P. v. Willard
Filed 1/31/14 P. v. Willard
CA1/3
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opinion has not been certified for publication or ordered published for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 CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
LONDON WILLARD,
Defendant and Appellant.
A137561
(Alameda
County
Super. Ct. No. H51760)
Defendant London Willard was
convicted by a jury of grand theft. His sole claim on appeal is that his restitution
fine should be reduced from $720 to $600. We affirm.
Procedural Background
Because the only issue raised on
restitution fine, it is unnecessary to summarize the facts supporting Willard’s
conviction.
Willard was charged with first
degree robbery (Pen. Code, § 211)
in an information filed on March 12, 2012. As set forth in the information, Willard
committed the robbery in August 2011. Following
a jury trial, Willard was convicted of
the lesser included offense of grand theft (§ 487, subd. (c)). The trial court sentenced Willard to serve
three years in state prison, composed of the middle term of two years for grand
theft plus a consecutive one-year term for having served a prior prison term
within the meaning of section 667.5, subdivision (b).
The trial court ordered Willard to
pay a restitution fine of $720
pursuant to section 1202.4. The
court also ordered Willard to pay a parole revocation fine of $720 pursuant to
section 1202.45, which was suspended pending successful completion of
parole. Willard filed a timely notice of
appeal following sentencing.
Discussion
Willard’s sole claim of error on
appeal is that the trial court erred in imposing a restitution fine of $720. He claims the fine should be reduced to $600,
which represents the applicable minimum fine of $200 multiplied by three—the
number of years of imprisonment he was ordered to serve. According to Willard, the trial court
mistakenly calculated his restitution fine based upon a minimum fine of $240,
even though the increased minimum fine did not go into effect until after the
date he committed the crime of which he was convicted.
At the time of Willard’s offense in
August 2011, section 1202.4, subdivision (b)(1) provided in relevant part as
follows: “The restitution fine shall be
set at the discretion of the court and commensurate with the
but shall not be less that two hundred dollars ($200), and not more than ten
thousand dollars ($10,000), if the person is convicted of a felony
. . . .†(Former § 1202.4,
subd. (b)(1), as amended by Stats. 2009, ch. 454, § 1.) At the time of Willard’s offense, subdivision
(b)(2) of section 1202.4 provided the following,
calculating the restitution fine: “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.†(Former § 1202.4, subd. (b)(2), as
amended by Stats. 2009, ch. 454, § 1.)
Thus, subdivision (b)(1) of section 1202.4 sets the minimum and maximum restitution
fine, while subdivision (b)(2) of that same section establishes a formula the
court may choose to use in setting the restitution fine.
At the time Willard was sentenced in
2012, section 1202.4, subdivision (b)(1) provided that the applicable minimum
restitution fine was $240. (Former
section 1202.4, subd. (b)(1), as amended by Stats. 2011, ch. 358,
§ 1.) As set forth in subdivision
(b)(2) of section 1202.4, the court could still choose to calculate the
restitution fine as the product of the minimum fine established in subdivision
(b)(1) “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.†(Former section
1202.4, subd. (b)(2), as amended by Stats. 2011, ch. 358, § 1.)
The crux of Willard’s claim is that,
in order to avoid an ex post facto violation, the court was bound to use the restitution
formula in effect at the time he committed the crime, not the formula in effect
when he was sentenced. (See
90, 143 [restitution fine constitutes punishment and is subject to the
proscription of the ex post facto clause].) Willard contends the record clearly indicates
it was the court’s intention to apply the formula set forth in subdivision
(b)(2) of section 1202.4.
As an initial matter, Willard
forfeited the claim by failing to object at the time of sentencing. In order to preserve a challenge to the
setting of a restitution fine, “a defendant must make a timely objection in the
trial court in order to give that court an opportunity to correct the error;
failure to object should preclude reversal of the order on appeal.†(People
v. Gibson (1994) 27 Cal.App.4th 1466, 1468; see also People v. White (1997) 55 Cal.App.4th 914, 917.)
Willard contends that because his
claim rests on a constitutional violation, it is not forfeited on appeal as a
result of the failure to object in the trial court. Even assuming the issue was not forfeited on
appeal, there was no ex post facto violation.
The restitution fine of $720 was well within the court’s discretion to
impose under the law as it existed at the time Willard committed his
offense. (See former § 1202.4,
subd. (b)(1), as amended by Stats. 2009, ch. 454, § 1 [giving court
discretion to set restitution fine between $200 and $10,000].) The restitution fine was not unauthorized and
its imposition did not violate any constitutional principle. (Cf. People
Valenzuela (2009) 172 Cal.App.4th 1246, 1248 [unauthorized restitution fine
constituted ex post facto violation].)
Willard’s claim on appeal appears to
be based on a misapprehension that the court expressly intended to use the
formula set forth in subdivision (b)(2) of section 1202.4. Indeed, Willard argues that the probation
report, upon which the court relied, recommended that a “restitution fine of
$720 be imposed pursuant to Penal Code section 1202.4(b)(2).†As
Willard acknowledges in his reply brief on appeal, the probation report made no
mention of subdivision (b)(2) of
section 1202.4. Rather, the report
referred to subdivision (b)(1) of
section 1202.4, which simply sets forth the range within which the restitution
fine may be set. Nowhere in the
probation report or in the court’s pronouncement of sentence is there a reference
to subdivision (b)(2) of section 1202.4 or the formula contained in that
subdivision.
Willard contends it “beggars beliefâ€
to suggest the court “pulled the strange number of $720 out of thin air.†According to Willard, the only explanation
must be that the court employed the formula contained in subdivision (b)(2) of
section 1202.4—multiplying $240 by three, representing the number of years of
imprisonment to which he was sentenced.
While the selection of $720 as the restitution fine certainly supports
that inference, we are mindful that “ ‘[a] judgment or order of the lower
court is presumed correct. All intendments are presumptions are indulged
to support it on matters as to which the record is silent, and error must be
affirmatively shown. This is not only a
general principle of appellate practice but an ingredient of the constitutional
doctrine of reversible error.’ †(
557, 564; see also People v. Alvarez (1996)
49 Cal.App.4th 679, 694.) “The general
rule is that a trial court is presumed to have been aware of and followed the
applicable law.†(People v. Mosley (1997) 53 Cal.App.4th 489, 496.)
In this case, the record is silent
as to why the trial court chose to impose a restitution fine of $720. In the absence of an affirmative expression
that the probation officer or court intended to apply the formula set forth in
subdivision (b)(2) of section 1202.4, we cannot simply assume the court (1)
intended to apply the statutory formula, and (2) erred in its application of
the formula. If we were to indulge these
assumptions, we would effectively turn on its head the general rules that a
judgment is presumed correct and that a trial court is presumed to have known
and followed the law.
Willard’s reliance on
is misplaced. In Le, the record showed that the trial court relied on the formula
provided by section 1202.4, subdivision (b)(2).
(Le, supra, at p. 935.) Indeed, the trial court there specifically
stated at the time of sentencing that the fine was imposed “ ‘under the
supra, at p. 932, italics added.)
Here, by contrast, there was no showing that the trial court or the
probation officer expressed an intention to rely on the formula contained in
section 1202.4, subdivision (b)(2).
Finally, Willard contends his
counsel was ineffective for failing to object to the restitution fine at the
time of sentencing. We disagree. In order to establish a claim of ineffective
assistance of counsel, a defendant bears the burden of demonstrating both that
counsel’s performance fell below an objective standard of reasonableness (
668, 687–688) and that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.†(Id. at p. 694; People v.
Ledesma (2006) 39 Cal.4th 641, 746.)
Even assuming counsel was deficient
for failing to object, Willard cannot demonstrate prejudice. His claim of prejudice is premised upon the
assumption the court intended to apply the formula in section 1202.4,
subdivision (b)(2) and would have continued to apply that formula, albeit
correctly, in response to an objection by defense counsel. However, the court never expressed an
intention to apply the statutory formula and gave no indication it was willing
to reduce the fine below the amount proposed by the probation officer. Moreover, it is far from clear that the court
would have lowered the restitution fine if challenged. The court had the power to set a restitution
fine as low as $200 under former section 1202.4, subdivision (b)(1) but instead
chose to follow the probation officer’s recommendation of $720. The probation officer’s report reflects that
the theft supporting Willard’s conviction was captured by a surveillance camera
and was an “unprovoked and random [act] toward an unsuspecting victim he
cornered†on a bus. The probation
officer stated that Willard had an extensive criminal history and was facing
charges for murder and robbery at the time he committed the offense resulting
in his conviction. Under the
circumstances, there was no guarantee the court would have agreed to reduce the
already modest restitution fine in response to an objection by defense counsel.
Because the defendant bears the
burden of demonstrating ineffective assistance of counsel, and because the
record is silent as to why the court chose to impose the challenged restitution
fine, we do not find it reasonably probable that the court would have lowered
the restitution fine if defense counsel had interposed an objection.
Disposition
The judgment is affirmed.
_________________________
McGuiness,
P.J.
We concur:
_________________________
Siggins, J.
_________________________
Jenkins, J.
name="_ftn1" title=""> [1]All
further statutory references are to the Penal Code.
