P. v. Dean

 

 

 

 

 

 

 

 

 

 

Filed 11/1/13  P. v. Dean 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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,   Plaintiff and Respondent,                           v.   JERMAINE MICHAEL DEAN,   Defendant and Appellant.

F065938   (Stanislaus Super. Ct. No. 1037386)     >OPINION

 

>THE COURThref="#_ftn1" name="_ftnref1" title="">^*

            APPEAL from
a judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Stanislaus
County.  Donald E.
Shaver, Judge.

            Charles M.
Bonneau, under appointment by the Court of Appeal, for Defendant and Appellant.

            Office of
the Attorney General, Sacramento, California,
for Plaintiff and Respondent.

-ooOoo-

>INTRODUCTION

Appellant/defendant Jermaine
Michael Dean was convicted of first degree premeditated murder with a href="http://www.fearnotlaw.com/">robbery special circumstance, and
sentenced to life in prison without possibility of parole.  The court ordered him to pay a $10,000
restitution fine pursuant to Penal Codehref="#_ftn2" name="_ftnref2" title="">^[1] section 1202.4, and victim restitution of
5,861.42 for the victim’s funeral expenses. 
Defendant did not object.

On appeal, his appellate counsel
has filed a brief which summarizes the facts, with citations to the record,
raises no issues, and asks this court to independently review the record.  (People v. Wende (1979) 25 Cal.3d 436
(Wende).)  By letter on December 11, 2012, we invited defendant to submit
additional briefing.

Defendant has filed a briefing
letter, and contends the restitution fine and restitution for the victim’s
funeral expenses must be stricken because the sentencing court failed to
consider his ability to pay.  We affirm.

>FACTUAL AND PROCEDURAL BACKGROUND

            In 2007,
after a jury trial, defendant Dean and codefendants Kevin Trice and Tommy
Nichols were convicted of count I, first degree premeditated murder of Jose
Ruiz (§ 187), with a robbery special circumstance (§ 190.2, subd.
(a)(17)), and a personal use allegation (§ 12022.53, subd. (d)).

Defendant was also convicted of
counts III and IV, robbery (§ 212.5); and counts V and VI, false
imprisonment (§ 236); with additional firearm allegations
(§ 12022.53, subd. (d), § 12022.5).

Sentencing hearing

On April 21, 2008, the court conducted the sentencing hearing
for defendant, Trice, and Nichols.  The
prosecutor anticipated that a restitution hearing would also be held.

The court began the hearing by
sentencing Nichols and Trice to life in prison without possibility of parole,
with additional determinate and indeterminate terms for the other counts and
enhancements.  The court also imposed
restitution fines of $10,000 against each codefendant.

As the court sentenced Nichols, his
attorney stated that he had filed “documents with regards to restitution,…”  The court agreed and said it would continue
with the sentences and return to Nichols’s objections to restitution.  Defendant’s attorney interjected that
defendant “will be objecting to any restitution order without a >Cervantes hearing.”href="#_ftn3" name="_ftnref3" title="">^[2]  The court acknowledged defendant’s objection
and said it would “take that up separately,…” 
Trice’s attorney also requested a Cervantes
hearing for restitution.

The court continued with the
hearing and sentenced defendant to life in prison without possibility of parole
for murder, plus 25 years to life for the section 12022.53, subdivision (d)
allegation; six years for count IV plus 25 years to life for the personal use
allegation; concurrent terms of two years for count V, plus four years for the
firearm enhancement; and concurrent terms of two years for count VI, plus four
years for the firearm enhancement.  The
court stayed the term for count III.  The
court also imposed a $10,000 restitution fine.

The court then addressed the
restitution objections.  Trice’s attorney
withdrew his request for a Cervantes hearing.  An off-the-record conversation occurred
between all the parties and their attorneys. 
When they returned on the record, the attorneys for both defendant and
Nichols said they were prepared to submit, and they withdrew their requests for
a hearing on the restitution issues.

The court continued with the
restitution orders.  It had already
imposed $10,000 restitution fines as to all defendants.  It also ordered restitution of $5,861.42 for
the murder victim’s funeral expenses and $236.04 to the City of Modesto
for ambulance expenses, with the three defendants jointly and severally liable
for those two orders.  Defendant and his
codefendants did not object.

Appellate review

            On June 29, 2010, this court affirmed
defendant’s convictions in a joint appeal. 
As to all defendants, however, we ordered the restitution order for
$236.04 for ambulance services stricken because the City of Modesto
was not a direct victim of their offenses, and that order constituted an
unauthorized sentence.  While defendant
challenged the restitution order for Modesto,
he did not challenge the restitution fine or victim restitution order for
funeral expenses.  (See >People v. Nichols et al. (June 29, 2010, F055572) [nonpub.
opn.].)

Defendant’s motion to strike

            On July 20, 2012, defendant filed a
motion in superior court to strike the restitution fine of $10,000 and the
victim restitution order of $5,861.42, because the sentencing court never
considered his ability to pay.  Defendant
requested reduction of the restitution fine to $200.

            On August
15, 2012, the superior court denied the motion, and held defendant waived the
issue because he failed to object to the orders at the sentencing hearing,
pursuant to People v. Forshay (1995)
39 Cal.App.4th 686.

>DISCUSSION

            On appeal,
defendant contends the $10,000 restitution fine and the victim restitution
order of $5,861.42 for funeral expenses must be stricken because the superior
court failed to consider his ability to pay when it imposed these orders at the
sentencing hearing.

In this case, the href="http://www.mcmillanlaw.com/">sentencing court was prepared to grant
the request of defendant and his codefendants for a hearing on the restitution
issues.  However, defendant, Nichols, and
Trice withdrew their requests for a hearing, and they did not object to the
court’s imposition of the restitution orders.

            As noted by
the superior court, defendant’s failure to object at the sentencing hearing to
the court’s imposition of the restitution fine, or claim that he lacked the
ability to pay, results in forfeiture of that issue on appeal.  (People
v. Forshay, supra, 39 Cal.App.4th
at pp. 689-690.)  This principal was
recently reaffirmed by the California Supreme Court.  (People
v. McCullough (2013) 56 Cal.4th 589, 598-599.)

            As this
court previously held, the restitution order to the City of Modesto constituted
an unauthorized sentence since the city was not a direct victim of defendant’s
crimes.  In contrast, the court’s orders
for the $10,000 restitution fine, and restitution for the victim’s funeral
expenses were authorized by statute and did not constitute unauthorized
sentences.  Defendant has forfeited
review of these orders given his failure to object and the withdrawal of his
request for a restitution hearing.href="#_ftn4"
name="_ftnref4" title="">^[3]

            After
independent review of the record, we find that no further reasonably arguable
factual or legal issues exist.

>DISPOSITION

            The
judgment is affirmed.