P. v. Lopez

Filed 12/22/09 P. v. Lopez CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Defendant Isrreal Islas Lopez was sentenced to prison following a guilty plea. As part of his sentence, the court ordered defendant to pay a restitution fund fine of $6,400. Defendant seeks a remand for resentencing, arguing that the court was unaware of its discretion to waive the fine. We reject defendants argument and we affirm the judgment.

BACKGROUND

The Offenses

Because the sole issue on appeal concerns sentencing, a brief recitation of the facts will suffice. Our summary is drawn from the probation report.

On October 14, 2007, the defendant attempted to rob the victim, who was a desk clerk at a hotel. During the course of the robbery, the defendant twisted the [victims] neck, struck her head on the ground, and threatened to kill her.

The Charges

Several days after the attack, the Santa Clara County District Attorney filed a felony complaint charging defendant with four violations of the Penal Code.[1] An amended complaint was filed the following month. Both as filed initially and as amended, the complaint charged defendant with (1) attempted murder ( 664/187); (2) kidnapping ( 207, subd. (a)); (3) assault with force likely to produce great bodily injury ( 245, subd. (a)(1)); and (4) robbery ( 211, 212.5, subd. (c)). As a sentence enhancement, the amended complaint alleged a prior felony conviction. ( 667.61, subds. (b) (i), 1170.12.)

Change of Plea

On July 9, 2008, defendant entered a negotiated guilty plea to two of the charged offenses, attempted murder and robbery. The court advised defendant: The sentencing judge will impose a restitution fine of not less than $200 and not more than $10,000 plus a 10 percent administrative fee.

Sentencing

On January 15, 2009, the court sentenced defendant to a 16-year prison term. The court also imposed various fines and fees, including a restitution fund fine of $6,400, plus an equivalent parole revocation fine, which it suspended. ( 1202.4, 1202.45.) Defense counsel asked the court to consider waiving . . . or not imposing the restitution fund fine. The court replied: Its under the law. I cannot.

Defendants Appeal

Defendant filed a timely notice of appeal. He contends that the trial court erred in saying it could do nothing except impose a $6,400 restitution fine. He further maintains: Since the trial court imposed sentence under a mistaken understanding of its sentencing discretion, the case must be remanded without any consideration of prejudice.

DISCUSSION

To establish the proper framework for our analysis of defendants arguments, we first describe the relevant legal principles. We then apply them to the case before us.

I. Legal Principles

A. Statutory Restitution Fine

The Legislature has provided for a separate and additional restitution fine to be imposed upon sentencing for a criminal offense. ( 1202.4, subd. (b).) The restitution fine under section 1202.4 is mandatory unless the sentencing court, in the words of the statute, finds compelling and extraordinary reasons for not doing so, and states those reasons on the record. (People v. Tillman (2000) 22 Cal.4th 300, 302, quoting 1202.4, subd. (b).)

The amount of the fine is committed to the trial courts discretion. ( 1202.4, subd. (b)(1); People v. Urbano (2005) 128 Cal.App.4th 396, 406.) For felony convictions, the fine ranges in amount from a minimum of $200 to a maximum of $10,000. ( 1202.4, subd. (b)(1).) The court may use a statutory formula to calculate the amount of the fine, which involves multiplying $200 by the number of years of imprisonment and then by the number of counts. (Id., subd. (b)(2).)

When the court imposes a fine in excess of the statutory minimum, it must consider all relevant factors. ( 1202.4, subd. (d).) Generally speaking, the trial court may consider the same factors used in making the initial sentencing choices in arriving at the amount of the fine, e.g., the nature of the crime, the defendants background and criminal history. (People v. Gangemi (1993)13 Cal.App.4th 1790, 1798-1799.) Included within that rubric are aggravating and mitigating factors used in imposing a prison term as provided by court rule. (Id. at p. 1799.) As enumerated in the statute, relevant factors include the nature of the offense and the harm to the victim. ( 1202.4, subd. (d); People v. Lewis (2009) 46 Cal.4th 1255, 1321 [given the offenses committed by defendant and the harm he caused to the victim and her children, there was no abuse of discretion in imposing the maximum fine]; People v. DeFrance (2008) 167 Cal.App.4th 486, 505 [seriousness of the crime supported the maximum fine]; People v. Urbano, supra, 128 Cal.App.4th at p. 406 [completely unprovoked attack by a two-striker causing great bodily injury solely to promote a criminal street gang amply justifies the amount at issue].) In deciding on the fine amount, the court may consider information contained in the probation report. (People v. Wyman (1985) 166 Cal.App.3d 810, 815; cf. People v. Gemelli (2008) 161 Cal.App.4th 1539, 1543 [victim restitution].)

The court need not make express findings setting forth the factors that it considered in determining the fine. ( 1202.4, subd. (d); People v. Gangemi, supra, 13 Cal.App.4th at p. 1798; People v. Reyes (1987) 195 Cal.App.3d 957, 966.) A trial court is required to state reasons only when it waives a restitution fine under section 1202.4. (People v. Reyes, at p. 966; People v. Brown (2007) 147 Cal.App.4th 1213, 1227-1228.)

B. Trial Court Discretion

As California Supreme Court precedent teaches, the trial court must act with an understanding of its sentencing discretion. (People v. Fuhrman (1997) 16 Cal.4th 930, 944 [discretion to strike prior conviction allegations]; People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8 [discretion to impose full term consecutive sentencing under 667.6 (c)].) Defendants are entitled to sentencing decisions made in the exercise of the informed discretion of the sentencing court. (People v. Belmontes, at p. 348, fn. 8.) A court which is unaware of the scope of its discretionary powers can no more exercise that informed discretion than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendants record. (Ibid.)

C. Appellate Review

Discretionary sentencing decisions are subject to deferential review on appeal. The general rule is that a trial court is presumed to have been aware of and followed the applicable law. (People v. Mosley (1997) 53 Cal.App.4th 489, 496.) In the absence of a clear showing of abuse, the trial courts sentencing discretion will not be disturbed on appeal. (People v. Wyman, supra,166 Cal.App.3d at p. 816.) A trial courts failure to exercise discretion is itself an abuse of discretion, and we review such action in accordance with that standard of review. (In re Marriage of Gray (2007) 155 Cal.App.4th 504, 515, citing People v. Orabuena (2004) 116 Cal.App.4th 84, 99.)

Upon a proper showing that the trial court misunderstood its discretion, a remedy may be available by writ or direct appeal. Where a court may have been influenced by an erroneous understanding of the scope of its sentencing powers, habeas corpus is a proper remedy to secure reconsideration of the sentence imposed. (People v. Belmontes, supra, 34 Cal.3d at p. 348, fn. 8) In a direct appeal, however, such relief is not available absent an affirmative indication in the record that the trial court committed error or that it misunderstood the scope of its discretion. (People v. Fuhrman, supra, 16 Cal.4th at p. 945.) Thus, the appropriate course, in a silent record case, is for an appellate court to deny the request for remand, without prejudice to the defendants seeking relief in a petition for writ of habeas corpus. (Ibid.) Conversely, where the record affirmatively discloses that the trial court misunderstood the scope of its discretion, remand for resentencing is proper. (Id. at p. 944; see People v. Sotomayor (1996) 47 Cal.App.4th 382, 389-390.)

II. Application

With the foregoing principles in mind, we consider whether the record affirmatively establishes that the court misunderstood its discretion. We conclude that it does not.

A. Background

Under the terms of the plea bargain, defendant was subject to a prison sentence of 14 to 20 years. As reflected in its report, the probation department was recommending the maximum agreed prison term of 20 years, with a restitution fund fine of $8,000 based on that term.[2] At the sentencing hearing, the prosecutor argued for the maximum 20-year term, while defense counsel sought the minimum term of 14 years.

The court stated its decision to impose a 16-year term. As an aggravating factor, the court noted that that defendants conduct in this case is extremely violent. The victim indicated that although she is doing all right physically. . . , she still suffers emotional trauma. In mitigation, the court considered defendants criminal history which was not extensive as well as his personal history, his drug and alcohol problems, and the fact that he acknowledged wrongdoing at an early stage of the criminal process.

After the court decided on a 16-year sentence rather than the 20 years recommended by probation, the probation officer said in view of the change in years of commitment, recommendation Number 7, the restitution fine, will now be $6,400. The court adopted the revised recommendation, ordering defendant to pay a restitution fine in the amount of $6,400 imposed pursuant to Penal Code Section 1202.4(b).

At the conclusion of the sentencing hearing, defense counsel returned to the question of the restitution fund fine. He recommended that the Court consider waiving it or not imposing it. As counsel began to offer a reason for the recommendation, the court cut him off, saying: Its under the law. I cannot.

B. Analysis

Contrary to defendants arguments, the appellate record in this case does not affirmatively reflect that the sentencing court misunderstood the scope of its discretion. (People v. Fuhrman, supra, 16 Cal.4th at p. 943 [appellate court found nothing in the record to suggest that the trial court misunderstood the scope of its discretion and high court was unable to discern from the record whether the trial court believed that it retained discretion]; compare, People v. Sotomayor, supra, 47 Cal.App.4th at p. 391 [sentencing record as a whole indicated that judge was unaware of his sentencing discretion].)

Within the factual context of this case, the fact that the judge said I cannot when asked to waive the fine does not indicate lack of awareness of authority to do so. To the contrary, that statement may readily be taken as an indication that the court simply could not see its way to waiving the fine under the facts before it, which included defendants unprovoked and violent attack on the victim.

Nor does the law support defendants claim.

This is not a situation where case law governing the existence and extent of the courts discretion was in flux. (Cf. People v. Fuhrman, supra, 16 Cal.4th at p. 942, discussing People v. Superior Court (Romero) (1996) 13 Cal.4th 497 [prior to Romero, many Courts of Appeal had erroneously concluded that the trial court was without discretion to strike a prior serious felony conviction allegation]; People v. Mosley, supra, 53 Cal.App.4th at p. 497 [prior to Romero, there was a debate within the legal community as to whether trial judges could strike prior serious felony convictions and, if so, to what extent].) With the law in flux, the normal presumption that a trial judge correctly applied existing law may not apply. (People v. Mosley, at p. 497.)

In this case, the law was settled at the time of sentencing. The judicial discretion at issue here the authority to waive imposition of the restitution fine has been an explicit part of the statute since its adoption in 1983. (Stats. 1983, ch. 1092, 320.1.) For that reason, it is presumed that the trial court was aware of its sentencing discretion. (People v. Mosley, at p. 496 [presumption applied where sentencing occurred 53 days after the filing of the Romero opinion].)

In sum, considering both the facts of this case as reflected in the appellate record and the settled state of the law at the time of sentencing, we find no affirmative indication that the trial court misunderstood the scope of its discretion. For that reason, remand for resentencing is not appropriate. (People v. Fuhrman, supra, 16 Cal.4th at p. 945.)

DISPOSITION

The judgment is affirmed.

____________________________________________

McAdams, J.

WE CONCUR:

________________________________

Elia, Acting P.J.

________________________________

Mihara, J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

[1] All statutory citations are to the Penal Code.

[2] The $8,000 figure apparently was calculated using the permissive statutory formula: $200 multiplied first by the number of years in the prison term (20) and then by the number of counts (two). ( 1202.4, subd. (b)(2).)