P. v. Vickers
Filed 3/15/13 P. v. Vickers CA1/5
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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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
THE PEOPLE,
Plaintiff and Respondent,
v.
GEORGE
VICKERS,
Defendant and Appellant.
A135378
(San
Francisco City
and County
Super. Ct. No. 216844)
George
Vickers admitted that he was a felon in possession
of a firearm (Pen. Code, former § 12021, subd. (a)(1)
current § 29800, subd. (a)(1)), with a prior felony attempted theft
conviction (§§ 664, 487). Vickers
does not challenge his plea or the prison sentence imposed. His sole contention on appeal is that the
trial court imposed $80 too much in fines.
Vickers’s arguments border on the frivolous, and we affirm.
I. Background
On October 24, 2011, San Francisco
Police Sergeant Daniel Manning approached Vickers on the street near 835
Ellsworth Street, after receiving information from
an informant that an individual matching Vickers’s description was in
possession of a firearm. Vickers ran,
but was apprehended after a struggle. A
.40 caliber semi-automatic pistol was found in a backpack Vickers was
carrying.
On January 10, 2012, pursuant to a
guilty plea to being a felon in possession of a firearm (Former § 12021,
subd. (a)(1)) and admitted a prior felony conviction for
487). The minute order reflects a
“PROPOSED DISPOSITION†including a two-year state prison sentence, and a “VF
fine of $240.†The transcript of the
plea colloquy reflects discussion only of the possible midterm prison sentence,
and Vickers’s ability to withdraw the plea if the court was unwilling to
sentence in accord with that recommendation.
On March 20, 2012, Vickers received the
two-year prison sentence originally proposed.
The sentence included imposition of a $240 restitution fine “pursuant to
PC 1202.4(b).†The court imposed,
but suspended, a parole revocation fine in the same amount. Vickers made no objection.
On May 1, 2012, Vickers filed a
is “based on the denial of a motion to
suppress evidence under Penal Code section 1538.5.â€
II. Discussion
Vickers
contends that the $240 restitution and parole revocation fines imposed violate
state and federal constitutional prohibitions against ex post facto laws. The People argue that the fines were a
condition of the plea bargain that Vickers cannot now challenge. They are both wrong.
A
restitution fine under section 1202.4 is mandatory unless the sentencing court
“ ‘finds compelling and extraordinary reasons for not doing so, and states
those reasons on the record.’ †(
302, quoting § 1202.4, subd. (b).)
The parole revocation fine also is mandatory and must be set in the same
amount as the restitution fine.
name="_ftnref3" title="">[3] Section 1202.4. subdivision (b)(1) provides
that the amount of the restitution fine “shall be set at the discretion of the
court and commensurate with the seriousness of the offense.†At the time of Vickers’s sentencing in
January 2012, the statute further provided that the fine “shall not be less
than two hundred forty dollars ($240) starting
on January 1, 2012, . . . and not more than ten thousand dollars
($10,000), if the person is convicted of a felony . . . .†(§1202.4, subd. (b)(1), as amended by
Stats. 2011, ch. 358, § 1, italics added.) Vickers argues that the version of section
1202.4. subdivision (b)(1) applicable at the time of his offense in
October 2011 provided that the restitution fine “not be less than two hundred
dollars ($200)†(Stats. 2011, ch. 45, § 1), and that imposition of the
larger amount increased his “punishment.â€
Vickers is correct that a “restitution fine qualifies as punishment for
purposes of the prohibition against ex
post facto laws.†(
35 Cal.App.4th 27, 30.)
But the
most readily apparent problem with Vickers’s argument is that the amount
provided under both versions of the statute is the required
discretionary range provided under the statute effective at the time of
Vickers’s offense, and therefore not an “unauthorized sentence†as Vickers
claims. “[A] sentence is generally
‘unauthorized’ where it could not lawfully be imposed under any circumstance in
the particular case.†(
354 (Scott).)
Vickers
blithely insists, without any supporting citation to the record, that “it is
apparent the court intended to impose the minimum fine permissible.†Perhaps, but that is precisely why a
defendant is required to raise such objections at time of sentencing or forfeit
them. Except in the case of an
unauthorized sentence, claims involving the trial court’s failure to properly
make or articulate its discretionary sentencing choices are waived by failure
to object at the time of sentencing. (
Supreme Court held that when a trial court failed to articulate reasons for
decision constituted a discretionary sentencing choice, requiring the People to
object in order to preserve the claim.
The reason for requiring timely objection in such circumstances is
clear. “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.â€
at p. 353.)
Moreover,
we do not indulge the presumption of error in the court’s sentencing choices
that Vickers suggests. “Pursuant to
Evidence Code section 664, ‘Court and counsel are presumed to have done their
duty in the absence of proof to the contrary.’
(Newman v. Los Angeles Transit Lines (1953) 120 Cal.App.2d 685,
691; see also In re B.A. (2006) 141 Cal.App.4th 1411, 1420.) The general rule is ‘ “that a trial
court is presumed to have been aware of and followed the applicable law. [Citations.]â€
[Citations.] This rule derives in
part from the presumption of Evidence Code section 664 “that official duty has
been regularly performed.†’ (People v. Stowell (2003) 31 Cal.4th
1107, 1114.)†(People v. Sullivan
(2007) 151 Cal.App.4th 524, 549, parallel citations omitted.)
Finally, in
addition to failing to present any objection in the trial court, Vickers’s
notice of appeal does not even purport to appeal from the sentence imposed by
the court. A notice of appeal must
“identif[y] the particular judgment or order being appealed.†(California Rules of Court, rule 8.304(a)(4).) The notice states that Vickers’s appeal is
“based on the denial of a motion to suppress evidence under Penal Code section
1538.5,†an issue he has abandoned here.
Even liberally construing this notice, it is difficult to see how
Vickers preserved a claim of sentencing error.
The issue is doubly forfeited.
While not
necessary to our disposition of this appeal, we also express our concern with
the People’s contention that the amount of the restitution fine was a condition
of Vickers’s plea agreement.
name="_ftnref5" title="">[5] The People, while first asserting that the
appellate record does not include a transcript of Vickers’s change of plea
hearing, state that the amount of the restitution fine was “specified in the
plea colloquy in January 2012†and therefore a part of the plea agreement. The People are wrong on both counts.
Although
not directly mentioned in their briefing, the People appear to rely entirely on
a brief reference in the January 10, 2012 minute order that reflects a “VF fine
of $240†under the heading “PROPOSED DISPOSITION.†This is a very thin reed on which to base an
unqualified statement in briefing that “the trial court advised appellant that
as part of the plea he would have to pay a restitution fine of $240,†and to
then assert this argument as the principal basis for affirmance.
The
transcript of the plea hearing is part
of the appellate record, filed with this court five months before the People’s
brief. Unlike the People, we have
reviewed the transcript and there is no mention of the restitution fine in the
plea colloquy. This is not surprising,
since it is difficult to discern why a de minimis restitution fine would be a
material term of a plea agreement calling for a two-year prison term, and
dismissal of two charged felony counts.
While we do not find a deliberate misrepresentation of the record, we
expect more candor from counsel.
III. Disposition
The
judgment is affirmed.
_________________________
Bruiniers,
J.
We concur:
_________________________
Jones, P.
J.
_________________________
Simons, J.
references are to the Penal Code unless otherwise indicated.
form is included in the record provided to us.
