Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County Super. Ct. No. SCE276594, Louis R. Hanoian, Judge.
O'ROURKE, J.
On December 13, 2007, Kristian Jonathon Land and two others held 17-year-old Michael C. in Land's apartment where they beat, robbed and forcibly sodomized him. Later that evening, officers from the El Cajon Police Department took Michael to the hospital where Dr. Jennifer Davis, a certified forensic examiner for sexual assault, examined him. A jury convicted Land of two counts of forcible rape by a foreign object (Pen. Code, § 289, subd. (a)(1); counts 1-2), two counts of robbery (§ 211; counts 3 and 6), false imprisonment (§§ 236/237, subd. (a); count 4), and first degree burglary (§ 459; count 5). It found true allegations that Land used a knife during the commission of counts 1, 3 and 4 (§§ 12022, subd. (b)(1)), acted in concert with another in committing the offenses of count 1 and count 6 (§§ 264.1, 213, subd. (a)(1)(A)) and used a knife during the commission of count 1 within the meaning of section 667.61, subdivisions (b), (c) and (e).
The hospital staff conducted a Sexual Assault Response Team (SART) examination. During SART examinations, nurses collect fingernail scrapings and clothing, which is bagged as evidence. Later, the clothing is checked for blood, stains and other indications of a crime. A doctor examines the victim's body for external injuries. The entire body is then scanned with a blue light to preserve any bodily fluids such as semen or saliva. A very detailed examination of the genitalia is done. Photographs are taken of any findings.
All statutory references are to the Penal Code unless otherwise stated.
After finding Land had suffered a prior prison conviction (§ 667.5, subd. (b)), the trial court sentenced him to prison for an indeterminate term of 15 years to life, plus a consecutive determinate term of 17 years eight months. Following the probation officer's recommendation, it ordered Land to pay $787 in restitution to the El Cajon Police Department. Other than citing to section 1202.4 subdivision (f), the probation report contained no explanation for that recommendation. Land did not object to the restitution award during sentencing and the court provided no further explanation of the order.
The probation officer recommended "[t]hat the defendant pay restitution per [section] 1202.4(f) to the following victim(s)... El Cajon Police Department $787...." At the sentencing hearing, the trial court simply said, "Restitution is to be paid to the El Cajon Police Department in the amount of $787." The court also ordered Land to pay $10,000 in restitution to the State Restitution Fund under section 2085.5 and 1202.4, and imposed but stayed an additional $10,000 fine under section 1202.45.
Land contends the court exceeded its authority by ordering him to pay $787 in restitution to the El Cajon Police Department. He asserts because the order was unauthorized, he did not forfeit his right to challenge it on appeal by failing to object below. We agree, and order the trial court to strike that portion of the judgment.
DISCUSSION
Section 1202.4, subdivision (f) mandates that victims of crimes be compensated for economic loss as a result of the defendant's conduct. Restitution may be made to a business or governmental entity only when that entity is a "direct victim" of a crime, i.e., those entities against which the crime was committed. (§ 1202.4, subd. (k); see People v. Martinez (2005) 36 Cal.4th 384, 393, fn. 1.) For example, a governmental entity is a direct victim entitled to restitution when the defendant has defrauded it, making the agency the object of the defendant's crime. (People v. Crow (1993) 6 Cal.4th 952, 957-958 [holding under section 1202.4's predecessor statute that the government is a direct victim where the defendant commits welfare fraud]; People v. Slattery (2008) 167 Cal.App.4th 1091, 1096, fns. 2, 3 [noting statutory language remained substantively similar throughout legislative change from former section 1203.04].)Conversely, a governmental entity is not entitled to mandatory victim restitution when it spends money to purchase drugs in the course of its regulatory investigatory duties. (See People v. Torres (1997) 59 Cal.App.4th 1, 4-5.) In Martinez, the court rejected the notion that a fire department was a direct victim of arson when it had incurred labor costs in fighting a fire on a vacant lot not owned by the department. (People v. Martinez, supra, 36 Cal.4th at p. 394, disapproving In re Brian N., supra, 120 Cal.App.4th 591.)
Section 1202.4, subdivision (f) provides: "[I]n 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." Section 1202.4 also provides in part: "(k) For purposes of this section, 'victim' shall include all of the following:... (2) Any corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision, agency, or instrumentality, or any other legal or commercial entity when that entity is a direct victim of a crime."
"We disapprove In re Brian N. (2004) 120 Cal.App.4th 591... to the extent it holds that a fire department that has incurred labor costs in fighting a fire on a vacant lot not owned by the department is a direct victim of the crime of unlawfully causing a fire Pen. Code, § 452, subd. (c)) within the meaning of Welfare and Institutions Code, section 730.6. '[S]ection 730.6 [, which is applicable to juvenile offenders,] parallels... section 1202.4, which governs adult restitution.' " (People v. Martinez, supra, 36 Cal.4th at p. 394, fn. 2.)
Here, the El Cajon Police Department is not entitled to direct victim restitution under section 1202.4 because it was not the object of a crime. Rather, the evidence shows only that officers from the El Cajon Police Department took Michael to a children's hospital where he was given a SART exam. We can only infer that, like the fire department referenced in People v. Martinez, supra, 36 Cal.4th at p. 394, the El Cajon Police Department merely incurred costs in furtherance of its investigation and therefore cannot receive victim restitution under section 1202.4.
Land correctly notes, and the People agree, that section 1202.4, subdivision (f) does not authorize an order of restitution to compensate a police department for general criminal investigation and prosecution. The People contend, however, that the $787 restitution order was authorized under section 1203.1h. Section 1203.1h provides that when a defendant has been convicted of any offense involving sexual assault, the court may require that defendant to pay restitution to law enforcement for the cost of medical examinations conducted on the victim with the purpose of collecting and preserving evidence. (§1203.1h, subd. (b).) Section 1203.1h further provides: "If the court determines that the defendant has the ability to pay all or part of the cost of the medical examination, the court may set the amount to be reimbursed and order the defendant to pay that sum to the law enforcement agency, county, or local governmental agency, in the manner in which the court believes reasonable and compatible with the defendant's financial ability. In making the determination of whether a defendant has the ability to pay, the court shall take into account the amount of any fine imposed upon the defendant and any amount the defendant has been ordered to pay in restitution." (§1203.1h, subd. (b).)
Section 1203.1h, subdivision (b) provides in part: "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 or attempted sexual assault, including child molestation, the court may require that the defendant pay, to the law enforcement agency, county, or local governmental agency incurring the cost, the cost of any medical examinations conducted on the victim for the collection and preservation of evidence."
Even if we were to infer that the court intended to base its restitution order on section 1203.1h, subdivision (b), we could not uphold the order on that ground because no hearing was held or findings made regarding Land's ability to pay the ordered restitution, and there is no evidence to support a conclusion that Land had the ability to pay such an award.
This court's opinion in People v. Wardlow (1991) 227 Cal.App.3d 360 is instructive. The trial court in Wardlow ordered the defendant to pay restitution to the sheriff's department for victims' examinations conducted at a children's hospital. (Id. at p. 371.) This court reversed the order because the trial court did not determine the costs incurred by the sheriff's department or whether the defendant had the ability to reimburse the department. (Ibid.) Implicit in Wardlow is the conclusion that imposition of the section 1203.1h, subdivision (b) expense is conditioned on a finding that the defendant has the financial ability to pay it. This conclusion is supported by the statute's clear and unambiguous language, eliminating any need to examine legislative intent. (In re Steven F. (1994) 21 Cal.App.4th 1070, 1077.)
Section 1203.1h, subdivision (b) begins with a conditional phrase: "If the court determines that the defendant has the ability to pay...." (Italics added.) By its terms, the statute requires that the court first find the defendant has the ability to pay the award, taking into account other imposed fines and restitution the defendant has been ordered to pay. Thus, consideration of the defendant's financial abilities and an express ability-to-pay finding are prerequisites to both the court's power to set the amount of medical examination costs to be reimbursed, and to any order that the defendant reimburse such costs to the law enforcement agency.
Here, as in Wardlow, no determination was made regarding Land's ability to pay the restitution amount. The trial court adopted the probation report recommendation that Land pay restitution to the police department though no details regarding the sum were included and there was no discussion regarding Land's financial condition.
The People argue that Land forfeited the issue because he did not object to the fine at the sentencing hearing. Generally, only " 'claims properly raised and preserved by the parties are reviewable on appeal.' " (People v. Smith (2001) 24 Cal.4th 849, 852.) Claims regarding a court's failure to properly make or articulate its discretionary sentencing choices are not subject to review when they are raised for the first time on appeal. (People v. Scott (1994) 9 Cal.4th 331, 353; see People v. Stowell (2003) 31 Cal.4th 1107, 1113.) There is, however, a narrow exception to the waiver rule for unauthorized sentences — those that "could not lawfully be imposed under any circumstances in the particular case" and involve "obvious legal errors at sentencing that are correctable without referring to factual findings in the record or remanding for further findings...." (Stowell, at p. 1113, quoting People v. Scott, at p. 354 & People v. Smith, at p. 852.) In Stowell, the court make clear that a criminal defendant must object to preserve a claim of error based on the trial court's failure to make an express mandatory finding. (Stowell, at p. 1117.) However, the same is not true for a claim that the order is not supported by substantial evidence. (People v. Butler (2003) 31 Cal.4th 1119, 1123, 1126.) In the context of a statute governing an HIV/AIDs testing order, the Supreme Court in Butler reasoned: "[B]ecause the terms of the statute condition imposition on the existence of probable cause, the appellate court can sustain the order only if it finds evidentiary support, which it can do simply from examining the record.... Indeed, even in the case of an express finding of probable cause, the question — being one of law rather than fact — would be considered de novo on appeal." (Butler, at p. 1127; see also In re K.F. (2009) 173 Cal.App.4th 655, 660-661 [gist of challenge to restitution order was that components were not shown by substantial evidence to come within the terms of the governing statute, and thus no objection was required to preserve the issue for appeal].)
Here, the restitution award was not authorized as a matter of law under section 1202.4, subdivision (f). Further, no evidence in the record supports any implicit trial court finding that Land had the ability to pay the $787 restitution award, a finding that is a necessary prerequisite to imposition of such an award under section 1203.1h. Because under these circumstances, the flawed imposition of a restitution award presents a pure question of law, Land did not waive his challenge to the $787 restitution order. We therefore strike that portion of the judgment ordering Land to pay $787 in restitution to the El Cajon Police Department.
DISPOSITION
The judgment is modified to strike the $787 restitution award to the El Cajon Police Department. As so modified, the judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect this modification and to forward a certified copy of the amended abstract to the Department of Corrections.
WE CONCUR: McCONNELL, P. J. NARES, J.