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Court of Appeal, Third District, California.

The PEOPLE, Plaintiff and Respondent, v. Richard Valentine SCHENCK, Defendant and Appellant.

No. C015828.

Decided: March 18, 1994

Eric J. Ross, 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., Michael J. Weinberger, Supervising Deputy Atty. Gen., Robert D. Marshall, Deputy Atty. Gen., for plaintiff and respondent.

Defendant pleaded no contest to first degree burglary (Pen.Code, §§ 459, 460) and causing injury while fleeing from a police officer (Veh.Code, § 2800.2).   The court sustained allegations he served two prior prison terms (Pen.Code, § 667.5, subd. (b)) and found a third similar allegation to be untrue.

Defendant personally waived preparation of a probation report, stating he “want[ed] sentence right now,” and his counsel joined in the waiver.1  The court sentenced him to an aggregate unstayed prison term of ten years and ordered him to pay $599 in direct restitution.   Without discussion or objection, the court imposed a $400 restitution fine pursuant to Government Code section 13967 (“section 13967”), which requires a fine be imposed upon a convicted felon, “subject to the defendant's ability to pay․”  Defendant contends the court erred in imposing the restitution fine without determining his ability to pay.   We shall affirm.

The People contend defendant waived his contention by failing to object at sentencing.   We conclude that having expressly waived a probation report and requested immediate sentencing, defendant waived his contention by failing to object to the restitution fine below.

“An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been, but was not, presented to the lower court by some appropriate method․  The circumstances may involve such intentional acts or acquiescence as to be appropriately classified under the headings of estoppel or waiver․  Often, however, the explanation is simply that it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial.  [Citation.]  The purpose of the general doctrine of waiver is to encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial had․  [Citation.]   No procedural principle is more familiar to this Court than that a constitutional right, or a right of any other sort, may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.”  (People v. Saunders (1993) 5 Cal.4th 580, 589–590, 20 Cal.Rptr.2d 638, 853 P.2d 1093, internal quotation marks and emphasis omitted.)

Applying these principles, the Saunders court held that by failing to make a timely and specific objection, the defendant waived claimed violations of a statutory prohibition against discharging a jury before it determines the truth of alleged prior convictions and a statutory right to a determination of the truth of allegations of prior convictions by the same jury that determined guilt.  (Saunders, supra, 5 Cal.4th at pp. 589–591, 20 Cal.Rptr.2d 638, 853 P.2d 1093).   In so doing, the court refused to apply the applicable statutes “to create a procedural trap that would enable defense counsel to ambush the trial judge and deprive the People of their statutory right to prove one or more alleged prior convictions” or to “place a defense attorney in the untenable position of having to choose between honoring counsel's commitment to the court (that jury trial on the prior conviction allegation would be waived) and counsel's duty to his or her client (to offer all available defenses to the charges and allegations contained in the accusatory pleading).”  (Ibid.)

“It is settled that failure to object and make an offer of proof at the sentencing hearing concerning alleged errors or omissions in the probation report waives the claim on appeal.”  (People v. Welch (1993) 5 Cal.4th 228, 234, 19 Cal.Rptr.2d 520, 851 P.2d 802.)   The same rule generally applies to conditions of probation.  (Ibid.)

With reference to restitution orders, it has been held the failure to object at sentencing waives purely factual contentions on appeal (People v. Zito (1992) 8 Cal.App.4th 736, 742, 10 Cal.Rptr.2d 491) and appellate contentions that the recommendations in the probation report concerning restitution were not sufficiently specific (People v. Blankenship (1989) 213 Cal.App.3d 992, 998, 262 Cal.Rptr. 141), that the court delegated the determination of the amount of restitution to the probation officer in violation of statute (People v. Keele (1986) 178 Cal.App.3d 701, 708, 224 Cal.Rptr. 32), and that (at least where a restitution fine was recommended in the probation report) the court failed to advise the defendant a restitution fine was a direct consequence of a guilty plea (People v. Walker (1991) 54 Cal.3d 1013, 1023, 1 Cal.Rptr.2d 902, 819 P.2d 861;  People v. Melton (1990) 218 Cal.App.3d 1406, 1408–1409, 267 Cal.Rptr. 640).

In the present case, the court and counsel discussed direct restitution at length and defense counsel objected to certain elements of the victims' claims for restitution.   However, the defense failed to object when the court stated it intended to impose a $400 restitution fine.   Having made factual arguments relating to the direct restitution order, it is reasonable to assume defendant and/or his counsel would have made any arguments relating to a restitution fine had there been any worthy of support.

The fact no probation report was prepared in this case does not distinguish it from Walker, supra or Melton, supra.   Before the entry of the plea in this case, the court warned defendant a restitution fine of up to $10,000 was a consequence of a no contest plea.   Defendant acknowledged he understood.   He further acknowledged he understood “what a probation report is for,” expressly waived his right to a probation report and requested immediate sentencing.   Defense counsel joined in the waiver.

By statute, a probation report would have included the probation officer's investigative report and recommendations concerning the restitution fine defendant admittedly faced.  (Pen.Code § 1203, subdivision (b).)   It was defendant's express waiver that caused any lack of evidence from which defendant's ability to pay could be inferred.   Contrary to defendant's assertion that applying principles of waiver in this case would be unfair to him, he apparently made a tactical decision to waive a probation report and received the benefits of that decision.   Permitting him to now object to the restitution order would allow him to trifle with the courts.  (People v. Mendez (1991) 234 Cal.App.3d 1773, 1782, 286 Cal.Rptr. 216.)

Having asserted in his opening brief that section 13967 “clearly requires that the court determine [his] ability to pay before imposing the fine,” defendant asserts in his reply brief that his failure to object should be excused because the law was unsettled whether a finding of a defendant's ability to pay was a condition precedent to the imposition of a restitution fine.   He asserts section 13967 had been effective “only a few months” 2 and no case had then held a restitution fine required a finding of the defendant's ability to pay.   The contention is not well taken since section 13967 expressly makes a restitution fine conditional upon the defendant's ability to pay.

The judgment is affirmed.


1.   The probation officer previously filed memoranda discussing the victims' injuries and direct restitution therefor.

2.   In fact, sentencing in this case occurred more than seven months after the effective date of section 13967.

DAVIS, Associate Justice.

PUGLIA, P.J., and BLEASE, J., concur.