Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. Nos. SCD191213 SCD173158. Roger W. Krauel and David M. Szumowski, Judges.
McINTYRE, J.
In July 2003 in case No. CD173158, Theresa Stuart entered a negotiated guilty plea to obtaining aid by misrepresentation (Welf. & Inst. Code, § 10980, subd. (c)(2)) and perjury by false application (Pen. Code, § 118, subd. (a); statutory references are to the Penal Code unless otherwise specified). In September 2004 the court suspended imposition of sentence, placed her on three years probation, and imposed a $200 restitution fine (§ 1202.4, subd. (b)).
In August 2005 in case No. CD191213, Stuart entered a negotiated guilty plea to possessing cocaine base (Health & Saf. Code, § 11350, subd. (a)). In September the court suspended imposition of sentence, placed her on three years probation, and imposed a $200 restitution fine.
In early 2006 the court revoked probation in both cases. In May the court suspended execution of a three-year prison sentence (the three-year middle term for perjury by false application and concurrent two-year middle terms for the two remaining offenses) with a $200 restitution fine and a $200 parole revocation fine (§ 1202.45). In November the court suspended criminal proceedings and committed Stuart to the California Rehabilitation Center (CRC) (Welf. & Inst. Code, § 3051). CRC determined Stuart was not a fit subject, and in January 2007 she was returned to the court. The court reinstated criminal proceedings and executed the sentence. In case No. CD173158, the court imposed a $400 restitution fine and a $400 parole revocation fine. In case No. CD191213, the court imposed a $200 restitution fine and a $200 parole revocation fine. The abstract of judgment reflects an $800 restitution fine and an $800 parole revocation fine in "case A" and a $200 restitution fine and a $200 parole revocation fine in "case B." The abstract lists case No. CD173158 as case A and case No. CD191213 as case B, but also lists all three counts as arising out of case A.
Stuart contends the sentence for obtaining aid by misrepresentation must be stayed pursuant to section 654, the court lacked authority to increase the restitution and parole revocation fines from $200 to $400, and the abstract of judgment must be amended to reflect the correct amounts for the fines. We agree.
Section 654, subdivision (a) states, "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." Section 654 bars double punishment, including concurrent sentences, for a course of conduct constituting one indivisible transaction with one criminal objective. (Neal v. State of California (1960) 55 Cal.2d 11, 19; People v. Latimer (1993) 5 Cal.4th 1203; People v. Lee (1980) 110 Cal.App.3d 774, 785.)
Stuart contends her sentence for obtaining aid by misrepresentation must be stayed pursuant to section 654 in view of her perjury sentence. Respondent argues this is an attack on the validity of the guilty plea, because when Stuart entered the plea, she agreed she was facing a maximum sentence of four years eight months, a sentence that could not be achieved without an unstayed, consecutive term for obtaining aid by misrepresentation. (The prison terms for perjury are two, three, and four years (§ 126) and the terms for obtaining aid by misrepresentation are 16 months, two years, and three years (Welf. & Inst. Code, § 10980, subd. (c)(2)).) Respondent concludes Stuart's contention is precluded by the lack of a certificate of probable cause. Respondent also argues the contention is barred by California Rules of Court, rule 4.412(b) and the principle of estoppel because Stuart failed to object at the change of plea hearing to the stated maximum term or at the sentencing hearing to the imposed sentence. California Rules of Court, rule 4.412(b) states: "By agreeing to a specified prison term personally and by counsel, a defendant who is sentenced to that term or a shorter one abandons any claim that a component of the sentence violates section 654's prohibition of double punishment, unless that claim is asserted at the time the agreement is recited on the record."
Stuart did not agree to a specified prison term. While she was advised of her maximum prison term exposure, there was no agreement or promise concerning the sentence. The advisement was merely a prerequisite to the entry of a knowing and intelligent guilty plea. Thus, we address the merits.
Stuart was charged with one count of obtaining aid by misrepresentation (count 1) and two counts of perjury by false application (counts 2 and 3). She pleaded guilty to counts 1 and 2. Count 1 alleged that between June 1 and November 30, 1999, Stuart fraudulently obtained and retained more than $400 in aid. Count 2 alleged that on September 25 on an application for renewal of aid and medical assistance, Stuart falsely declared under penalty of perjury that she had no income from employment. The change of plea form and reporter's transcript of the change of plea hearing reflect the following basis for Stuart's guilty plea: "I received public assistance in an amount over $400 by knowingly failing to report earnings from employment to the Department of Social Services. I did this on a monthly report under penalty of perjury."
Respondent concedes "a sentence for welfare fraud might be barred by . . . section 654, because it appears on the current record that appellant committed perjury in order to commit welfare fraud. But [the] record is understandably insufficient to evaluate this issue because the parties did agree on a sentence that involved a consecutive term for welfare fraud, thus eliminating any need to litigate the issue in the trial court." We believe Stuart has met her burden of presenting a record showing error. (People v. Clifton (1969) 270 Cal.App.2d 860, 862; People v. Romo (1975) 14 Cal.3d 189, 195.) Furthermore, the factual basis for the plea — the only part of the record shedding light on this matter — shows a single course of conduct. (People v. Camillo (1988) 198 Cal.App.3d 981, 995, superseded by statute on other grounds as stated in People v. Preston (1996) 43 Cal.App.4th 450 [defendant convicted of welfare fraud may also be convicted of perjury based on statements made to obtain welfare, but cannot be punished for both offenses if they are committed with an indivisible intent]; cf. People v. Williams (1980) 106 Cal.App.3d 15, 20, superseded by statute on other grounds as stated in People v. Preston (1996) 43 Cal.App.4th 450 [defendant was charged with 13 perjury counts and 10 welfare fraud counts, all dealing with separate claims and individuals; sentence on five perjury counts did not violate section 654].) Where the facts are undisputed, section 654 presents an issue of law. (People v. Ratcliffe (1981) 124 Cal.App.3d 808, 816.) We conclude the sentence for obtaining aid by misrepresentation must be stayed.
THE FINES
Stuart contends the court lacked authority to increase the restitution and parole revocation fines in case No. CD173158 from $200 to $400 and the abstract of judgment must be corrected. Respondent concedes this contention is correct, but argues Stuart forfeited her right to raise it by failing to do so below.
Respondent cites two cases in support of its forfeiture argument: People v. Tilman (2000) 22 Cal.4th 300 and People v. Hector (2000) 83 Cal.App.4th 228. Both are inapposite. In People v. Tilman, supra, 22 Cal.4th 300, the trial court did not impose restitution and parole revocation fines or state reasons for the omission. (Id. at p. 303.) The Court of Appeal amended the judgment to add restitution fines of $200, the minimum permitted. (Id. at p. 302.) The California Supreme Court reversed, concluding the People had forfeited the right to object. (Id. at p. 303.) In People v. Hector, supra, 83 Cal.App.4th 228, the trial court also failed to impose restitution and parole revocation fines (id. at p. 230), and the reviewing court concluded the People had forfeited the right to object (id. at pp. 230, 237).
Respondent does not cite People v. Smith (2001) 24 Cal.4th 849, where the trial court correctly imposed a $5,000 restitution fine, but erroneously imposed a parole revocation fine of only $200. (Id. at pp. 852-853.) The California Supreme Court held the Court of Appeal properly "found the erroneous imposition of a parole revocation fine correctable despite the People's failure to object," (id. at p. 852), noting "[i]n contrast to the erroneous omission of a restitution fine, this error did not involve a discretionary sentencing choice." (Id. at p. 853). People v. Chambers (1998) 65 Cal.App.4th 819 also vitiates respondent's forfeiture argument. In that case, the trial court imposed a $200 restitution fine upon granting probation. (Id. at pp. 820-821.) The defendant did not object when the trial court imposed a $500 second restitution fine upon revocation of probation. (Id. at pp. 821, 823.) The reviewing court determined that the trial court exceeded its statutory authority by imposing the second fine, so there was no forfeiture by the failure to object. (Id. at p. 823.) Although respondent characterizes People v. Chambers, supra, 65 Cal.App.4th at p. 819 as "older authority," it is still good law. We conclude Stuart has not forfeited her contention concerning the restitution and parole revocation fines.
The $400 restitution fine must be stricken as unauthorized because the trial court imposed a $200 restitution fine when it granted probation. (People v. Chambers, supra, 65 Cal.App.4th at pp. 821-823; People v. Downey (2000) 82 Cal.App.4th 899, 921-922; People v. Johnson (2003) 114 Cal.App.4th 284, 306-308.) The parole revocation fine must be reduced to $200 because the restitution fine is $200. (People v. Downey, supra, 82 Cal.App.4th at pp. 921-922; People v. Johnson, supra, 114 Cal.App.4th at pp. 306-308.) We modify the judgment to reflect a $200 restitution fine in the place of the $400 restitution fine, and a $200 parole revocation fine in the place of the $400 parole revocation fine, and order the abstract corrected.
DISPOSITION
The judgment is modified by staying the sentence for obtaining aid by misrepresentation, striking the $400 restitution fine, and reducing the $400 suspended parole revocation fine to $200. As so modified, the judgment is affirmed. The superior court is directed to prepare an amended abstract of judgment reflecting one $200 restitution fine and one suspended $200 parole revocation fine in each case, and properly labeling the two counts in case No. CD173158 as "case A" and the count in case No. CD191213 as "case B."
The superior court shall forward the amended abstract of judgment to the Department of Corrections and Rehabilitation.
WE CONCUR: McCONNELL, P. J., NARES, J.