Filed 1/8/18 P. v. Aparicio 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

ADALBERTO APARICIO,

Defendant and Appellant.
H043689
(Monterey County
Super. Ct. Nos. SS070140A,
SS090013A)
In 2009, defendant Adalberto Aparicio pleaded guilty in two separate cases to driving under the influence with a blood alcohol content greater than .08 (Veh. Code, § 23152, subd. (b))—one count for each case. In both cases, he admitted he had three prior convictions for driving under the influence (id., § 23550, subd. (a)). Defendant was granted probation in both cases. Many years later, the prosecution alleged defendant violated his probation by failing to comply with a condition that required him to install an ignition interlock device. Defendant admitted the violation and probation was reinstated, subject to additional conditions.
On appeal, defendant challenges the court’s 2016 order requiring him to pay a restitution fine (Pen. Code, § 1202.4) of $300 and a probation revocation restitution fine (§ 1202.44) in the same amount in one of the cases. He challenges these fines on ex post facto grounds, arguing the court intended to impose the minimum fine and the minimum fine was only $200 at the time of the offense. Defendant also challenges the court’s imposition of a $40 court operations assessment (§ 1465.8) and a $4 emergency medical air transportation (EMAT) penalty (Gov. Code, § 76000.10, subd. (c)(1)) in both cases. He contends the court operations assessments must be reduced to $20 per conviction, the statutory rate at the time of his convictions. He argues the EMAT penalty must be stricken because it was enacted after he was convicted. The Attorney General concedes error as to the court operations assessments and the EMAT penalties, but contends there was no error with regard to the restitution fines and defendant forfeited his challenge to those fines by failing to object below.
As for the restitution fine and the probation revocation restitution fine, we conclude defendant forfeited his claim of error by failing to object in the trial court since the amount the trial court selected could lawfully have been imposed in the circumstances of this case. We will accept the Attorney General’s concession regarding the court operations assessments and the EMAT penalties. We will reduce the court operations assessments to $20 in each case, strike the EMAT penalties, and affirm the judgment as so modified.
FACTS AND PROCEDURAL HISTORY
I. Case No. SS070140A
Around 8:30 p.m. on March 8, 2007, a King City police officer stopped defendant for driving under the influence. Defendant did not have a driver’s license or proof of insurance. His blood alcohol content was 0.19 or 0.20.
In May 2007, the prosecution charged defendant with five offenses: (1) driving under the influence with three prior convictions for driving under the influence (Veh. Code, §§ 23152, subd. (a) & 23550, subd. (a)), a felony; (2) driving with a blood alcohol content greater than 0.08 with three prior convictions for driving under the influence (id., §§ 23152, subd. (b) & 23550, subd. (a)), a felony; (3) driving when his license had been suspended or revoked for driving under the influence (id., § 14601.2), a misdemeanor; (4) giving false information to a police officer (id., § 31), a misdemeanor; and (5) failing to provide evidence of financial responsibility (id., § 16028, subd. (a)), an infraction. The prosecution alleged the prior convictions occurred in April 2001, February 2002, and February 2004.
Defendant failed to appear for arraignment on the complaint in May 2007, and the court issue a warrant for his arrest. Defendant was taken into custody in January 2009.
On January 20, 2009—before a preliminary hearing was held—the parties entered into a plea agreement. Defendant pleaded guilty to driving with a blood alcohol content of 0.19 or 0.20 and admitted the three prior-conviction allegations. In exchange, the prosecution dismissed the remaining counts and enhancements. In accordance with the plea agreement, the court suspended imposition of sentence and placed defendant on formal probation for five years, subject to several conditions, including that he serve 180 days in jail, not consume alcohol while on probation, install an ignition interlock device on his vehicle for five years, and complete a multiple offender program and an alcohol offender program.
II. Case No. SS090013A
Around 9:05 p.m. on December 31, 2008, a King City police officer stopped defendant for driving under the influence. Defendant showed the officer a driver’s license bearing the name Gabriel Sanchez; he did not have proof of insurance. (Defendant later told the court he also used the name Gabriel Sanchez.) Defendant’s blood alcohol content was 0.12 or 0.10.
Three days after the court took defendant’s plea in case No. SS070140A, the prosecution filed a new complaint in case No. SS090013A, which charged defendant with three new offenses arising out of the December 2008 traffic stop: (1) driving under the influence with three prior convictions for driving under the influence (Veh. Code, §§ 23152, subd. (a) & 23550, subd. (a)), a felony; (2) driving with a blood alcohol content greater than 0.08 with three prior convictions for driving under the influence (id., §§ 23152, subd. (b) & 23550, subd. (a)), a felony; and (3) driving when his license had been suspended or revoked for driving under the influence (id., § 14601.2), a misdemeanor.
In February 2009, the parties entered into a plea agreement on the new charges. As before, defendant pleaded guilty to driving with a blood alcohol content of 0.08 or more and admitted the three prior-conviction allegations. In exchange, the prosecution dismissed the remaining counts and enhancements. The court once again suspended imposition of sentence and placed defendant on formal probation for five years, subject to several conditions, including that he serve 270 days in jail concurrent with the jail term in case No. SS070140A, pay fines and fees, not consume alcohol for five years, install an ignition interlock device on his vehicle for two years, and complete the alcohol offenders program.
III. Violation of Probation
In August 2009, the court clerk filed a declaration, which stated that defendant had failed to enroll in the multiple offender program. The court revoked probation to preserve jurisdiction and issued a bench warrant. In February 2010, the entity monitoring defendant’s interlock device compliance filed a declaration, which stated that defendant had failed to install an ignition interlock device. The court revoked probation in both cases and issued another bench warrant for defendant’s arrest.
Defendant was arrested on the second bench warrant more than six years later, on May 5, 2016. The prosecution alleged a probation violation based on defendant’s failure to install the ignition interlock device. Defendant later admitted that violation, and the court referred the case to the probation department to prepare a supplemental report.
Defendant told the probation officer he forgot to install the ignition interlock device on his car. He said he had been working in agriculture since he was granted probation in 2009, had been drinking two to three beers daily since 2006, and drank more than that on the weekend to get drunk. The mother of his children separated from him because of his alcoholism, and in 2016 he was homeless. Defendant asked the court to reinstate probation and given him an opportunity to complete a residential treatment program.
The probation officer recommended the court reinstate probation in both cases, subject to the original terms, with several modifications. The probation officer recommended the court impose a new five-year probationary term—to begin when defendant is sentenced on the probation violation—and order a residential alcohol treatment program. The probation officer recommended the court impose several alcohol-related conditions of probation, order additional jail time, and impose fines and fees. At the sentencing hearing on the probation violation, the probation officer reported that defendant had not been arrested for any new offenses between 2009 and 2016.
The court reinstated defendant’s probation for three years in case No. SS070140A and for five years in case No. SS090013A, subject to numerous conditions, including the fines and fees at issue on appeal. We will describe the court’s orders related to those fines and fees in further detail under “Discussion.” The court ordered additional jail time in both cases, awarded custody credits, and ordered that defendant may be released from custody at any time to the probation officer for transport to a residential treatment program.
DISCUSSION
I. Restitution Fine and Probation Revocation Restitution Fine
A. Background
The probation report set forth proposed terms for each case separately. The probation officer’s recommendations regarding the restitution fines was, however, the same for both cases. The probation officer reported: “Restitution fine is $300.00 per PC 1202.4(b),” and recommended the court impose an “additional restitution fine in the amount of $300,” to be “suspended, and not to be paid unless and until probation is revoked and not reinstated. (§ 1202.44).”
When sentencing defendant on the probation violation in case No. SS070140A, the court imposed a restitution fine (§ 1202.4) of $300. The court also imposed a probation revocation restitution fine (§ 1202.44) of $300, which the court suspended until probation is revoked and not reinstated.
When sentencing defendant on the probation violation in case No. SS090013A, the court asked the probation officer: “[I]s there a new figure for the restitution fine, because this is a 2009 case? I think it was $200.” The probation officer confirmed that “[i]t was $200.” When imposing the sentence, however, the court declined to follow the probation officer’s recommendation with regard to the fines, fees, and penalty assessments listed in paragraphs 7 and 8 of the probation report. Initially, the court did not impose any of those fines, fees, and assessments, which included the restitution fine (§ 1202.4). The court did however impose a probation revocation restitution fine of $200 (§ 1202.44), which it ordered “suspended, not be paid unless and until probation is revoked and not reinstated.” Almost three months later, the court amended its order in case No. SS090013A and added a restitution fine of $200 (§ 1202.4).
B. Contentions on Appeal
Defendant challenges the amount of the restitution fine and the probation revocation restitution fine ($300 each) imposed in case No. SS070140A on ex post facto grounds. He contends it is clear from the record that at the time of sentencing, the trial court intended to impose the minimum restitution fine and argues that at the time of his offenses, the minimum restitution fine was $200, not $300. He argues this claim has not been waived because it involves an unauthorized sentence.
The Attorney General argues that defendant has forfeited this challenge by failing to object to the amount of the restitution fine and the probation revocation restitution fine in the trial court. He contends the $300 fines imposed were not unauthorized because they fell within the statutory range of permissible fines (a minimum of $200 and a maximum of $10,000) in effect at the time of defendant’s offenses.
C. Ex Post Facto Principles
“Article I, section 10, clause 1 of the federal Constitution and article I, section 9 of the state Constitution prohibit the passage of ex post facto laws. [Citation.] California’s ex post facto law is analyzed in the same manner as the federal prohibition.” (People v. Alford (2007) 42 Cal.4th 749, 755 (Alford).) The state and federal ex post facto prohibitions are aimed at laws that retroactively alter the definition of crimes or increase the punishment for criminal acts. (Ibid.)
The prohibition against ex post facto laws “forbids the imposition of punishment more severe that the punishment assigned by law when the act to be punished occurred.” (Weaver v. Graham (1981) 450 U.S. 24, 30; see California Dept. of Corrections v. Morales (1995) 514 U.S. 499, 506, fn. 3.) “It is well established that the imposition of restitution fines constitutes punishment, and therefore is subject to the proscriptions of the ex post facto clause and other constitutional provisions.” (People v. Souza (2012) 54 Cal.4th 90, 143; People v. Morris (2015) 242 Cal.App.4th 94, 102 (Morris) [“the restitution fine is governed by the statutes in effect at the time of the offense”].)
D. Sections 1202.4 and 1202.44
At the time of defendant’s offenses in 2007 and 2008, former section 1202.4 provided in relevant part: “(b) In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record. [¶] (1) The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense, but shall not be less than two hundred dollars ($200), and not more than ten thousand dollars ($10,000), if the person is convicted of a felony, . . . .” (Former § 1202.4; see also Stats. 1992, ch. 682, § 4, p. 2922.)
In 2011, the Legislature amended section 1202.4 to provide for three prospective annual increases in the minimum amount of the restitution fine. The amendment provided that the restitution fine for a felony conviction “shall not be less than two hundred forty dollars ($240) starting on January 1, 2012, two hundred eighty dollars ($280) starting on January 1, 2013, and three hundred dollars ($300) starting on January 1, 2014, and not more than ten thousand dollars ($10,000).” (Stats. 2011, ch. 358, § 1; former § 1202.4, subd. (b)(1).) The Legislature amended section 1202.4, subdivision (b)(1) again in 2016, deleting the references to the three annual increases and providing for a minimum restitution fine of $300. (Stats. 2016, ch. 37, § 3.)
In summary, at the time of defendant’s offenses in 2007 and 2008, section 1202.4 provided for a minimum restitution fine of $200 and a maximum fine of $10,000. By the time he was sentenced in 2016, the statutory minimum restitution fine had increased to $300 and the maximum fine was still $10,000. At all times, section 1202.44 provided that the probation revocation restitution fine shall be “in the same amount” as the section 1202.4 restitution fine.
E. Forfeiture
Acknowledging that he did not object in the trial court to the amounts of the restitution fines imposed in case No. SS070140A, defendant argues that the issue has not been “waived” because it involves an unauthorized sentence. The Attorney General argues this claim has been forfeited; he asserts this case does not involve an unauthorized sentence because the amount imposed was within the range authorized by section 1202.4 when defendant committed his offenses.
“ ‘ “It is well established that when the trial court pronounces a sentence which is unauthorized by the Penal Code that sentence must be vacated and a proper sentence imposed whenever the mistake is appropriately brought to the attention of the trial court or the reviewing court.” This rule also applies to sentences which are unauthorized because of an error in the matter of restitution.’ ” (People v. Zito (1992) 8 Cal.App.4th 736, 741-742 [imposition of direct victim restitution and restitution fine that exceeded pre-1990 statutory maximum].)
“The objection and waiver rule applies to ‘claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices.’ [Citation.] It does not apply to claims that the sentence was ‘unauthorized.’ [Citation.] ‘[A] sentence is generally “unauthorized” where it could not lawfully be imposed under any circumstance in the particular case.’ ” (People v. Blackburn (1999) 72 Cal.App.4th 1520, 1533-1534 (Blackburn), quoting People v. Scott (1994) 9 Cal.4th 331, 353-354 (Scott).) If the trial court imposes restitution in amounts that could not lawfully be imposed in the case under any circumstances, such contentions are not waived by failure to object. (Blackburn, supra, at p. 1534, citing People v. Chambers (1998) 65 Cal.App.4th 819, 823 [failure to object to imposition of two separate restitution fines is not a waiver] and People v. Sexton (1995) 33 Cal.App.4th 64, 69 [failure to object to order for payment of restitution to victim’s insurer is not a waiver]; disapproved on another ground in People v. Birkett (1999) 21 Cal.4th 226, 247, fn. 20.)
The rule of forfeiture applies to ex post facto claims, “particularly where any error could easily have been corrected if the issue had been raised at the sentencing hearing.” (People v. Martinez (2014) 226 Cal.App.4th 1169, 1189, citing People v. White (1997) 55 Cal.App.4th 914, 917.) “ ‘Although the court is required to impose sentence in a lawful manner, counsel is charged with understanding, advocating, and clarifying permissible sentencing choices at the hearing. Routine defects in the court’s statement of reasons are easily prevented and corrected if called to the court’s attention. As in other waiver cases, we hope to reduce the number of errors committed in the first instance and preserve the judicial resources otherwise used to correct them.’ ” (People v. Tillman (2000) 22 Cal.4th 300, 303, quoting Scott, supra, 9 Cal.4th at p. 353, italics added in Tillman.)
A $300 restitution fine falls within the range of restitution fines (between $200 and $10,000) the court was authorized to impose at the time of defendant’s offenses. Since the trial court had the authority to impose a restitution fine of $300 at the time defendant committed the offense in case No. SS070140A, we agree that this case does not involve an unauthorized sentence and that forfeiture rules apply here.
Defendant suggests it is reasonable to infer that since the court expressed its intention to impose the minimum fine in case No. SS090013A, it also intended to impose the minimum fine in case No. SS070140A. But the record is silent as to whether the court intended to impose the minimum fine in case No. SS070140A. Although the court confirmed that the statutory minimum was $200 in 2009 when it imposed the $200 restitution fine in case No. SS090013A, it did not make a similar inquiry when it imposed the $300 restitution fine in case No. SS070140A. The court had the discretion to impose a fine between $200 and $10,000 and it is equally reasonable to infer that the court intended to impose a $300 restitution fine on this defendant who had multiple convictions for driving under the influence. That the court selected different probationary terms and different jail terms as conditions of probation in the two cases, supports the conclusion that it intended to impose restitution fines in different amounts in the two cases. In our view, it was incumbent upon defense counsel, when the court inquired as to the applicable minimum restitution fine in case No. SS090013A, to object to the $300 fine it had already imposed in the other case or to ask whether the court also intended to impose the minimum fine in case No. SS070140A, since defendant committed the offenses in both cases before the fines were increased in 2012.
For these reasons, we conclude that defendant has forfeited any claim of error related to the $300 restitution fine and the $300 probation revocation restitution fine imposed in case No. SS070140A.
II. Court Operations Assessment and EMAT Penalties
The modifications to defendant’s probation in 2016 included the imposition of two court operations assessments (§ 1465.8, subd. (a)(1)) of $40 each (one in each case) and two EMAT penalties (Gov. Code, § 76000.10, subd. (c)(1)) of $4 each (one in each case).
Defendant contends the court erred in imposing the court operations assessments of $40 because at the time of his convictions in 2009, the statutory rate for such assessments was $20 per conviction. He contends the court erred in imposing the EMAT penalties because the statute that authorizes the penalty was enacted after he was convicted. Although he did not challenge these assessments and penalties in the trial court, defendant argues these claims have not been forfeited because they involve an unauthorized sentence.
The Attorney General agrees that there has been no forfeiture of these claims, that the court operations assessments must be reduced to $20 each, and that the EMAT penalties must be stricken. We agree and will accept the Attorney General’s concession.
The Legislature enacted section 1465.8 as part of an emergency budgetary measure for the nonpunitive purpose of funding court security and, later, court operations. (Alford, supra, 42 Cal.4th at pp. 756, 758; Stats. 2011, ch. 40, § 6 [amending § 1465.8, subd. (a)(1) to change “court security” to “court operations”].) As defendant acknowledges, the section 1465.8 assessments are not subject to ex post facto prohibitions because they neither alter the definition of a crime nor increase punishment. (Alford, supra, at pp. 755-759.) “Neither does its application offend the rule that new laws are presumed to operate prospectively.” (People v. Davis (2010) 185 Cal.App.4th 998, 1000 (Davis); Alford, supra, at pp. 753-755 [discussing § 3].) The operative event that triggers section 1465.8 is generally a conviction, including a conviction by plea. (Davis, supra, at p. 1001.) The court operations assessment applies to all defendants who were convicted after section 1465.8 became operative on August 17, 2003, regardless of the date their crimes were committed. (Alford, supra, at pp. 754-755.)
When originally enacted, section 1465.8 provided that a court security fee of $20 “shall be imposed on every conviction for a criminal offense.” (Former § 1465.8, subd. (a)(1); Stats. 2003, ch. 159, § 25.) The Legislature has amended section 1465.8 twice to increase the amount of the security fee/operations assessment. Effective July 28, 2009, the amount of the court security fee increased from $20 to $30 per conviction (Stats. 2009-2010, 4th Ex. Sess., ch. 22, §§ 29, 30) and in 2010, it increased again to $40 per conviction (Stats. 2010, ch. 720, § 33). Defendant was convicted in January and February 2009, prior to the amendments that increased the amount of the assessment. The amount of the court operations assessments when defendant entered his pleas was $20, not $40. We will therefore reduce the amount of the court operations assessments to $20.
The EMAT penalty was enacted as part of the Emergency Medical Air Transport Act, which is set forth in Government Code section 76000.10. Subdivision (c)(1) of that section provides in relevant part: “For the purpose of implementing this section, a penalty of four dollars ($4) shall be imposed upon every conviction for a violation of the Vehicle Code or a local ordinance adopted pursuant to the Vehicle Code, except parking offenses . . . .” Government Code section 76000.10 was enacted in 2010, which was after defendant was convicted in this case. (Stats. 2010, ch. 547, § 2.)
The Attorney General asserts that since the EMAT penalty is denominated a “penalty,” it constitutes punishment and is subject to ex post facto prohibitions. We need not decide this point. Like the court facilities fee at issue in Davis, the EMAT penalty is triggered by a conviction and only applies to cases in which the defendant is convicted after the effective date of the statute that imposes the penalty. (Davis, supra, 185 Cal.App.4th at p. 1001.) Since defendant was convicted before the EMAT penalty was enacted, that penalty does not apply to this case and must be stricken.
Defendant’s claims as to the court operations assessments and the EMAT penalties were not forfeited by his failure to object or raise these issues below since the $40 court operations assessments and the EMAT penalties could not lawfully have been imposed under any circumstances when he was convicted and they are clear and correctable on review regardless of any factual interpretation of the record presented at sentencing. (Scott, supra, 9 Cal.4th at p. 354.)
DISPOSITION
The judgment is modified to reduce the court operations assessments in case No. SS070140A and case No. SS090013A from $40 to $20 for each case, and to strike the $4 EMAT penalty imposed in each case. As so modified, the judgment is affirmed. The clerk of the superior court is directed to correct the minute orders in both cases to reflect the changes in the judgment.






Premo, J.





WE CONCUR:






Elia, Acting P.J.








Mihara, J.