P. v.
Richard
Filed 5/13/13 P. v. Richard CA3
NOT TO
BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE DISTRICT
(San Joaquin)
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>
THE PEOPLE, Plaintiff and Respondent, v. ISAAC AARON RICHARD, Defendant and Appellant. | C071124 (Super. Ct. No. SF119537A) |
Defendant Isaac Aaron Richard pled
guilty to robbery (Pen. Code,
§ 211) and street terrorism
(Pen. Code, § 186.22, subd. (a)).
Defendant also admitted a gang enhancement (Pen. Code, § 186.22,
subd. (b)(1)). In accordance with the
terms of his plea, the trial court sentenced defendant to serve an aggregate
term of 18 years in state prison.
At sentencing, the trial court
ordered defendant to pay numerous fines and fees including restitution in an
amount to “be determined by the Department
of Corrections [and Rehabilitation].â€
The trial court also ordered defendant to pay a $240 restitution fine
(Pen. Code, § 1202.4) and a $24 “surcharge.â€
On appeal, defendant contends the
trial court erred in ordering the Department of Corrections and Rehabilitation
to calculate restitution. We disagree
and conclude the trial court’s order was proper.
Defendant also contends the trial
court erred in imposing a $24 “surcharge†without identifying the statutory
authority for that fee and asks this court to vacate the fee. The People concede the trial court was
required to identify the statutory basis for the surcharge and request remand
on that issue alone.
DISCUSSIONhref="#_ftn1" name="_ftnref1" title="">[1]
>A.
>Restitution>
Defendant contends the trial court’s
imposition of restitution in an amount “[to] be determined by the Department of
Corrections [and Rehabilitation],†violates both href="http://www.fearnotlaw.com/">statutory and constitutional law. Specifically, defendant asserts the order
violated his right to due process and Penal Code section 1202.4, subdivision
(f). Even assuming defendant has not
forfeited this claim for failing to raise his objection in the trial court, the
claim fails. (People v. Scott (1994) 9 Cal.4th 331, 352, fn. 15; >People v. Keele (1986) 178 Cal.App.3d
701, 708.)
Penal Code section 1202.4 states, in
relevant part, “in every case in which a victim has suffered economic loss as a
result of the defendant’s conduct, the court shall require that the defendant
make restitution to the victim or victims in an amount established by court
order, based on the amount of loss claimed by the victim or victims or any
other showing to the court. >If the amount of loss cannot be ascertained
at the time of sentencing, the restitution order shall include a provision that
the amount shall be determined at the direction of the court.†(Pen. Code, § 1202.4, subd. (f); italics
added.)
Our decision in People v. Lunsford (1998) 67 Cal.App.4th 901 (Lunsford) is directly on point.
In Lunsford, we found proper a
trial order directing the Office of Revenue Reimbursement to calculate
restitution. (Id. at pp. 903-904.)
Defendant attempts to distinguish Lunsford
on the ground that the Office of Revenue Reimbursement is a part of the
superior court and the Department of Corrections and Rehabilitation is
not. Contrary to defendant’s claim, we
did not find the order in Lunsford
proper because the Office of Revenue Reimbursement was “part of the Superior
Court.â€
In Lunsford, the trial court ordered “restitution to be paid by the
defendant in an amount to be determined by the Office of Revenue
Reimbursement . . . .â€
(Lunsford, supra, 67
Cal.App.4th at p. 903.) We found the
restitution complied with Penal Code section 1202.4, subdivision (f), because
the order “‘directs’ the Office of Revenue Reimbursement to ‘determine’ the
amount of victim restitution because the proper amount could not be ascertained
at the time of sentencing.†(>Ibid.)
In reaching our decision, we emphasized that “if defendant is
dissatisfied with the agency’s determination, he may obtain judicial review in
accordance with Penal Code section 1202.4, subdivision (f)(1).†(Lunsford,
at p. 904.)
Furthermore, with respect to
defendant’s argument his due process rights were violated, his due process
rights are “satisfied if [defendant] is given notice of the amount sought and a
hearing to contest that amount.†(>People v. Thygesen (1999) 69 Cal.App.4th
988, 993.) Since there is no evidence
that an amount has been set, defendant’s due process argument is not ripe.
>B.
>Surcharge
Defendant further contends the $24
surcharge imposed at sentencing should be vacated because “there was no
statutory authority to impose it.†The
People concede the trial court erred in imposing the fee without identifying
the authority for its imposition. (>People v. High (2004) 119 Cal.App.4th
1192, 1200.)
The People do not agree, however,
that the fee should be vacated; rather, they argue the matter should be
remanded to allow the trial court to identify its authority for imposing the
surcharge. The People note Penal Code
section 1202.4, subdivision (l),
allows for a 10-percent surcharge on restitution fines in certain
circumstances. The People have the
better argument. (People v. High, supra,
119 Cal.App.4th at p. 1200 [matter remanded with direction to the trial
court to identify the statutory bases for fines and fees imposed].) We remand the matter to the trial court to
identify the statutory basis for the surcharge.
DISPOSITION
The matter is remanded. The trial court is directed to identify its
authority for imposing the $24 surcharge and amend the abstract of judgment
accordingly. The judgment is otherwise
affirmed. The trial court is directed to
forward a certified copy of the amended abstract of judgment to the Department
of Corrections and Rehabilitation.
HOCH , J.
We concur:
BLEASE , Acting P. J.
BUTZ , J.