Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Kenneth K. So, Judge. Super. Ct. Nos. SCD224693, SCS233120
McDONALD, J.
Charles Edward Moses, Jr., appeals a judgment following his conviction of one count of willful infliction of corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a)). On appeal, he contends the trial court erred by imposing fines, a fee, and an assessment in excess of those authorized by sections 1202.4, subdivision (b), 1202.45 and 1465.8, and Government Code section 70373.
All statutory references are to the Penal Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
Because the facts underlying Moses's conviction are irrelevant to the issues on appeal, we elect to omit a description of those facts.
On October 28, 2009, in a related case (San Diego County Superior Court case No. SCS233120), Moses pleaded guilty to one count of grand theft (§ 487, subd. (a)) and admitted a prior strike conviction allegation in exchange for a stipulated sentence of 32 months. On December 9, the trial court sentenced Moses to a total term of 32 months and granted his request that execution of his sentence be suspended until January 14, 2010.
On or about December 27, 2009, while awaiting execution of sentence in case No. SCS233120, Moses willfully inflicted corporal injury on a cohabitant. An information (in San Diego County Superior Court case No. SCD224693) charged Moses with that offense (§ 273.5, subd. (a)) and alleged he committed it while released from custody on the earlier offense (§ 12022.1, subd. (b)) and personally inflicted great bodily injury (§ 12022.7, subd. (e)). The information further alleged Moses had nine probation denial prior convictions (§ 1203, subd. (e)(4)), five prison prior convictions (§§ 667.5, subd. (b), 668), one serious felony prior conviction (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)), and one prior strike conviction (§§ 667, subds. (b)-(i), 668, 1170.12).
On March 4. 2010, Moses waived his right to a jury trial and, following a bench trial, the court found him guilty of the charged offense (§ 273.5, subd. (a)) and found true the two allegations related to that offense. Moses then admitted the truth of the prior conviction allegations.
On July 26, the trial court sentenced Moses to a total term of 18 years in prison. The court also imposed a $37,800 restitution fine (§ 1202.4, subd. (b)), another $37,800 restitution fine suspended unless his parole is revoked (§ 1202.45), a $330 court security fee (§ 1465.8), and a $330 criminal conviction assessment (Gov. Code, § 70373). Moses timely filed a notice of appeal.
Although his notice of appeal identifies both cases (San Diego County Superior Court case Nos. SCD224693 and SCS233120), Moses challenges only the judgment in case No. SCD224693. Accordingly, we do not address any issues relating to the other case.
DISCUSSION
Unauthorized Fines, Fee, and Assessment
Moses contends, and the People correctly concede, the trial court erred by imposing fines, a fee, and an assessment in excess of those authorized by sections 1202.4, subdivision (b), 1202.45 and 1465.8, and Government Code section 70373.
A
On appeal, we may review a claim that a sentence is unauthorized even though that claim was not raised in the trial court. (People v. Smith (2001) 24 Cal.4th 849, 852; People v. Scott (1994) 9 Cal.4th 331, 354.) "[A] sentence is generally 'unauthorized' where it could not lawfully be imposed under any circumstance in the particular case." (Scott, at p. 354.) Unauthorized sentences, or sentences entered in excess of jurisdiction, present pure questions of law and are correctable regardless of the factual findings below. (Smith, at p. 852.) A trial court's imposition of a restitution fine in excess of the maximum amount allowed by the applicable statute is an unauthorized sentence. (People v. Blackburn (1999) 72 Cal.App.4th 1520, 1534.)
B
Moses correctly asserts the trial court erred by imposing a $37,800 restitution fine pursuant to section 1202.4, subdivision (b), which provides:
"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.
"(1) 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....
"(2) In setting a felony restitution fine, the court may determine the amount of the fine as the product of two hundred dollars ($200) multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted." (Italics added.)
Section 1202.4, subdivision (d), provides:
"In setting the amount of the fine pursuant to subdivision (b) in excess of the two hundred-dollar ($200)... minimum, the court shall consider any relevant factors, including, but not limited to, the defendant's inability to pay, the seriousness and gravity of the offense and the circumstances of its commission, any economic gain derived by the defendant as a result of the crime, the extent to which any other person suffered any losses as a result of the crime, and the number of victims involved in the crime.... Express findings by the court as to the factors bearing on the amount of the fine shall not be required. A separate hearing for the fine shall not be required."
At Moses's sentencing hearing, the trial court read and considered the probation officer's report, which recommended that the court impose a restitution fine of $37,800 pursuant to section 1202.4, subdivision (b). In recommending that fine, the probation officer did not provide any explanation regarding her calculation of the fine or the relevant circumstances supporting the amount of the recommended fine. In sentencing Moses, the trial court imposed a restitution fine of $37,800 pursuant to section 1202.4, subdivision (b). In so doing, the court did not provide any explanation regarding its calculation of the fine or the relevant circumstances supporting the amount of the fine. Rather, it appears the court simply accepted the probation officer's recommendation regarding the amount of the fine (i.e., $37,800).
The maximum amount of a restitution fine that a trial court can impose pursuant to section 1202.4, subdivision (b), is $10,000. (People v. Blackburn, supra, 72 Cal.App.4th at p. 1534.) The trial court in this case imposed an unauthorized sentence by ordering Moses to pay a section 1202.4, subdivision (b), restitution fine in excess of $10,000 (i.e., $37,800).
Although Moses and the People agree the trial court erred in imposing the $37,800 restitution fine, they disagree on the appropriate remedy for that error. Moses suggests that we remand the case to the trial court with directions to impose a fine of $3,600 based on the formula set forth in section 1202.4, subdivision (b)(2). The People suggest that we simply modify the judgment to impose the maximum fine of $10,000. We decline to adopt either suggestion. Based on our review of the record, it appears the trial court simply accepted the (wrongly calculated) restitution fine recommended by the probation officer (i.e., $37,800) without conducting any independent calculation or consideration of the circumstances relevant to that determination. Contrary to the People's assertion, the record does not show the trial court clearly intended to impose the maximum fine authorized by section 1202.4, subdivision (b). Rather, the record tends to support an inference that the court adopted the unauthorized amount recommended by the probation officer without independently exercising its discretion in determining the appropriate amount of the fine. We therefore reject the People's suggestion that we modify the judgment to impose the $10,000 maximum amount authorized. (§ 1202.4, subd. (b).)
Applying that formula in Moses's case, the trial court would multiply $200 by 18 (the number of years of his sentence) and then multiply that result by 1 (the number of offenses), resulting in a fine of $3,600. (§ 1202.4, subd. (b)(2).)
We likewise reject Moses's suggestion that we remand the case with directions that the trial court impose a $3,600 restitution fine. A trial court has discretion in calculating the amount of a restitution fine under section 1202.4, subdivision (b). (People v. DeFrance (2008) 167 Cal.App.4th 486, 505; People v. Lewis (2009) 46 Cal.4th 1255, 1321.) "Within the range authorized by statute, the court has wide discretion in determining the amount." (People v. Urbano (2005) 128 Cal.App.4th 396, 406.) Although the trial court in this case could have exercised its discretion by applying the formula set forth in section 1202.4, subdivision (b)(2), to the facts in this case and, as noted above, imposed a $3,600 restitution fine, the court did not do so and was not required to do so. That statutory formula is merely one method or guideline a trial court "may" use in determining the amount of the restitution fine. (§ 1202.4, subd. (b)(2), italics added.) We cannot presume the trial court would necessarily have applied that formula had it realized the probation officer's recommended amount was unauthorized. We conclude the appropriate remedy is to remand the case to the trial court with directions that it vacate the $37,800 restitution fine and exercise its discretion to impose a new restitution fine in an amount authorized by section 1202.4, subdivision (b). In so doing, the court may, in its discretion, apply the formula set forth in section 1202.4, subdivision (b)(2), and shall consider any relevant factors, including those set forth in section 1202.4, subdivision (d).
C
Moses also correctly asserts the trial court erred by imposing an additional $37,800 restitution fine pursuant to section 1202.45, which fine was suspended unless his parole is revoked. 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 parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4 . This additional parole revocation restitution fine... shall be suspended unless the person's parole is revoked...." (Italics added.)
At Moses's sentencing hearing, the trial court read and considered the probation officer's report, which erroneously recommended that the court impose an additional restitution fine of $37,800 pursuant to section 1202.45. In adopting that recommendation and imposing a parole revocation restitution fine of $37,800, the trial court imposed an unauthorized sentence. Because the maximum fine authorized by section 1202.4, subdivision (b), is $10,000, the maximum fine authorized by section 1202.45 (which must be the same amount as the § 1202.4, subd. (b), amount) is also $10,000. (§§ 1202.45, 1202.4, subd. (b).) On remand the trial court shall vacate the $37,800 restitution fine, impose a new section 1202.45 parole revocation restitution fine in the same amount it imposes under section 1202.4, subdivision (b), and suspend that section 1202.45 fine unless Moses's parole is revoked.
D
Moses also correctly asserts the trial court erred by imposing a $330 court security fee pursuant to section 1465.8. On the date of his conviction (March 4, 2010), section 1465.8, subdivision (a)(1), provided: "To ensure and maintain adequate funding for court security, a fee of thirty dollars ($30) shall be imposed on every conviction for a criminal offense...." In this case, Moses was convicted of one section 273.5 offense. Accordingly, only one $30 fee could (and must) be imposed under section 1465.8. The court's imposition of a $330 fee is unauthorized. On remand, the trial court shall vacate its imposition of a section 1465.8 court security fee of $330 and instead impose a new fee of $30.
Effective October 19, 2010, section 1465.8 was amended to increase the fee from $30 to $40 per conviction. (Stats. 2010, ch. 720, § 33.) However, because that statute applies "on every conviction, " the applicable amount is the $30 fee set forth in the statute at the time of Moses's March 4, 2010, conviction. (People v. Alford (2007) 42 Cal.4th 749, 754, 759 [§ 1465.8 court security fee applies to all convictions after its operative date]; cf. People v. Davis (2010) 185 Cal.App.4th 998, 1001 [Gov. Code, § 70373 assessment applies on "conviction, " rather than subsequent sentencing or judgment of conviction; "a person stands 'convicted' upon the return of a guilty verdict by the jury or by the entry of a plea admitting guilt"].)
E
Moses also correctly asserts the trial court erred by imposing a $330 criminal conviction assessment pursuant to Government Code section 70373, which provides: "To ensure and maintain adequate funding for court facilities, an assessment shall be imposed on every conviction for a criminal offense.... The assessment shall be imposed in the amount of thirty dollars ($30) for each misdemeanor or felony...." In this case, Moses was convicted of one section 273.5 offense. Accordingly, only one $30 assessment could (and must) be imposed under Government Code section 70373. The court's imposition of a $330 assessment is unauthorized. On remand, the trial court shall vacate its imposition of a Government Code section 70373 assessment of $330 and instead impose a new assessment of $30.
DISPOSITION
The judgment is reversed to the extent it imposed a $37,800 restitution fine (§ 1202.4, subd. (b)), a $37,800 restitution fine suspended unless Moses's parole is revoked (§ 1202.45), a $330 court security fee (§ 1465.8), and a $330 criminal conviction assessment (Gov. Code, § 70373). In all other respects, the judgment is affirmed. The matter is remanded with directions that the trial court vacate the above unauthorized fines, fee, and assessment, impose new fines, a new fee, and a new assessment consistent with this opinion, and enter an amended judgment. The clerk of the San Diego County Superior Court shall then prepare an amended abstract of judgment reflecting the amended judgment and forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
WE CONCUR: HALLER, Acting P. J., AARON, J.