Filed 7/11/13 P. v. Barajas CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. ELISEO BARAJAS, Defendant and Appellant. H037848 (Santa Clara County Super. Ct. No. C1082324)

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 ag ainst ex post facto laws, and he therefore requests that we reduce the restitution fine an d the corresponding paro le revocation fine. As set forth below, we will modify the res titution and parole revoca tion fines and affirm the judgment as modified.
F ACTUAL AND P ROCEDURAL H ISTORY On April 19, 2010, defendant argued with Antonia Cont reras, 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.2 On July 14, 2011, defendant pleaded no contest to one count of infliction of corporal injury on the mo ther of his children (Pen. Code, § 273.5 subd. (a)). 1 Pursuant to the plea agreement, defendant was to be plac ed on probation. The plea agreement was
conditioned on defendant’s a ppearance 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 Nove mber 18, 2011. Th e court informed defendant that the plea agreemen t was void due to his failure to appear for sentencing. On January 13, 2012, the co urt sentenced defendant to tw o 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 secti on 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 pa role revocation fine pursuant to section
1202.45. Defendant filed a notice of appeal on January 20, 2012. His timely appeal
followed.
D ISCUSSION Defendant argues that the trial court’s cal culation of the restitution fine based on the January 2012 version of section 1202.4 constituted a vi olation 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 se ction 1202.4 in effect at th e time he committed the charged offense. Defendant contends that application of the appropriate vers ion of section 1202.4

1 Subsequent unspecified statutory re ferences are to the Penal Code.3 would have resulted in a $400 restitution fine, and he accordingly requests that we reduce the restitution fine to $400 an d reduce the correspo nding 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 de fendant’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 defe ndant who does not challeng e an assertedly erroneous ruling of the trial court in that court has fo rfeited 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 defenda nt forfeited his claim regardi ng a section 1202.4 restitution fine because he failed to object at the sent encing hearing].) “Howev er, neither forfeiture nor application of the forfeitu re 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 wh ere an objection would have been futile . . . .” ( People v. Welch (1993) 5 Cal.4th 228, 237.) In the instant case, an objection to the tr ial 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 versio n of section 1202.4, subdivision (b). The probation officer informed the court that it should use the formul a in the version of
section 1202.4 in effect at the time defenda nt 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 require d to apply the version of section 1202.4 in
effect at the time defendant committed the ch arged offense, an ex post facto objection
would have been futile. We therefore conclude that defendant’s claim is not forfeited.4 (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 c ourt 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 th e formula in the version of
section 1202.4 in effect at the time defe ndant committed the charge d offense, and that
modification of the restitution fi ne in accordance with that fo rmula 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 fe lony 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 defenda nt is ordered to serve, multiplied by the number of felony counts of which the defe ndant is convicted.” (Former § 1202.4, subd. (b)(2), as adopted by St ats. 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, s ubdivision (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 12 02.4 in effect at the time he committed his crimes.” As previously note d, defendant argues that th e restitution fine should be reduced to $400, not $600. Moreover, contrary to the People’s assertion, defendant committed only one crime, not multiple crim es. Because a mathematically-correct application of the appropriate version of section 1202.4, su bdivision (b) to defendant’s offense yields a restitution fine of $400, we reduce the restitution fine to $400, not $600.5 person is convicted of a crime and his or he r sentence includes a period of parole, the court shall, at the time of imposing the re stitution 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 su bdivision (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, ita lics in original.) An “invalid parole revocation fine falls within the narrow class of sentencing e rrors exempt from the waiver rule.” ( Ibid. ) Thus, because we reduce the restitu tion fine to $400, we must also reduce the parole revoca tion fine to $400.
D ISPOSITION 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.