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Court of Appeal, Second District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. Eldon Dee TILLMAN, Defendant and Appellant.

No. B119961.

Decided: February 02, 1999

Leonard J. Klaif, under appointment by the Court of Appeal, Ventura, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Allison H. Ting, Supervising Deputy Attorney General, and Chung L. Mar, Deputy Attorney General, for Plaintiff and Respondent.

Eldon Dee Tillman was convicted of forcible oral copulation and false imprisonment with force or violence.   As the clerk read the verdicts, appellant made several outbursts which disrupted the proceedings.   The trial court excused the jury and ordered him shackled for the remaining trial on his prior convictions.   Appellant challenges that order.   He also argues that his sentence of 40 years to life constitutes cruel and unusual punishment.   Based on our review of the record and applicable law, we modify the judgment to reflect the imposition of a $200 restitution fine and a $200 parole revocation fine, and, as modified, we affirm the judgment. The Superior Court is to prepare an amended abstract of judgment to recite these modifications.**


Respondent asks that we impose several fines on appellant pursuant to sections 1202.4, 1202.45, 290.3, 1464 and Government Code section 76000.   Respondent recognizes that these fines were neither requested nor imposed below, but argues that they may be imposed on appeal.

 An appellate court can correct a trial court's failure to impose a mandatory fine.  (People v. Hong (1998) 64 Cal.App.4th 1071, 1084, 76 Cal.Rptr.2d 23.)   This is true even if the issue is raised for the first time on appeal.  (Ibid, [correcting an abstract of judgment to reflect a $200 fine pursuant to section 1202.45].) However, “the waiver doctrine should apply to claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices.”  (People v. Scott (1994) 9 Cal.4th 331, 353, 36 Cal.Rptr.2d 627, 885 P.2d 1040.)

Sections 1202.4, 1202.45 and 1464 are parts of an interrelated statutory scheme.   Section 1202.4 states that the “victim of a crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime.”  (Subd. (a)(1).)   Under that statute, “the court shall order the defendant to pay a fine in the form of a penalty assessment in accordance with Section 1464.”   (Subd. (a)(2), emphasis added.)   However, the fine imposed under section 1202.4 is not itself subject to penalty assessment under section 1464.  (§ 1202.4, subd. (e).)

The statutory requirement under section 1202.4 stems from a constitutional amendment approved by the voters as part of Proposition 8. (People v. Walker (1991) 54 Cal.3d 1013, 1019, 1 Cal.Rptr.2d 902, 819 P.2d 861.)   Under section 1202.4 “the court shall impose the restitution fine unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record.”  (Subd. (c), emphasis added.)

Section 1202.45 requires penalties in the same amount as those imposed under section 1202.4.   Section 1202.45 provides:  “In every case where a person is convicted of a crime and whose sentence includes a period of parole, the court shall at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4.   This additional restitution fine shall be suspended unless the person's parole is revoked.”

 “A sentence is generally ‘unauthorized’ where it could not lawfully be imposed under any circumstances in the particular case.”   (People v. Scott (1994) 9 Cal.4th 331, 354, 36 Cal.Rptr.2d 627, 885 P.2d 1040.)   The failure to specify fines under sections 1202.4, 1202.45, and 1464 renders appellant's sentence unauthorized.   The reason is that if the trial court determined extraordinary circumstances exist as defined by section 1202.4, it must make that finding on the record.   If, on the other hand, the trial court found no extraordinary conditions, it must impose a restitution fine.

 The Attorney General argues that rather than remanding this case to the trial court, we should simply impose the minimum fine.   This approach was taken in People v. Vasquez Diaz (1991) 229 Cal.App.3d 1310, 1316, 280 Cal.Rptr. 599, and approved of by the Supreme Court in People v. Walker, supra, 54 Cal.3d 1013, 1029, 1 Cal.Rptr.2d 902, 819 P.2d 861.   Imposing the statutory minimum avoids a judicially uneconomical remedy.  (People v. Walker, supra, 54 Cal.3d at p. 1029, 1 Cal.Rptr.2d 902, 819 P.2d 861.)

Following the Walker rationale, we modify the judgment to reflect the $200 minimum fine pursuant to section 1202.4.   We recognize that section 1202.4 grants a trial court narrow discretion to waive the fine if extraordinary conditions exist.   Appellant does not argue or suggest that any such conditions exist, and we find no indication of extraordinary conditions in the record.   We further modify the judgment to reflect the additional fine of $200 required under section 1202.45.   That fine is suspended unless appellant's parole is revoked.

 The Attorney General also argues that the $200 fine required by section 290.3, subdivision (a) must be imposed.   That statute provides:  “Every person who is convicted of any offense specified in subdivision (a) of Section 290 shall, in addition to any imprisonment or fine, or both, imposed for violation of the underlying offense, be punished by a fine of two hundred dollars ($200) upon the first conviction ․ unless the court determines that the defendant does not have the ability to pay the fine.”

Silence concerning a fine under section 290.3 does not result in an unauthorized sentence.   The trial court could have assumed that appellant was not able to pay the fine under section 290.3.   Failure to raise this issue in the trial court constitutes waiver.  (People v. Scott, supra, 9 Cal.4th at p. 356, 36 Cal.Rptr.2d 627, 885 P.2d 1040.)   On a silent record we presume the trial court resolved that issue in appellant's favor.  (People v. Martinez, supra, 65 Cal.App.4th at p. 1515, 77 Cal.Rptr.2d 492 [considering a fine under Health & Saf.Code, § 11372.7].) Accordingly, we impose no fine under section 290.3.

 The Attorney General's final argument, that fines must be imposed under section 1464 and Government Code section 76000, assumes that we agree a fine is required under section 290.3.   The Attorney General points out that a restitution fine imposed under section 1202.4 and the parole revocation fine under section 1202.45 are excluded from section 1464 and Government Code section 76000.  (See 1202.4, subd. (e);  § 1464, subd. (b);  Gov.Code, § 76000, subd. (a).)  The Attorney General, however, maintains “this Court should levy a state penalty assessment of $200 for the $200 fine pursuant to Penal Code section 290.3.   This Court should also levy a county penalty assessment of $140 for the $200 fine pursuant to Penal Code section 290.3.”   Penalty assessments are not warranted because they are based on other fines imposed.   Here, there is no fine on which to base the penalty assessment.


The judgment is modified to reflect a $200 fine under section 1202.4 and a parole revocation fine under section 1202.45.   In all other respects, the judgment is affirmed.   The Superior Court is directed to prepare an amended abstract of judgment.


FOOTNOTE.   See footnote *, ante.


HASTINGS, J., and CHARLES S. VOGEL, P.J., concur.

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Docket No: No. B119961.

Decided: February 02, 1999

Court: Court of Appeal, Second District, Division 4, California.

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