Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC899442
McAdams, J.
Defendant Jose Luis Ramirez was convicted by plea of one count of oral copulation with a child under 10 years of age (Pen. Code, § 288.7, subd. (b)). Defendant admitted an enhancement allegation that the offense involved substantial sexual conduct (§ 1203.066, subd. (a)(8)). The court sentenced defendant to 15 years to life in prison. The court imposed a number of fines and fees, including a $10,000 restitution fine (§ 1202.4, subd. (b)).
All further statutory references are to the Penal Code, unless otherwise stated.
On appeal, defendant challenges the $10,000 restitution fine, arguing that the court intended to impose a lesser fine of $3,000 pursuant to the formula in section 1202.4, subdivision (b)(2). We find no error and affirm the judgment.
Facts
Defendant’s nine-year-old nephew (Victim) told police that defendant forced Victim to orally copulate and touch defendant’s penis. Defendant lived with Victim’s father (defendant’s brother); Victim visited his father every other weekend. According to Victim, the oral copulation occurred between five and 10 times. Victim was unsure how many times the other touching occurred.
Procedural History
The complaint charged defendant with one count of oral copulation with a child under the age of 10 occurring between March 2007 and March 2008. The complaint included enhancement allegations that the offense involved substantial sexual conduct with a victim under the age of 14 (§ 1203.066, subd. (a)(8)).
In September 2008, defendant pleaded no contest and admitted the enhancement. Upon taking the plea, the court advised defendant that he would be subject to “a mandatory restitution fine of not less than [$]200.00 nor more than $10,000.00.”
At sentencing, the probation officer recommended a restitution fine of $10,000.00 “be imposed under the formula permitted by... Section 1202.4(b)” and that the court impose and suspend a parole revocation restitution fine in the same amount pursuant to section 1202.45. According to the reporter’s transcript, defense counsel objected to that recommendation, stating: “I just ask the Court to consider $3,200 per year for the 15 years minimum.” In his opening brief, defendant quotes this language and states that he “presumes that [defense] counsel actually said that the fine should be ‘$200 per year.’ The fine would then be $3000 (i.e. $200 x 15).”
In his opening brief, defendant urges this court to reach the merits of his appeal “notwithstanding the lack of an objection in the trial court.” He also argues that if the claim was forfeited, then his counsel was ineffective. The Attorney General does not argue forfeiture. Although defense counsel either misspoke in stating the amount he recommended or the court reporter failed to accurately record his objection, it is clear that he objected to a $10,000 restitution fine and requested that the fine be reduced. This was sufficient to preserve the issue for appeal. Since there was no forfeiture, we shall not reach defendant’s claim that his counsel was ineffective.
When imposing the fine, the court stated, “There’s a restitution fine of $10,000. That is imposed under the formula permitted by... section 1202.4(b). I took into account your motion to reduce that, and I have denied it. [¶] There’s an additional restitution fine of $10,000 that is imposed and suspended.” The court also ordered defendant to pay $1,080 in victim restitution to the Victim Compensation and Government Claims Board (Victim Compensation) to cover amounts the board had paid on behalf of two victims.
Discussion
Defendant argues that the record establishes that the court intended to use the “formula” in subdivision (b)(2) to establish the amount of the award; that since the court intended to use the formula, it made a mathematical error when it specified a fine of $10,000; and that since the formula yields a restitution fine of $3,000 ($200 x 15 years x one count), the fine should be reduced to that amount. Defendant urges us to direct the trial court to amend the abstract of judgment to provide for a $3,000 fine.
Applicable Legal Standards
“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.” (§ 1202.4, subd. (b).) For felony convictions, the fine ranges from a minimum of $200 to a maximum of $10,000. (§ 1202.4, subd. (b)(1).)
In People v. Dickerson (2004) 122 Cal.App.4th 1374, 1379 (Dickerson) this court summarized the pertinent parts of section 1202.4. We observed that the “statute mandates judicial imposition of both a restitution fine (subd. (a)(3)(A)) and restitution to the crime victim (subd. (a)(3)(B)) whenever a person is convicted of a crime.” (Dickerson,at p. 1379.) “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.’ (Subds. (b), (c).) In the absence of extraordinary reasons, a minimum fine of $200 is mandatory after a felony conviction (subds. (b)(1), (c), (d)) ‘even in the absence of a crime victim.’ ” (Id. at p. 1379, fn. omitted.) However, “[t]he sentencing court has discretion to impose a fine of up to $10,000 in light of all relevant factors.” (Id. at p. 1379.)
Hereafter, unspecified subdivision references are to section 1202.4.
In a footnote, we observed “that the California Supreme Court has repeatedly described the minimum restitution fine as mandatory. [Citations.] 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. Dickerson, supra, 122 Cal.App.4th at p. 1379, fn. 5.)
In imposing a fine in excess of the statutory $200 minimum in a felony case, the court “shall consider any relevant factors including, but not limited to, the defendant’s inability to pay, the seriousness and gravity of the offense and the circumstances of its commission, any economic gain derived by the defendant as a result of the crime, the extent to which any other person suffered any losses as a result of the crime, and the number of victims involved in the crime. Those losses may include pecuniary losses to the victim or his or her dependents as well as intangible losses, such as psychological harm caused by the crime. Consideration of a defendant’s inability to pay may include his or her future earning capacity.” (Subd. (d).) In addition, the fine should be “commensurate with the seriousness of the offense.” (Subd. (b)(1).) A defendant’s inability to pay is relevant only to the question of how much over $200 the fine should be (subd. (c)) and the burden is on the defendant to demonstrate his or her inability to pay (subd. (d)). While imprisonment may limit a defendant’s ability to pay counsel (§ 987.8, subd. (g)(2)(B)), it does not establish an inability to pay a restitution fine and section 2085.5 provides for collecting restitution fines from prison wages. (Dickerson, supra, 122 Cal.App.4th at p. 1380, fn. 8.) “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.” (Subd. (d).)
“Since 1996, the statute has included a recommended formula for calculating the fine.” (Dickerson, supra, 122 Cal.App.4th at p. 1380.) Subdivision (b)(2) provides: “In setting a felony restitution fine, the 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.” A parole revocation restitution fine which duplicates the amount of the restitution fine is mandatory under section 1202.45 and “takes effect only if parole is revoked.” (Dickerson, at p. 1380.)
Section 1202.45 states in part: “In every case where a person is convicted of a crime and whose sentence includes a period of parole, the court shall at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4. This additional parole revocation restitution fine... shall be suspended unless the person’s parole is revoked.” The imposition of this fine is not a discretionary sentencing choice. (People v. Smith (2001)24 Cal.4th 849, 853.)
“In a criminal case an award of restitution is committed to the sound discretion of the trial court.” (People v. Giordano (2007) 42 Cal.4th 644, 665 [victim restitution based on lost economic support due to death of spouse]; see also People v. Wyman (1985) 166 Cal.App.3d 810, 816 [amount of restitution fine reviewed for abuse of discretion].) Since the amount of the restitution fine is subject to the trial court’s discretion, and we review the court’s order imposing the fine for an abuse of discretion. (Subd. (b)(1); People v. Lytle (1992) 10 Cal.App.4th 1, 5 [decided under predecessor statute].)
Analysis
Our review of the record persuades us that the court intended to impose a $10,000 restitution fine, not a $3,000 fine as defendant suggests. As we noted previously, the probation officer recommended a “Restitution Fine of $10,000.00 be imposed under the formula permitted by... Section 1202.4(b).” In imposing the fine, the court stated, “There’s a restitution fine of $10,000. That is imposed under the formula permitted by... section 1202.4(b).”
Defendant contends that the court’s use of the word “formula” indicates that the court intended to rely on the “formula” set forth in subdivision (b)(2), which provides: “[i]n setting a felony restitution fine, the 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.” Although the statute sets forth a mathematical calculation that may be used in felony cases, it does not use the word “formula.” Moreover, subdivision (b)(2) does not require that the calculation it proposes be used in all felony cases.
Neither the probation officer nor the court referred specifically to the “formula” in subdivision (b)(2). Instead, they used broader language, referring to “the formula permitted by... section 1202.4(b).” The introductory phrase in Section 1202.4, subdivision (b) provides: “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.” Subdivision (b)(1) provides: “The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense, but shall not be less than two hundred dollars ($200), and not more than ten thousand dollars ($10,000), if the person is convicted of a felony,....” (Italics added.)
In our view, the court’s reference to “the formula permitted by... section 1202.4(b)” includes the provisions of both subdivision (b)(1) and subdivision (b)(2). The court’s express mention of the maximum figure, $10,000, persuades us that the court intended to impose that amount. In addition, after defense counsel advocated for an amount less than that recommended by the probation officer, the court stated: “I took into account your motion to reduce that, and I have denied it. [¶] There’s an additional restitution fine of $10,000 that is imposed and suspended.” This language reinforces our conclusion that the court intended to impose a $10,000 restitution fine, the maximum permissible under section 1202.4, subdivision (b).
Although defendant does not expressly argue that the court abused its discretion in imposing the $10,000 restitution fine, our review of the record and the factors enumerated in subdivision (d) persuades us that there was no abuse of discretion here. Defendant was convicted of a serious offense, involving the oral copulation of his nine-year-old nephew. Although defendant was only charged with one count, Victim told the police that the activity occurred five to 10 times over the course of a year.
There was also evidence that the crime caused “psychological harm.” (Subd. (d).) Defendant had created a “ ‘myspace’ ” account for the nine year old and introduced him to a website called “manhunters.” After checking her son’s Internet usage, Victim’s mother discovered that Victim had been corresponding with several people on “ ‘manhunt.com.’ ” At sentencing, Victim’s mother read a statement that Victim had prepared. Victim told the court that “actions of going on very inappropriate websites and look[ing] at inappropriate images and videos, that really changed me a lot. I was also subscribing to such things on my Hotmail.” Victim told the court that before he started seeing a counselor, he was getting bad grades. He also said that his grades and his life had improved since his uncle had left. Victim’s mother told the court that Victim “will be confused about what appropriate sexual boundaries to have for the rest of his life because [defendant] crossed them. The child innocence I tried so hard to protect has been lost. The trust that any nephew should have for his uncle has been forever betrayed.” She told the court that Victim had trouble sleeping, blamed himself for what had happened, and engaged in antisocial behavior at school. Victim was seeing a therapist and the restitution orders included $1,080 to Victim Compensation, presumably to cover the cost of therapy. Prior to his arrest, defendant was employed by a restaurant as a waiter. He had no prior criminal record. In light of the evidence and the relevant factors, the restitution fine here was “commensurate with the seriousness of the offense.” (Subd. (b)(1).) For these reasons, we conclude the trial court did not abuse its discretion in imposing a $10,000 restitution fine.
Disposition
The judgment is affirmed.
WE CONCUR: Rushing, P.J., Duffy, J.