P.
v. Settle
Filed
10/15/13 P. v. Settle
CA2/8
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
RICHARD ALLEN SETTLE,
Defendant and Appellant.
B247906
(Los
Angeles County
Super. Ct.
No. MA058455)
APPEAL from
a judgment of the Superior Court of Los
Angeles County. Christopher G.
Estes, Judge. Affirmed as modified.
Richard B.
Lennon, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R.
Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Kenneth C. Byrne and Julie A. Harris, Deputy Attorneys
General, for Plaintiff and Respondent.
_____________________________
After
defendant Richard Settle pled no contest to a vandalism charge, the
prison term, ordered him to pay restitution to the victim, and assessed various
fees. The court did not impose a
restitution fine. However, the
subsequent minute order and abstract of
judgment reflected restitution and parole revocation restitution fines of
$600 each. On appeal, Settle contends we
should strike the restitution fines and order the trial court to correct the
abstract of judgment. The People argue
we should either remand the case to the trial court for it to determine whether
to impose restitution fines, or impose the minimum allowable fine. We agree with appellant that the
stricken.
FACTUAL AND PROCEDURAL BACKGROUND
In January
2013, the People charged Settle with one count of felony vandalism (Pen. Code,
§ 594, subd. (a)), one count of misdemeanor escape from arrest (Pen. Code,
§ 836.6, subd. (b)), and one misdemeanor count of being under the
influence of a controlled substance (Health & Saf. Code, § 11550,
subd. (a)). The People also alleged
Settle had suffered two prior strikes and two prior prison terms (Pen. Code, §§
667, subds. (b)-(i), 1170.12, subds. (a)-(d), 667.5, subd. (b)). The People alleged Settle destroyed over $400
in kitchen equipment belonging to McDonalds.
Settle pled
no contest to the vandalism charge and admitted one prior strike. The trial court sentenced Settle to a total
state prison term of 32 months. The
court ordered Settle to pay restitution of $650 to McDonalds. The court also imposed fees as follows: “$30
criminal conviction fee and $40 court security fee and ten dollars and submit
palm prints and DNA testing pursuant to a stipulation and all restitution in
the amount of $650 to [McDonalds] and victim restitution to be paid prior to
the other fines and fees and will be a forthwith sentence . . . .†The court did not impose a restitution fine
or corresponding parole revocation restitution fine. The People did not object. However, the subsequent minute order
indicated the court imposed a $600 restitution fine pursuant to Penal Code
section 1202.4, subdivision (b), and a $600 parole restitution fine pursuant to
Penal Code section 1202.45, which was stayed.
The abstract of judgment reflected these restitution fines.
The Restitution Fines Must Be Stricken
On appeal, Settle contends the
restitution fines reflected in the abstract of judgment must be stricken
because the court did not impose these fines in court. We agree.
When the clerk’s minute order and the abstract of judgment do not
reflect the sentence pronounced in court, the court’s oral pronouncement
controls, and the abstract of judgment must be corrected accordingly. (People
v. Mesa (1975) 14 Cal.3d 466, 471-472, superseded by statute on another
ground as explained in
Cal.App.4th 1258, 1268; People v. Scott (2012)
203 Cal.App.4th 1303, 1324; People v.
Zackery (2007) 147 Cal.App.4th 380, 387-389 (Zackery).) Restitution fines
that were not imposed in court may “not be simply added to the judgment later
outside defendant’s presence.†(
While the
People agree the $600 fines in the abstract of judgment may not stand, they
disagree that the opportunity to impose a restitution fine has passed. The People contend this court should remand
the case to the trial court to allow it to exercise its discretion to impose a
restitution fine, or state on the record reasons for not doing so. Alternatively, the People assert we should
impose the minimum fine of $280, pursuant to Penal Code section 1202.4,
subdivision (b), which requires the trial court to assess a restitution fine
unless it “finds compelling and extraordinary reasons for not doing so, and
states those reasons on the record.â€
Under the
reasoning of People v. Tillman (2000)
22 Cal.4th 300 (Tillman), we agree
with Settle that the fines must be stricken and we will not remand to the trial
court for further proceedings. In
a restitution fine or state on the record reasons for not doing so. The California Supreme Court considered
whether, on the People’s request, the Court of Appeal may amend a trial court
judgment to add restitution fines when the trial court omits them from the
defendant’s sentence, and the People fail to object in the trial court. The Tillman
court “reasoned that the trial court’s option to forego imposition of a
restitution fine for ‘compelling and extraordinary reasons’ made the fine a
discretionary sentencing choice subject to the waiver doctrine enunciated in People
v. Scott (1994) 9 Cal.4th 331 and People v. Welch (1993) 5 Cal.4th
228 . . . . That
is, an appellate court may not correct errors arising from the trial court’s
failure to make or articulate its discretionary sentencing choices if the
complaining party—whether the defendant or the People—failed to object to the
omission at trial. [Citation.]†(People
v. Moreno
(2003) 108 Cal.App.4th 1, 7-8 (Moreno).)
The People contend
trial court’s failure to state reasons for not imposing a restitution fine
rendered the sentence invalid and subject to correction. But the situation presented in this case is
identical to the one presented in Tillman. As in Tillman,
the trial court neither imposed a restitution fine nor stated reasons on the
record explaining its actions. (
for making a discretionary sentencing choice.
The court rejected the People’s argument that the omission was subject
to correction by the Court of Appeal, even though the People did not object in
the trial court. (Ibid.) Instead, the People’s
failure to object in the lower court waived further objection on appeal. Here, the People did not object in the trial
court and therefore waived the objection.
We are bound to follow Tillman. (Auto
Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) We may not impose the fine in the first
instance on appeal, or remand the case for further proceedings.
We disagree that
result. In Zackery, the trial court failed to impose restitution fines and did
not state any reasons for doing so on the record. After requesting supplemental briefing on
this and other issues in response to a Wende
brief,
trial court to determine whether to impose restitution fines. However, Zackery
did not consider waiver or Tillman. Decisions are not authority on propositions
not considered. (People v. Stone (2009) 46 Cal.4th 131, 140.)
We also
disagree that we may remand the case or impose restitution fines under Penal
Code section 1202.46. Section 1202.46
provides:
“Notwithstanding
Section 1170, when the economic losses of a victim cannot be ascertained at the
time of sentencing pursuant to subdivision (f) of Section 1202.4, 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. 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.â€
Section 1202.46 “does not purport
to define when a sentence is valid or invalid, it says only that a
sentence that is invalid for lack of a restitution provision may be
corrected at any time.†(
italics in original.)
effective date of section 1202.46, concluded a sentence that omits a
restitution fine is not invalid, even when the trial court fails to state its
reasons on the record.
position. In
for the trial court to belatedly issue a restitution order after the original
sentencing hearing. The court reasoned
the failure to order any victim restitution rendered the sentence invalid, and
correctable at any time under section 1202.46.
(Moreno, at pp. 10-11.) This reasoning does not apply here. Moreno
concerned a victim restitution order, not a restitution fine. An award of victim restitution is not a
discretionary sentencing choice. (§
1202.4, subd. (f) [court must order victim restitution in some amount];
The
restitution fine and corresponding parole revocation fine must be stricken.
The
trial court is ordered to correct its minutes from the sentencing hearing of February 14, 2013, and the abstract
of judgment, by striking the references to the imposition of restitution and
parole revocation fines. The trial court
is further ordered to forward a copy of the corrected abstract of judgment to
the Department of Corrections and Rehabilitation. In all other respects, the judgment is
affirmed.
BIGELOW,
P. J.
We concur:
RUBIN,
J.
FLIER, J.
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