PEOPLE v. TRAN (1998)

Court of Appeal, Third District, California.

The PEOPLE, Plaintiff and Respondent, v. Tien Duc TRAN, Defendant and Appellant.

The PEOPLE, Plaintiff and Respondent, v. Hung Tien NGUYEN, Defendant and Appellant.

Nos. C026890, C027131.

Decided: November 23, 1998

Mark L. Christiansen, under appointment by the Court of Appeal, Granite Bay, for Defendant and Appellant in No. C026890. Janet J. Gray, under appointment by the Court of Appeal, Pacific Grove, for Defendant and Appellant in No. C027131. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Janis Shank McLean, Stan Cross, and Alison Elle Aleman, Deputy Attorneys General, for Plaintiff and Respondent.

In these consolidated cases, defendants Tien Duc Tran and Hung Tien Nguyen appeal from convictions for two murders (Pen.Code, § 187 1) and two assaults with firearms (§ 245, subd. (a)(2)), with enhancements for personal use of firearms (§ 12022.5, subd. (a)), all acts occurring on June 27, 1995.   As to Tran, the jury found true a special circumstance that he had committed two murders, one of which was of the first degree.  (§ 190.2, subd. (a)(3).)   Tran admitted he had a prior serious felony “strike” conviction.  (§§ 667, subds. (b)-(i), 1170.12.)

Tran claims evidentiary error, instructional error, insufficiency of the evidence, ineffective assistance of counsel, and sentencing error.   Nguyen claims insufficiency of the evidence, instructional and sentencing error.

In the published portion of the opinion, we shall strike (1) the doubling of Tran's sentence of life without possibility of parole under the “three strikes” law, and (2) the section 1202.45 restitution fine as to both defendants.   In the unpublished portion of the opinion, we reject defendants' other contentions of error;  we shall therefore otherwise affirm.

FACTUAL AND PROCEDURAL BACKGROUND ***

DISCUSSION

I. Tran's Contentions (Other Than Contentions of Sentencing Error) †

II. Three Strikes Law

The trial court sentenced Tran to a term of life without possibility of parole on count one and doubled it because Tran had a prior “strike” conviction.

Tran argues the trial court erred by doubling the sentence of life without possibility of parole, under the three strikes law.  (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1).) ¹⁶  Tran says it is nonsensical to double a life sentence without possibility of parole.¹⁷  We agree.

 While the literal statutory language arguably calls for doubling of a life sentence without possibility of parole, “ ‘ “It is a settled principle of statutory interpretation that language of a statute should not be given a literal meaning if doing so would result in absurd consequences which the Legislature did not intend.” ’ ”  (Younger v. Superior Court (1978) 21 Cal.3d 102, 113, 145 Cal.Rptr. 674, 577 P.2d 1014, followed in California School Employees Assn. v. Governing Board (1994) 8 Cal.4th 333, 340, 33 Cal.Rptr.2d 109, 878 P.2d 1321.)

 Here, doubling the life without possibility of parole sentence is absurd and trivializes the integrity of the single life without possibility of parole sentence, which is sufficient.   Defendant has but one life to give to the Department of Corrections.

We conclude the doubling should be stricken, and the sentence on count one should be a single sentence of life without possibility of parole.

III. Nguyen's Contentions†/†

IV. Restitution Fine

As to each defendant, the trial court imposed a $10,000 restitution fine, suspended unless and until the defendant violated parole, all pursuant to section 1202.45.

Tran and Nguyen contend these fines imposed but suspended under section 1202.45 should be stricken, because they violate ex post facto principles.   We agree.¹⁹

Section 1202.45 went into effect August 3, 1995 (Stats.1995, ch. 313, § 6)-after the subject crimes were committed in June 1995, and before the December 1996 verdicts.

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,[²⁰ ] 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.”

 The federal and state ex post facto clauses (U.S. Const., art.  I, § 10, cl. 1; ²¹  Cal. Const., art.   I, § 9 ²² ) prohibit legislation “which makes more burdensome the punishment for a crime, after its commission․”  (Collins v. Youngblood (1990) 497 U.S. 37, 42, 110 S.Ct. 2715, 2719, 111 L.Ed.2d 30, 39;  People v. McVickers (1992) 4 Cal.4th 81, 84, 13 Cal.Rptr.2d 850, 840 P.2d 955.)   Here, the statute authorizing imposition of the fine became effective after the date of commission of the crimes.

The People rely entirely on People v. McVickers, supra, 4 Cal.4th 81, 13 Cal.Rptr.2d 850, 840 P.2d 955, which found no ex post facto violation in application of a new statute (§ 1202.1) requiring an AIDS blood test for conviction of certain sexual offenses.   The Supreme Court held (1) neither the drawing of blood nor the disclosure of test results to the defendant and law enforcement officials produced an effect constituting punishment for ex post facto purposes, and (2) the purpose of the statute-to prevent the spread of AIDS-furthered a legitimate nonpunitive governmental interest.  (People v. McVickers, supra, 4 Cal.4th at pp. 87-89, 13 Cal.Rptr.2d 850, 840 P.2d 955.)

The McVickers result is clearly distinguishable.   The inquiry there was whether a blood test (an unusual item in ex post facto analysis) constituted punishment.  McVickers pointed out that some matters may be decided intuitively;  “there is little dispute that additional jail time or extra fines are punishment.”  (People v. McVickers, supra, 4 Cal.4th at p. 84, 13 Cal.Rptr.2d 850, 840 P.2d 955.)

Here, the issue is a restitution fine.   Section 15 includes fines as a form of punishment for crime.  “A restitution fine qualifies as punishment for purposes of the prohibition against ex post facto laws.” ²³  (People v. Saelee (1995) 35 Cal.App.4th 27, 30, 40 Cal.Rptr.2d 790;  see also, People v. Downing (1985) 174 Cal.App.3d 667, 672, 220 Cal.Rptr. 225 [ex post facto clause prohibited section 1202.4 restitution fine where crime was committed before operative date of statute].)  People v. Saelee, supra, 35 Cal.App.4th 27, 40 Cal.Rptr.2d 790, held that under ex post facto principles, a statutory amendment increasing the amount of a Government Code section 13967 restitution fine could not be applied to a defendant whose offenses were committed before the effective date of the amendment.  (People v. Saelee, supra, 35 Cal.App.4th at p. 30, 40 Cal.Rptr.2d 790, citing inter alia People v. Walker (1991) 54 Cal.3d 1013, 1 Cal.Rptr.2d 902, 819 P.2d 861 [which said in a different context that although the purpose of a restitution fine is not punitive, its consequences to the defendant are severe enough that it qualifies as punishment] and People v. Zito (1992) 8 Cal.App.4th 736, 740-741, 10 Cal.Rptr.2d 491;  but cf., People v. Young (1995) 38 Cal.App.4th 560, 567-569, 45 Cal.Rptr.2d 177 [restitution fine is not always and invariably a form of punishment;  defendant suffered no greater sanction or penalty because of fact that victim restitution order was deleted as condition of probation but added as part of his previously suspended sentence after revocation of probation].)

The wrinkle in this case is that the section 1202.45 fine, though imposed, is suspended unless and until parole is revoked.   The statute thus provides an incentive for compliance with terms of parole.   The People argue the section 1202.45 fine is not punishment for the current crimes but rather a fine conditioned on future bad conduct, i.e., whatever conduct leads to revocation of parole.   According to the People, section 1202.45 puts the defendant on notice that additional punishment may be imposed if he commits future bad acts.   We disagree.

First, the amount of the section 1202.45 fine is tied to the current crimes.   Thus, section 1202.45 by its own terms sets the amount of the fine “in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4.”   The amount of the section 1202.4 fine is set “commensurate with the seriousness of the offense[.]”  (§ 1202.4, subd. (b), fn. 20, ante.)   Section 1202.4, subdivision (a), states the Legislature's intent that crime victims receive restitution.   Thus, the section 1202.45 fine is for the current offense, not future conduct.

Moreover, section 3060.1 provides:  “Upon the revocation of the parole of any prisoner who was ordered by the court to pay an additional restitution fine pursuant to Section 1202.45, but which was suspended by that section, the additional restitution fine shall be reinstated without the need for any further court proceeding.”   Thus, upon revocation of parole, reinstatement of the fine is automatic, with no adjudication of bad conduct or the reason for the revocation.   Tran notes parole may be revoked for a myriad of reasons, including technical violations such as failure to report a change of address.   Consequently, we disagree with the People's position that section 1202.45 does not have the effect of punishing for past offenses.

The People also argue section 1202.45 has no punitive intent.   They state the legislative history sheds no light on the statute's purpose but claim it is “obvious” from the words of the statute that its purpose is to help pay for the costs associated with the revocation of a defendant's parole.   It does not appear obvious to us.²⁴  Section 1202.45 refers to section 1202.4, which in turn reflects the legislative intent to provide for crime victims (§ 1202.4, subd. (a)) and directs that the fine “shall be deposited in the Restitution Fund in the State Treasury” (§ 1202.4, subd. (e)).   The Restitution Fund is used “to assist residents of the State of California in obtaining restitution for the pecuniary losses they suffer as a direct result of criminal acts․  [C]rime victims may obtain restitution through compensation from the Restitution Fund.” (Gov.Code, § 13959.)   Thus, the purpose of the section 1202.45 fine is to compensate crime victims, not to defray administrative costs in revoking parole.

We note this restitution fine is different from the jail booking and classification fees which we held did not constitute punishment for ex post facto purposes, in People v. Rivera (1998) 65 Cal.App.4th 705, 76 Cal.Rptr.2d 703.   We concluded the fees were administrative costs and did not promote the traditional aims of punishment-retribution and deterrence-in the same way a restitution fine does.  (Id. at p. 710, 76 Cal.Rptr.2d 703.)

We consider various cases not cited by the People but find them to be distinguishable.   Thus, People v. White (1997) 55 Cal.App.4th 914, 64 Cal.Rptr.2d 245, indicated in dictum that application of a statutory amendment which permitted deduction of direct restitution payments from prison wages did not violate the ex post facto clause, because the defendant's liability for the restitution was already clear at the original sentencing.   The amendment was only procedural and did not make the punishment more burdensome.  (Id. at p. 917, 64 Cal.Rptr.2d 245;  see also, People v. Kwolek (1995) 40 Cal.App.4th 1521, 1536, 48 Cal.Rptr.2d 325 [no ex post facto problem where statutory amendment was purely procedural, merely addressing manner of payment].)  Here, of course, we do not deal with a mere procedural change but a new statutory authorization for an additional fine.

We also note case law has held the ex post facto clause was not violated by application of an amendment to section 3057 which provided that confinement pursuant to a parole revocation may be extended for an additional 12 months for subsequent acts or misconduct committed by the parolee while confined pursuant to that parole revocation.  (E.g., In re Nolasco (1986) 181 Cal.App.3d 39, 226 Cal.Rptr. 65;  In re LeDay (1985) 177 Cal.App.3d 461, 221 Cal.Rptr. 398.)   Previously, confinement had been limited to a total of 12 months in the absence of a new conviction and commitment to prison under other provisions of law.   The reasoning was that the provision was not an ex post facto provision since the misconduct for which the defendant's time was extended occurred after the effective date of the new provision.  (Ibid.)  These cases have no bearing here, because they involved a statute which by its own terms authorized extended confinement “for subsequent acts of misconduct committed by the parolee while confined pursuant to that parole revocation.”  (In re LeDay, supra, 177 Cal.App.3d at p. 463, 221 Cal.Rptr. 398, quoting section 3057.)   Here, for the reasons already explained, section 1202.45 does not punish subsequent conduct.

In re Bray (1979) 97 Cal.App.3d 506, 158 Cal.Rptr. 745, held application of a longer period of parole, under a statutory amendment, violated the ex post facto clause since it retroactively deprived the parolee of a vested right to which he became entitled under the prior statute.  In re Bray does not assist in this case.

We conclude the section 1202.45 fine must be stricken as violative of the prohibition against ex post facto laws.

DISPOSITION

The doubling of Tran's sentence of life without possibility of parole on count one is stricken.   The trial court is directed to correct the abstract of judgment to reflect a single, rather than double, sentence of life without possibility of parole on count one, and furnish the Department of Corrections with a copy of the corrected abstract.

The section 1202.45 restitution fine is stricken as to both Tran and Nguyen.   Correction of the abstracts of judgment is not necessary with respect to the section 1202.45 fine, inasmuch as they do not mention the section 1202.45 fine.

The judgment as to each defendant is otherwise affirmed.

FOOTNOTES

FN1. Undesignated statutory references are to the Penal Code..  FN1. Undesignated statutory references are to the Penal Code.

FOOTNOTE.   See footnote *, ante.

FOOTNOTE.  FN††<> See footnote *, ante.

16.   Section 667, subdivision (e)(1) provides:  “If a defendant has one prior felony conviction that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction.”Section 1170.12, subdivision (c)(1), provides:  “If a defendant has one prior felony conviction that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction.”

17.   The Supreme Court currently has under review various cases concerning application of the three strikes law to a sentence of life with the possibility of parole.  (E.g., People v. Barra (1998) 60 Cal.App.4th 828, 70 Cal.Rptr.2d 584, review granted Apr. 15, 1998 (S067779);  People v. [Sa Hoang] Tran (1997) 59 Cal.App.4th 1125, 69 Cal.Rptr.2d 535, review granted Mar. 11, 1998 (S067199);  People v. Jefferson (1996) 50 Cal.App.4th 958, 58 Cal.Rptr.2d 252, review granted Feb. 19, 1997 (S057834).)

FOOTNOTE.  FN†† See footnote *, ante.

19.   For present purposes, we assume without deciding the fine is otherwise appropriate as to Tran, despite his sentence on count one of life without possibility of parole.

20.   Section 1202.4, subdivision (b), provides in part:  “In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record.  [¶] ․ The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense, but shall not be less than two hundred dollars ($200), and not more than ten thousand dollars ($10,000), if the person is convicted of a felony․”

21.   United States Constitution article I, section 10, provides in part:  “No State shall ․ pass any ․ ex post facto Law․”

22.   California Constitution, article I, section 9, provides in part:  “A [n] ․ ex post facto law ․ may not be passed.”

23.   We have said that restitution fines under sections 1202.4 and 1202.45 constitute punishment for double jeopardy purposes.  (People v. Thompson (1998) 61 Cal.App.4th 1269, 71 Cal.Rptr.2d 586.)   In People v. Palomar (1985) 171 Cal.App.3d 131, 214 Cal.Rptr. 785, we held as a matter of statutory construction that a section 1202.4 restitution fine could not be retroactively applied to offenses committed before the statute's operative date.

24.   The Attorney General goes further and states that if the purpose is not to help pay costs associated with parole revocation, then “it would make no sense only to impose it on defendants whose parole is actually revoked.”   Tran replies that the Attorney General's position gives rise to additional points that the fine violates due process and equal protection.   Since we conclude the ex post facto clause precludes application of section 1202.45 in this case, we need not address the due process and equal protection arguments.

SIMS, Acting P.J.

RAYE, J. and CALLAHAN, J., concur.