P. v. Lonefight

Filed 7/14/09 P. v. Lonefight CA1/5

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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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

Pursuant to a negotiated disposition, defendant Arthur Jean Lonefight (appellant) pled no contest to domestic violence with a great bodily injury enhancement (Pen. Code,  273.5, subd. (a), 12022.7, subd. (e))[1] in exchange for the dismissal of a second identical count and the district attorneys promise not to file new charges arising from the same incident. Appellant was sentenced to the three-year midterm on the domestic violence charge and a consecutive four-year term on the great bodily injury enhancement. On appeal he contends the sentencing court erroneously believed it did not have discretion to impose restitution and parole revocation fines less than $1,400 and the abstract of judgment does not correctly reflect the great bodily injury enhancement. We order the abstract of judgment corrected and otherwise affirm.

BACKGROUND

Because appellant raises issues pertaining only to sentencing and the abstract of judgment, a detailed recitation of facts is unnecessary. The probation departments presentence report reflects that on March 28, 2008, appellant assaulted his wife, causing life-threatening injuries to her spleen.

The probation department recommended denial of probation, imposition of an eight-year prison term, and appellants payment of victim restitution in an amount to be determined by the Victims Compensation Board. The department also recommended appellants payment of a restitution fine in the amount of $1,600 to be paid in a manner to be determined by the Department of Corrections and Rehabilitation ( 1202.4, subd. (b)), and an additional restitution fine ( 1202.45) in the same amount as that imposed under section 1202.4, subdivision (b), stayed pending appellants revocation of parole.

At the sentencing hearing, the court imposed a seven-year sentence after which the following colloquy occurred:

THE COURT: The court further is . . . denying probation and orders restitution be made to the victim in the amount determined by the Victims Compensation Board pursuant to [section 1202.4] to be collected by Department of Corrections and Rehabilitation. [] . . . []

Pay a restitution fine -- there would be --

[PROBATION OFFICER]: It would be [$]1,400, Your Honor.

THE COURT: [$]1,400 mandated by the Department of Corrections and Rehabilitation;

[$20] court security fee pursuant to [section 1465.8];

Ordered to pay additional restitution fine pursuant to [section 1202.45] in the same amount as [section 1202.4, subdivision (b)]. The additional restitution fine is suspended unless your parole is revoked.

DISCUSSION

I. The Restitution and Parole Revocation Fines Were Properly Imposed

Appellant contends this colloquy indicates that the court believed that the restitution and parole revocation fines in the amount of $1,400 were mandated. He notes that pursuant to section 1202.4, subdivision (b), the court had discretion to impose no restitution fine or impose a restitution fine as low as $200. Appellant further argues that in imposing the restitution fine without an understanding of the scope of its discretion, the court violated his rights to due process. He argues the error requires remand for the courts reconsideration of the amount of the restitution and parole revocation fines. We disagree.

Section 1202.4, subdivision (b), provides in part:

(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, 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, and shall not be less than one hundred dollars ($100), and not more than one thousand dollars ($1,000), if the person is convicted of a misdemeanor.

(2) 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.

We first conclude that any claim relative to the courts imposition of the $1,400 restitution fine was waived by the failure of appellant to object at sentencing. (People v. ONeal (2004) 122 Cal.App.4th 817, 820; People v. Gibson (1994) 27 Cal.App.4th 1466, 1468-1469.)

Notwithstanding such waiver, we conclude appellant has failed to make a sufficient showing that the court was unaware that it had the discretion to impose a lesser fine. No negative inference can be drawn from the absence of any explanation by the court as to why it chose to impose a fine of $1,400. The restitution statute states explicitly that [e]xpress findings by the court as to the factors bearing on the amount of the fine shall not be required. (1202.4, subd. (d).) In addition, remand for resentencing is unnecessary if the record is silent concerning whether the trial court misunderstood its sentencing discretion. Error may not be presumed from a silent record. [Citation.]  [A] trial court is presumed to have been aware of and followed the applicable law. [Citations.] [Citation.] (People v. Brown (2007) 147 Cal.App.4th 1213, 1229.)

At the outset of the sentencing hearing, the court noted it had read and considered everything. Thus, we may conclude the court read and considered the probation departments report which recommended an eight-year term and imposition of $1,600 restitution and probation revocation fines. We note that the formula apparently used by both the probation department and the trial court to calculate the total amount of the restitution fine ($200 for each year of appellants state prison sentence) is expressly provided for in the restitution statute itself. ( 1202.4, subd. (b)(2).) A reasonable inference is that in rejecting the probation departments recommendation of an eight-year prison sentence and instead imposing a seven-year sentence, the court exercised its discretion to apply the section 1202.4, subdivision (b)(2), formula to impose a $1,400 fine, rather than the probation departments originally recommended $1,600 restitution fine. On the record before us, the courts statement, [$]1,400 mandated by the Department of Corrections and Rehabilitation suggests that the court was aware that imposition of the restitution and parole revocation fines was mandatory, but the amount of the fines was a matter within the courts discretion.

II. The Abstract of Judgment Must Be Corrected

Appellant contends and the People agree that although appellant was charged with and admitted a great bodily injury enhancement pursuant to section 12022.7, subdivision (e), the abstract of judgment erroneously states the enhancement was pursuant to section 12022.7, subdivision (c). We agree and order the abstract of judgment corrected.

DISPOSITION

The abstract of judgment is ordered corrected to reflect that the enhancement imposed is pursuant to section 12022.7, subdivision (e). The trial court shall direct delivery of the corrected abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

SIMONS, Acting P.J.

We concur.

NEEDHAM, J.

BRUINIERS, J.*

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[1] All further section references are to the Penal Code.

* Judge of the Contra Costa Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.