliminary hearing in August 2012, defendant moved to suppress seized 

evidence pursuant to section 1538.5. He contended the warrant authorizing the search 

was not supported by probable cause. Defendant noted in the motion that “almost the 

entire ‘Statement of Probable Cause’ [in the search warrant affidavit] was requested to be 

sealed and presumably was sealed for reasons unknown to the defendant.” Defendant 

argued further that the complaint should be dismissed under due process requirements 

because the prosecution’s withholding of portions of the search warrant from defendant

prevented him from fully litigating the suppression motion. The People opposed the 

motion, arguing that there was probable cause for issuance of the search warrant and that 

it was proper for the magistrate to seal a portion of the affidavit to protect the identity of a 

confidential informant. 

The preliminary examination and hearing on the suppression motion were

conducted on October 15 and 17, 2012. The court denied the motion to suppress and held 

defendant to answer. 
7

On October 25, 2012, the District Attorney filed an information that contained the 

same charges and special allegations found in the complaint. Defendant filed a renewed 

motion to suppress evidence pursuant to section 1538.5, which was opposed by the 

People. On February 22, 2013, the court denied the renewed motion. 

On June 7, 2013, defendant pleaded guilty to count 1, possession of a firearm by a 

felon (§ 29800, subd. (a)(1)), and count 3, possession of methamphetamine for sale 

(Health & Saf. Code, § 11378). He also admitted the two prison priors. Count 2 was 

dismissed in the interests of justice.4 In a separate but related case heard at the same time

(case number F24575), defendant pleaded guilty to possession of a firearm by a felon 

(§ 29800, subd. (a)(1)), and admitted that he was on bail at the time of the commission of 

that offense. Counsel stipulated that there was a factual basis for the plea. 

On June 17, 2013, the court sentenced defendant to the upper term of three years 

on the count 1 conviction, adding two years for the prior prison term, for a total term of 

five years. The court imposed a concurrent sentence of three years on count 3. In the 

related case, the court imposed an additional term of two years and eight months, to run 

consecutive to the sentence imposed in the main case. It also imposed a restitution fine 

and a parole revocation restitution fine each in the amount of $280. 

DISCUSSION

I. Motion to Suppress

A. Background

In his motion to suppress and in his renewed motion, defendant asserted that the 

warrant authorizing the search was “not supported by provable, reviewable probable 

cause.” He argued in both motions that “[a] portion of the affidavit here apparently has 

 

4

The record does not reflect that there was a disposition as to the remaining 

special allegation in the information as to count 3, i.e., the allegation pursuant to Health 

and Safety Code section 11370.2, subdivision (c).
8

been sealed—almost the entire Statement of Probable Cause that led to the issuance of 

this warrant, preventing the defendant from litigating the lawfulness of the governmental 

invasion of his precincts.” 

At the hearing on the first suppression motion on October 17, 2012, defense 

counsel argued that her “hands [were] somewhat tied in these types of cases because the 

Court and counsel are privy to information [she was] not privy to.” Defendant’s attorney 

argued that, from the portion of the affidavit in support of probable cause that was made 

available to her, it appeared there had been a controlled buy at the Watsonville address on 

Riverside Drive; the police had observed the informant enter the house and return from it; 

but the police at no time observed that defendant was present in the home at the time of 

the controlled buy. 

The prosecution argued that, based upon the entirety of the affidavit, including the 

sealed portion which the court had reviewed, there was probable cause demonstrated for 

the issuance of the search warrant. The court—noting that in such cases its practice was 

to attempt to release to the defense as much information as possible without jeopardizing 

the informant’s safety—concluded that “in the release[d] portion alone there was 

sufficient [information] to issue the search warrant and . . . there is more the Court has 

reviewed.” It therefore denied the suppression motion. 

The renewed suppression motion was heard before a different judge on February 

22, 2013. The court indicated it had considered the renewed suppression motion and the 

People’s opposition, the prior motion and hearing transcript, and the exhibits to the 

motion. After the matter was submitted without argument, the court denied the renewed 

suppression motion. 

On appeal, defendant, citing Hobbs, supra, 7 Cal.4th 948, requests that this court 

independently review the record, including the sealed portion of the affidavit, to 

determine whether the trial court properly denied the motion to suppress. The Attorney 

General joins in the request. 
9

B. The Search Warrant Was Supported By Probable Cause

The Supreme Court has held that “taken together, the informant’s privilege ([Evid. 

Code,] § 1041), the long-standing rule extending coverage of that privilege to information

furnished by the informant which, if disclosed, might reveal his or her identity, and the 

codified rule that disclosure of an informant’s identity is not required to establish the 

legality of a search pursuant to a warrant valid on its face ([Evid. Code,] § 1042, 

subd. (b)) compel a conclusion that all or any part of a search warrant affidavit may be 

sealed if necessary to implement the privilege [under Evidence Code section 1041] and 

protect the identity of a confidential informant.” (Hobbs, supra, 7 Cal.4th at p. 971; 

Evid. Code, § 1042, subd. (b).) Where the defendant moves to quash or traverse the 

search warrant, the trial court should conduct an in camera hearing to determine if 

“sufficient grounds exist for maintaining the confidentiality of the informant’s identity 

. . . [and] then . . . determine[] whether the entirety of the affidavit or any major portion 

thereof is properly sealed . . . .” (Hobbs, at p. 972.) “A defendant who desires to obtain 

the identity of the informant when the prosecution invokes the privilege under [Evidence 

Code] section 1041, has the burden of showing a reasonable possibility that the informant 

could give evidence on the issue of guilt which might result in [the] defendant’s 

exoneration. [Citation.]” (People v. Otte (1989) 214 Cal.App.3d 1522, 1535.)

“Once the affidavit is found to have been properly sealed, the court should proceed 

to determine ‘whether, under the “totality of the circumstances” presented in the search 

warrant affidavit and the oral testimony, if any, presented to the magistrate, there was “a 

fair probability” that contraband or evidence of a crime would be found in the place 

searched pursuant to the warrant’ (if the defendant has moved to quash the warrant) or 

‘whether the defendant’s general allegations of material misrepresentations or omissions 

are supported by the public and sealed portions of the search warrant affidavit, including 

any testimony offered at the in camera hearing’ (if the defendant has moved to traverse 

the warrant). [Citation.]” (People v. Galland (2008) 45 Cal.4th 354, 364, quoting 
10

Hobbs, supra, 7 Cal.4th at pp. 974, 975.) Because the defendant and his counsel are 

excluded from in camera proceedings in which the court reviews sealed portions of the 

search warrant affidavit, the court takes it upon itself to protect the defendant’s rights 

(Hobbs, at p. 970) and “to examine the affidavit for possible inconsistencies or 

insufficiencies regarding the showing of probable cause” (id. at p. 973). The trial court is 

capable of reviewing “all the relevant materials in camera to determine whether they will 

support defendant’s challenges to the search warrant.” (Id. at p. 971.)

The trial court’s standard of review depends upon whether the defendant has 

moved to quash or has filed a motion to traverse the search warrant. (People v. 

Heslington (2011) 195 Cal.App.4th 947, 957.) In the case of a motion to quash—the 

motion made by defendant here—the defendant makes a facial challenge to the warrant, 

claiming it lacks probable cause. (Hobbs, supra, 7 Cal.4th at pp. 965, 974.) “ ‘[T]he 

warrant can be upset only if the affidavit fails as a matter of law [under the applicable 

standard announced in Illinois v. Gates [(1983)] 462 U.S. [213,] 238] to set forth 

sufficient competent evidence supportive of the magistrate’s finding of probable cause, 

since it is the function of the trier of fact, not the reviewing court, to appraise and weigh 

evidence when presented by affidavit as well as when presented by oral testimony.’ ” 

(Id. at p. 975, quoting Skelton v. Superior Court (1969) 1 Cal.3d 144, 150.) “The 

magistrate’s determination of probable cause is entitled to deferential review. 

[Citations.]” (People v. Kraft (2000) 23 Cal.4th 978, 1041.)

Here, defendant does not challenge the trial court’s order requiring that the sealed 

portions of the search warrant affidavit remain under seal. His only challenge is to the 

sufficiency of the affidavit establishing probable cause for the search warrant.
11

We have reviewed the affidavit in its entirety. (See Hobbs, supra, 7 Cal.4th at 

p. 975; People v. Heslington, supra, 195 Cal.App.4th at p. 957, fn. 6.)5 We agree with 

the trial court that, even without giving consideration to the sealed portions of the 

affidavit, the redacted affidavit recites sufficient facts to support the magistrate’s finding 

of probable cause. Defendant argues the lack of the affidavit’s specificity as to the 

amount of money given to the CRI, the quantity of methamphetamine purchased, and the 

“location or vantage point” of Officer Parsons in observing the CRI approach defendant’s 

residence defeats a showing of probable cause. We disagree. Neither the precision of 

detailed information nor perfection in the recitation of facts is required in an affidavit 

supporting the issuance of a search warrant. (See United States v. Ventresca (1965) 

380 U.S. 102, 108 [“affidavits for search warrants . . . must be tested and interpreted by 

magistrates and courts in a commonsense and realistic fashion”].) And even were the 

information in the redacted affidavit insufficient—which is not the case here—the 

additional facts in the sealed portion of the affidavit further support the already sufficient

factual basis for a finding of probable cause based on the redacted affidavit. We 

therefore conclude that the trial court properly denied defendant’s motion to suppress.

II. Restitution Fine and Parole Revocation Restitution Fine

The court at sentencing imposed a restitution fine of $280 pursuant to section 

1202.4. It also imposed and suspended a parole revocation restitution fine for the same

amount pursuant to section 1202.45. 

Defendant challenges the imposition of these fines. He claims the court intended

to impose the applicable statutory minimum fine under both statutes. When defendant 

committed the crimes of which he was convicted (on May 4, 2012), the statutory 

 

5

The unredacted version of the search warrant affidavit the court reviewed was 

not originally part of the appellate record. We have obtained that document from the trial 

court, and by order dated September 25, 2014, we have taken judicial notice of the 

complete unredacted search warrant affidavit.
12

minimum for the two fines was $240, while the statutory maximum was $10,000. (See 

former § 1202.4, subd. (b)(1).) Under the 2011 legislation amending section 1202.4, the 

minimum restitution fine that a court must impose was raised to $280 (while the 

maximum remained $10,000). (See Stats. 2011, ch. 358, § 1, p. 3759.) He thus claims 

the imposition of fines under sections 1202.4 and 1202.45 in amounts greater than the 

then-applicable statutory minimums constituted a violation of the ex post facto clauses of 

the California and federal Constitutions. (See U.S. Const., art. I, § 10, cl. 1; Cal. Const., 

art. I, § 9.) Defendant acknowledges that his trial counsel failed to object to the 

imposition of these statutory fines. But he contends that his trial counsel was 

prejudicially ineffective in failing to object, and therefore this court should order the 

judgment modified to reflect the $240 fine amounts he contends to be correct. 

We conclude that defendant’s challenges to the restitution fine and to the 

corresponding parole revocation restitution fine are forfeited due to trial counsel’s failure 

to object at the sentencing hearing. (People v. Nelson (2011) 51 Cal.4th 198, 227; People 

v. Gamache (2010) 48 Cal.4th 347, 409.). We therefore proceed with his ineffective 

assistance of counsel claim.

A criminal defendant has the right to the assistance of counsel. (U.S. Const., 6th 

Amend.; Cal. Const., art. I, § 15.) This constitutional right to counsel entitles a defendant 

not simply to “bare assistance” but rather to effective assistance. (People v. Jones (1991) 

53 Cal.3d 1115, 1134.) An ineffective assistance of counsel claim requires a showing 

that “counsel’s action was, objectively considered, both deficient under prevailing 

professional norms and prejudicial.” (People v. Seaton (2001) 26 Cal.4th 598, 666, citing 

Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) “[T]he burden is on the 

defendant to show (1) trial counsel failed to act in the manner to be expected of 

reasonably competent attorneys acting as diligent advocates and (2) it is reasonably 

probable that a more favorable determination would have resulted in the absence of 
13

counsel’s failings.” (People v. Lewis (1990) 50 Cal.3d 262, 288; see also People v. 

Weaver (2001) 26 Cal.4th 876, 961.) 

The first element of an ineffective assistance claim “requires a showing that 

‘counsel’s representation fell below an objective standard of reasonableness.’ 

[Citations.]” (In re Marquez (1992) 1 Cal.4th 584, 602-603, quoting Strickland, supra, 

466 U.S. at p. 688.) “ ‘In determining whether counsel’s performance was deficient, a 

court must in general exercise deferential scrutiny . . .’ and must ‘view and assess the 

reasonableness of counsel’s acts or omissions . . . under the circumstances as they stood 

at the time that counsel acted or failed to act.’ [Citation.] Although deference is not 

abdication [citation], courts should not second-guess reasonable, if difficult, tactical 

decisions in the harsh light of hindsight.” (People v. Scott (1997) 15 Cal.4th 1188, 1212.) 

“[T]here is a ‘strong presumption that counsel’s conduct falls within the wide range of 

reasonable professional assistance.’ [Citation.]” (People v. Lucas (1995) 12 Cal.4th 415, 

437 (Lucas), quoting Strickland, supra, 466 U.S. at p. 689.) And the California Supreme 

Court has noted that if “the record on appeal sheds no light on why counsel acted or 

failed to act in the manner challenged,” we must reject the claim on appeal “unless 

counsel was asked for an explanation and failed to provide one, or unless there simply 

could be no satisfactory explanation.” (People v. Pope (1979) 23 Cal.3d 412, 426

(Pope), disapproved on another ground in People v. Berryman (1993) 6 Cal.4th 1048, 

1081, fn. 10.)

The (second) “prejudice” element requires a showing that “that there is a 

reasonable probability that, but for counsel’s unprofessional errors, the result would have 

been more favorable to defendant, i.e., a probability sufficient to undermine confidence in 

the outcome.” (In re Ross (1995) 10 Cal.4th 184, 201.) Prejudice requires a showing of 

“a ‘ “demonstrable reality,” not simply speculation.’ [Citations.]” (People v. Fairbank

(1997) 16 Cal.4th 1223, 1241.)
14

The defendant bears the burden of establishing an ineffective assistance claim. 

(Lucas, supra, 12 Cal.4th at p. 436; Pope, supra, 23 Cal.3d at p. 425.) “Surmounting 

Strickland’s high bar is never an easy task. [Citations.]” (Padilla v. Kentucky (2010) 

559 U.S. 356, 371].) In deciding an ineffective assistance claim, the reviewing court 

need not inquire into the two components (deficient performance and prejudice) in any 

particular order; in the event the defendant’s showing on one component is insufficient, 

the court need not address the remaining component. (In re Cox (2003) 30 Cal.4th 974, 

1019-1020.)

Applying these principles, we conclude that defendant has failed to carry his 

burden of showing prejudice. The only evidence in the record concerning the imposition 

of the challenged fines was the following from the court: “There is a $280 restitution fine 

. . . [¶] . . .[¶] We will have the $280 parole revocation restitution fine and that’s stayed 

pending the successful completion.” The record does not include a copy of the probation 

report, a document in which there is often found a recommendation to the court 

concerning the imposition of fines such as those imposed under sections 1202.4 and 

1202.45.

Contrary to defendant’s assertion, nothing in the record demonstrates that the court 

intended to impose the statutory minimum restitution fine and that the court therefore 

erred by imposing a fine of $280, rather than $240. Defendant’s contention that the trial 

court intended to impose the minimum fine under section 1202.4, subdivision (b)(1) is 

speculative and does not establish prejudice. (People v. Fairbank, supra, 16 Cal.4th at 

p. 1241.) 

“ ‘A judgment or order of the lower court is presumed correct. All intendments 

and presumptions are indulged to support it on matters as to which the record is silent, 

and error must be affirmatively shown.’ ” (Denham v. Superior Court (1970) 2 Cal.3d 

557, 564.) Given that the record does not unequivocally show the trial court intended to 

order the minimum restitution fine under section 1202.4, subdivision (b)(1), defendant 
15

has not met his burden of showing that, had trial counsel objected, it is reasonably 

probable the trial court would have imposed a lower restitution fine. His failure to 

demonstrate prejudice defeats his claim of ineffective assistance of counsel.

DISPOSITION

The judgment is affirmed. 
_______________________________

Márquez, J.

I CONCUR:

___________________________________________

 Bamattre-Manoukian, Acting P. J.

I CONCUR IN THE JUDGMENT ONLY:

_______________________________

 Grover, J.