P. v. Minnis
Filed 8/7/13 P. v. Minnis CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
PAUL JAMES MINNIS,
Defendant
and Appellant.
E056377
(Super.Ct.No.
FSB1100283)
OPINION
APPEAL from the Superior
Court of
County. Kenneth R.
Barr, Judge. Affirmed.
Michelle Rogers,
under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, Peter Quon, Jr. and Seth M. Friedman,
Deputy Attorneys General, for Plaintiff and Respondent.
Introduction
Arguing that when
it imposed restitution and probation restitution fines of $240, the trial court
violated the constitutional prohibition against
penalties, defendant Paul Minnis seeks reduction of each of the fines to
$200. The People agree that the fines in
question should be reduced. We will affirm
the trial court.
Facts and procedural History
In the course of
an argument on December 18, 2010,
defendant shoved his 85-year-old mother, causing her to fall to the floor. As he was leaving the house, he threatened to
beat her up and told her she would “look like she went through a meat grinderâ€
if she called police. Although she later
recanted her story, the victim initially told police that defendant frequently
cursed and threatened her. The police
report showed that defendant has a long history of, among other things: theft
and theft-related crimes (Pen. Code §§ 484/488, 487h, 496);
(Health & Saf. Code, §§ 11357, 11359, 11360); and various forms of violent
behavior, including spousal abuse (§§ 415, 422, 242, 243).
On January 19, 2011, defendant was
charged with one count of elder abuse
(§ 368, subd. (b)(1), count 1), and one count of dissuading a witness from
reporting a crime (§ 136.1, subd. (b)(1), count 2). On February
6, 2012, he pled guilty to count 1 and the court referred the
matter to the probation department for a report. The report documented defendant’s long record
of increasingly serious offenses and lack of remorse, and suggested that, if he
violated the terms of probation, he “should not be afforded any leniency.†The report also recommended that the total of
all of the fines and fees defendant was ordered to pay be set at a monthly rate
of $90. On February 6, 2012, defendant pled guilty to count 1.
On April 12, 2012, the court dismissed
count 2 and sentenced defendant to five years formal probation with terms and
conditions. The terms included a
restitution fine of $240 pursuant to section 1202.4, and a probation revocation
restitution fine of $240 pursuant to section 1202.44 (stayed pending successful
completion of probation). After finding
that defendant had the ability to pay a $26-per-month probation supervision
fee, but not the cost of the pre-sentence investigation or attorney fees, the
court noted: “On your report, the probation officer is recommending $90 a month
as a payment plan. Obviously that’s
high. I can go down to about $35 once
you get out within 60 days.†Defendant
responded, “Can we do 20 at least?†The
court set his payment at $20 per month.
As to the section 1202.4 restitution fine (term 21) the court stated
that it was setting the amount at “the statutory minimum of $240†and added,
“The 1202.44 is set at the statutory minimum of $240.â€
Defense counsel
did not object to any of the fines or terms of defendant’s probation.
Discussion
The parties agree
that the imposition of a $240 restitution fine represented an ex post facto
violation. We do not.
As has long been
established, a law that retroactively increases the penalty beyond the level
prescribed at the time an offender committed his crime violates both federal
and state constitutional prohibitions against
v. Bull (1798) 3 U.S. 386, 389; People
v. Frazer (1999) 21 Cal.4th 737, 756 [Overruled on a different point as
stated in Strong v. Superior Court (2011)
198 Cal.App.4th 1076, 1081].) “[T]he
imposition of restitution fines constitutes punishment, and therefore is
subject to the proscriptions of the ex post facto clause and other
constitutional provisions.†(
143.) Restitution fines pursuant to
section 1202.4 are to be “set at the discretion of the court and commensurate
with the seriousness of the offense.†(§
1202.4 subd. (b)(1).)
When defendant
committed his offense, in December 2010, the minimum restitution fine was $200,
and the maximum was $10,000. (Former §
1202.4, subd. (b)(1).) Effective January 1, 2012, the minimum was
increased to $240. (§ 1202.4, subd.
(b)(1).)
$240 restitution fine at the time of sentencing, on April 12, 2012, was a
violation of the constitutional prohibition against ex post facto penalties. He contends that we must reduce the amount to
$200 to reflect the statutory minimum in effect at the time of his
offense. Similarly, because the
probation revocation restitution fine must match the restitution fine (§
1202.44), he asks that this fine also be reduced to $200. Citing People
v. Valenzuela (2009) 172 Cal.App.4th 1246, 1248 (Valenzuela), the People concede that the imposition of $240 for the fines constituted an ex post facto violation and that each
must be reduced to $200.
We are not
persuaded. Because $240 was well within
the range specified in the version of the statute in effect at the time of
defendant’s offense, and because the fine is set at the trial court’s
discretion, the imposition of $240 as a restitution
fine and $240 as the matching probation revocation restitution fine did not
violate the constitutional prohibition against an ex post facto increase
in punishment.
Moreover,
reasoning. In that case, the trial court
imposed a fine in an amount not authorized at the time the defendant committed
his crime: a first-time failure to register as a sex offender under section
290. Instead, the court imposed the
amount authorized for that crime by later legislation. (Valenzuela,
supra, 172 Cal. App.4th at p.
1248.) Accordingly, the sentence was
“unauthorized,†i.e., one that could not be lawfully imposed under any
circumstance in the case. (
1203, 1218-1219 (Garcia).) Such a sentence may be contested for the
first time on appeal and can be corrected at the appellate level, even if there
was no objection in the trial court. (
The Trial Court’s Intention
The People also
assert that “it is clear that—in light of defendant’s financial situation—the
court meant to impose the minimum.†And,
“It is equally clear that the trial court erroneously believed that the
applicable statutory minimum was $240.â€
These suppositions are not as clear as the parties suggest.
It is true that
the court had a conversation with defendant in which, pleading ill health and
straightened financial circumstances, defendant was able to negotiate his
monthly payments from the $90 recommended in the probation report, and from the
$35 the court suggested, to his own preference of $20. However, the negotiation regarding monthly
payments is not an indication that the court intended to impose a different
total amount for the restitution and probation revocation restitution fines, or
that it would have considered a lesser amount more appropriate. It means only that the court was willing to
lessen defendant’s monthly burden by extending the time for payment. To assume that because it said it was
imposing the (then-current) statutory minimum means that it really intended to
impose some other amount—particularly in light of the probation report’s
recommendation that defendant not be “afforded any leniencyâ€â€” is mere
speculation.
In any case, the
time for defendant to raise this claim has passed.
Generally, in the
interests of fairness and judicial economy, only “claims properly raised and
preserved by the parties are reviewable on appeal.†(People
v. Scott (1994) 9 Cal.4th 331, 354 (Scott).) In particular, a defendant cannot argue for
the first time on appeal that the trial court erred in making or articulating a
discretionary sentencing choice. (
parties to bring errors to the attention of the trial court so that they may be
corrected at that level and conserve costly appellate resources. (People
v. Smith (2001) 24 Cal.4th 849, 852 (Smith);
accord, In re Sheena K. (2007) 40 Cal.4th 875, 880-881 (
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.†(Scott, supra, 9 Cal.4th at p. 353.)
Here, if defendant
believed the court intended to impose a different amount but misspoke, that was
exactly the kind of “error†he should have raised at a time when a correction
could easily have been made. (
There are situations in which failure to object is not fatal—as when a
sentence is unauthorized—but as we have explained, this is not such a
situation. The fines in question
represented a discretionary sentencing choice within the range designated by
the statute in effect at the time defendant committed his crime. It was thus not an unauthorized sentence and
he was required to object if he wanted to preserve the issue for appellate
review. (Garcia, supra, 185 Cal.App.4th at p. 1218;
see also People v. McCullough (2013)
56 Cal.4th 589, 593, 598.)
>
DISPOSITION
The judgment is
affirmed.
NOT TO BE
PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
RAMIREZ
P.
J.
KING
J.
name="_ftn1" title=""> [1] The facts are taken partly from the police
report, which the parties stipulated contains a sufficient basis for the plea.
name="_ftn2" title=""> [2] All further statutory references are to the
Penal Code unless otherwise designated.
