P. v. Buzby

Filed 7/2/07 P. v. Buzby CA4/1

Opinion following rehearing

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, George W. Clarke, Judge. Affirmed as modified.

Kelly Elton Buzby entered negotiated guilty pleas to four counts of lewd and lascivious conduct with a minor under the age of 14 years. (Pen. Code,  288, subd. (a).)^[1] He admitted substantial sexual conduct in three of the crimes. ( 1203.066, subd. (a).) The court sentenced him to a stipulated 14 years in prison: the eight-year upper term on one count with a consecutive full six-year middle term on a second count. It imposed concurrent terms on the two remaining counts and ordered Buzby to pay victim restitution of $1,366 to the San Diego Police Department under section 1202.4, subdivision (f) and a parole revocation restitution fine of $2,800. Buzby contends the trial court erred by ordering him to pay $1,366 victim restitution to the San Diego Police Department.

FACTS

When Buzby's daughter was six years old, Buzby sexually molested her. His acts included touching her vagina, touching her breasts, forcing her to masturbate him, orally copulating her, forcing her to orally copulate him and attempting to penetrate her vagina with his penis.

Under the heading "Victim Information" in the probation report, the San Diego Police Department reported it spent $1,366 during the investigation of Buzby's alleged crimes: $275 for examination of Buzby and $1,091 for interviewing, examining and photographing the victim. At the sentencing hearing the court asked if Buzby agreed to restitution of $1,366, and Buzby responded, "Yes."

DISCUSSION

The parties agree that generally a defendant who does not object in the trial court to a discretionary sentencing decision of the court waives challenge to the decision on appeal. (See People v. Scott (1994) 9 Cal.4th 331, 353.) The parties also agree that an exception to this rule exists when the challenged term of the sentence is unauthorized or beyond the court's jurisdiction (id. at p. 354) and that a sentence is unauthorized when it "could not lawfully be imposed under any circumstance in the particular case." (Ibid.) Finally, the parties appear to agree that generally victim's restitution for costs police incur during investigation of a crime is unauthorized. Although the People recognize the $1,366 victim restitution the court ordered Buzby to pay appears to be for investigative costs, they argue they were precluded from showing otherwise because Buzby agreed to pay the $1,366.

If payment of the $1,366 victim restitution to the San Diego Police Department was a stipulated term of the plea agreement, the People would be correct. Normally, a specified term of a sentence agreed to as part of a plea agreement is not within the exception to the waiver principle. (People v. Hester (2000) 22 Cal.4th 290, 295.) Here, the parties stipulated to a specific sentence of 14 years in prison in exchange for entry of the guilty pleas but did not stipulate to payment of victim restitution for expenditures the police incurred. Payment by Buzby of $1,366 victim restitution was not a term of the plea agreement. If payment of victim restitution to the police is otherwise unauthorized, Buzby did not waive challenge to the order by not objecting to it in the trial court.

Section 1202.4, subdivision (f) provides, in part, "in every case in which a victim has suffered economic loss as a result of the defendant's conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court." (Italics added.) The People agree that victim restitution can be awarded to a governmental agency under section 1202.4, subd. (k)(2) only when it is a direct victim of a crime. (People v. Torres (1997) 59 Cal.App.4th 1, 4.) However, the People argue they were precluded from showing they were the direct victim of Buzby's crimes because he agreed to pay the restitution. They conclude that to allow Buzby to challenge on appeal the $1,366 victim restitution absent objection in the trial court puts "the cart before the horse and renders the waiver doctrine meaningless." However, the People's position would bar challenge to every unauthorized sentence not objected to in the trial court and eliminate the exception stated in People v. Scott, supra, 9 Cal.4th 331. To follow the principle expressed in People v. Scott, we determine whether the sentence was unauthorized under any circumstances in this case.

Although not mentioned in the respondent's brief, the People's petition for rehearing in this matter refers to section 1203.1h, which provides:

"In addition to any other costs which a court is authorized to require a defendant to pay, upon conviction of any offense involving child abuse or neglect, the court may require that the defendant pay to a law enforcement agency incurring the cost, the cost of any medical examinations conducted on the victim . . . to determine the nature or extent of the abuse or neglect." ( 1203.1h, subd. (a).)

It further provides:

"In addition to any other costs which a court is authorized to require a defendant to pay, upon conviction of any offense involving sexual assault . . . , including child molestation, the court may require that the defendant pay, to the law enforcement agency . . . incurring the cost, the cost of any medical examinations conducted on the victim for the collection and preservation of evidence." ( 1203.1h, subd. (b).)

In Buzby's answer to the People's petition for rehearing, he agrees that $1,091 of the $1366 victim's restitution fine is attributable to a medical examination of the victim for purposes of collecting and preserving evidence within the meaning of section 1203.1h, subdivision (b), and therefore that restitution order would have been an authorized victim restitution fine. As a consequence, that portion of the restitution fine was not unauthorized under any circumstances and his failure to object to the fine (as he could have, based on an inability to pay) at sentencing waives, or forfeits, his right to raise the issue on appeal under People v. Scott, supra, 9 Cal.4th 331.

The $275 balance of the restitution fine was for the examination of Buzby, not the victim; was not authorized under section 1203.1h or under section 1202.4, subdivision (f) or subdivision (k)(2); and its imposition may be raised on appeal even though not raised at sentencing. The order to pay this restitution fine resulted in an unauthorized sentence. (People v. Torres, supra, 59 Cal.App.4th 1, 4-5.)

DISPOSITION

The order that Buzby pay the San Diego Police Department $275 victim restitution for his examination is stricken and the trial court shall so advise the Department of Corrections. The judgment is otherwise affirmed.

McDONALD, J.

WE CONCUR:

BENKE, Acting P. J.

NARES, J.

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