Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. SJ09013580.
Margulies, Acting P.J.
Appellant A.M., a minor, admitted receiving stolen property in connection with a vehicle theft. She contends the juvenile court’s restitution award of $737 is unsupported by the evidence. We affirm the trial court’s ruling, concluding appellant failed to preserve for appeal any challenge to the amount of restitution.
I. BACKGROUND
The juvenile court filed a petition under Welfare and Institutions Code section 602, subdivision (a), alleging appellant committed theft and unlawful taking or driving of a vehicle (Veh. Code, § 10851; count one) and receiving stolen property (Pen. Code, § 496; count two). After appellant admitted receiving stolen property, the district attorney dismissed the remaining allegation.
Appellant and two companions stole a car. The owner of the car submitted a restitution claim form, dated December 24, 2009, requesting restitution in the amount of $930. On February 8, 2010, appellant requested a hearing on the issue of whether she could be ordered to pay restitution. At the restitution hearing on April 9, 2010, the court concluded that appellant was jointly and severally liable with her coparticipants. The court ordered appellant to pay restitution in the amount of $737. Appellant did not object to the amount of the award. At the hearing, the parties and the judge did not discuss a supplemental probation report filed on April 6, 2010, recommending restitution in the amount of $452.
II. DISCUSSION
Appellant contends the court’s restitution award was an abuse of discretion because there was no factual basis for the amount awarded. The Attorney General contends the issue was not preserved for appeal and the trial court did not abuse its broad discretion in setting the amount.
The failure to object to an order within the sentencing court’s statutory authority waives any claim on appeal that the order was unwarranted by the evidence. (People v. Brasure (2008) 42 Cal.4th 1037, 1075 (Brasure).) This rule is intended to encourage a timely objection to allow the court to explain or modify any contested issues without a costly and time-consuming appeal. (People v. Welch (1993) 5 Cal.4th. 228, 235.)
A. Challenge to Liability for Restitution as Preservation of the Issue
Appellant claims that by objecting to her liability for restitution she also preserved the issue of amount. However, a defendant’s liability for restitution and the amount awarded are two different issues, based on different legal and factual considerations. Appellant’s objection to liability neither called the court’s attention to the purported error in amount, nor gave the court an opportunity to explain or correct it.
In People v. de Soto (1997) 54 Cal.App.4th 1, the defendant made a general “boilerplate” objection at trial to the discretionary sentencing choice of the judge, listing objections to the imposition of consecutive sentences and the use of certain evidence as aggravating factors. (Id. at p. 9.) On appeal, the defendant presented six specific challenges to the discretionary sentence. (Id. at pp. 7–8.) The appellate court held the objections raised at trial were too general to preserve these issues for appeal, reasoning that the general objections at trial did not provide the court with any meaningful opportunity to address any sentencing errors. (Id. at pp. 8–9.) Thus, even when general objections to discretionary sentences are made at trial, they can be insufficient to preserve all sentencing issues for appeal. Here appellant failed to object to the sentence on any ground other than liability for restitution, which the trial court addressed. Appellant’s challenge to liability did not preserve for appeal the issue of the amount of restitution.
Appellant cites People v. Forshay (1995) 39 Cal.App.4th 686, to support her argument. In Forshay, the trial court ordered a restitution fine of $10,000 and victim restitution without determining the amount. (Id. at p. 688.) On appeal, the court held that the defendant waived his right to challenge the amount of the restitution fine by not objecting to the award or the presentence report in the trial court, but remanded for a determination of the restitution amount owed to the victim’s family. (Id. at pp. 689–690.) Accordingly, Forshay simply provides that where restitution is awarded without determining the amount, the appellate court can remand for a determination of the amount. It does not address the necessity for an objection.
B. Restitution Award as an “Unauthorized Sentence”
A narrow exception to the waiver rule has been created for “unauthorized” sentences, or sentences entered in excess of jurisdiction. “[A] sentence is generally ‘unauthorized’ where it could not lawfully be imposed under any circumstance in the particular case.” (People v. Scott (1994) 9 Cal.4th 331, 354.) In contrast, claims that are deemed waived on appeal involve sentences that are permitted by law, but were imposed in a procedurally or factually flawed manner. (Ibid.)
In Brasure, supra, 42 Cal.4th 1037, 1075, the court held that the defendant waived any claim that a restitution order was unwarranted by the evidence, as distinct from unauthorized by statute, by his failure to object at sentencing. Restitution was to be paid to the deceased victim’s mother. (Id. at pp. 1041, 1074.) The court awarded $102,500 based on the probation report, and the defendant did not object. (Id. at p. 1074.) On appeal, the defendant argued the restitution order was inappropriate because the evidence showed the mother had a poor relationship with the victim and because economic loss was not shown by documentation or sworn testimony. The Supreme Court found the issue waived by the failure to object. (Id. at p. 1075.)
Appellant’s claim is analogous to the defendant’s claim in Brasure. Appellant argues the sentence in this case is unauthorized because it required appellant pay restitution for property that had been recovered. However, a sentence is unauthorized and may be challenged in the first instance on appeal only when the error is “ ‘clear and correctable’ independent of any factual issues presented by the record at sentencing.” (People v. Scott, supra, 9 Cal.4th at p. 354.) In this case any error by the trial court was an error based on fact rather than law.
III. DISPOSITION
The judgment is affirmed.
We concur: Dondero, J., Banke, J.