PEOPLE v. SMITH

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Court of Appeal, Second District, Division 5, California.

The PEOPLE, Plaintiff and Respondent, v. Donte Osbon SMITH et al., Defendants and Appellants.

No. B129442.

Decided: April 14, 2000

Matthew D. Alger, Fresno, and Peter A. Leeming, under appointments by the Court of Appeal, for Defendants and Appellants. Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, Suzann E. Papagoda and Kent J. Bullard, Deputy Attorneys General, for Plaintiff and Respondent.

Defendants, Donte Osbon Smith and Jack Loney, appeal from their convictions for second degree murder.  (Pen.Code,1 § 187, subd. (a).)  They were both found to have been armed with a firearm in the commission of the murder. (§ 12022, subd. (a)(1).)   Defendants argue that the trial court improperly refused to instruct the jury on manslaughter and excluded relevant evidence.   In addition, Mr. Smith argues that:  the evidence was insufficient to support his conviction because the victim's death was unforeseeable;  the trial court improperly refused to instruct the jury that mere presence at the scene of the crime is insufficient to establish aider and abettor liability;  and the trial court improperly instructed the jury with CALJIC Nos. 1.00, 2.90, and 17.41.1.

In the published portion of this opinion, we discuss an issue related to the $200 section 1202.45 additional parole restitution fines imposed in this case.   We address the situation where the trial court imposed as to both Mr. Smith and Mr. Loney, a section 1202.4, subdivision (b)(1) fine in the sum of $5,000 but then only imposed and suspended a $200 section 1202.45 additional parole restitution fine.   We conclude the trial court was jurisdictionally obligated to impose and suspend the additional parole restitution fine in the sum of $5,000 rather than $200.   In reaching this decision, we discuss the effect of the recent decision of the California Supreme Court in People v. Tillman (2000) 22 Cal.4th 300, 303, 92 Cal.Rptr.2d 741, 992 P.2d 1109.   The Tillman court held that the failure to impose both section 1202.4, subdivision (b)(1) and 1202.45 restitution fines was not a legally unauthorized sentence.   As a result, the neglect on the part of a trial judge to order payment of both assessments require an objection by a deputy district attorney during the probation and sentence hearing in order for the issue to be raised on appeal by the Attorney General.   In this case, we confront the question of the effect of Tillman in a situation where the trial court fully complied with its mandatory obligation to impose a section 1202.4, subdivision (b)(1) restitution fine.   However, the trial court neglected to impose and suspend the imposition of the section 1202.45 additional restitution fine in a sum equal to that ordered pursuant to section 1202.4, subdivision (b)(1).   The deputy district attorney failed to bring the error to the attention of the trial judge.   On appeal, the Attorney General contends that the failure to impose and suspend the additional section 1202.45 parole restitution fine was a legally unauthorized sentence and the trial court's sentencing error may be raised the first time on appeal.   We agree that once a section 1202.4, subdivision (b)(1) restitution fine is assessed, the neglect to impose and suspend the section 1202.45 additional parole restitution fine in a legally mandated sum is a “pure question[ ] of law that can be resolved without reference to the particular sentencing record developed in the trial court.”   (People v. Welch (1993) 5 Cal.4th 228, 235, 19 Cal.Rptr.2d 520, 851 P.2d 802;  see also People v. Scott (1994) 9 Cal.4th 331, 354, 36 Cal.Rptr.2d 627, 885 P.2d 1040.)   Because it is a pure question of law that can be resolved without reference to the particulars of the sentencing decision made by the trial court, it is therefore a legally unauthorized sentence which may be corrected for the first time on appeal even though the deputy district attorney neglected to interpose any objection during the probation and sentence hearing.   In reaching this decision, we conclude that Tillman is inapplicable to this case.   Accordingly, as will be noted, we order the imposition of the additional section 1202.45 parole restitution fine in the sum of $5,000 as to Mr. Smith and Mr. Loney.

 The Attorney General argues that the trial court had a jurisdictional responsibility to impose a section 1202.45 additional parole restitution fine.   It can be argued, based on the decision of the California Supreme Court in People v. Tillman, supra, 22 Cal.4th at page 303, 92 Cal.Rptr.2d 741, 992 P.2d 1109, that the failure of the deputy district attorney to raise the issue in the trial court by proper objection constitutes waiver of the right to seek imposition of a section 1202.45 additional parole restitution fine for the first time on appeal.   In the present case, the trial court imposed a $5,000 restitution fine pursuant to section 1202.4, subdivision (b)(1) as to each defendant.   However, the trial court only imposed the so-called additional parole restitution fines mandated by section 1202.45 in the sum of $200 each for Mr. Loney and Mr. Smith.   We conclude, as we did in People v. Hong (1998) 64 Cal.App.4th 1071, 1084, 76 Cal.Rptr.2d 23, that when a section 1202.4, subdivision (b)(1) restitution fine is imposed the failure to assess the additional parole restitution fine is a jurisdictional error which may be raised for the first time on appeal by the Attorney General.

We begin our analysis with an assessment of the statutory language.   Section 1202.4, subdivision (b)(1) which provides:  “(b) In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record.  [¶] (1) The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense, but shall not be less than two hundred dollars ($200), and not more than ten thousand dollars ($10,000), if the person is convicted of a felony, and shall not be less than one hundred dollars ($100), and not more than one thousand dollars ($1,000), if the person is convicted of a misdemeanor.”   Once a sentencing court imposes the section 1202.4, subdivision (b)(1) restitution fine, then it is mandatory that an additional parole restitution fine be imposed pursuant to section 1202.45 in the same amount as the section 1202.4, subdivision (b)(1) assessment.   The section 1202.45 fine is suspended until the accused violates a parole condition.   Section 1202.45 states in its entirety:  “In every case where a person is convicted of a crime and whose sentence includes a period of parole, the court shall at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4.   This additional restitution fine shall be suspended unless the person's parole is revoked.”

 In Tillman, the trial judge neglected to impose the minimum $200 section 1202.4, subdivision (b)(1) restitution fine.   Further, the trial court failed to set forth its reasons for not imposing the minimum $200 section 1202.4, subdivision (b)(1) restitution fine.   As noted previously, section 1202.4, subdivision (b)(1) requires a trial judge to impose the minimum $200 restitution fine “unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record.”   In the trial court, the deputy district attorney failed to object to the omission of the mandatory $200 section 1202.4, subdivision (b)(1) restitution fine.   Additionally, in Tillman, the trial court failed to impose the additional parole restitution fine.   The failure to have imposed the section 1202.45 additional parole restitution fine was understandable.   As noted in the immediately preceding paragraph, the section 1202.45 additional parole restitution fine which is suspended must be in a sum equal to the section 1202.4, subdivision (b)(1) restitution fine.   In other words, if no section 1202.4, subdivision (b)(1) restitution fine is imposed, then no section 1202.45 additional parole restitution fine may be imposed and suspended.   In Tillman, this is exactly what happened.   No section 1202.4, subdivision (b)(1) restitution fine was imposed;  hence, no section 1202.45 additional parole restitution fine could be imposed.

In the face of these facts, the Supreme Court in Tillman concluded that the failure of the deputy district attorney to have objected at all to the failure of the trial judge to have imposed either fine barred the Attorney General from raising the issue on appeal.   It bears emphasis that Tillman involved a case where the trial court never imposed the section 1202.4, subdivision (b)(1) minimum $200 restitution fine nor stated its reasons for failing to do so.   As will be noted, Tillman involved a materially different procedural scenario than is present in this case where a section 1202.4, subdivision (b)(1) $5,000 restitution fine was imposed.   In any event, the Supreme Court described its holding as follows:  “The trial court here failed to state on the record its reasons for not imposing the restitution fines;  the [People v.]Scott [ (1994) 9 Cal.4th 331, 353, 36 Cal.Rptr.2d 627, 885 P.2d 1040] trial court failed to state on the record its reasons for making a discretionary sentencing choice, a finding required by section 1170.   In Scott, we held the defendant's objection to the trial court's omission had been waived by the failure to make it at the time of sentencing.   Here, we conclude the People's failure to object leads to the same result.”  (People v. Tillman, supra, 22 Cal.4th at p. 303, 92 Cal.Rptr.2d 741, 992 P.2d 1109.)   The Supreme Court's determination that the issue of the trial judge's failure to impose the mandatory “fines” had been waived by the absence of a prosecutorial objection to the absence of a statement of reasons as required by section 1202.4, subdivision (b)(1) was principally premised upon its prior decision of People v. Scott, supra, 9 Cal.4th at page 353, 36 Cal.Rptr.2d 627, 885 P.2d 1040 and in turn, to a lesser degree, on the opinion in People v. Welch, supra, 5 Cal.4th at page 235, 19 Cal.Rptr.2d 520, 851 P.2d 802.   In Scott, the Supreme Court held that a defendant's failure to object to a sentencing court's failure to articulate any or proper reasons for a sentence choice subject to the determinate sentencing law precluded raising an issue concerning such an error on appeal.  (People v. Scott, supra, 9 Cal.4th at p. 353, 36 Cal.Rptr.2d 627, 885 P.2d 1040.)

In Tillman, the Supreme Court reiterated its analysis as follows:  “Both Scott and Welch involved criminal defendants who sought correction of alleged sentencing errors on appeal after having failed to object in the trial court;  here, of course, the party seeking to have the sentence modified on appeal is the People, acting through the Attorney General.   We see no material difference in that circumstance, however.   Animating the result in Scott was the following ‘practical and straightforward’ reasoning:  ‘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.’  (People v. Scott, supra, 9 Cal.4th at p. 353, 36 Cal.Rptr.2d 627, 885 P.2d 1040[ ] italics added.)”  (People v. Tillman, supra, 22 Cal.4th at p. 303, 92 Cal.Rptr.2d 741, 992 P.2d 1109, original italics.)   The Scott decision concluded that the failure to state reasons for a sentence choice in a determinate sentencing case was not a jurisdictional error.   In reaching that conclusion, Scott relied upon the definition of a jurisdictional error set forth in People v. Welch, supra, 5 Cal.4th at page 235, 19 Cal.Rptr.2d 520, 851 P.2d 802, which was as follows:  “Whatever precise meaning the ‘unauthorized sentence’ and ‘excess of jurisdiction’ concepts may have in determining whether claims are waivable on appeal or cognizable on habeas corpus, the authorities cited by defendant do not support her position.   These cases generally involve pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court.”   Citing to the foregoing page of Welch, in People v. Scott, supra, 9 Cal.4th at page 354, 36 Cal.Rptr.2d 627, 885 P.2d 1040, the Supreme Court defined an unauthorized sentence which was correctable on appeal even though the issue was not raised in the trial court as follows:  “Although the cases are varied, a sentence is generally ‘unauthorized’ where it could not lawfully be imposed under any circumstance in the particular case.   Appellate courts are willing to intervene in the first instance because such error is ‘clear and correctable’ independent of any factual issues presented by the record at sentencing.  (Welch, supra, 5 Cal.4th [at p.] 235 [19 Cal.Rptr.2d 520, 851 P.2d 802].)”

 The analysis in Tillman, and based upon the holdings of Scott and Welch, is clearly applicable when the trial court fails to impose a section 1202.4, subdivision (b)(1) restitution fine and at the same time neglected to state on the record the “compelling in and extraordinary reasons for not doing so․”  Scott, Welch, and Tillman, are entirely consistent with what is now a black letter statement of California law;  when a sentencing decision requires the statement of reasons and there is noncompliance with that rule, the failure to object in the trial court bars raising the issue on appeal.  (E.g., People v. Middleton (1997) 52 Cal.App.4th 19, 36-37, 60 Cal.Rptr.2d 366 [citing Scott, use of improper fact to impose the upper term];  People v. Mustafaa (1994) 22 Cal.App.4th 1305, 1310-1311, 28 Cal.Rptr.2d 172 [failing to state reasons for upper term as required by § 1170, subd. (c) ];  People v. Neal (1993) 19 Cal.App.4th 1114, 1117-1124, 24 Cal.Rptr.2d 129 [failing to state reasons for consecutive sentences as required by section 1170, subd. (c) ].)

 However, this entire body of law synthesized in Tillman has no controlling application when the trial judge imposes a $5,000 section 1202.4, subdivision (b)(1) restitution fine as occurred in this case but the section 1202.45 additional parole restitution fine is imposed in an improper amount.   To begin with, the failure to impose the section 1202.45 additional parole restitution fine in the proper sum is an error, which in the words of Scott is “ ‘clear and correctable’ independent of any factual issues raised by the record at sentencing.”  (People v. Scott, supra, 9 Cal.4th at p. 354, 36 Cal.Rptr.2d 627, 885 P.2d 1040.)   In the words of Welch, the failure to impose the section 1202.45 additional parole restitution fine in the correct sum when there has been the imposition of the section 1202.4, subdivision (b)(1) assessment, raises only a “pure question[ ] of law that can be resolved without reference to the particular sentencing record․”  (People v. Welch, supra, 5 Cal.4th at page 235, 19 Cal.Rptr.2d 520, 851 P.2d 802.)   The failure to have imposed the section 1202.45 additional parole restitution fine in this case in the statutorily mandated sum, $5,000, involves a pure question of law that can be resolved without reference to the particular facts before the trial court-once the section 1202.4, subdivision (b)(1) restitution fine was imposed, there was a duty to assess a section 1202.45 additional parole restitution fine in an equal sum.

 Finally, we note that the Supreme Court in Tillman did not disapprove of any of the decisions which held that when the section 1202.4, subdivision (a)(1) fine is imposed, the duty to impose the section 1202.45 additional parole restitution fine constitutes a jurisdictional error, a legally unauthorized sentence, which is correctable on appeal even though no objection was imposed in the trial court.  (People v. Hannah (1999) 73 Cal.App.4th 270, 272, 86 Cal.Rptr.2d 395;  People v. Terrell (1999) 69 Cal.App.4th 1246, 1255, 82 Cal.Rptr.2d 231;  People v. Hong, supra, 64 Cal.App.4th at p. 1084, 76 Cal.Rptr.2d 23.)   Accordingly, the judgment must be modified to reflect the imposition of a $5,000 additional parole restitution fine pursuant to the provisions of section 1202.45 as to Mr. Smith and Mr. Loney which is suspended until there is a parole violation, if such ever occurs.

The judgments are modified to reflect the imposition of the Penal Code section 1202.45 additional parole restitution fines in the sum of $5,000 as to each defendant as discussed in the body of this opinion.   Upon issuance of the remittitur, the superior court clerk is directed to issue amended abstracts of judgment which correctly reflect both restitution fines imposed as to both defendants and forward it to the Department of Corrections.   The judgments are affirmed in all other respects.

I concur in the judgment affirming the judgments of conviction.   I respectfully dissent to that part of the judgment which directs a modification of the judgments to reflect the imposition of a Penal Code section 1202.45 parole restitution fine in the sum of $5,000 as to each defendant.   People v. Tillman (2000) 22 Cal.4th 300, 92 Cal.Rptr.2d 741, 992 P.2d 1109 is controlling.   Respondent's objection to the order imposing these restitution fines was waived by the failure to make the objection at the time of sentencing.  (Id., p. 303, 92 Cal.Rptr.2d 741, 992 P.2d 1109.)

FOOTNOTES

FN1. All further statutory references are to the Penal Code unless otherwise indicated..  FN1. All further statutory references are to the Penal Code unless otherwise indicated.

TURNER, P.J.

GRIGNON, J., concurs.