Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County No. FNE004002. Joseph R. Brisco, Judge. Affirmed.
Eleanor M. Kraft and Richard De La Sota, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez, Garrett Beaumont, and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P. J.
INTRODUCTION
Defendant Timothy Michael Willard challenges the restitution (Pen. Code, § 1202.4, subd. (b)) and parole revocation restitution (§ 1202.45) fines imposed by the trial court at his probation revocation hearing. We will affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTS AND PROCEDURAL HISTORY
According to facts regarding defendant’s original crime elicited at a preliminary hearing on December 21, 2004, an employee opening the Hungry Bear restaurant in Needles about 4:30 in the morning on November 9, 2004, discovered defendant crouching in front of the jukebox in the bar. When the employee tried to detain defendant, he escaped. The employee then found that the lock on the door between the bar and the parking lot, and the padlock on the jukebox had both been broken, and “some things,” including “a change bucket with miscellaneous amounts of coins,” had been taken from the office. There was no testimony at the hearing about the amount of the victim’s economic losses—the value of the coins or other stolen property or the costs of repairing the locks and the jukebox.
On August 3, 2005, after a plea bargain in which the initial charge of commercial burglary (§ 459) was reduced to receiving stolen property (§ 496, subd. (a)), defendant pled nolo contendere to the lesser charge. On September 20, 2005, the trial court sentenced him to the upper term of three years in state prison, suspended, with a grant of three years’ formal probation. The court also imposed a $220 probation revocation restitution fine pursuant to section 1202.44, stayed pending the successful completion of probation. The court explicitly reserved “on the issue of restitution” and retained jurisdiction pursuant to the provisions of section 1202.46. The court did not impose a section 1202.4 restitution fine and gave no reasons for not doing so. Neither defendant nor the People objected to the reservation or to the omission of the restitution fine.
No section 1202.46 restitution hearing was ever held.
Twenty-two months later, on the night of July 28, 2007, $700 in cash and somewhere between 20 and 35 cartons of Marlboro cigarettes were stolen from the convenience store where defendant worked—during his shift and apparently while the video surveillance camera inexplicably disengaged right after he walked under it. A deputy investigating the theft found a pack of Marlboros in defendant’s clothing, two packs in his bedroom, and 10 cartons in the trunk of his car. Defendant said he knew nothing about the stolen property and explained that he usually bought his cigarettes from a man who delivered cartons. However, he was unable to provide a receipt or any identifying information about the man and told the deputy that he did not know how the 10 cartons had gotten into his trunk.
On September 18, 2007, after an extended Vickers hearing at which the investigating deputy, the store owner, and defendant all testified the court found by a preponderance of the evidence that defendant had again been in receipt of stolen property and had thereby violated his probation. The court imposed the suspended three-year prison term, a $600 section 1202.4 restitution fine, and a $600 section 1202.45 parole revocation restitution fine, stayed pending successful completion of parole. Defendant did not object to either fine.
People v. Vickers (1972) 8 Cal.3d 451.
DISCUSSION
On appeal, defendant argues that the $600 restitution fine and the $600 parole revocation restitution fine together constituted an unauthorized sentence to which he was not required to object to preserve his claim for appellate review. Defendant reaches the conclusion that the sentence was unauthorized by reasoning as follows: (1) the trial court erred at the September 2005 sentencing hearing by not then imposing the mandatory fine required by section 1202.4, subdivision (b), for all felony convictions unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record; (2) because by statute the restitution fine and the probation revocation restitution fines must be the same, when the court imposed and stayed a section 1202.44 fine of $220 (apparently $200 plus a $20 surcharge) it signaled an intent to impose the section 1202.4, subdivision (b), minimum fine of $200; (3) this putative $200 fine was in effect at the time of the probation revocation hearing; (4) the court therefore erred at the September 2007 hearing by imposing a “second” $600 restitution fine; and (5) this “second” fine made the sentence unauthorized and subject to correction here.
Defendant urges us to correct the omission of the restitution fine at the sentencing hearing by imposing only the $200 minimum amount provided for under section 1202.4, striking the $600 fine imposed at the probation revocation restitution hearing, and reducing the parole revocation restitution fine to $200 to match the corrected restitution fine. In the alternative, he suggests that the restitution fine the court originally imposed was really $0 and that both the probation and parole revocation restitution fines should also be $0.
The People reply that the court’s reservation of the victim restitution issue pursuant to section 1202.46, combined with the proper calculation of the restitution fine imposed at the time probation was revoked, means that his sentence was not unauthorized. Thus, the People argue, defendant’s failure to object to the fines forfeits the issue.
Defendant answers that section 1202.46 is irrelevant because it applies only to orders for direct restitution to victims, not to restitution fines; that the imposition of a restitution fine at the probation revocation hearing was unauthorized; and that an unauthorized sentence is always subject to correction.
As we will explain, we agree only with the first assertion in defendant’s stepwise chain of arguments.
Sections 1202.4, 1202.44, 1202.45, and 1202.46
Section 1202.4 provides that any defendant convicted of a crime where the victim suffers an economic loss is to pay, in addition to any other penalties, both a restitution fine to the state restitution fund and direct restitution payment to the victim. (§ 1202.4, subds. (a)(3)(A), (a)(3)(B), (e).)
Regarding the restitution fine: “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, but shall not be less than two hundred dollars ($200) . . . if the person is convicted of a felony. . . . [¶] (2) In setting a felony restitution fine, the court may determine the amount of the fine as the product of two hundred dollars . . . 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.” (§ 1202.4, subd. (b).)
Regarding restitution to the victim: section 1202.4, subdivision (f), provides that if the victim’s economic losses cannot be ascertained at the time of sentencing, the court is to order direct restitution in an amount which may be determined at a later time. Under these circumstances, the first sentence of section 1202.46 provides that “the court shall retain jurisdiction over a person subject to a restitution order for purposes of imposing or modifying restitution until such time as the losses may be determined.” In a second sentence, the section specifies that: “Nothing in this section shall be construed as prohibiting a victim, the district attorney, or a court on its own motion from requesting correction, at any time, of a sentence when the sentence is invalid due to the omission of a restitution order or fine without a finding of compelling and extraordinary reasons pursuant to Section 1202.4.” (§ 1202.46.)
Finally, the probation and parole revocation restitution fines of sections 1202.44 and 1202.45 must each reflect the amount of the section 1202.4 restitution fine. Thus, in every case in which a person is convicted of a crime and receives a conditional sentence that includes a period of probation, or a prison sentence that 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 probation [or parole] revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4.” (§ 1202.44, italics added; see also § 1202.45.)
Analysis:
Defendant is correct that the court erred in failing to impose the mandatory restitution fine at the time of the sentencing hearing. (§ 1202.4, subds. (a), (b); People v. Chambers (1998) 65 Cal.App.4th 819, 822 (Chambers).) What appears to have happened is that in the course of reserving on the matter of a victim restitution order because it had no information about the amount of the Hungry Bear restaurant’s losses, the court overlooked the matter of the restitution fine. In the end, the court did not impose either a restitution fine or a restitution order and neither counsel brought the omission to the court’s attention.
To support his position that the People forfeited the issue by failing to object at the original sentencing hearing, defendant relies upon People v. Tillman (2000) 22 Cal.4th 300 (Tillman). The Tillman trial court failed to impose a section 1202.4 restitution fine or a section 1202.45 parole revocation restitution fine and did not state any reasons for the omissions. (Tillman, at p. 303.) The People appealed to amend the judgment to add the fines and the appellate court obliged by imposing the $200 minimum amounts for both. (Id. at p. 302.) The Supreme Court reversed, holding that under traditional objection and waiver principles enforced against defendants in some of its earlier cases, where a defendant’s failure to object to items in the statement of reasons for a discretionary sentence choice (People v. Scott (1994) 9 Cal.4th 331 (Scott)) or to conditions of probation (People v. Welch (1993) 5 Cal.4th 228 (Welch)) were deemed to be waivers, “the People’s failure to object leads to the same result.” (Tillman, at p. 303.)
Defendant’s reliance on Tillman is misplaced because in our case, Tillman cuts both ways. Since neither the prosecutor nor defense counsel objected to the omission of the fine, both forfeited their claims for correction. The effect of the prosecutor’s failure forfeited the People’s ability to appeal the issue (which, of course, they have not done). But neither could defendant remain silent in the face of the omission of a mandatory fine, ask us to go back and impose an amount he would like, then use that putative number as a basis for reduction of the restitution and parole revocation fines imposed at a subsequent hearing. As the Tillman court said, quoting Scott with emphasis, “‘Although the court is required to impose sentence in a lawful manner, counsel is charged with understanding, advocating, and clarifying permissible sentencing choices at the hearing. Routine defects in the court's statement of reasons are easily prevented and corrected if called to the court's attention. As in other waiver cases, we hope to reduce the number of errors committed in the first instance and preserve the judicial resources otherwise used to correct them.’” (Tillman, supra, 22 Cal.4th at p. 303.) The court used the general term “counsel” when describing attorneys’ sentence clarification duties; the prosecutor and defense counsel are both charged with this obligation.
Defendant also relies on Chambers, supra, 65 Cal.App.4th 819, and People v. Arata (2004) 118 Cal.App.4th 195 (Arata), to support his argument that a section 1202.4 restitution fine survives the revocation of probation and that the court may not impose a second, higher restitution fine at the revocation hearing. We agree with defendant’s interpretation of the Chambers and Arata holdings, but find the cases not apt because the scenario they describe is not what happened here. The Chambers trial court imposed a $200 restitution fine when it granted the defendant probation at the time of his conviction and another restitution fine of $500 when it revoked his probation. (Chambers, at p. 821.) The Arata court imposed a $600 fine at the time of the defendant’s conviction and an $800 fine when it granted probation. (Arata, at pp. 197-198, 201.) In both cases, the appellate courts struck the second fines. (Chambers, at p. 823; Arata, at p. 203.)
Unlike in Chambers and Arata, the trial court here did not impose a restitution fine at sentencing and later increase it. It simply did not impose a restitution fine at all until the time of the probation revocation hearing, when it properly calculated a restitution fine pursuant to section 1202.4, subdivision (b)(2). It is true that the triggering event for imposition of the restitution fine is conviction and that the fine should normally be imposed at the time of the original sentence. (Chambers, supra, 65 Cal.App.4th at p. 822.) However, section 1202.4, subdivision (b), says only that, “In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine,” not that the fine may never be imposed at a hearing other than the original sentencing hearing. When no restitution fine has yet been imposed in a given case, we can see no reason why, as with any other invalid sentence, a trial court cannot later correct the oversight on its own motion. (Scott, supra, 9 Cal.4th at p. 354.) And of course in cases where a defendant receives a prison sentence without a grant of probation, but one to be followed by a period of parole, a section 1202.4 restitution fine is to be imposed at that time. (§ 1202.45.) This is not a case where a second fine was imposed, but where the first and only restitution fine was not imposed until two years after the sentencing hearing.
This is in contradistinction to section 1202.4, subdivision (a)(2), which specifies that a section 1464 penalty must be imposed “[u]pon a person being convicted of any crime in the State of California.”
Defendant’s attempt to extrapolate the court’s intention from the amount of the section 1202.44 probation revocation restitution fine must fail. It is the latter that is determined by the former, not the other way around. Like the section 1202.45 fine, the section 1202.44 fine is to be imposed at the same time and in the same amount as the section 1202.4 fine. Because no section 1202.4 fine had yet been imposed, the amount of the section 1202.44 probation revocation restitution fine could not (logically) have been determined before the measuring fine was set. Moreover, we think it likely that at the time his probation was revoked, even defendant believed the matter of the restitution fine to be still outstanding. Since the fine had not yet been imposed, the sentence was not unauthorized and this is why counsel failed to object to either the $600 restitution fine or the $600 parole restitution revocation fine.
We do not mean to suggest that the probation revocation restitution fine should now be raised to match the restitution fine. At the very least, principles of fundamental fairness and estoppel (especially if defendant has relied upon the $220 figure and already paid his probation revocation restitution fine) would prevent such a result. As one court put it, “Even convicted criminals are entitled to be treated by their government in a fair and straightforward manner.” (Johnson v. Williford (9th Cir. 1982) 682 F.2d 868, 872.)
Defendant is correct that, by its terms, the reservation authority of section 1202.46 generally applies only to victim restitution orders under section 1202.4, subdivision (f), not to restitution fines under subdivision (b). He is not correct, however, that the provision is “irrelevant” and has “absolutely nothing to do with” a restitution fund fine.
In People v. Moreno (2003) 108 Cal.App.4th 1 (Moreno), the trial court failed to make a restitution order at the time of the original sentence and did not reserve the issue. (Moreno, at p. 7.) At a later restitution hearing, also arguing from Tillman, the defendant insisted that the court had lost jurisdiction to order her to pay restitution because she had already completed her prison sentence. (Moreno, at p. 7.) The Moreno court concluded otherwise, emphasizing the second sentence of section 1202.46. (Moreno, at pp. 9-10.) As noted above, the second sentence provides that, “Nothing in this section shall be construed as prohibiting . . . a court on its own motion from requesting correction, at any time, of a sentence when the sentence is invalid due to the omission of a restitution order or fine without a finding of compelling and extraordinary reasons pursuant to Section 1202.4.” (§ 1202.46, italics added.) The inclusion of the words “or fine” provide light, if not direct authority, regarding correction of a court’s failure to impose an omitted restitution fine. Here, we find that the trial court’s imposition of the first section 1202.4 restitution fine imposed at any point in this case represented such a correction.
DISPOSITION
The judgment is affirmed.
We concur: HOLLENHORST, J., GAUT, J.