Opinion
A149520
07-13-2017
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM DEAN PARKS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Humboldt County Super. Ct. No. CR1305062B)
I.
INTRODUCTION
Appellant William Dean Parks appeals from his sentence following his guilty plea to one count of second degree robbery (Pen. Code, § 211) and his admission to a personal use of a firearm enhancement (§ 12022.5). The sole issue raised on appeal is appellant's contention that the trial court erred in imposing a restitution fine totaling $4,500, pursuant to section 1202.4. We conclude that the issue was forfeited when there was no legal objection made to the imposition of the fine, and that on the merits, appellant has failed to show the trial court misunderstood its discretion to impose a lower amount.
All further statutory references are to the Penal Code, unless otherwise indicated.
II.
RELEVANT PROCEDURAL AND FACTUAL BACKGROUNDS
The factual summary is from testimony at the preliminary hearing on August 28, 2014. --------
On October 31, 2013, Phillip Debler was at his neighbor's house when the neighbor returned home and told him that Debler's car looked like it had been ransacked. Debler went out to his neighbor's gate where his Mercury Tracer car was parked to find that it had been vandalized and the battery had been removed. He then walked to his home a half block up the street to find three men in his yard. As he approached and asked them what they wanted, one of the men, later identified as appellant, grabbed him by the back of the neck and put a pistol to his ribs. Either Parks or one of the other men told Debler they were going to blow his face off. They wanted to know where the money was. Debler also believed they were looking for marijuana.
Debler's neighbor, Marla, then came over to ask for a cup of coffee and a cigarette, but walked away when Debler told her he did not have any. She started to walk away, but the tallest of the men told her to come back. She and Debler were ordered to walk over to his carport, where they were told to get on their knees. Appellant held his gun to Debler's ribs, and then to the back of his head. The men demanded the key to the home, and cut it out of his pocket with a knife. They also took his wallet from his pocket, dumped its contents on the ground, and rummaged through them.
After the men were not successful in finding anything worthy to steal, one of them told the other that they had been there too long, and that he should take Debler and Marla and kill them. Debler then told them that he could get them some marijuana out of his trailer, and he was walked over to it, still with a gun to his back. He retrieved a two-pound bag of marijuana, handed it over, and the three men left. Debler was afraid and thought he was going to be killed during the incident, emphasizing that he had had a gun pointed at him and a knife held against his neck.
An information was filed by the Humboldt County District Attorney on September 10, 2014, charging appellant with assault with a firearm in counts 1 and 2 (§ 245, subd. (a)(2)), kidnapping in counts 3 and 4 (§ 207, subd. (a)), second degree robbery in count 5 (§ 211), making criminal threats in count 6 (§ 422), unlawful driving or taking a vehicle in count 7 (Veh. Code, § 10851, subd. (a)), and breaking or removing vehicle parts, a misdemeanor, in count 8 (Veh. Code, § 10852). As enhancements, the information alleged personal use of a firearm in counts 1 through 7 (§§ 1203.06, subd. (a)(1), 12022.5, subd. (a)), and two prior prison terms (§ 667.5, subd. (c)(8)).
On July 8, 2016, Parks initialed and signed a written plea waiver form calling for a stipulated 15-year prison sentence, comprised of the upper term of 5 years on the robbery charge of count five, and a consecutive upper term of 10 years for the personal use of a firearm enhancement. The remaining counts and allegations were dismissed.
The plea form also indicated that restitution, fines and fees were to be determined at the time of sentencing. The period of parole was to be three years, the conviction would constitute a strike, and would result in a 15 percent limitation on custody credits.
At the hearing where the plea was put on the record and accepted, the trial court asked appellant whether he had discussed the resolution with his counsel, whether he understood that he would receive a prison sentence of 15 years, and whether he had any questions as to the terms of the agreement or the written plea waiver form. Upon receiving responses to each of these admonitions, and after confirming there was a factual basis of the plea, the court found a knowing, voluntary and intelligent waiver of his rights, accepted the plea and admission and found him guilty. All remaining charges and a separate pending case were dismissed, and the matter was set for sentencing.
On September 8, 2016, the court imposed sentence in accordance with the plea agreement, including imposition of the upper term of 5 years in state prison on the robbery charge, and a consecutive upper term of 10 years on the personal use of a firearm enhancement under section 12022.5, subdivision (a). Credits of 1,044 actual custody days and 156 good conduct days were awarded, for a total of 1,200 days of presentence custody credits.
As to the amount of restitution, the court noted that it had received the supplemental probation report, which had only listed the owed custody credits. As to that report, the court observed: "Otherwise, they didn't calculate, but because of the sentence that's imposed, the Court would impose a restitution fine in the amount of $4,500. That's the statutory amount, essentially." In response, appellant stated: "I ain't paying it." The court went on to impose that amount under section 1202.4, and also imposed other required fines and fees. The issue of victim restitution was reserved.
Appellant filed a notice of appeal on September 27, 2016.
III.
DISCUSSION
Section 1202.4 provides as follows: "(b) In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record. [¶] (1) The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense. If the person is convicted of a felony, the fine shall not be less than three hundred dollars ($300) and not more than ten thousand dollars ($10,000). If the person is convicted of a misdemeanor, the fine shall not be less than one hundred fifty dollars ($150) and not more than one thousand dollars ($1,000). [¶] (2) In setting a felony restitution fine, the court may determine the amount of the fine as the product of the minimum fine pursuant to paragraph (1) 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."
As noted, the trial court imposed restitution in accordance with the formula in section 1202.4, subdivision (b)(2). On appeal, appellant contends the trial court erred in setting the amount of restitution under section 1202.4 because there is reason to believe it was laboring under the misunderstanding that the formula provided for in subdivision (b)(2) was the minimum amount which could be assessed, when in actuality the trial court could have imposed a total restitution fine as low as $300.
We conclude that appellant forfeited this claim by failing to object to the imposition of the fine at the sentencing hearing. (People v. Scott (1994) 9 Cal.4th 331, 353 ["the waiver doctrine should apply to claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices"]; People v. Gamache (2010) 48 Cal.4th 347, 409 [the defendant forfeited his claim regarding a § 1202.4 restitution fine because he failed to object at the sentencing hearing].)
The forfeiture rule would not apply if the alleged error resulted in an illegal sentence, i.e., one that could not have been properly imposed under any circumstance. (People v. Scott, supra, 9 Cal.4th at p. 354.) But in this case, the $4,500 fine was not categorically prohibited by section 1202.4 because the trial court correctly applied the formula provided in section 1202.4, subdivision (b)(2).
Appellant attempts to avoid the forfeiture rule by arguing that appellant's statement to the court that he "ain't paying it," sufficed as an objection preserving the issue for appeal. No authority is cited for this proposition, and we reject it, concluding that the failure of counsel to object on the ground asserted for the challenge on appeal constitutes a forfeiture of that issue.
Even if we were to reach the merits we would reject the claim of error. There is no evidence that the trial court misunderstood its authority to impose a restitution fine under section 1202.4. Appellant points to the remark made by the trial court that the amount being imposed reflected "the statutory amount, essentially" as evidence the court misunderstood that this amount was required to be imposed, and not a lower amount. To the contrary, we construe the comment to be an acknowledgement that the court intended to follow the allowable formula in section 1202.4, subdivision (b)(2), not that it was prohibited from imposing a lower amount. Absent direct evidence to the contrary, courts are presumed to have properly followed applicable law. (People v. Coddington (2000) 23 Cal.4th 529, 644 [reviewing court presumes trial court knew and applied the correct statutory and case law], overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13; People v. Woods (1993) 12 Cal.App.4th 1139, 1152 [reviewing court presumes trial court knew and properly applied the law; it is appellant's burden to rebut that presumption by an affirmative showing]; People v. Nance (1991) 1 Cal.App.4th 1453, 1456 [reviewing court presumes trial court knew and applied the correct statutory and case law in the exercise of its discretion]; Ross v. Superior Court (1977) 19 Cal.3d 899, 913 [in the absence of contrary evidence, reviewing court presumes trial court properly followed established law].)
In light of the foregoing, we conclude that appellant has forfeited the claim of error based on the failure to object in the trial court, and, on the merits, has failed in his burden to prove error.
IV.
DISPOSITION
The restitution order and judgment are affirmed.
/s/_________
RUVOLO, P. J. We concur: /s/_________
REARDON, J. /s/_________
STREETER, J.