Filed 8/6/14 P. v. Mulkey CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Yuba)
----
THE PEOPLE,
Plaintiff and Respondent, C074046
v. (Super. Ct. No. CRF1212)
SAMSON AARON MULKEY,
Defendant and Appellant.
Defendant Samson Aaron Mulkey pleaded no contest to voluntary manslaughter.
The trial court placed defendant on probation and, among other things, imposed a $240
restitution fine. After defendant subsequently admitted violating probation, the trial court
sentenced him to six years in prison and, as is relevant to this appeal, continued the
previously imposed $240 restitution fine.
1
Defendant now contends (1) the trial court abused its discretion and violated
ex post facto principles by imposing the $240 restitution fine, because the minimum
restitution fine at the time of defendant’s crime was $200; and (2) if his first contention is
forfeited, he received ineffective assistance of counsel. Finding no merit to defendant’s
contentions, we will affirm the judgment.
BACKGROUND
On December 31, 2011, defendant (who was 16 years old at the time) and others
aided and abetted Marcus Hume in fatally shooting Steven Moore. Defendant pleaded no
contest to voluntary manslaughter. (Pen. Code, § 192, subd. (a).)1
The trial court suspended imposition of sentence and placed defendant on
probation for five years with various terms and conditions, including that defendant
abstain from alcohol and that he pay a $240 restitution fine (§ 1202.4, subd. (b)(1)) and a
$240 probation revocation fine (§ 1202.44).
Defendant subsequently admitted violating probation. The trial court declined to
reinstate probation and sentenced defendant to the middle term of six years for the
voluntary manslaughter conviction. In addition, the trial court continued the $240
restitution fine previously imposed pursuant to section 1202.4, subdivision (b)(1), lifted
the stay on the previously imposed $240 probation revocation fine pursuant to
section 1202.44, and imposed a $240 parole revocation fine pursuant to section 1202.45.
DISCUSSION
I
Defendant contends the trial court abused its discretion and violated ex post facto
principles by imposing the $240 restitution fine, because the minimum restitution fine at
the time of defendant’s crime was $200.
1 Undesignated statutory references are to the Penal Code.
2
On December 31, 2011, the date when defendant committed the offense,
section 1202.4, subdivision (b)(1) authorized a restitution fine ranging from $200 to
$10,000. Effective January 1, 2012, however, the minimum restitution fine under
section 1202.4, subdivision (b)(1) increased from $200 to $240.2
Defendant claims that although the $240 restitution fine was within the authorized
range at the time he committed the crime, nothing in the record indicates that the trial
court intended to impose anything other than the minimum, which at the time of his
offense was $200. He argues that imposition of the $240 fine was an abuse of discretion
because it was not an informed exercise of discretion.
It is defendant’s burden on appeal, however, to show that the trial court intended
to impose the minimum restitution fine; we will not presume such an intention from a
silent record. (See People v. Gutierrez (2009) 174 Cal.App.4th 515, 527 [“[I]n light of
the presumption on a silent record that the trial court is aware of the applicable law,
including statutory discretion at sentencing, we cannot presume error where the record
does not establish on its face that the trial court misunderstood the scope of that
discretion.”].)
Defendant’s contention lacks merit because he has not met his burden on appeal.
II
Defendant next claims that if his first contention is forfeited, he received
ineffective assistance of counsel. We decided defendant’s first contention on the merits,
2 In relevant part, section 1202.4, subdivision (b)(1), as amended in 2011, provided:
“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 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 . . . .” (See
Stats. 2011, ch. 358, § 1.)
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concluding he failed in his appellate burden. In any event, defendant’s claim of
ineffective assistance fails because he has not established prejudice on this limited record.
DISPOSITION
The judgment is affirmed.
MAURO , J.
We concur:
RAYE , P. J.
BUTZ , J.
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