P. v. Evans
Filed 5/24/13 P. v. Evans CA2/4
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opinion has not been certified for publication or ordered published for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,
Plaintiff and Respondent,
v.
MANDELL
JACQUES EVANS,
Defendant and Appellant.
B240974
(Los Angeles County
Super. Ct. No. NA090489)
APPEAL from a
judgment of the Superior Court of
County, Charles D. Sheldon, Judge. Affirmed.
Julia J.
Spikes, 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, Scott A. Taryle and Michael C.
Keller, Deputy Attorneys General, for Plaintiff and Respondent.
________________________________
Mandell Jacques Evans appeals from a
judgment following a jury trial. He
contends the trial court erred in imposing a “minimum†restitution fine in the
amount of $240 under Penal Code section 1202.4,
committed his crimes. Because appellant
did not object to the amount of the restitution fine in the trial court, we
conclude appellant has forfeited this argument.
Accordingly, we affirm.
An information
charged appellant with committing the crime of indecent exposure with a prior
(§ 314), on September 13, 2010 and April 7, 2011.
It also alleged that appellant suffered one “strike†within the meaning
of sections 1170.12, subdivisions (a) through (d), and 667, subdivisions (b)
through (i). On March
20, 2012, a
jury found appellant guilty as charged.
In a probation
report prepared for the court, the probation officer recommended that probation
be denied, that appellant serve the maximum amount of time in county jail, and
that a restitution fine in the amount of $400 be imposed pursuant to section
1202.4. After sentencing appellant to
state prison for the middle term on count one and one-third the middle term on
count two, the court stated, “I’m going to give you the minimum fines so that
when eventually you get out, sir, you can try, hopefully, to start anew
here.†The court then pronounced the
imposition of various fines and fees, including a restitution fine of $240
pursuant to section 1202.4. No objection
was raised by appellant or his counsel.
Appellant timely appealed from the judgment.
“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.†(See People
v. Souza (2012) 54 Cal.4th 90, 143 (Souza).) 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.)
Section 1202.4
mandates that the trial court order a convicted defendant to pay a restitution
fine “unless [the court] finds compelling and extraordinary reasons for not
doing so and states those reasons on the record.†(§ 1202.4, subd. (b).) If the defendant is convicted of a felony,
the amount of restitution fine “shall be set at the discretion of the courtâ€
and cannot be less than $240 (starting January 1, 2012), or greater than $10,000.
(§ 1202.4, subd. (b)(1).)
However, at the time appellant committed his crimes, the amount of a
restitution fine under section 1202.4 ranged from $200 to $10,000. (See Souza,
supra, 54 Cal.4th at p. 143
[explaining former section 1202.4].)
Accordingly, appellant now contends the restitution fine should be
reduced to $200. However, appellant
failed to object to the amount of the restitution fine in the trial court, and
thus, has forfeited any challenge to that amount of the restitution fine.
The failure to
make a timely and meaningful objection forfeits or waives certain claims on
appeal. (People v. Scott (1994) 9 Cal.4th 331, 351 (Scott).) In
that these claims include “complaints about the manner in which the trial court
exercises its sentencing discretion and articulates its supporting
reasons.†(Id. at p. 356.) “In essence,
claims deemed waived on appeal involve sentences which, though otherwise
permitted by law, were imposed in a procedurally or factually flawed
manner.†(Id. at p. 354.) “The
appropriate amount of restitution is precisely the sort of factual
determination that can and should be brought to the trial court’s attention if
the defendant believes the award is excessive.â€
(People v. Garcia (2010) 185
Cal.App.4th 1203, 1218 (Garcia).) As in Garcia,
“because [appellant] did not object to the amount of restitution in the trial
court, he forfeited our consideration of the issue on appeal.†(Ibid.)
Appellant
contends the error is cognizable on appeal because the imposition of the
restitution fine was unauthorized. Our
Supreme Court has stated that “the ‘unauthorized sentence’ concept constitutes
a narrow exception to the general requirement that only those claims properly
raised and preserved by the parties are reviewable on appeal. [Citations.]â€
(Scott, supra, 9 Cal.4th at p. 354.)
“Although the cases are varied, a sentence is generally ‘unauthorized’
where it could not lawfully be imposed under any circumstance in the particular
case.†(Ibid.) Here, the trial court
could have imposed a restitution fine in any amount between $200 and
$10,000. As the actual restitution fine
fell within that range, the restitution order was not unauthorized.
DISPOSITION
The judgment is
affirmed.
OFFICIAL REPORTS.
MANELLA,
J.
We concur:
WILLHITE, Acting P. J.
SUZUKAWA, J.
citations are to the Penal Code.
the propriety of the amount of fines imposed against him, we omit any
discussion of the underlying facts.
