People v. Vasquez CA2/4

Filed 10/22/13 P. v. Vasquez CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, B243853

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA083223)
v.

PEDRO CARACUN VASQUEZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County,
Teri Schwartz, Judge. Affirmed in part, reversed in part, and remanded for further
proceedings.
Jennifer Hansen, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney General, Steven D.
Matthews and Herbert S. Tetef, Deputy Attorneys General, for Plaintiff and
Respondent.

_______________________________
 INTRODUCTION
Pedro Caracun Vasquez appeals from a judgment following his conviction
for attempted murder, assault with a deadly weapon, mayhem, and criminal threats.
He contends that the evidence was insufficient to sustain his conviction for
attempted murder. He further contends that the trial court erred in admitting a
victim‟s prior testimony, after determining that the victim was unavailable. Both
parties also raise sentencing issues. We affirm the convictions, correct a
sentencing error, and remand for further sentencing.
PROCEDURAL BACKGROUND
A jury convicted appellant of the attempted murder of Juan Carlos Arita
1
(Pen. Code, §§ 187, subd. (a)(1), 664; count 1), assault with a deadly weapon of
Noel Pineda (§ 245, subd. (a)(1); count 2), mayhem upon Arita (§ 203; count 3),
and criminal threats against Pineda (§ 422; count 4). In addition, on all counts, the
jury found that appellant personally used a deadly weapon (§ 12022, subd. (b)(1)).
As to count 1, the jury also found that appellant personally inflicted great bodily
injury on Arita (§ 12022.7, subd. (a)).
On September 6, 2012, the trial court sentenced appellant to prison for nine
years and eight months. The sentence consisted of the low term of five years on
count 1, plus three years for the great bodily injury enhancement, one year (one-
third the middle term of three years) on count 2, and eight months (one-third the
middle term of two years) in count 4. The court imposed and stayed a one-year
term on count 3, and stayed the weapon use enhancements. The court also
imposed various fines and fees, including a $200 restitution fine pursuant to
section 1202.4, subdivision (b). Appellant filed a notice of appeal the same day.

1
All further statutory citations are to the Penal Code, unless otherwise stated.

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On October 31, 2012, the trial court issued a nunc pro tunc order, increasing the
restitution fine to $240.
FACTUAL BACKGROUND
Pineda and Arita worked as day laborers. They knew each other from their
time together looking for work. Pineda lived in a house with his wife and children.
Arita was homeless.
On May 8, 2011, Arita spent the night at Pineda‟s house. The next morning,
he showered and left around 7:00 a.m. Around 10:00 a.m., Arita called Pineda and
asked him to come to a homeless encampment near a freeway in Pasadena. Arita
said it was his birthday. Pineda went. He climbed through a hole in the fence near
the freeway and walked down to the encampment. Arita, appellant, and two other
individuals were drinking vodka. Pineda had seen appellant on many occasions
before near his house; he also identified appellant at trial. Pineda, who did not
drink alcohol, stayed at the encampment for about an hour while the other men
drank. Then he left.
Later that evening, Pineda went back to the encampment. When Pineda
arrived, he observed Arita on the ground. Arita was moving and yelling, “No.
No.” As Pineda got closer, he saw appellant standing over Arita with a 12-inch
screwdriver in his hand. Appellant was repeatedly striking at Arita‟s neck and
head with the screwdriver. Pineda yelled at appellant to stop. Appellant turned
around and looked at Pineda. He then said, “You saw me now. I‟m going to kill
you.” Pineda ran away.
Pineda went through the hole in the fence and down the street. Appellant
chased him with the screwdriver in his hand. At a street intersection, Pineda
turned right and appellant turned left. When Pineda saw that appellant was no

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longer chasing him, he turned around and followed appellant. After seeing
appellant go down a driveway into a residential property, Pineda called the police.
Officers arrived and set up a containment of the area. A police dog found
appellant and pulled him out from some shrubbery. Appellant was arrested and
transported to the hospital for treatment.
Meanwhile, Pineda guided an officer to Arita. Arita was moaning and
crying in pain. He was holding his ear with one hand and his ribs with the other
hand. There was a small amount of blood inside his sleeping bag and on the
mattress under the sleeping bag. Paramedics arrived and treated Arita. He was
then transported to the hospital. At the hospital, Arita said he was sleeping when
someone stabbed him in his head. That person also took his cell phone, phone
charger, and $50.
At trial, Arita‟s preliminary hearing testimony was read to the jury. At the
hearing, Arita testified that he started drinking at 7:00 a.m. on the day of the
incident and consumed two or three bottles of vodka. He was sleeping when
someone attacked him. The person cut his ear and stabbed him in the left side of
his rib cage and his head with a screwdriver. Arita did not see who stabbed him.
The parties stipulated that Arita was treated at the hospital for minor
abrasions to the left side of his face and puncture wounds to his left chest and
upper arm. He also required sutures for a laceration on his left ear. His blood
alcohol level was .346 when he was admitted to the hospital. The parties also
stipulated that Arita was convicted in September 2011 for misdemeanor assault
with a deadly weapon and attempted criminal threats arising from an unrelated July
2011 incident.
Appellant testified in his defense. Prior to his arrest, he lived at the
homeless encampment near the freeway. He had lived there for a year. On the day

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appellant was arrested, he began drinking at 6:00 a.m. with Arita and some other
friends. Later that day, appellant left the encampment because the police had given
everyone a deadline to move out of the encampment. Appellant then drank alcohol
with some friends at two separate locations. Later, he went to a location to sleep,
and was arrested there. Appellant stated he never went back to the encampment,
and denied assaulting or attacking Arita.
The parties stipulated to the following facts. Appellant‟s blood alcohol level
was .34 when he was arrested. Appellant was in possession of a cell phone and
$24.36 at the time of his arrest, but the cell phone did not appear to belong to Arita.
The weapon used to attack Arita was never recovered. DNA testing on blood
found on appellant‟s clothing matched appellant‟s DNA profile; it did not match
Arita‟s DNA profile.
DISCUSSION
Appellant contends (1) that his conviction for attempted murder should be
reversed, as there was insufficient evidence to show he had an intent to kill; and
(2) that the trial court erred in determining that a victim was unavailable for trial
and admitting the victim‟s prior testimony. Both parties also raise sentencing
issues. We address each issue in turn.
A. Sufficiency of Evidence
“In determining whether the evidence is sufficient to support a
conviction . . . , „the relevant question is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.‟ [Citations.] Under
this standard, „an appellate court in a criminal case . . . does not ask itself whether
it believes that the evidence at the trial established guilt beyond a reasonable
doubt.‟ [Citation.] Rather, the reviewing court „must review the whole record in

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the light most favorable to the judgment below to determine whether it discloses
substantial evidence -- that is, evidence which is reasonable, credible, and of solid
value -- such that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt.‟ [Citation.]” (People v. Vy (2004) 122 Cal.App.4th 1209, 1224,
italics omitted.) “In deciding the sufficiency of the evidence, a reviewing court
resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution
of conflicts and inconsistencies in the testimony is the exclusive province of the
trier of fact. [Citation.] Moreover, unless the testimony is physically impossible
or inherently improbable, testimony of a single witness is sufficient to support a
conviction. [Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1181.)
“„Attempted murder requires the specific intent to kill and the commission
of a direct but ineffectual act toward accomplishing the intended killing.‟” (People
v. Houston (2012) 54 Cal.4th 1186, 1217, quoting People v. Booker (2011)
51 Cal.4th 141, 177-178.) A defendant‟s intent to kill may be inferred from the
defendant‟s acts and the circumstances of the crime. (People v. Avila (2009)
46 Cal.4th 680, 701 (Avila), citing People v. Smith (2005) 37 Cal.4th 733, 741.)
Here, Pineda, who knew appellant, observed him stabbing Arita in the head and
neck areas repeatedly. As our Supreme Court has stated, evidence that a
“defendant repeatedly attempted to stab . . . an unarmed and trapped victim, and
succeeded in stabbing him in the arm and leg . . . alone is substantial evidence of
defendant‟s intent to kill.” (Avila, at pp. 701-702.)
Appellant contends the use of a nontraditional weapon, the “superficial
nature of Arita‟s wounds,” and appellant‟s intoxication indicated he had no intent
to kill Arita. We disagree. First, the jury found that the 12-inch screwdriver was a
deadly weapon, as it was used to attack vulnerable areas, such as the head, neck,
and left side of the rib cage. A deep puncture to any of those areas could have

6
caused Arita‟s death. (Cf. People v. Russell (1943) 59 Cal.App.2d 660, 665
[sustaining conviction for assault with a deadly weapon where defendant used a
two-and-a-half-inch fingernail file to attack victim‟s face].) Second, “the degree of
the resulting injury is not dispositive of defendant‟s intent. Indeed, a defendant
may properly be convicted of attempted murder when no injury results.” (Avila,
supra, 46 Cal.4th at p. 702.) Finally, the jury was instructed that it “should
consider the [appellant‟s] voluntary intoxication” in deciding whether he had the
required specific intent or mental state. The jury impliedly found that appellant
could, and did, harbor the specific intent to kill. Substantial evidence supports the
jury‟s finding. Appellant was sufficiently sober to recognize that he had been
observed attacking Arita, to threaten to kill the witness (Pineda), and to pursue
Pineda through a hole in a fence and into the nearby streets. Accordingly, there
was substantial evidence in the record to sustain appellant‟s conviction for
attempted murder of Arita.
B. Confrontation Clause Claim
Appellant next contends his convictions for attempted murder and mayhem
should be reversed, as he was denied his constitutional right to confront his accuser
when the trial court admitted Arita‟s preliminary hearing testimony at trial.
1. Relevant Background
On August 8, 2012, the day before trial, the prosecutor sought to introduce
Arita‟s preliminary hearing testimony at trial, arguing that Arita was unavailable.
At the evidentiary hearing held that day, Brent Smith, a supervising investigator
with the Los Angeles County District Attorney‟s Office, testified about his efforts
to locate Arita. Smith testified that the prosecutor asked him a month before trial
to subpoena Arita. When Smith attempted to do so, he discovered that Arita had
been deported to Honduras. On August 6, 2012, Smith learned from a contact

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person at the Department of Homeland Security (DHS) that Arita had been
deported on December 29, 2011. Smith then tried to locate Arita through the
CLETS database, which contains information from the Los Angeles County
Sheriff‟s Department, the California Department of Justice, and the Department of
Motor Vehicles, but he was unsuccessful. Smith did not check with other counties
or states, but noted that if Arita had been convicted in other counties or states, the
information would have shown up in the CLETS database. Smith also did not
attempt to contact Arita in Honduras.
On the morning of the hearing, Smith went to a location Arita had been
known to frequent when seeking work. Smith showed a photograph of Arita to
several day laborers. They said they knew Arita but had not seen him since he had
been deported. Smith also went to the homeless encampment but did not find Arita
there. Smith was similarly unsuccessful when he tried to contact Pineda to inquire
about Arita.
After Smith testified, the prosecutor informed the court that Arita had been
prosecuted by the “Pasadena city prosecutor,” had been convicted of an assault that
occurred in July 2011, and had been deported because of his conviction. Defense
counsel argued that the prosecution had not made a sufficient showing of
unavailability because it had not attempted to contact Arita in Honduras and had
made inadequate attempts to find him locally. Counsel also noted that no evidence
had been presented that the United States lacked a treaty with Honduras for
“cooperation for the return of witnesses.”
The trial court ruled as follows:
“The statute requires a reasonable diligence. I think once the People
determined that the witness had been deported by the Department of
Homeland Security, I don‟t know what more they could have reasonably
done. I think what the investigator testified to, though, in checking the
databases, in checking whether or not he picked up any other cases, went out

8
 looking for him at . . . what he thought was going to be a homeless
encampment and then went to a work site. I think those efforts constitute
reasonable diligence.

“While I agree, perhaps, more could have been done, I don‟t know that I can
say more needed to be done before the People could establish his
unavailability. He‟s nowhere within the jurisdiction of the court and I don‟t
know how the People could compel his attendance when he‟s not within the
jurisdiction of the court and, in fact, [was] deported by the federal
government.

“So I‟m going to allow the prelim[inary hearing] testimony to come in[,]
finding that the witness is unavailable by the People‟s exercise of reasonable
diligence to compel his attendance.”

2. Analysis
Under the confrontation clause of the Sixth Amendment to the United States
Constitution, a criminal defendant has the right to confront the prosecution‟s
witnesses. An exception to the confrontation requirement is where a witness is
“unavailable” and has given testimony at previous judicial proceedings against the
same defendant and was subject to cross-examination. (People v. Herrera (2010)
49 Cal.4th 613, 621 (Herrera).) A witness is considered unavailable for purposes
of the Sixth Amendment when the prosecution has made a good-faith effort to
secure his presence at trial. (Ohio v. Roberts (1980) 448 U.S. 56, 74, overruled on
other grounds by Crawford v. Washington (2004) 541 U.S. 36.) Similarly,
Evidence Code section 240 provides that a witness is unavailable when he or she is
“[a]bsent from the hearing and the proponent of his or her statement has exercised
reasonable diligence but has been unable to procure his or her attendance by the
court‟s process.” (Evid. Code, § 240, subd. (a)(5).) “The constitutional and
statutory requirements are „in harmony.‟” (People v. Smith (2003) 30 Cal.4th 581,
609, quoting People v. Enriquez (1977) 19 Cal.3d 221, 235.) We review the trial

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court‟s resolution of disputed factual issues under the deferential substantial
evidence standard, and independently review whether the facts demonstrate
prosecutorial good faith and reasonable or due diligence. (Hererra, supra,
49 Cal.4th at p. 623).
In determining whether Arita was unavailable, we find Mancusi v. Stubbs
(1972) 408 U.S. 204 (Mancusi) and Herrera instructive. In Mancusi, the United
States Supreme Court affirmed a state court‟s determination that a witness who
was permanently residing in a foreign country was unavailable for purposes of the
Sixth Amendment‟s confrontation clause. The court held that the prosecution had
established the desired witness‟s unavailability by showing that the witness resided
in a foreign nation and that the state was powerless to compel the witness‟s
attendance, either through its own process or through established procedures
dependant on the voluntary assistance of another government. Under these
circumstances, “good . . . faith” did not require additional efforts by the
prosecution. (Mancusi, at pp. 212-213.)
In Herrera, the California Supreme Court held that the prosecution had
demonstrated good faith and exercised due diligence where: (1) the district
attorney investigator testified that he learned from a DHS special agent that the
witness had been deported to El Salvador, (2) the investigator unsuccessfully
attempted to locate the witness at locations he had formerly frequented and through
information in a law enforcement database, (3) a foreign prosecution investigator
contacted law enforcement authorities in El Salvador in an unsuccessful attempt to
locate the witness there, and (4) the United States and El Salvador did not have an
agreement or treaty to compel or facilitate the witness‟s attendance at trial.
(Herrera, supra, 49 Cal.4th at pp. 629-630.) The court rejected the contention that
the prosecution should have known of the witness‟s pending deportation. It held

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that the prosecution is not required to keep “„periodic tabs‟” on every material
witness in a criminal case. The court also rejected the argument that the
prosecution should have started its efforts to locate the witness earlier. The court
held that further efforts to locate the witness would have been futile, as El Salvador
did not have an agreement with the United States for procuring a witness‟s
attendance at trial in California. (Id. at pp. 630-631.)
Here, Smith testified he was informed by DHS personnel that Arita had been
deported to Honduras on December 29, 2011. He previously attempted to track
down Arita through the CLETS database, but was unsuccessful. Moreover, Smith
was unsuccessful in his attempts to locate Arita at sites that Arita had frequented.
In addition, appellant did not argue below, and does not suggest on appeal, that
Honduras has an agreement or treaty with the United States for procuring a
victim‟s attendance at trial in this state. Although Smith did not attempt to contact
law enforcement in Honduras, we conclude that such an effort was not required in
order to demonstrate prosecutorial good faith and due diligence. Neither at trial, or
on appeal, has appellant identified how the prosecutor or the court could have
secured the presence of Arita, a deportee not charged with any offenses in the
instant matter. (Herrera, supra, 49 Cal.4th at p. 631 [good faith does not require
prosecutor to engage in futile acts].) For the same reason, earlier attempts or
further efforts at locating Arita were not required.
People v. Sandoval (2001) 87 Cal.App.4th 1425 (Sandoval), cited by
appellant, is distinguishable. There, the appellate court determined that a witness
who resided in Mexico was not unavailable, as the United States and Mexico had a
mutual legal assistance treaty that would assist the prosecution in procuring the
witness for trial. (Id. at pp. 1439, 1443-144.) As noted, appellant does not argue a
similar treaty exists between Honduras and the United States.

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 Appellant‟s reliance on People v. Roldan (2012) 205 Cal.App.4th 969
(Roldan), United States v. Tirado-Tirado (5th Cir. 2009) 563 F.3d 117 (Tirado),
and United States v. Wilson (N.D. Cal. 1999) 36 F.Supp.2d 1177 (Wilson) is also
misplaced. Those cases involved the failure of the prosecutor, who knew the
desired witness would be deported, to secure the witness‟s testimony through
means such as videotaping the witness‟s testimony or detaining the witness as a
material witness. (See Roldan, supra, at pp. 980-981; Tirado, supra, at p. 123;
Wilson, supra, at pp. 1179, 1182.) In contrast, here, nothing suggests that the
prosecutor knew or should have known that Arita would be deported. Arita was
prosecuted for an unrelated crime by a different office -- the Pasadena city
attorney. He was convicted in September 2011 and deported four months later, a
relatively short time frame. Moreover, as noted in Herrera, a prosecutor is not
required to keep “„periodic tabs‟” on every material witness in a criminal case.
(Herrera, supra, 49 Cal.4th at p. 630.) Under these circumstances, we conclude
that the prosecution made a good faith effort and exercised reasonable diligence in
attempting to locate and procure Arita for trial.
Moreover, even were we to determine that the prosecution did not show
good faith or exercise reasonable diligence, we would find any error in admitting
Arita‟s preliminary hearing testimony harmless beyond a reasonable doubt.
(Chapman v. California (1967) 386 U.S. 18, 24 (Chapman); Lilly v. Virginia
(1999) 527 U.S. 116, 139-140 [applying Chapman harmless error standard to
confrontation clause claims]; accord Sandoval, supra, 87 Cal.App.4th at p. 1444.)
In his preliminary hearing testimony, Arita testified he was drunk and awoke to
someone stabbing him with a screwdriver. Arita also testified that he had his
cellular telephone and $50 stolen. Arita never identified appellant as the person
who stabbed him. In addition, when arrested, Arita‟s telephone was not found on

12
appellant‟s person, and exactly $24.36 was found on appellant. Thus, Arita‟s prior
testimony was only marginally probative. Indeed, the prosecutor never referred to
Arita‟s testimony during closing argument. Rather, as the prosecutor argued, the
“stars of th[e] trial” were Pineda and appellant. Pineda testified he personally saw
appellant stabbing Arita multiple times in the head and neck areas. Pineda knew
appellant, having seen him before on several occasions, including earlier that same
morning. In addition, Pineda‟s testimony was supported by the injuries sustained
by Arita. On this record, the admission of Arita‟s preliminary hearing testimony
was harmless beyond a reasonable doubt.
C. Sentencing Issues
Both parties raise sentencing issues. Appellant contends that the trial court
erred in not staying the sentence on count 4 (criminal threats against Pineda) under
section 654. Respondent contends that section 654 did not bar the trial court from
imposing both a weapon use enhancement and a great-bodily-injury enhancement
on count 1 (attempted murder of Arita). Finally, appellant contends that the trial
court violated the ex post facto clauses of the California and federal constitutions
by retroactively increasing the amount of a restitution fine and parole revocation
fine. We address each issue in turn.
1. Section 654
The trial court sentenced appellant to one year on count 2 (assault with
deadly weapon of Pineda) and a consecutive sentence of eight months on count 4
(criminal threats against Pineda). The court found that the “incident with Mr.
Pineda lasted for a little bit of time. . . . I think there were separate acts. The threat
was uttered . . . separate and apart from the [assault].” Appellant now contends
that his criminal threat against Pineda and his assault with a deadly weapon on

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Pineda were part of the same course of conduct, and that section 654 barred
separate punishment for the two offenses.
Section 654, subdivision (a) provides in pertinent part: “An act or omission
that is punishable in different ways by different provisions of law shall be punished
under the provision that provides for the longest potential term of imprisonment,
but in no case shall the act or omission be punished under more than one
provision. . . .” Section 654 bars multiple punishment for separate offenses arising
out of a single occurrence where all of the offenses were incident to one objective.
(People v. McKinzie (2012) 54 Cal.4th 1302, 1368.) A trial court‟s implied finding
that a defendant harbored a separate intent and objective for each offense will be
upheld on appeal if it is supported by substantial evidence. (Ibid.)
Here, the record shows that after Pineda yelled at appellant to stop stabbing
Arita, appellant looked at Pineda and threatened to kill him. A trial court could
find that appellant had an intent and objective to threaten Pineda when he uttered
his threats. The record also shows that Pineda ran away after hearing these words,
and that appellant chased after him, with the screwdriver in hand. On this record, a
trial court could find that appellant harbored a new and separate intent when he
chased Pineda -- to injure Pineda with the screwdriver. Thus, substantial evidence
supported the trial court‟s finding that appellant harbored separate intents and
objectives when he first made his criminal threats and then assaulted Pineda by
pursuing him while armed with a screwdriver he had just used to attack Arita.
(See, e.g., People v. Solis (2001) 90 Cal.App.4th 1002, 1009, 1021-1022 [section
654 did not bar consecutive sentences on convictions for terroristic threats and
arson where defendant left messages threatening to kill victims and then an hour
later, set fire to the victims‟ house].) Accordingly, section 654 did not bar the
imposition of the consecutive eight-month sentence on count 4.

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 2. Section 12022, Subdivision (b)(1) Enhancement
At sentencing, the trial court stated its belief that as to count 1, it lacked
authority to impose both a one-year weapon use enhancement under section 12022,
subdivision (b)(1) and a three-year great-bodily-injury enhancement under section
12022.7, subdivision (a). The court stated, “ [M]y feeling is he should get the one
year, but I don‟t believe I can do it. So I am going to impose it and stay it under
654. If there is an appeal, perhaps it will be discussed on appeal.” On appeal, the
People contend that section 654 does not bar the imposition of both enhancements.
We agree that the trial court could have imposed both a weapon use enhancement
and a great-bodily-injury enhancement. (See People v. Ahmed (2011) 53 Cal.4th
156, 160, 168 [a trial court may impose both one weapon enhancement and one
great-bodily-injury enhancement for all crimes].) The People request that we
remand to the trial court to permit it to either impose or strike the weapon use
enhancement in count 1. Appellant agrees that the appropriate remedy is remand.
Accordingly, we will remand this matter to the trial court for further proceedings
on this issue.
3. Restitution and Parole Revocation Fines
At appellant‟s September 6, 2012 sentencing, the trial court imposed a $200
restitution fine pursuant to section 1202.4, subdivision (b) and a $200 parole
2
revocation fine pursuant to section 1202.45. Appellant filed his appeal the same
day. While the appeal was pending, on October 31, 2012, the trial court issued a
3
nunc pro tunc order, increasing the restitution and parole revocation fines to $240.

2
The amount of the parole revocation fine must match the amount of the
restitution fine (§ 1202.45, subd. (a)).
3
In 2011, the amount of a restitution fine under former section 1202.4 --
which “shall be set at the discretion of the court” -- ranged from $200 to $10,000.

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Appellant contends the increased fines violate the ex post facto clauses of the
federal and California constitutions. Although the imposition of the $240
restitution and parole revocation fines do not implicate the ex post facto clauses,
we conclude the trial court lacked jurisdiction to increase the fines.
“[T]he imposition of restitution fines constitutes punishment, and therefore
is subject to the proscriptions of the ex post facto clause and other constitutional
provisions.” (See People v. Souza, supra, 54 Cal.4th at p. 143.) Thus, a defendant
may challenge the imposition of a restitution fine under section 1202.4 as violating
the ex post facto clauses of the California and federal constitutions, if the fine is
greater than authorized by section 1202.4 at the time he committed his crimes.
(Ibid.) Here, the imposition of the $240 restitution fine was within the trial court‟s
discretion under the operative statute at the time appellant committed his crimes.
Thus, the trial court‟s nunc pro tunc order increasing the amount of the restitution
fine did not implicate the ex post facto clauses of the state and the federal
constitutions.
Nevertheless, we conclude the trial court lacked authority to increase the
amount of the restitution fine. The trial court issued its nunc pro tunc order on
October 31, 2012, after appellant had filed his notice of appeal. “Because an
appeal divests the trial court of subject matter jurisdiction, the court lacks
jurisdiction to vacate the judgment or make any order affecting it,” unless certain
exceptions apply. (People v. Alanis (2008) 158 Cal.App.4th 1467, 1472-1473;
accord People v. Turrin (2009) 176 Cal.App.4th 1200, 1208.) The exceptions
include: (1) recalling a sentence under section 1170, subdivision (d) to resentence

(People v. Souza (2012) 54 Cal.4th 90, 143 [explaining former section 1202.4].)
Section 1202.4 was amended (effective January 1, 2012) to increase the minimum
amount to $240. (§ 1202.4, subd. (b)(1).)

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the defendant, provided the “new sentence, if any, is no greater than the initial
sentence”; (2) correcting an unauthorized sentence; and (3) correcting clerical
errors. (People v. Alanis, at pp. 1473-1476.) None of these exceptions applies
here. The trial court did not recall the sentence, and the new sentence is greater
than the original one. The court‟s original imposition of a $200 restitution fine was
not unauthorized, as the court had discretion to impose that amount under former
section 1202.4. Finally, there was no clerical error. The court orally pronounced a
$200 restitution fine, and the original abstract of judgment correctly reflected that
amount. Thus, the trial court lacked jurisdiction to issue its nunc pro tunc order.
Accordingly, the order is void, and appellant is subject only to a $200 restitution
fine. In addition, appellant‟s parole revocation fine must be reduced to the same
amount as his restitution fine ($200). (§ 1202.45, subd. (a).)
DISPOSITION
The convictions are affirmed. The matter is remanded to the superior court
for further proceedings in light of this opinion. The new judgment shall reflect the
correct ($200) restitution and parole revocation fines.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

MANELLA, J.

We concur:

EPSTEIN, P. J. WILLHITE, J.

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