P. v. Saint Saens

Filed 7/3/07 P. v. Saint Saens CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from an order of the Superior Court of Los Angeles County. Elizabeth Lippitt, Judge. Affirmed.

Meredith J. Watts, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Keith H. Borjon and Stephanie C. Brenan, Deputy Attorneys General, for Plaintiff and Respondent.

______________

Kneale Yves Saint Saens, also known as Neil A. Smith, appeals from an order requiring him to pay restitution to one of his alleged victims, in the amount of $10,039.64. The restitution order was issued after judgment was entered on his convictions of one count of grand theft auto (Pen. Code, 487, subd. (d)(1))[1]and one count of forgery ( 470, subd. (d)), upon his negotiated plea of no contest. As part of the plea agreement, appellant admitted having suffered two prior prison terms within the meaning of section 667.5, subdivision (b) and agreed to pay any outstanding restitutions on any counts that [were] going to be dismissed [pursuant to the plea agreement]. The trial court sentenced him to an aggregate prison term of four years. Appellant contends that the restitution order was unauthorized.

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND[2]

On July 18, 2005, the district attorney filed a felony complaint charging appellant with one count of grand theft auto ( 487, subd. (d)(1), count 1), two counts of forgery ( 470, subd. (d), counts 2 & 3), and three counts of possession of completed forged checks ( 475, subd. (c), counts 4-6). In connection with all of the counts, it was specially alleged that appellant had served prior prison terms within the meaning of section 667.5, subdivision (b).

Counts 1 through 3 were based upon appellant pretending to be a physician and giving a check for the down payment on a Mercedes Benz sports utility vehicle. When the check bounced due to insufficient funds, appellant sent a counterfeit check to cover the bounced check. Counts 4 through 6 were based upon appellant renting an apartment at the Warner Pines Apartments and giving the manager a counterfeit rent check. When arrested, he had in his possession several counterfeit checks, as well as a check belonging to Washington Mutual Bank.

Appellant initially plead not guilty. But on September 29, 2005, appellant waived a preliminary hearing and, pursuant to a plea agreement, pled no contest to counts 1 and 3, and admitted two prior prison terms within the meaning of section 667.5, subdivision (b). At that time, appellant agree[d] to pay any outstanding restitutions on any counts that are going to be dismissed. The prosecutor then indicated that, . . . Right now, I do have $6,300 thats going to be payable to Warner Pines Apartment, and $867 which is going to be payable to Washington Mutual. (Italics added.) He asked appellant, Do you agree to pay those amounts, to which appellant said, Yes.

On October 18, 2005, the trial court sentenced appellant to a four-year prison term, calculated as follows: the midterm of two years on count 1, and the midterm of two years on count 3, to run concurrently, plus two, 1-year enhancements under section 667.5, subdivision (b). The minute order of that hearing states: Make full restitution to the victims in this case through parole. It is stipulated that restitution in the amount of $867 to be paid to Washington Mutual Bank. . . .  A restitution hearing is set as to victim Warner Pines [Apartments] on 11/07/05, 8:30 a.m., Division 107.[3]The restitution hearing was conducted on November 7, 8 and 28, 2005. The trial court ordered restitution in the amount of $10,039.64.

DISCUSSION

Appellant contends that the order requiring payment of restitution to Warner Pines Apartments was unauthorized and must be reversed. He argues that (1) as part of his plea agreement, he agreed to pay $6,300 of direct victim restitution to Warner Pines Apartments, and increasing that sum to $10,039.64 violated the agreement, and (2) because the restitution to Warner Pines Apartments related to a count which was dismissed,[4]and he was sentenced to state prison rather than placed on probation, the trial court could not assess victim restitution for the dismissed count beyond the amount appellant agreed to pay at the time of the plea.

Respondent contends that appellant waived[5]these arguments by failing to raise them in the trial court on the grounds now asserted.

Forfeiture

Generally, the failure to raise a claim in the trial court forfeits the claim for appeal. (See, e.g., People v. Williams (1999) 21 Cal.4th 335, 348; Evid. Code, 353.)The objection and forfeiture rule applies to claims involving the trial courts failure to properly make or articulate its discretionary sentencing choices. (People v. Scott (1994) 9 Cal.4th 331, 353.) It does not apply to claims that a sentence is unauthorized. (Id. at p. 354.) [A] sentence is generally unauthorized where it could not lawfully be imposed under any circumstance in the particular case. (Ibid.) In essence, claims deemed waived on appeal involve sentences which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner. (Ibid.) With such claims, the trial court did not merely abuse its discretion in setting the restitution amounts; it imposed restitution in amounts that could not lawfully be imposed in this case under any circumstances. (People v. Blackburn (1999) 72 Cal.App.4th 1520, 1534.) While factual issues are subject to waiver, those which involve the trial courts power to impose the restitution aspect of sentence are not. (People v. Franco (1993) 19 Cal.App.4th 175, 183, fn. 16.)

Both of appellants claims here are based on the lack of authority of the trial court to issue the restitution order. Therefore, those claims were not forfeited, although not raised in the trial court. First, appellant argues that the restitution order is a violation of his plea agreement because it increases his restitution obligation beyond that to which he agreed. Section 1192.5 provides that, Where the plea is accepted by the prosecuting attorney in open court and is approved by the court, the defendant, except as otherwise provided in this section, cannot be sentenced on the plea to a punishment more severe than that specified in the plea and the court may not proceed as to the plea other than as specified in the plea. Victim restitution is punishment for purposes of section 1192.5. (People v. Brown (2007) 147 Cal.App.4th 1213, 1222.) Hence, if the restitution order, as appellant claims, violates appellants plea agreement, it is unauthorized by section 1192.5 and was not forfeited by the failure to raise it in the trial court.

Appellants second argument, is similarly based upon the trial courts lack of authority. He argues that when sentenced to prison, rather than placed on probation, the restitution statute prohibits imposing victim restitution on a charge that is dismissed pursuant to a plea agreement, except to the extent that the defendant has explicitly so agreed. This claim also does not involve a challenge to judicial discretion, but to judicial authority under the restitution statute to order restitution. It is therefore not forfeited. (See People v. Percelle (2005) 126 Cal.App.4th 164, 178-179 [defendants claim, in a nonprobation context, that the trial court erred by ordering restitution for a charge of which defendant was acquitted, was not forfeited by defendants failure to raise it in the trial court because it involved a claim that the restitution was unauthorized].)

As these arguments were not forfeited, we turn to the merits.

Violation of plea agreement

Appellant contends that the restitution order of $10,039.64 violates the plea agreement because he only agreed to pay $6,300 restitution to Warner Pines Apartments. The record does not support this contention.

A promise in a plea agreement that is part of the inducement or consideration must be fulfilled. (People v. Walker (1991) 54 Cal.3d 1013, 1024.) The failure of the state to do so violates due process and raises a constitutional right to a remedy. (Ibid.) The restitution order here did not deprive appellant of any consideration he was to receive under his plea agreement. That agreement provided that various counts were to be dismissed, including the count related to Warner Pines Apartments.[6] It also provided that appellant would pay any outstanding restitutions on any counts that [were] going to be dismissed. The trial court determined at the restitution hearing that $10,039.64 was outstanding restitution on the dismissed count pertaining to Warner Pines Apartments. The restitution order is therefore consistent with the plea agreement.

Appellants further agreement to pay $6,300 restitution to Warner Pines Apartments does not undermine this conclusion. The agreement to pay $6,300 did not state that that was the limit of appellants obligation to Warner Pines Apartments. The prosecutor made clear that it was only the sum known to be owing at that time. He said, Right now, I do have $6,300 thats going to be payable to Warner Pines Apartment. . . . (Italics added.) That does not indicate that there would be no additional sums owing to Warner Pines Apartments or that the $6,300 appellant agreed to pay somehow trumped appellants agreement to pay any outstanding restitution on the dismissed counts. This is particularly true in light of the requirement under section 1202.4 that the victim be awarded full restitution.

Violation of restitution statute

Appellant further contends that because he was sentenced to prison rather than placed on probation, section 1202.4 only allows restitution for offenses of which he was convicted, not those dismissed pursuant to a plea agreement, such as the dismissed count related to Warner Pines Apartments. He asserts that restitution beyond the $6,300 which he expressly agreed to pay Warner Pines Apartments as part of his plea agreement cannot be ordered. We disagree.

Article I, section 28, subdivision (b), of the California Constitution, provides that all persons who suffer losses as a result of criminal activity shall have the right to restitution from . . . the convicted persons in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss, unless compelling and extraordinary reasons exist to the contrary. (Italics added.) Implementing legislation embodied in section 1202.4 mandates that a crime victim receive full restitution ( 1202.4, subd. (f)) directly from the defendant ( 1202.4, subd. (a)(1)) for economic losses suffered as a result of the defendants conduct. ( 1202.4, subd. (f), italics added.)

We agree with appellant and the analysis in People v. Percelle, supra, 126 Cal.App.4th at pages 179-180 and People v. Lai (2006) 138 Cal.App.4th 1227, 1246-1251 that when a defendant is sentenced to state prison, section 1202.4 limits restitution to losses caused by the criminal conduct for which the defendant was convicted. But that proposition has no application here.

Appellants convictions were the result of a plea bargain which included a Harvey[7]waiver; an express agreement that he would pay any outstanding restitutions on any counts that are going to be dismissed. Such a waiver is effective to allow the court to consider the dismissed counts for purposes of . . . restitution. (People v. Ozkan (2004) 124 Cal.App.4th 1072, 1074.) Given the agreement, an order for payment of restitution to the victim of a dismissed but related count is permissible. (See People v. Campbell (1994) 21 Cal.App.4th 825, 830; see also People v. Baumann (1985) 176 Cal.App.3d 67, 75-79.) Having agreed to pay restitution as part of [his] plea bargain, appellant cannot validly challenge the order requiring [him] to pay restitution. (People v. Amin (2000) 85 Cal.App.4th 58, 62.)

DISPOSITION

The order appealed from is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

__________________, J.

DOI TODD

We concur:

___________________, P. J.

BOREN

___________________, J.

CHAVEZ

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

[2] As there was no preliminary hearing or trial in this matter, the facts set forth herein are taken from the probation report.

[3] The reporters transcript of this hearing is not contained in the appellate record.

[4] Appellant assumes without discussion that the wrongdoing against Warner Pines Apartments is the basis of one of the dismissed counts. Respondent appears to join in this assumption. While this is not imminently clear from the record, we accept the parties position for purpose of our analysis.

[5] While respondent uses the term waiver in reference to appellants failing to preserve this claim for appeal because he did not raise the question in the court below, the correct term which we use is forfeiture. Waiver is the express relinquishment of a known right whereas forfeiture is the failure to object or to invoke a right. (In re Sheena K. (2007)40 Cal.4th 875, 880, fn.1.)

[6] See footnote 4, ante.

[7] People v. Harvey(1979) 25 Cal.3d 754.