PEOPLE v. ROBLES

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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. Arthur Olguin ROBLES, Defendant and Appellant. IN RE: Arthur Olguin ROBLES, on Habeas Corpus.

Nos. F019254, F019722.

Decided: February 04, 1994

K. Douglas Cummings, Sacramento, under appointment by the Court of Appeal, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson, Sr. Asst. Atty. Gen., Edgar A. Kerry and Jane Olmos, Deputy Attys. Gen., Fresno, for plaintiff and respondent.

STATEMENT OF THE CASE

On October 13, 1992, an information was filed in Madera County Superior Court charging appellant Arthur Olguin Robles and codefendant Raul Estrada with robbery (Pen.Code, § 211).   An enhancement was alleged only as to appellant Robles that he personally used a knife during the commission of the robbery within the meaning of Penal Code section 12022, subdivision (b).

On October 14, 1992, appellant was arraigned and pleaded not guilty.   On December 9, 1992, defendants' trial began.   On December 10, 1992, the jury found appellant Robles and codefendant Estrada guilty of second degree robbery.   The enhancement alleged against appellant Robles was found not true.

On January 21, 1993, the court denied probation and sentenced appellant Robles to the upper term of five years in state prison.   Appellant was ordered to pay a Government Code section 13967, subdivision (a) restitution fine of $200, a fine and penalty assessment of $2,700, a presentence report fee of $250, a booking fee of $170, and restitution to the victim of $100.

On February 22, 1993, appellant Robles filed a timely notice of appeal.   On June 4, 1993, appellant filed a petition for writ of habeas corpus and motion to consolidate the petition with his pending appeal.   On June 9, 1993, this court granted the motion to consolidate the petition and pending appeal for determination of all issues before this court.

In the unpublished portion of this opinion we will find to be without merit Robles's claims of ineffective assistance of trial counsel and instructional error.   In the published portion, to which the facts of the offense and trial proceedings are not relevant, we will hold that imposition of the $200 minimum specified Government Code section 13967, subdivision (a) restitution fine does not require a consideration of or finding of defendant's ability to pay.

STATEMENT OF FACTS **

DISCUSSION

I.–III.***

IV.

GOVERNMENT CODE SECTION 13967 RESTITUTION FINE

Appellant contends the court's imposition of a restitution fine of $200 pursuant to Government Code section 13967, subdivision (a) was improper.   He argues that pursuant to recent amendments to subdivision (a) the court was obligated to consider his ability to pay prior to the imposition of the fine, and failure to do so requires remand.2  Resolution of this issue requires a brief review of the statutory restitution provisions.

Government Code section 13967 was added in 1973, and initially provided:

“Upon a person being convicted of a crime of violence committed in the State of California resulting in the injury or death of another person, if the court finds that the defendant has the present ability to pay a fine and finds that the economic impact of the fine upon the defendant's dependents will not cause such dependents to be dependent on public welfare the court shall, in addition to any other penalty, order the defendant to pay a fine commensurate with the offense committed, and with the probable economic impact upon the victim, but not to exceed ten thousand dollars ($10,000)․”  (See Historical and Statutory Notes, 32D West's Ann.Gov.Code (1992 ed.) § 13967, p. 433;  emphasis added.)

The 1979 amendment rewrote section 13967 to include subdivisions.   Subdivision (a) required a restitution fine for any person convicted of a violent crime resulting in injury or death and retained the language regarding defendant's present ability to pay the fine.   It also set a statutory range for the restitution fine of between $10 and $10,000.  (See Historical and Statutory Notes, 32D West's Ann.Gov.Code, supra, § 13967, p. 434.)   Additional amendments to section 13967 in 1980 and 1981 did not change the “present ability to pay” language of subdivision (a).

 In 1983, new restitution provisions were enacted in response to the passage of Proposition 8, and section 13967 was substantially amended.   (See People v. Broussard (1993) 5 Cal.4th 1067, 1072–1073, 22 Cal.Rptr.2d 278, 856 P.2d 1134.)  Government Code section 13967, as presently stated, is designed to compensate crime victims for economic losses suffered as a direct result of a crime.   It accomplishes this goal by providing both for restitution fines to the State Restitution Fund and direct restitution payments to victims.  (People v. Fritchey (1992) 2 Cal.App.4th 829, 839, 3 Cal.Rptr.2d 585;  People v. Serna (1988) 203 Cal.App.3d 728, 730, 249 Cal.Rptr. 861;  People v. Miller (1989) 216 Cal.App.3d 758, 761, 265 Cal.Rptr. 77.)

The “present ability to pay” language of section 13967 was eliminated by the 1983 amendments.   Subdivision (a) was amended to provide for imposition of a restitution fine of not less than $100 and not more than $10,000 if a person is convicted of one or more felony offenses.  (See Stats.1983, ch. 1092, § 135.2, p. 3998.)  Section 13967 was further amended in 1986 to add subdivision (c), which provides for direct payment of restitution to victims.   Subdivision (c) relates only to economic losses, and such restitution must be supported by reference to a factual basis for a claim.  (People v. Fritchey, supra, 2 Cal.App.4th 829, 840, 3 Cal.Rptr.2d 585;  People v. Blankenship (1989) 213 Cal.App.3d 992, 998, 262 Cal.Rptr. 141.)

Section 13967, subdivision (a), as it existed prior to the 1992 amendment, stated the factors for the court to consider in imposing the restitution fine:

“․ In setting the amount of the fine for felony convictions, the court shall consider any relevant factors including, but not limited to, the seriousness and gravity of the offense and the circumstances of its commission, any economic gain derived by the defendant as a result of the crime, and the extent to which others suffered losses as a result of the crime․  Except as provided in Section 1202.4 of the Penal Code and subdivision (c) of this section, under no circumstances shall the court fail to impose the separate and additional restitution fine required by this section․”  (See 32D West's Ann.Gov.Code, supra, § 13967, subd. (a), p. 432.)

Penal Code section 1202.4, expressly cited by Government Code section 13967, subdivision (a), was also enacted as part of the 1983 restitution legislation.  (People v. Broussard, supra, 5 Cal.4th at p. 1073, 22 Cal.Rptr.2d 278, 856 P.2d 1134;  Stats.1983, ch. 1092, § 320.1, p. 4058.)   Section 1202.4, subdivision (a) provides:

“In any case in which a defendant is convicted of a felony, the court shall order the defendant to pay a restitution fine as provided in subdivision (a) of Section 13967 of the Government Code.   Such restitution fine shall be in addition to any other penalty or fine imposed and shall be ordered regardless of the defendant's present ability to pay.   However, if the court finds that there are compelling and extraordinary reasons, the court may waive imposition of the fine.   When such a waiver is granted, the court shall state on the record all reasons supporting the waiver.”  (Pen.Code, § 1202.4, subd. (a);  emphasis added)

If such restitution is ordered as a condition of probation, the order to pay may be stayed pending the successful completion of probation.  (Pen.Code, § 1202.4, subd. (b).)

Thus, as of 1992, Government Code section 13967, subdivision (a) and Penal Code section 1202.4, subdivision (a) required imposition of a mandatory restitution fine of between $100 and $10,000 if the defendant was convicted of a felony, payable to the State Restitution Fund, without prior consideration of the defendant's ability to pay absent “compelling and extraordinary reasons.”  (People v. McGhee (1988) 197 Cal.App.3d 710, 715, 243 Cal.Rptr. 46.)

In 1992, however, the Legislature again amended Government Code section 13967, subdivision (a).  (Stats.1992, ch. 682, § 4, pp. 2557–2558.)   The amended subdivision (a), effective September 14, 1992, continues to mandate imposition of a restitution fine for a person convicted of one or more felony offenses, but provides that the fine shall be “not less than two hundred dollars ($200), subject to the defendant's ability to pay, and not more than ten thousand dollars ($10,000).”  (Gov.Code, § 13967, subd. (a);  emphasis added)  Subdivision (a) was not amended in any other way, and retains the reference to Penal Code section 1202.4:  “․ Except as provided in Section 1202.4 of the Penal Code and subdivision (c) of this section, under no circumstances shall the court fail to impose the separate and additional restitution fine required by this section․”  (Gov.Code, § 13967, subd. (a).)  Penal Code section 1202.4, however, has not been amended in any way.

The specific question presented is whether the 1992 amendment to Government Code section 13967, subdivision (a) requires an initial determination of the defendant's ability to pay before the sentencing court may impose a statutory minimum $200 restitution fine.3  Government Code section 13967, subdivision (a) was amended in 1992 by Senate Bill 1444.  (Stats.1992, ch. 682, § 4, pp. 2557–2558.)   The legislative history of this bill reveals that it was intended as a measure to increase rather than decrease revenues into the restitution fund.   The bill's overall purpose was to address the growing shortfall in the restitution fund that resulted from the increased number of claims filed by victims compared to diminished revenue received into the fund.   The restitution fund would have run out of money in June 1992 had the state not obtained $19,000,000 in federal funds to replenish it, but a shortfall was again projected for 1993.   To address these concerns and increase revenue, the bill increased the amount that may be deducted from state prison inmates or California Youth Authority wages payable to the restitution fund;  established a minimum restitution fine for minors convicted of a felony;  required the state to pay probation departments 10 percent of the amount of restitution collected as an incentive for collection;  increased the minimum restitution fine from $100 to $200;  authorized the Board of Control to delay payment of restitution claims based on specified conditions;  and permitted review of all victim restitution claims to ensure their medical necessity.   Such measures were deemed necessary to meet the increased restitution claims and anticipated shortfall in revenues.

The Assembly Committee on Public Safety report prepared in anticipation of the June 30, 1992, hearing on Senate Bill No. 1444 (Report) stressed the necessity of amending the restitution system to address the shortfall in revenue.   One of the more important provisions was to delay payment of victim restitution claims under certain circumstances and limit the amount a provider could charge for medical or other services for victims.

Under a discussion of “Need,” the report states that the number of restitution claims have increased while revenues are declining.  “The revenue decline is the result of a number of factors:  the recession, decreased collection at the county level, some judges not imposing the maximum penalty, counties slow in remitting revenues to the state, and insufficient incentives for counties to collect.”  (Report at p. 3;  italics added.)   Another paragraph of the report is exclusively addressed to the “ability to pay” amendment of the Government Code:

“Ability to Pay.   According to the author, judges are currently imposing a minimum fine of $100 when a person is convicted of a felony even though the felony fine is up to $10,000.   This bill sets a minimum fine of $200 with an ability to pay provision.   The term ‘ability to pay’ means the overall capability of the defendant to pay the costs set by the court.   The court must consider the defendant's present financial situation;  reasonably discernible future financial position;  likelihood that the defendant shall be able to obtain employment within the six-month period from the date of the hearing;  any other factors which may bear upon the defendant's financial capability.”   (Report at p. 3.)

This is the only discussion on the “ability to pay” amendment in the legislative history.

The legislative history thus reflects an intent to encourage sentencing courts to impose larger restitution fines.   There is nothing in the legislative history which suggests that Government Code section 13967, subdivision (a) nullified or negated the mandatory imposition of a restitution fine as directed by Penal Code section 1202.4, subdivision (a).

The amendment, however, presents a potential conflict between the newly added “ability to pay” language of Government Code section 13967, subdivision (a) and Penal Code section 1202.4, subdivision (a), which was not amended and retains the unequivocal proviso that the restitution fine “shall be ordered regardless of the defendant's present ability to pay.”   At first glance, it appears that these provisions are directly in conflict.  Penal Code section 1202.4, subdivision (a), however, does permit the court to find “compelling and extraordinary reasons” to waive imposition of the fine, but defendant has the burden to raise the existence of such circumstances.  (Pen.Code, § 1202.4, subd. (a).)

 An interpretation harmonizing the two statutes is favored and possible in the instant case.   In the construction of a particular statute or of any of its provisions, all acts having the same general purpose or relating to the same subject should be read together as if one law and harmonized if possible, even though they have been passed at different times.  (Sondeno v. Union Commerce Bank (1977) 71 Cal.App.3d 391, 395, 139 Cal.Rptr. 229;  Kahn v. Kahn (1977) 68 Cal.App.3d 372, 381, 137 Cal.Rptr. 332.)   This principle applies although the apparent inconsistencies may appear in separate codes since, for purposes of statutory construction, the codes are regarded as blending into each other and constituting but a single statute.  (Pacific Motor Transport Co. v. State Board of Equalization (1972) 28 Cal.App.3d 230, 235, 104 Cal.Rptr. 558.)

We find that the statutes continue to complement each other regardless of the amendment.  Government Code section 13967, subdivision (a) states that the restitution fine shall be “not less than two hundred dollars ․, subject to the defendant's ability to pay, and not more than ten thousand dollars․”  Subdivision (a), however, continues to include the express reference to Penal Code section 1202.4:  “Except as provided in Section 1202.4 of the Penal Code and subdivision (c) of this section, under no circumstances shall the court fail to impose the separate and additional restitution fine required by this section․”  (Gov.Code, § 13967, subd. (a).)  In turn, Penal Code section 1202.4 mandates imposition of a restitution fine pursuant to Government Code section 13967, subdivision (a) in any case in which the defendant is convicted of a felony, and that this fine “shall be ordered” regardless of defendant's present ability to pay.   It permits waiver of the imposition of the mandatory fine only upon a finding of compelling and extraordinary reasons.

 These two sections require the sentencing court to impose a mandatory restitution fine of at least the statutory minimum of $200:  Penal Code section 1202.4 unequivocally requires imposition of the mandatory fine regardless of the present ability to pay, and Government Code section 13967, subdivision (a) sets the statutory minimum of $200.  Section 1202.4, however, permits waiver of the mandatory restitution fine if the court finds compelling and extraordinary reasons.   Thus, the sentencing court is not required to make a finding of defendant's ability to pay before imposing the statutory minimum restitution fine of $200.   It may only waive imposition of the statutory minimum fine upon a finding of compelling and extraordinary reasons.   To conclude otherwise would render without meaningful purpose both section 13967, subdivision (a)'s specification of the minimum fine and its continued reference to Penal Code section 1202.4, which only excuses imposition of the mandatory minimum fine upon a finding of compelling and extraordinary circumstances.

What, then, is the effect of the “ability to pay” language inserted in Government Code section 13967, subdivision (a)?   The Legislature has amended Government Code section 13967, subdivision (a) to require imposition of the restitution fine “subject to” defendant's ability to pay.   Such language thus directs the sentencing court to making a finding of defendant's ability to pay prior to setting the amount of the restitution fine.  (See People v. McMahan (1992) 3 Cal.App.4th 740, 749, 4 Cal.Rptr.2d 708.)   We note that this amendment was expressly limited to subdivision (a) and that the Legislature did not similarly amend subdivision (c) regarding direct restitution to the victim.

 The requirement of an “ability to pay” finding, however, is limited to situations in which the court imposes a restitution fine in an amount greater than the statutory minimum.   The Government Code directs the sentencing court to consider the defendant's ability to pay in selecting the amount of the fine from the discretionary range of $201 to $10,000.  Section 13967, subdivision (a) does not permit the sentencing court to waive imposition of the statutory minimum fine simply by considering defendant's ability to pay:  the amended language of “ability to pay” simply refers to the discretionary selection of an amount from the statutory range.   Instead, Penal Code section 1202.4, subdivision (a) still mandates imposition of the minimum fine and permits the court to waive the fine only upon the showing of compelling and extraordinary reasons.

 In the instant case, the sentencing court imposed the statutory minimum restitution fine of $200, and it was not required to make a finding regarding appellant's ability to pay before imposing the statutory minimum pursuant to Penal Code section 1202.4 and Government Code section 13967, subdivision (a).   Appellant failed to object or present compelling and extraordinary reasons to waive this fine.   The court, having imposed the statutory minimum restitution fine, was not required to make a finding of appellant's ability to pay, and no error was committed.

Having concluded that the trial court properly imposed the $200 minimum restitution fine, we find it unnecessary to address respondent's contention that by failure to object appellant waived the issue.

DISPOSITION

The judgment is affirmed.   The petition for writ of habeas corpus is denied.

FOOTNOTES

FOOTNOTE.   See footnote *, ante.

FOOTNOTE.   See footnote *, ante.

2.   We are aware that the First Appellate District, Division Three, (see People v. Wilson (1994) review granted April 18, 1994 (S038024) ( 1994 WL 6747) and the Third Appellate District (see People v. Frye (1994) 21 Cal.App.4th 1483, 27 Cal.Rptr.2d 52) have recently addressed this issue.

3.   The offense for which appellant was convicted is alleged to have occurred on September 20, 1992, after the effective date of the amendment.

HARRIS, Associate Justice.

VARTABEDIAN, Acting P.J., and BUCKLEY, J., concur.

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