P. v. Rose

Filed 7/31/06 P. v. Rose CA6

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Appellant Brendon Rose pleaded no contest to two counts of battery with serious bodily injury (Pen. Code, §§ 242-243, subd. (d))[1], and one count of assault by means of force likely to cause great bodily injury (§ 245, subd. (a)(1).) Appellant admitted that he personally inflicted great bodily injury on the victim and personally inflicted great bodily injury on the victim causing him to become comatose due to brain injury.

Subsequently, on May 10, 2004, the court sentenced appellant to the mid-term of three years for the assault plus a consecutive term of five years for the personal infliction of great bodily injury enhancement pursuant to section 12022.7, subdivision (b). Pursuant to section 654, the court stayed the sentences on the two battery counts and the sentence on the section 12022.7, subdivision (a) enhancement. Among other things, the court imposed a restitution fund fine of $4,800. It is with the imposition of this fine that appellant takes issue.

Facts and Proceeding Below

The facts underlying this case are not relevant to this appeal. Accordingly, we turn to the proceedings below.

During appellant's change of plea hearing, the trial court advised appellant of the maximum prison term that it could impose. Thereafter, the court advised appellant that if he "were sent to state prison, [he]'d be required to pay a restitution fine of no less than 200 and no more than $10,000." Appellant indicated that he understood.

At appellant's sentencing hearing, the court imposed a prison term totaling eight years. As noted, in addition, the court imposed a restitution fund fine of $4,800.[2] Despite the recommendation in the probation report that "a restitution fine of $4200 be imposed under the formula permitted by Penal Code Section 1202.4(b),"[3] the court expressed its desire to impose a lesser fine as follows: "[Appellant]'s ordered to pay a restitution fine - - can I order a lesser fine because of the amount of restitution? I'd prefer that the victim receive the restitution rather than the restitution fund."

In response, the prosecutor advised the court that it could not order a lesser fine and had to impose a fine of "$200 per count per year." Consequently, the court imposed a restitution fund fine of $4,800.[4] Appellant did not object to the amount of the restitution fund fine.

Discussion

Appellant argues that because the trial court intended to impose a lesser fine, but set the amount by applying the wrong rule, the fine cannot stand even though it is within the permitted statutory range.

Whenever a person is convicted of a crime, section 1202.4 mandates judicial imposition of both a restitution fund fine (§1202.4, subd. (a)(3)(A)) and restitution to the crime victim (§ 1202.4, subd. (a)(3)(B)). The trial court shall impose the restitution fine "unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record." (§1202.4, subds. (b), (c).) In the absence of extraordinary reasons, a minimum fine of $200 is mandatory after a felony conviction (§ 1202.4, subds. (b)(1), (c), (d)) "even in the absence of a crime victim." (People v. Hanson (2000) 23 Cal.4th 355, 362.)[5] The sentencing court has discretion to impose a fine of up to $10,000 in light of all relevant factors. "Express findings by the court as to the factors bearing on the amount of the fine shall not be required. A separate hearing for the fine shall not be required." (§1202.4, subd. (d).)

Initially, the People contend that by failing to object, appellant has "waived"[6] the claim of error. However, if the objection is not "waived," in light of the trial court's expressed intention that appellant's resources be used to pay direct victim restitution, the People do not object to the restitution fund fine being reduced to the statutory minimum of $200.

Appellant argues that because the trial court made an error of law, this case does not fall within the forfeiture rule articulated in People v. Scott (1994) 9 Cal.4th 331, 353, (Scott) [claims of sentencing error are forfeited absent a contemporaneous objection in the trial court].

We disagree that appellant has not forfeited this claim. "In essence, claims deemed [forfeited] on appeal involve sentences which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner." (Scott, supra, 9 Cal.4th 331, 354.) "[T]he '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.]" (Ibid.) "[A] sentence is generally 'unauthorized' where it could not lawfully be imposed under any circumstance in the particular case." (Ibid.)

Here, the trial court did not commit a "legal error." Essentially, it committed a "factual error." The court imposed a restitution fine by using what it mistakenly believed was a mandatory formula. The imposition of a restitution fine in any amount is a discretionary sentencing choice. (People v. Smith (2001) 24 Cal.4th 849, 853.) Thus, the question before us is not one of pure law, but rather one of discretion. Since we cannot say that a restitution fine of $4,800 could not have been lawfully imposed in this case, it would appear that appellant's claim of error was forfeited by failing to object below.[7] We point out that the forfeiture rule reflects important judicial policies, which include promoting development of the record, encouraging the proper exercise of discretion, and reducing both sentencing errors and the costly appeals that ensue. (People v. Smith, supra, 24 Cal.4th at p. 852.) Appellant has offered us no compelling reason to ignore the rule and its underlying policies.

Disposition

The judgment is affirmed.

_____________________________

ELIA, J.

WE CONCUR:

_____________________________

RUSHING, P. J.

_____________________________

PREMO, J.

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[1] All further statutory references are to the Penal Code.

[2] Among other things, in addition to the restitution fund fine, appellant was ordered to pay direct victim restitution in the amount of $149,340.93 plus interest.

[3] Section 1202.4, subdivision (b)(2) provides in pertinent part: "[T]he court may determine the amount of the fine as the product of two hundred dollars ($200) multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted." It appears there is a miscalculation in the probation report.

[4] It appears that the court arrived at this figure by taking $200 multiplied by three counts multiplied by eight years.

[5] Repeatedly, the California Supreme Court has described the minimum restitution fine as mandatory. (People v. Hanson, supra, 23 Cal.4th at p. 362; People v. Walker (1991) 54 Cal.3d 1013, 1027.) However, presumably because the fine need not be imposed in extraordinary cases and the amount is discretionary, the court has also characterized the fine as a "discretionary sentencing choice" for purposes of the waiver doctrine. (People v. Tillman (2000) 22 Cal.4th 300, 303; People v. Smith (2001) 24 Cal.4th 849, 853.)

[6] Strictly speaking, "what is called 'waiver' . . . is . . . forfeiture by a party in failing to preserve a claim of error for review on appeal. [Citations.]" (People v. Smith, supra, 24 Cal.4th at p. 854, conc. opn. of Mosk, J.)

[7] By this, we do not mean that the way the trial court used the statutory formula was correct. Rather, the trial court had discretion to impose a restitution fine of $4,800.