PEOPLE v. HICKS

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Court of Appeal, First District, Division 2, California.

The PEOPLE, Plaintiff and Respondent, v. John Eugene HICKS, Defendant and Appellant.

No. A061318.

Decided: February 03, 1994

Susan K. Amato, Santa Rosa, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Sr. Asst. Atty. Gen., Ronald S. Matthias, Supervising Deputy Atty. Gen., David D. Salmon, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

Defendant John Eugene Hicks appeals from a judgment of conviction entered in the municipal court for felony driving with a blood alcohol level of .08 percent or more.  (Veh.Code, § 23152, subd. (b);  see also Pen.Code, §§ 1462, subd. (b), 1466, subd. (b).)  He contends that the court erred when it imposed a $200 restitution fine without making a prior express finding that defendant had the ability to pay.   We hold that defendant waived the issue by not raising it in the trial court and that, in any event, a prior finding is not required.   We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant was charged by complaint filed on October 13, 1992, with the following related offenses occurring on October 10, 1992:  Count I—driving under the influence of alcohol, with three or more convictions of the same offense within seven years (Veh.Code, §§ 23152, subd. (a), 23175);  count II—driving with a blood alcohol level of .08 or more, with three or more such convictions in seven years (Veh.Code, §§ 23152, subd. (b), 23175);  and count III—driving with a license that had been suspended for driving under the influence of alcohol (Veh.Code § 14601.2, subd. (a) [misdemeanor] ).   As to counts I and II the complaint alleged a prior separate prison term served in 1991 for receiving stolen property (Pen.Code, §§ 496, 667.5, subd. (b)).

Defendant pled not guilty and denied the prior.   On October 28, 1992, counsel moved that the offenses be deemed misdemeanors.  (Pen.Code, § 17, subd. (b).)  Defendant waived preliminary hearing and submitted the motion on the police reports which showed that he had driven with a blood alcohol level of .12.   Defendant acknowledged that at the time of the offense he had been on parole only a few months and that a condition of parole was that he abstain from using alcohol.   The court denied the section 17, subdivision (b) motion.

Defendant, having been advised of his rights and the consequences of his plea, including the dismissal of the remaining two counts (but not of the possibility of a restitution fine), withdrew his not guilty plea to count II and entered a plea of no contest;  he admitted the three prior vehicle code violations.

At the sentencing hearing on February 16, 1993, the court acknowledged receipt of a presentence and a supplemental probation report.   Defense counsel was also familiar with the presentence report, in which the probation officer recommended imposition of a $200 restitution fine, though this point was not discussed at the hearing.

The court denied probation, citing appropriate factors.   The court imposed the middle term of two years for the felony to which defendant pled no contest, with credit for time served of 197 days.   The court also revoked defendant's driver's license for four years and, without discussion or objection, ordered him to pay a $200 restitution fine in a manner to be determined by the Department of Corrections.   Defendant filed a timely notice of appeal.1

DISCUSSION

The Statute

Government Code section 13967, subdivision (a) (hereafter referred to as section 13967) requires that the court impose a restitution fine on a person convicted of any crime.   Prior to September 14, 1992, the statute provided for a minimum restitution fine of $100 in all cases.   Effective that date the Legislature amended the section to provide for a restitution fine of “not less than two hundred dollars ($200) subject to the defendant's ability to pay․”  (Stats.1992, ch. 682, § 4, No. 5 Deering's Adv.Legis.Service, p. 2491.)

Defendant contends that the trial court erred when it imposed a $200 restitution fine without first determining whether he was able to pay.

Waiver

 There is no indication in the record that defendant's change of plea was the result of a plea bargain.   At the time he changed his plea no one mentioned a restitution fine.   The probation report recommended that probation be denied, that defendant be sentenced to prison, and that a $200 restitution fine be imposed.

Defendant was represented by the public defender's office throughout the proceedings.   At sentencing he was represented by Norman Howard of that office.   Mr. Howard exhibited familiarity with the facts of the case and the probation report when he argued against the probation officer's statement that defendant was statutorily ineligible for probation and when he argued that the interests of justice would be served by a grant of probation.   He neither mentioned nor objected to the proposed restitution fine.   After the court pronounced judgment, including imposition of the fine, neither counsel nor defendant objected.   We hold that any error regarding the restitution fine was waived.

 We note initially that a trial court is required to admonish a defendant that a restitution fine is a possible direct consequence of a change of plea.   The requirement is a judicially declared rule of criminal procedure, and a court's erroneous failure to advise is waived absent a timely objection at or before sentencing.  (People v. Walker (1991) 54 Cal.3d 1013, 1022–1023, 1 Cal.Rptr.2d 902, 819 P.2d 861.)

 It is also established that where the probation report apprises a defendant of the amount of restitution to be paid to a victim and the defense fails to object to the amount or to request a hearing on the issue, the question of the propriety of the imposition of restitution, including the defendant's ability to pay, is waived for purposes of appeal.  (People v. Rivera (1989) 212 Cal.App.3d 1153, 1160–1161, 261 Cal.Rptr. 93;  accord, People v. Foster (1993) 14 Cal.App.4th 939, 944, 18 Cal.Rptr.2d 1.)   Although Rivera and Foster dealt with restitution to be paid to a victim under subdivision (c) of section 13967, we hold that their reasoning applies equally to a restitution fine imposed under subdivision (a) of that section.

We conclude that defendant cannot properly raise objection to the restitution fine for the first time on appeal.2  In any event, for the reasons stated below we consider defendant's contention to be without merit.

Statutory Construction

 Defendant interprets the Legislature's addition of the words “subject to the defendant's ability to pay” to section 13967, as meaning that the Legislature “added a requirement that there be a determination made prior to the imposition of the fine regarding the defendant's ability to pay even the minimum fine.”   We think that a proper interpretation of the statute negates defendant's position.

 Plain meaning.   In arriving at a correct interpretation of the statute we first examine its actual language to see if its plain meaning is clear and unambiguous.  (Halbert's Lumber, Inc. v. Lucky Stores, Inc. (1992) 6 Cal.App.4th 1233, 1238–1239, 8 Cal.Rptr.2d 298;  see generally 7 Witkin, Summary of Cal.Law (9th ed. 1988) Constitutional Law, § 94, p. 146.)   The phrase “subject to” is ambiguous.   It has more than one meaning depending on the circumstances of its use.  (Interway, Inc. v. Alagna (Ill.App.1980) 85 Ill.App.3d 1094, 41 Ill.Dec. 117, 119, 407 N.E.2d 615, 619.)

One reasonable reading of the statutory language, which we will adopt here, is that the trial court is required first to impose at least a minimum fine of $200, but if the defendant objects that he or she is unable to pay, then the court must hear sufficient evidence to enable it to make a factual determination on that point.   We recognize, however, that our reading is not the only possible one.   In People v. McMahan (1992) 3 Cal.App.4th 740, 4 Cal.Rptr.2d 708, the court interpreted Penal Code section 290.3, which provides that a person convicted of certain enumerated sex offenses must pay a special minimum fine of $100 for the first offense and $200 for each subsequent offense “unless the court determines that the defendant does not have the ability to pay the fine.”   Defendant McMahan contended, as does defendant here, that before the court could properly impose the special fine, it was required to make a determination that he was able to pay.  (Id., at p. 748, 4 Cal.Rptr.2d 708.)   The Court of Appeal rejected the claim that the determination of ability to pay was a condition precedent to imposition of the minimum fine and held that the quoted phrase placed “the burden upon the defendant to timely raise the issue.”  (Id., at p. 749, 4 Cal.Rptr.2d 708.)

The court then noted in unfortunate dictum that “if the Legislature clearly intended to require the court to make a determination of ability to pay prior to its order, it could have used the words ‘provided’ or ‘subject to’ instead of ‘unless.’ ”  (People v. McMahan, supra, 3 Cal.App.4th at p. 749, 4 Cal.Rptr.2d 708.)   Thus the McMahan court, albeit in dictum, stated that the phrase “subject to” would create a condition precedent.   Although it is possible for the phrase “subject to” to have that meaning in certain contexts, we do not agree that it has that meaning in the context of the statutory scheme before us.   While we agree with the holding in McMahan, we disagree with its dictum, and we cite the dictum only for the proposition that reasonable minds may differ as to the meaning of “subject to.”   We must look to further tools of statutory construction to resolve the ambiguity.

 Legislative history.   When the meaning of statutory language is ambiguous we may refer to legislative history as an aid to statutory construction.  (Halbert's Lumber, Inc. v. Lucky Stores, Inc., supra, 6 Cal.App.4th at p. 1239, 8 Cal.Rptr.2d 298;  7 Witkin, Summary of Cal. Law, supra, Constitutional Law, § 97, p. 150.)

The voters adopted Proposition 8, the “Victims' Bill of Rights,” in 1982.   It created a constitutional requirement that restitution be ordered in “every case” where a victim suffers a loss unless there are compelling and extraordinary reasons to the contrary.  (Cal. Const., art. I, § 28, subd. (b).)  The Legislature implemented this requirement when it enacted the Crime Victim Restitution Program in 1983, and it has since supplemented the act with other related statutes.   Under the evolving statutory scheme, when a defendant is convicted of a crime having a victim and is denied probation, the court must order restitution paid to the victim.   If there is no victim, the court must impose a restitution fine, which is payable to the Restitution Fund.  (See generally People v. Fritchey (1992) 2 Cal.App.4th 829, 839–842, 3 Cal.Rptr.2d 585;  3 Witkin & Epstein, Cal.Criminal Law (2d ed. 1989) Punishment for Crime, § 1325, pp. 1546–1547.)

In particular, Penal Code section 1202.4, subdivision (a), provides in relevant part, “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.”

Section 13967 originally provided for a restitution fine of not less than $100 to be imposed upon every convicted felon.   In cases where probation is granted, Penal Code section 1203.04 provided the same $100 minimum restitution fine to be imposed as a condition of probation.   In juvenile cases a maximum restitution fine of $1,000 was mandated as a condition of probation where juvenile offenders received probation and in all other cases;  no minimum fine for juveniles was provided in the original statutes.   (Welf. & Inst.Code, §§ 729.6, 730.6.)

On February 10, 1992, State Senator Robert Presley, Chair of the Senate Appropriations Committee, introduced Senate Bill No. (SB) 1444, the purpose of which was to address the growing disparity (a projected $21 million deficit) between revenue available in the Restitution Fund and the demand for indemnification from the fund by victims of crime.  (Sen. Floor Analysis, pp. 1, 3.) 3  To that end the bill provided, inter alia, for an increase in the minimum restitution fine from $100 to $200.   SB 1444 ultimately enacted the language here under consideration.  (Stats.1992, ch. 682, § 4, No. 5 Deering's Adv.Legis. Service, p. 2491.)

A written report to the Assembly Committee on Public Safety, chaired by John Burton, contained the following discussion of the provision in question.   “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.”

The above quoted material was the only written discussion of the ability to pay provision;  there was no oral discussion of it at any time.  (Legislative Intent, p. 1.)   The bill was on the “consent” calendar in both houses and was never debated.  (SB 1444, Complete Bill Hist. (1991–1992 Reg.Sess.).)   The only fiscal implication of the bill ever identified in the Legislature was the expected revenue increase.   It was not anticipated that the statutory changes would result in more than a minor increase in court time and costs;  therefore, no fiscal impact due to increased court time and costs was ever identified.   (Legislative Intent, p. 1.)

In our view the reasonable inference from the legislative history showing no contemplation of significant increased court time and costs is that the Legislature intended neither to place the initial burden on the state to show the defendant's ability to pay nor to require additional hearings and extensive court findings in every felony case.

Even if we are incorrect in this inference, further tools of statutory construction lead to the same result.

 Reasonable interpretation.   The final step in statutory construction, if plain language and legislative history do not reveal a clear meaning, is for us to apply reason, practicality and common sense to the language under consideration.   If possible the words should be interpreted to make them workable and reasonable.  (Halbert's Lumber, Inc. v. Lucky Stores, Inc., supra, 6 Cal.App.4th at p. 1239, 8 Cal.Rptr.2d 298.)   Statutory provisions should be interpreted consistently with their apparent purpose in a practical rather than technical manner which will result in “wise policy rather than mischief or absurdity.”  (DeYoung v. City of San Diego (1983) 147 Cal.App.3d 11, 18, 194 Cal.Rptr. 722.)

When we apply these general principles to the statutory language before us, we can only conclude that the court may impose a restitution fine without first making a determination of the defendant's ability to pay.   When the Legislature added the language in question to section 13967, it did not change the requirement in Penal Code section 1202.4 that restitution “shall be ordered regardless of the defendant's present ability to pay.”   (Pen.Code, § 1202.4, subd. (a).)  Section 1202.4 has been strictly construed.

In People v. Rivera, supra, 212 Cal.App.3d 1153, 261 Cal.Rptr. 93, the trial court ordered defendant to pay restitution to the victims under section 13967, subdivision (c).   On appeal he argued that the order was improper without a determination that he was able to pay.  (Id., at p. 1157, 261 Cal.Rptr. 93.)   The Court of Appeal acknowledged that consideration of ability to pay is required where restitution is imposed as a condition of probation because it is impermissible to imprison an indigent for inability to pay a fine.   But Penal Code section 1205.5 provides that failure to pay a fine imposed under section 13967 does not result in imprisonment.   For purposes of the issue before it the Court of Appeal saw no distinction between a restitution fine under section 13967, subdivision (a) and restitution to a victim under subdivision (c).   Accordingly the court held that “a court may order direct restitution to a victim without regard to the defendant's ability to pay.”  (People v. Rivera, supra, 212 Cal.App.3d at pp. 1158–1159, 261 Cal.Rptr. 93.)

When the Legislature amended section 13967 but left section 1202.4 unchanged, it also presumably left the Rivera decision standing.  (See Palos Verdes Faculty Assn. v. Palos Verdes Peninsula Unified Sch. Dist. (1978) 21 Cal.3d 650, 659, 147 Cal.Rptr. 359, 580 P.2d 1155 [Legislature is presumed cognizant of judicial construction of statute];  see also People v. Mims (1955) 136 Cal.App.2d 828, 831, 289 P.2d 539 [legislative readoption of previously construed constitutional provision is presumably intended to have same effect].)

Furthermore, if the Legislature intended to require a hearing on every criminal defendant's ability to pay, it would have specifically so provided.   The Legislature did just that in Penal Code section 987.8 which established the procedure by which a court may order a criminal defendant to reimburse the county for the costs of providing court-appointed counsel.   The section requires the court to make an ability to pay determination “after notice and a hearing.”  (Pen.Code, § 987.8, subd. (b).)  This clear language has been held to require a prior hearing on ability to pay.  (People v. Turner (1993) 15 Cal.App.4th 1690, 1695, 19 Cal.Rptr.2d 736.)   We reasonably infer from the lack of such language in section 13967 that a prior hearing is not required in every case.

Our conclusion is in keeping with the mandate that statutes be construed reasonably and not absurdly.   Requiring that a trial court in every case hold a prior hearing on the defendant's ability to pay a minimum restitution fine would place an undue burden on the time and budget of every court in this state.   It cannot in reason be held that this was the Legislature's intent.

CONCLUSION

The language in section 13967 mandating a minimum restitution fine of $200 “subject to the defendant's ability to pay” does not require the trial court to first hold a hearing on the issue of ability to pay before imposing the fine.   Rather, the court must simply consider the appropriate factors and impose at least the minimum fine.  (See People v. Gangemi (1993) 13 Cal.App.4th 1790, 1798–1799, 17 Cal.Rptr.2d 462 and cases cited.)   If the defendant raises a timely clear objection that he or she is unable to pay, the court then must hear sufficient evidence to enable it make a factual determination on the matter.

We conclude that the trial court did not err when it imposed the restitution fine without first holding an ability to pay hearing.4

DISPOSITION

The judgment is affirmed.

FOOTNOTES

1.   Before appealing to this court, a defendant who pleads guilty or no contest is usually required to obtain a certificate of probable cause from the trial court.  (Pen.Code, § 1237.5;  Cal.Rules of Court [to which all further references to rules apply], rule 31(d).)   Rule 31(d) provides an exception to this requirement if the appeal is based “solely upon grounds ․ occurring after entry of the plea which do not challenge its validity ․” and if the notice of appeal states that it is based upon such grounds.  (Rule 31(d).)Defendant's notice of appeal did not specify the restitution fine issue, but it did state that the trial court “illegally sentenced defendant to State Prison.”   Rule 1(a) mandates that a notice of appeal “be liberally construed in favor of its sufficiency,” and the requirement in rule 31(d) of specificity of grounds is not jurisdictional as long as some ground for appeal is stated.  (Compare People v. Morgan (1989) 207 Cal.App.3d 1384, 1386–1387, fn. 1, 255 Cal.Rptr. 680 [incorrect ground stated;  appeal allowed] with People v. Ballard (1985) 174 Cal.App.3d 982, 985, 220 Cal.Rptr. 323 [no ground stated;  appeal dismissed].)   We construe defendant's notice of appeal as sufficient to bring his assertion before us.

2.   In a footnote in his reply brief defendant suggests that trial counsel's failure to object to imposition of the restitution fine at sentencing should be reviewable on appeal on a claim of ineffective assistance of counsel.   Raising an issue for the first time in a reply brief is improper, and ordinarily we will not consider an issue raised in this way.  (See generally 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 496, p. 484.)   In any event, in light of the views we express in the balance of our opinion, we deem the issue moot.

3.   In ascertaining legislative intent we generally do not consider the motives of individual legislators who cast their votes in favor of a bill even if they are authors of the bill.   On the other hand, a legislator's view is entitled to our consideration “when it is a reiteration of legislative discussion and events leading to adoption of proposed amendments rather than merely an expression of personal opinion.”  (California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 699–700, 170 Cal.Rptr. 817, 621 P.2d 856;  see also conc. and dis. opns. by Newman, J. and Bird, C.J., arguing for consideration of the author's views, 28 Cal.3d at pp. 702, 710, 170 Cal.Rptr. 817, 621 P.2d 856.)Senate Appropriations Committee Staff Director Karen French has provided us with materials which reflect discussion and events leading to the adoption of SB 1444 and which we deem appropriate to consider.   The materials consist of a Senate floor analysis, an Assembly Public Safety Committee's analysis, and a complete history of the bill, as well as a cover memorandum entitled Legislative Intent.

4.   The People argue that the record shows defendant in fact had the ability to pay.   In light of our holding we do not reach that issue.

PHELAN, Associate Justice.

KLINE, P.J., and SMITH, J., concur.

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