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Court of Appeal, Second District, Division 7, California.

The PEOPLE, Plaintiff and Respondent, v. Hector Anthony RIVERA, Defendant and Appellant.

No. B117372.

Decided: February 16, 1999

Athena Shudde, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Kyle S. Brodie and Christina Russotto, Deputy Attorneys General, for Plaintiff and Respondent.


Consecutive 25-year-to-life sentences imposed on a habitual burglar do not violate the constitutional bans on cruel and unusual punishment.   Sums a defendant is ordered to pay in direct restitution to crime victims are not subject to statutory “penalty assessments” payable to the state and county.


On April 17, 1996, appellant committed residential burglaries at two locations in Beverly Hills.   He committed four additional burglaries in July, August, September, and October of the same year.   His fingerprints were recovered from the various residences.

Appellant was convicted by a jury of six counts of first degree burglary.   The court then found that appellant had three prior convictions, qualifying him for sentencing under the Three Strikes law and for three five-year enhancements for prior serious felony convictions.

Appellant was sentenced to state prison for six consecutive 25-years-to-life terms, one for each of his current burglary offenses, plus three five-year enhancements, for a total sentence of 165 years.1  The court ordered appellant to pay a restitution fine in the amount of $1,200, and direct restitution totaling $39,400 to six victims.2

On appeal, appellant argues that his lengthy sentence violates the constitutional ban on cruel and unusual punishment.   Respondent requests that we correct errors in the abstract of judgment, and also correct jurisdictional errors in sentencing, i.e., the trial court's failure to order restitution fines and penalty assessments.


 Appellant's sentence is not unconstitutional cruel and unusual punishment.   The courts have consistently rejected claims that life terms imposed on recidivists violate the ban on cruel and unusual punishment.   (Harmelin v. Michigan (1991) 501 U.S. 957, 965, 111 S.Ct. 2680, 115 L.Ed.2d 836;  Rummel v. Estelle (1980) 445 U.S. 263, 284, 100 S.Ct. 1133, 63 L.Ed.2d 382;  People v. Cooper (1996) 43 Cal.App.4th 815, 820, 51 Cal.Rptr.2d 106;  People v. Kinsey (1995) 40 Cal.App.4th 1621, 1630-1631, 47 Cal.Rptr.2d 769;  People v. Cartwright (1995) 39 Cal.App.4th 1123, 1134-1137, 46 Cal.Rptr.2d 351.)   We agree.

 Respondent complains that the abstract of judgment does not accurately reflect the sentence actually pronounced at the sentencing hearing.   Respondent points out the minute order and abstract of judgment show three consecutive 25-year-to-life terms, while the court at the hearing imposed six such consecutive terms.   The abstract of judgment also fails to reflect the $10,000 restitution ordered for victim, Audrey Linden.   We agree that the abstract of judgment is wrong.

We also agree with respondent that the trial court should have ordered an additional restitution fine of $1,200, to remain suspended until such time, if ever, as appellant violates parole.  (Pen.Code, § 1202.45.)

However, these errors are jurisdictional and respondent may remedy them by appropriate application to the trial court.

 Contrary to respondent's contention, the trial court did not err in declining or failing to impose “penalty assessments” based on the direct restitution orders.

Penal Code section 1464 requires a “penalty assessment,” payable to the state, of $10 for every $10 of “fines, penalties and forfeitures” imposed for “criminal offenses,” and Government Code section 76000 requires a similar assessment, payable to the county, of $7 for each $10 of fines, penalties and forfeitures.   The issue, therefore, is whether a direct restitution order is a “fine, penalty or forfeiture” as those words are used in section 1464.

A “penalty” is “a punishment imposed for breach of a law, rule or contract.”   New Shorter Oxford English Dictionary, 1997, CD ROM Edition, version 1.0.03.   The root word “penal” means “having as its object the infliction of punishment, punitive.”  (Ibid ).  “Fine” means “a fee, a penalty.”  (Ibid.)  A “forfeiture” is “the penalty for an offense;  that which is forfeited;  a fine.”  (Ibid.)  The punitive import of these words is confirmed by the Penal Code, which authorizes punishment of numerous specific criminal offenses by a “fine” (3 Witkin, California Criminal Law (2d ed 1989), Punishment for Crime, § 1320, p. 1540), and in addition contains a “catchall” authorization in Penal Code section 672 to impose fines “upon conviction for any crime punishable by imprisonment.”

In contrast with “fines, penalties, and forfeitures” which accrue to the state or governmental subdivision, direct restitution is intended to compensate the victim of crime, not to punish its perpetrator.   The amount of direct restitution is fixed by reference to the victim's loss (see section 1202.4, subdivision (f)) rather than the defendant's conduct.   Very heinous criminal conduct will not warrant direct restitution if the victim suffered no loss, while less heinous conduct which caused great loss may warrant a large restitution award.   Restitution orders are enforceable by the victim, in the same manner as a civil judgment.  (Pen.Code, § 1214.)

In short, direct restitution awards are compensatory in nature, and do not constitute the “fines, penalties and forfeitures” which are the subject of “penalty assessments” under section 1464.

A contrary inference conclusion might be argued based on the text of section 1202.4.   Subdivision (a)(2) of that section restates the requirement for imposition of a penalty assessment.   Subdivision (a)(3) requires imposition of both “a restitution fine” and “restitution to the victim.”   Subdivision (e) then specifically exempts the restitution fine, but not direct restitution, from penalty assessment.   The specific exemption for the former but not the latter, coupled with the nearby reiteration of the penalty assessment requirement, arguably suggests a legislative intent to subject the latter to penalty assessment.

However, the more reasonable interpretation is that the legislature saw no need to specifically exempt direct restitution because it was not a “fine, penalty or forfeiture” subject to assessment in the first place.

Our interpretation is buttressed by consideration of the purpose of direct restitution.   Section 1202.4 in its initial paragraph states the Legislature's intent “that a victim of crime who incurs any economic loss as a result of ․ [a] crime shall receive restitution directly from any defendant convicted of that crime.”   The purpose to compensate victims would be substantially undermined by imposing penalty assessments amounting to 170 percent of the direct restitution, and thus making State and County competitors with the victim as defendant's creditors.   Convicts, after all, typically have few assets to satisfy restitution awards.


The judgment is modified to impose six consecutive 25-year-to-life terms, and as modified, is affirmed.


1.   The probation report indicates appellant, age 61, is a professional thief.   Appellant was suspected of committing at least thirteen additional current Beverly Hills residential burglaries for which he was not prosecuted.   Appellant's criminal history dated to 1953.   As a juvenile, appellant committed a number of burglaries in New York and was confined in a youthful offender facility, a correctional institute and Sing Sing State Prison.   As an adult, he was convicted of several minor offenses in New York. In 1978, he moved on to the Beverly Hills area.   In California in 1980, he was imprisoned after burglary convictions.   In 1982, he escaped and served another prison term.   In 1984, he was convicted of resisting a police officer.   In 1987, he was convicted of first degree burglary and committed to state prison.   In 1991, he was convicted of attempted first degree burglary and committed to state prison.   He was released in 1995 and was a “parolee at large” when he committed the instant offenses.   Appellant was a cocaine user.

2.   The court misspoke in making these orders during the oral proceedings of judgment and we believe the direct restitution order from the court's minutes is the correct one.  (People v. Smith (1983) 33 Cal.3d 596, 599, 189 Cal.Rptr. 862, 659 P.2d 1152;  People v. Beck (1993) 17 Cal.App.4th 209, 215, 21 Cal.Rptr.2d 250.)


JOHNSON, Acting P.J., and WOODS, J., concur.

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Docket No: No. B117372.

Decided: February 16, 1999

Court: Court of Appeal, Second District, Division 7, California.

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