PEOPLE v. WILSON

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Court of Appeal, First District, Division 3, California.

The PEOPLE, Plaintiff and Respondent, v. Ronald Lee WILSON, Defendant and Appellant.

No. A061011.

Decided: January 11, 1994

Jeffrey S. Kross, Oakland, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Sr. Asst. Atty. Gen., Laurence K. Sullivan, Supervising Deputy Atty. Gen., René A. Chacón, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

Defendant Ronald Lee Wilson pled guilty to two counts of lewd and lascivious conduct with a child (Pen.Code,1 § 288, subd. (a)) and admitted serving a prior prison term for a felony conviction (§ 667.5, subd. (b)).  The trial court sentenced defendant to the upper term of eight years for the first count, imposed a two-year consecutive term for the second count, and also imposed a one-year term for the prior prison term.   The total term imposed is eleven years, plus a $5,000 restitution fine imposed pursuant to Government Code section 13967, subdivision (a).

On appeal, defendant contends the trial court:  (1) improperly considered facts underlying dismissed counts when it imposed sentence (People v. Harvey (1979) 25 Cal.3d 754, 159 Cal.Rptr. 696, 602 P.2d 396);  and (2) failed to consider defendant's ability to pay when it imposed the restitution fine.   We reduce the restitution fine to $200, but otherwise affirm the judgment.

FACTS **

DISCUSSION

A. The Court Did Not Violate Harvey.***

B. The Restitution Fine.

Defendant next contends the lower court erred when it imposed a $5,000 restitution fine pursuant to Government Code section 13967,4 subdivision (a).   As we explain, the lower court believed the $5,000 fine was appropriate only if it could not consider defendant's ability to pay the fine.   We conclude that a sentencing court must consider the defendant's ability to pay when it imposes a restitution fine.   Consequently, we strike the $5,000 restitution fine and instead impose the minimum fine of $200.

The issue in this case is created by an apparent conflict between two statutes.   The first statute seems to require that the sentencing court consider a defendant's ability to pay in setting the amount of the restitution fine.   As amended in 1992,5 Government Code section 13967, subdivision (a) reads in pertinent part:  “In addition [to any other penalty], if the person is convicted of one or more felony offenses, the court shall impose a separate and additional restitution fine of not less than two hundred dollars ($200),subject to the defendant's ability to pay, and not more than ten thousand dollars ($10,000).   In setting the amount of the fine for felony convictions, the court shall consider any relevant factors․  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.”  (Emphasis added.)   Fines imposed under this subdivision are deposited in the state's restitution fund pool to pay claims filed by victims.6  (People v. Blankenship (1989) 213 Cal.App.3d 992, 996, 262 Cal.Rptr. 141.)

The second statute, on the other hand, seems to require that the sentencing court ignore the defendant's ability to pay when it imposes a restitution fine.  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.”   (Emphasis added.)

Because the lower court was aware of the apparent conflict between the two statutes, it imposed a $5,000 restitution fine but explicitly stated that it had not considered the defendant's ability to pay the fine in setting that amount.   The lower court went on to note that if it were required to consider the defendant's ability to pay, it would impose only the minimum fine of $200.

Prior to the 1992 amendment, there was no apparent conflict between section 13967, subdivision (a), and section 1202.4.   At that time, section 13967, subdivision (a) did not mention the defendant's ability to pay.   It merely stated that “the court shall impose a separate and additional restitution fine of not less than one hundred dollars ($100) and not more than ten thousand dollars ($10,000).”  (Gov.Code, former § 13967, subd. (a).)  The case law indicated that such a fine was to be imposed regardless of the defendant's ability to pay.  (People v. Walker (1991) 54 Cal.3d 1013, 1019, 1 Cal.Rptr.2d 902, 819 P.2d 861;  People v. Blankenship, supra, 213 Cal.App.3d at p. 996, 262 Cal.Rptr. 141;  People v. Sandoval (1989) 206 Cal.App.3d 1544, 1550, 254 Cal.Rptr. 674.)   However, effective September 14, 1992, the Legislature increased the minimum fine to $200 and added language regarding the defendant's ability to pay:  “[T]he court shall impose a separate and additional restitution fine of not less than two hundred dollars ($200), subject to the defendant's ability to pay․”  (Stats.1992, ch. 682, § 4, No. 9 West's Cal.Legis.Service, p. 2557.)

We have examined the legislative history of the 1992 amendment to section 13967 and find that it sheds little light on the Legislative intent.7  Consequently, we must rely on the rules of statutory construction to discern the intent of the Legislature.

“Although the decisional law has established many rules of statutory construction, they all are basically guides in the judicial quest to determine the Legislature's intent so that the purpose of the legislation may be effectuated.”  (People v. Caudillo (1978) 21 Cal.3d 562, 576, 146 Cal.Rptr. 859, 580 P.2d 274, disapproved on other grounds in People v. Escobar (1992) 3 Cal.4th 740, 751, fn. 5, 12 Cal.Rptr.2d 586, 837 P.2d 1100.)   Among the fundamental rules of statutory construction are “ ‘ “those which counsel that the aim of such construction should be the ascertainment of legislative intent so that the purpose of the law may be effectuated [citation];  that a statute should be construed with reference to the entire statutory system of which it forms a part in such a way that harmony may be achieved among the parts [citation];  and that courts should give effect to statutes ‘according to the usual, ordinary import of the language employed in framing them.’   [Citation.]” '  In our search for legislative intent, we are also guided by the principle that ‘[i]n construing a criminal statute, a defendant “must be given the benefit of every reasonable doubt as to whether the statute was applicable to him.”  ․’ ”  (Caudillo, supra, 21 Cal.3d at p. 576, 146 Cal.Rptr. 859, 580 P.2d 274 (citation omitted), quoted in People v. Bryant (1992) 10 Cal.App.4th 1584, 1599, 13 Cal.Rptr.2d 601.)   Finally, we must give effect to every phrase in a statute, and avoid interpretations which lead to absurd results.  (Bryant, supra at p. 1600, 13 Cal.Rptr.2d 601.)

In examining the purpose of the statutes at issue in this case, it is important to note that section 13967, subdivision (a) and section 1202.4 were enacted in response to a constitutional amendment adopted by the voters as part of Proposition 8.  (See Cal. Const., art. I, § 28, subd. (b);  People v. Walker (1991) 54 Cal.3d 1013, 1019, 1 Cal.Rptr.2d 902, 819 P.2d 861.)   That amendment required the Legislature to adopt provisions to ensure that “[r]estitution shall be ordered from the convicted persons in every case ․ in which a crime victim suffers a loss, unless compelling and extraordinary reasons exist to the contrary.”  (Cal. Const., art. I, § 28, subd. (b).)  However, the constitutional amendment did not specify whether the defendant's ability to pay could be considered in setting the amount of restitution.

In our view, the most important rule of construction in the present case is the one which commands that a statute should be construed with reference to the entire statutory scheme of which it forms a part in such a way that harmony may be achieved among the parts.  (People v. Caudillo, supra, 21 Cal.3d at pp. 584–585, 146 Cal.Rptr. 859, 580 P.2d 274.)   Thus, we should resolve the apparent conflict between section 13967, subdivision (a) and section 1202.4 in a way which harmonizes the two statutes, while at the time giving effect to the purpose for which they were enacted.

With these rules of construction in mind, we conclude that the 1992 amendment to section 13967, subdivision (a) was intended to, and did, bring the defendant's ability to pay into the restitution equation.8  In effect, the amendment creates a presumption that the minimum restitution fine will be $200, “subject to the defendant's ability to pay.”   In other words, the minimum restitution fine will be at least $200 unless the court concludes that the defendant does not have the ability to pay even that small amount, in which event the court may impose a restitution fine of less than $200.   By inference, this means that the court must consider the defendant's ability to pay when it sets a restitution fine in the range between $200 and $10,000.

Section 1202.4 is not inconsistent with the above interpretation of section 13967, subdivision (a).  Section 1202.4, subdivision (a) compels the court to impose “a restitution fine” “regardless of the defendant's present ability to pay.”  (Emphasis added.)   A court may forgo imposing any restitution fine only if there are “compelling and extraordinary reasons” for doing so, and the court states those reasons on the record.   In other words, the court must impose some restitution fine, even if the defendant does not have the ability to pay the $200 minimum.   The court can forgo imposing any fine only if it finds there are “compelling and extraordinary reasons” (other than the defendant's impecunity) which justify this decision.

To summarize, when read together section 13967, subdivision (a) and section 1202.4 require the following:  A sentencing court must impose a minimum restitution fine of at least $200 unless the court concludes the defendant does not have the ability to pay that amount.   However, even if the court reaches this conclusion, it must still impose a restitution fine in an amount less than $200, and commensurate with the defendant's ability to pay.   The court may forgo imposing any restitution fine only if it finds there are “compelling and extraordinary reasons” for doing so, and states those reasons on the record.

Here, the trial court concluded it would have imposed the $200 minimum restitution fine if it were required to consider the defendant's ability to pay.   Because we conclude the trial court should have considered the defendant's ability to pay, we modify the judgment and reduce the fine imposed from $5,000 to $200.9

Disposition

We modify the judgment by reducing the restitution fine imposed under Government Code section 13967, subdivision (a) to $200.   As so modified, the judgment is affirmed.

FOOTNOTES

FN1. Unless otherwise indicated, all further statutory references are to the Penal Code..  FN1. Unless otherwise indicated, all further statutory references are to the Penal Code.

FOOTNOTE.   See footnote *, ante.

FOOTNOTE.   See footnote *, ante.

4.   Hereafter sometimes referred to as section 13967.

5.   Statutes 1992, chapter 682, section 4, No. 9 West's California Legislative Service, page 2557.

6.   This case only involves a restitution fine imposed under section 13967, subdivision (a), and does not involve direct restitution payable to the victim under section 13967, subdivision (c).

7.   We do note that, as originally introduced, the Senate Bill which amended section 13967 (Sen. Bill No. 1444 (1991–1992 Reg.Sess.) § 8) merely increased the minimum fine to $200 without mentioning the defendant's ability to pay.   However, on March 19, 1992, Senate Bill No. 1444, supra, was amended by the Senate to include the phrase “subject to the defendant's ability to pay,” which is found in the current version of section 13967, subdivision (a).

8.   By enacting this amendment, the Legislature may have intended to overturn cases which specifically held that a defendant need not be given an opportunity to contest his ability to pay restitution fines.  (People v. Long (1985) 164 Cal.App.3d 820, 826–827, 210 Cal.Rptr. 745;  People v. Sandoval, supra, 206 Cal.App.3d at p. 1549–1550, 254 Cal.Rptr. 674.)

9.   The events giving rise to the conviction in this case occurred before the effective date of the 1992 amendment to section 13967, subdivision (a).   Arguably, the portion of the amendment which increased the minimum fine from $100 to $200 cannot be imposed against defendant, because it would violate the prohibition against ex post facto laws.  (See People v. Zito (1992) 8 Cal.App.4th 736, 741, 10 Cal.Rptr.2d 491.)   However, defendant has decided not to raise this issue on appeal, and we will not address it.

WHITE, Presiding Justice.

CHIN and WERDEGAR, JJ., concur.