People v. Stallman CA5 ( 2014 )

Filed 9/3/14 P. v. Stallman CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F067182
Plaintiff and Respondent,
(Super. Ct. No. BF144438C)
v.
RICHARD LEE STALLMAN, J.R., OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Colette M.
Humphrey, Judge.
Alex Green, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, and Julie A. Hokans, Deputy
Attorney General, for Plaintiff and Respondent.
-ooOoo-
* Before Kane, Acting P.J., Detjen, J. and Franson, J.
Defendant Richard Lee Stallman, Jr., was convicted by jury trial of receiving
stolen property (Pen. Code, § 496, subd. (a)).1 On appeal, he contends defense counsel
was ineffective for failing to raise an ex post facto objection to the trial court’s imposition
of a $280 restitution fine pursuant to section 1202.4, subdivision (b). He asserts that the
court’s reference to “the standard fines and fees” demonstrates that it intended to impose
the minimum fine, which was $240 at the time he committed the crime in 2012 (§ 1202.4,
subd. (b)).2 We disagree that the trial court clearly intended to impose the minimum fine.
Accordingly, we affirm.
DISCUSSION
“Under the United States Constitution, ‘“‘any statute … which makes more
burdensome the punishment for a crime, after its commission … is prohibited as ex post
facto.’”’ [Citations.] The ex post facto clause of the state Constitution is in accord.”
(People v. Saelee (1995) 35 Cal.App.4th 27, 30-31.) The prohibition against ex post
facto laws applies to restitution fines, which constitute punishment. (People v. Souza
(2012) 54 Cal.4th 90, 143.) An increase in the minimum restitution fine makes the
authorized punishment more burdensome. (People v. Saelee, supra, at pp. 30-31.)
Therefore, a court cannot apply an increased minimum restitution fine retroactively to a
defendant whose crime occurred prior to the increase in the minimum restitution fine.
1 All statutory references are to the Penal Code unless otherwise noted.
2 Section 1202.4 provides in pertinent 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. If the person is convicted of
a felony, the fine 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) ….”
2
A defendant can forfeit an ex post facto claim by failing to raise the issue (see
People v. White (1997) 55 Cal.App.4th 914, 917), particularly where any error could
easily have been corrected if the issue had been raised at the sentencing hearing. We
nevertheless address defendant’s claim here because he argues defense counsel was
ineffective for failing to object to the fine.
To prevail on an ineffective assistance of counsel claim, the defendant must prove
two elements: (1) defense counsel’s performance was deficient and (2) prejudice resulted
from that performance. (Strickland v. Washington (1984) 466 U.S. 668, 687; People v.
Ledesma (1987) 43 Cal.3d 171, 216-218.) That is, “there is a reasonable probability that,
but for counsel’s unprofessional errors, the result would have been different.” (People v.
Kelly (1992) 1 Cal.4th 495, 520.)
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.) Generally, in assessing
performance, there is a “strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance.” (Strickland v. Washington, supra, 466 U.S.
at p. 689.) “‘Reviewing courts defer to counsel’s reasonable tactical decisions in
examining a claim of ineffective assistance of counsel [citation], and there is a “strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.”’ [Citations.] ‘[W]e accord great deference to counsel’s tactical decisions’
[citation], and we have explained that ‘courts should not second-guess reasonable, if
difficult, tactical decisions in the harsh light of hindsight’ [citation]. ‘Tactical errors are
generally not deemed reversible, and counsel’s decisionmaking must be evaluated in the
context of the available facts.’” (People v. Weaver (2001) 26 Cal.4th 876, 925-926.)
On the other hand, defense counsel may be found ineffective where “there simply
could be no satisfactory explanation” for counsel’s failure to object. (People v. Carter
(2003) 30 Cal.4th 1166, 1211.) Furthermore, with respect to unfavorable sentencing
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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.” (People v. Scott (1994) 9 Cal.4th
331, 351.)
Here, we cannot say that defense counsel’s failure to object to the $280 restitution
fine constituted ineffective assistance. First, the $280 fine was well within the authorized
$240 to $10,000 statutory range available to the court, and defense counsel reasonably
may have decided not to challenge the relatively low fine. Second, the court’s statements
do not clearly demonstrate that it intended to impose the minimum fine based on its
reference to “the standard fines and fees” and its statement that they would be “imposed
as recommended.” The court’s use of “standard fines” may have referred to the
minimum fines (as defendant contends), or to the fines recommended by the probation
report (which stated, “It is further recommended that the defendant pay a restitution fine
in the amount of $280.00, pursuant to Penal Code Section 1202.4(b)”), or to fines under
the then-current standard of $280. In light of these possibilities, we cannot assume the
court intended to impose the minimum fine but was unaware that the applicable
minimum fine was $240. The court did not expressly state that it intended to impose the
minimum fine, and we will not presume the court applied the wrong statutory law
(People v. Mack (1986) 178 Cal.App.3d 1026, 1032 [“It is a basic presumption indulged
in by reviewing courts that the trial court is presumed to have known and applied the
correct statutory and case law in the exercise of its official duties”].) The court may
simply have been exercising its discretion to impose the fine it found appropriate.
Defendant has failed to demonstrate that defense counsel was ineffective for not
objecting to the $280 restitution fine.
DISPOSITION
The judgment is affirmed.
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