Opinion
A164594
03-10-2023
THE PEOPLE, Plaintiff and Respondent, v. MARK GUINTO, Defendant and Appellant.
NOT TO BE PUBLISHED
(San Francisco County Super. Ct. Nos. CT19008144, SCN231420)
RICHMAN, ACTING P.J.
After a jury convicted defendant Mark Guinto of burglary and other charges, he was sentenced to two years probation, one condition of which was that he comply with an individualized substance abuse treatment plan as ordered by the probation department. Guinto argues that the probation condition must be modified to clarify that his substance abuse treatment was to be on an outpatient basis, and that the trial court should have, but did not, stay the restitution fine imposed at sentencing based on his inability to pay under People v. Duenas (2019) 30 Cal.App.5th 1157 (Duenas). We agree that the probation condition must be modified and that the judgment should be clarified to indicate that the restitution fine was stayed, and otherwise affirm.
BACKGROUND
On June 14, 2019, the San Francisco District Attorney filed an information charging Guinto with felony burglary of a vehicle (Pen. Code, § 459) (count 1), felony grand theft (§ 487, subd. (a)) (count 2), misdemeanor breaking or removing vehicle parts (Veh. Code § 10852) (count 3), and misdemeanor possession of burglary tools (§ 466) (count 4).
Further statutory references are to the Penal Code.
The facts of the underlying offense are not relevant to the issues on appeal.
On December 15, 2021, a jury found Guinto guilty of counts 1, 2 and 4, but was unable to reach a verdict on count 3, which was dismissed on the prosecution's motion.
The probation department's pre-sentence report noted that Guinto reported "alarming substance use issues," in particular that he was a daily user of methamphetamine. The report made two recommendations pertaining to Guinto's substance abuse. Recommendation number 10 was that Guinto "[e]nroll, participate and complete the required services and/or treatment/counseling as identified in the probationer's Individualized Treatment and Rehabilitation Plan." And recommendation number 12 was that Guinto "[c]omplete a residential substance abuse treatment program."
The report also indicated that notice had been sent to three of the offense's victims regarding restitution, but that "[t]o date a . . . request for restitution has not been received from any of the named victims." The report recommended that Guinto be ordered to pay a restitution fine under section 1202.4, subdivision (b), that restitution to the victims "remain a general order of restitution to be determined by the Court," and that the court retain jurisdiction to modify that order should any victim request restitution at a later date.
At sentencing on January 14, 2022, the trial court suspended imposition of sentence and placed Guinto on probation for two years. Counsel and the court also had a discussion about whether residential substance abuse treatment was appropriate:
"MS. WARD [defense counsel]: . . . And the only reason I am hesitant with the Court ordering a residential treatment program is because I know that Mr. Guinto and his girlfriend live together, and I know that she has been a huge factor in his life and helping him to stay on the right track. My only concern is kind of removing him from his support system and making him go into residential treatment. I know that they are kind of surviving on, you know, general assistance, and I just don't know what would happen to his girlfriend's housing situation if Mr. Guinto does have to go into a residential treatment program. But I do think that he is committed and willing to-as probation noted, willing to engage in programming whatever-you know, whatever that may look like.
"THE COURT: Okay. So, Mr. Koo [prosecutor], I am inclined to agree with Ms. Ward. Two and a half years [of no arrests] is significant. I think we've all been at the Hall of Justice long enough to have seen repeat offending occur even while people have cases pending. Whatever he is doing, it appears to be working for him now, so I don't think he should be ordered to go into a residential treatment program. Sometimes that could actually lead to a setback because sometimes the individuals that you are around there- because some individuals still bring drugs into those programs, et cetera. Also, he can participate through an individualized treatment program through the probation department, so I am not going to order him to go to a residential treatment program."
After the prosecutor made further remarks about Guinto's substance abuse:
"THE COURT: So are you asking the Court-I mean, the Court can order him to participate in a substance abuse individualized treatment program as suggested by the probation department which the Court will order.
"Are you asking the Court to order that he participate in a residential treatment program?
"MR. KOO: No, Your Honor...."
The court ultimately ordered that Guinto "comply with the conditions of the probation individualized treatment and rehabilitation program." And the minutes of the hearing provide that "Defendant shall enroll, participate and complete all programs identified by [the probation department] as part of his/her individualized treatment plan."
With respect to fines, fees, and restitution, the court ordered as follows:
"THE COURT: . . . You must pay restitution to the victims in this case as determined by the Adult Probation Department. You must pay a $300 restitution fine for each felony count and $150 restitution fine for the one misdemeanor count. You must pay a $300 probation revocation restitution fine for each count, which is stayed pending successful completion of probation, and a $150 revocation fine for the misdemeanor which is also stayed. You must pay a $40 court operation assessment fine for each count, a $30 immediate critical needs assessment fine for each count. You are ordered to report to the collections unit in room 101 immediately at 1:30.
"Are they open now?
"THE CLERK: No.
"THE COURT: Okay-at 1:30 to make [arrangements] to pay all the fines and fees that you owe.
"MS. WARD: And, Your Honor, I would be asking
"THE COURT: We'll get there. We'll get there. If you fail to do so, you would be subject to a $300 civil assessment fine.
"Yes, Ms. Ward.
"MS. WARD: I ask that the fines and fees be stayed pursuant to People v. Duenas[, supra, 30 Cal.App.5th 1157].
"THE COURT: The People?
"MR. KOO: Submitted.
"THE COURT: So only certain fines and fees are allowed to be stayed pursuant to [Duenas.] The restitution fines are not allowed to be stayed.
"So, Mr. Vegas, the restitution fine-the other fines and fees are stayed except for the restitution fine.
"THE CLERK: The VIF?
"THE COURT: Yes."
The minute order from the hearing states: "THE COURT ORDERS: FINES AND FEES WAIVED EXCEPT VIF."
Guinto filed a notice of appeal.
DISCUSSION
Guinto argues that (1) the probation condition is unconstitutionally vague and an improper delegation of judicial authority because it allows the probation officer to order rehabilitative programming beyond outpatient substance abuse treatment, and (2) the trial court should have, but did not, stay the restitution fines under Duenas, supra, 30 Cal.App.5th 1157.
The Probation Condition Must Be Modified
Guinto's challenges present questions of law that we review de novo. (People v. Smith (2022) 79 Cal.App.5th 897, 902 (Smith).) And "[w]here the trial court has made oral or written comments clarifying the probation condition, we may consider those comments in determining whether a challenged condition is unconstitutionally vague. [Citation.]" (Ibid.)
In Smith, supra, 79 Cal.App.5th 897, our colleagues in Division Five considered a probation condition requiring the defendant" 'to participate in any treatment/therapy/counseling program, including residential, as directed by the probation officer.'" Read in the context of another probation condition requiring the defendant to" 'complete a drug and alcohol assessment and follow through with treatment as directed by probation'" and "the court's oral comments that Smith needed treatment for her substance abuse problem," the court concluded that the condition "passe[d] muster" and rejected defendant's argument that it was unconstitutionally vague. (Id. at pp. 902903.) The court concluded, however, that the "treatment condition violates the separation of powers doctrine because it delegates to the probation officer the discretion to decide whether [the defendant] must attend a residential program, as opposed to an outpatient program," holding that "[g]iven the significant liberty interests at stake, a court-not a probation officer-must make the decision to require a defendant to attend residential treatment." (Id. at p. 903.) The court reversed the condition and remanded for the trial court to decide whether it wished to mandate residential treatment. (Ibid.)
As in Smith, we conclude that the context of the court's oral comments regarding Guinto's substance abuse make clear that the probation condition here is directed at that issue and is therefore not unconstitutionally vague. (See Smith, supra, 79 Cal.App.5th at pp. 901-903.)
However, again as in Smith, to the extent the probation condition permits the probation officer to order residential substance abuse treatment despite the court's stated intention that such treatment be on an outpatient basis, the condition is an improper delegation of judicial authority. (Smith, supra, 79 Cal.App.5th at p. 903.) The Attorney General indicates that in order to "make the condition pertaining to substance abuse clear," he has no objection to modifying the condition to require that Guinto "comply with the terms and conditions of the adult probation individual outpatient substance abuse treatment program," as Guinto requests. Accordingly, we will modify the condition.
The Judgment Must Be Modified to Clarify That the Restitution Fine Was Stayed
The statutes recognize two kinds of restitution: (1) restitution fines (§ 1202.4, subd. (b)), which are not directly related to the amount of loss sustained by a victim; and (2) direct restitution to the victim (§ 1202.4, subd. (f)), which is based on the amount of the loss the victim actually sustained. (See People v. Holman (2013) 214 Cal.App.4th 1438, 1451-1452.) "VIF" or "Victim's Indemnity Fund" refers to the restitution fund administered by the California Victim Compensation Board. (Gov. Code, § 13950, et seq.; Moore v. State Bd. of Control (2003) 112 Cal.App.4th 371, 375 [restitution fund "formerly known as the Indemnity Fund"].) "The restitution fines are not paid directly to the victims of crime. Rather, they are deposited to the restitution fund. (§ 1202.4, subd. (e).)" (People v. Holman, supra, 214 Cal.App.4th at p. 1452.)
The parties agree that under Duenas, the trial court could stay the restitution fine under section 1202.4, subdivision (b), but not direct victim restitution under section 1202.4, subdivision (f). (See People v. Evans (2019) 39 Cal.App.5th 771, 775-778 [declining to extend the rule of Duenas to direct victim restitution]; Duenas, supra, 30 Cal.App.5th at p. 1169 ["direct victim restitution was not ordered and is not at issue in this case"].) According to Guinto's reply brief, "[t]he parties only disagree about whether the record indicates that the trial court stayed appellant's restitution fine."
We agree with Guinto that the record is confusing as to whether the restitution fine under section 1202.4, subdivision (b) was stayed under Duenas, supra, 30 Cal.App.5th 1157. By stating that the "fines and fees are stayed except for the restitution fine," and adding that the unstayed fine was the "VIF"-the fund into which the restitution fine is paid- the court suggested that the $750 restitution fine was not stayed under Duenas. Because the parties agree that the court's intent was to stay the $750 restitution fine under section 1202.4, subdivision (b), but not direct victim restitution under subdivision (f), we will clarify the judgment.
DISPOSITION
The probation condition is modified to require that Guinto "comply with the terms and conditions of the adult probation individual outpatient substance abuse treatment program," and the judgment is modified to clarify that the $750 restitution fine imposed under section 1202.4, subdivision (b) is stayed under People v. Duenas (2019) 30 Cal.App.5th 1157. As modified, the judgment is affirmed.
We concur: Miller, J., Markman, J. [*]
[*] Superior Court of Alameda County, Judge Michael Markman, sitting as assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.