Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC591979
ELIA, J.On June 14, 2005, as part of a negotiated disposition, appellant pleaded no contest to stalking (Pen. Code, § 646.9, subd. (b), count one). In return for his plea, appellant was promised five years formal probation or an immediate sentence to state prison of no more than two years and the dismissal of a second count. On December 19, 2005, the court imposed, but suspended execution of a three-year prison term and placed appellant on probation.
Subsequently, on February 21, 2007, appellant admitted violating probation. The court revoked appellant's probation and ordered that appellant serve the three-year prison sentence that the court had suspended when it placed appellant on probation.
In reciting appellant's sentence at the probation revocation hearing, the court told appellant that he would have to pay a $200 restitution fund fine and that a $200 parole revocation fine would be imposed but suspended, based on the probation officer's representation that the restitution fine "was $200 at the time of sentencing." Defense counsel did not object.
It is with the imposition of the restitution fund fine and the parole revocation fines that appellant takes issue. Appellant argues, "[t]he restitution and parole revocation fines imposed by the trial court for the first time during the February 21, 2007, sentencing hearing should be stricken because the trial court had no authority to impose these fines at the time of probation revocation."
Facts
The facts underlying appellant's conviction are not at issue here. We will set forth the relevant facts underlying the hearing at which appellant entered his plea of no contest.
On June 14, 2005, in the course of completing the voir dire of appellant regarding his anticipated plea, the court informed him, "there will be fines and fees which you'll be ordered to pay and I'm just going to give you a wide spectrum. There will be a restitution fund fine of a minimum of 200 dollars and a maximum of 10,000 dollars." Following appellant's entry of a plea, during appellant's sentencing hearing on December 19, 2005, the court imposed numerous fines and fees, but failed to state on the record that it was imposing a restitution fund fine pursuant to Penal Code section 1202.4 or a parole revocation fine under Penal Code section 1202.45. However, the court did impose a "probation revocation fee," which it suspended pending "any violation of probation," but did not state the amount of the "fee." Nevertheless, the clerk's transcript from the December 19, 2005 sentencing hearing reflects the following: "DRF/RF $220 Add'l RF $220 Susp'd PC 1202.45." The abstract of judgment dated February 23, 2007, reflects the following: "Restitution Fine(s): $200 per PC 1202.4(b) . . . $200 per PC 1202.45 suspended unless parole is revoked."
Presumably, the court was referring to a probation revocation fine imposed pursuant to Penal Code section 1202.44, which states, "In every case in which a person is convicted of a crime and a conditional sentence or a sentence that includes a period of probation is imposed, the court shall, at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional probation revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4. This additional probation revocation restitution fine shall become effective upon the revocation of probation or of a conditional sentence, and shall not be waived or reduced by the court, absent compelling and extraordinary reasons stated on record. . . ."
Discussion
Relying on People v. Chambers (1998) 65 Cal.App.4th 819 (Chambers) and People v. Johnson (2003) 114 Cal.App.4th 284 (Johnson), appellant argues that the since the triggering event for imposition of restitution and parole revocation fines is his conviction, the trial court was not permitted to impose restitution and or parole revocation fines for the first time at the time it revoked his probation. Furthermore, appellant contends even though the minute order shows the imposition of the two fines, because the court did not include the imposition of the fines when the court pronounced judgment, any inconsistency should be resolved in favor of the court's pronounced judgment. Moreover, relying on People v. Tillman (2000) 22 Cal.4th 300, appellant argues that neither a restitution fine, nor a parole revocation fine can be added for the first time on appeal.
Trial courts are required to order restitution fines in every case where a person is convicted of a crime, unless it finds compelling and extraordinary reasons for not so doing, which must be stated on the record. (Pen. Code, § 1202.4, subd. (b).) The amount of the fine shall be set at the court's discretion. If the defendant is convicted of a felony, the fine may not be less than $200 and may not exceed $10,000. (Pen. Code, § 1202.4, subd. (b)(1).) When the court imposes a sentence that includes a period of parole, it is required to assess a parole revocation fine "in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4." (Pen. Code, § 1202.45.)
Respondent concedes that restitution fines and parole revocation fines are required to be imposed as part of the judgment of conviction, not as part of the revocation of probation granted as part of that conviction. Nevertheless, respondent argues that because the court imposed a probation revocation fine pursuant to Penal Code section 1202.44 and since that fine must be in the same amount as a restitution fund fine, "the court's oral imposition of the 1202.44 [fine] necessarily reflects imposition of a section 1202.4 restitution fine. And inasmuch as the minimum amount of the latter fine is $200, that amount should be deemed the amount imposed." We fail to follow respondent's reasoning in a case where the court made no mention of a restitution fund fine or parole revocation fine in pronouncing judgment.
Nevertheless, during the probation revocation hearing, it appears that the trial court thought that a restitution fund fine and a parole revocation fine had been imposed at the time of sentencing. However, we find nothing in the reporter's transcript to support this supposition. As we have mentioned, subdivision (b) of section 1202.4 requires imposition of a restitution fine "unless [the trial court] finds compelling and extraordinary reasons for not doing so, and states those reasons on the record." (Pen. Code § 1202.4, subd. (b).)
The issue here is whether the trial court had the authority to impose a restitution fund fine and a parole revocation fine when appellant's probation was revoked. Appellant's reliance on Chambers, supra, 65 Cal.App.4th 819 and Johnson, supra, 114 Cal.App.4th 284 is misplaced. In both those cases the trial court had imposed a restitution fine at the time of sentencing. In Chambers, supra, 65 Cal.App.4th 819 the trial court imposed a second restitution fine following the revocation of probation. On appeal, the Third District Court of Appeal held that this second fine (of $800) was unauthorized, because the first restitution fine (of $200) imposed when the court granted probation survived the court's later revocation of probation. (Id. at pp. 822-823.) In Johnson, supra, 114 Cal.App.4th 284 the Fourth District Court of Appeal held that a trial court errs when it increases the amount of a previously imposed restitution fine upon the revocation of probation. (Id. at pp. 308-309.) Neither of those things happened in this case.
A trial court must either order a restitution fund fine or state reasons for not so doing on the record. The court does not have the discretion to do nothing. In essence, because imposition of a restitution fund fine is mandatory, the court was correcting an unauthorized sentence. When a sentence is invalid due to the omission of a restitution fine without a finding of compelling and extraordinary reasons nothing prevents a court on its own motion from correcting that sentence. (Pen. Code, § 1202.46, see People v. Moreno (2003) 108 Cal.App.4th 1, 8-12.)
An analogous situation can be found in People v. Rowland (1997) 51 Cal.App.4th 1745 (Rowland). There the defendant pleaded no contest to two counts of grand theft as part of a plea bargain that made no provision for victim restitution. When the victims appeared at the sentencing hearing seeking restitution, the court, believing it had the discretion to do so, denied the request. The victims then moved for modification of the sentence to include restitution on the ground it was mandatory under section 1202.4. The court agreed. Then, the court had to decide whether the defendant would be prejudiced by a restitution order such that he should be allowed to withdraw his plea. The court found no prejudice. That is, it was not reasonably probable the defendant would have rejected the plea bargain had he been advised of the restitution order, and so it directed him to pay restitution totaling nearly $200,000 with interest. (Id. at pp. 1748-1750.)
On appeal, the defendant argued the trial court lacked the power to resentence him because the original sentence had been valid. In addition, the defendant challenged the court's no-prejudice finding. The Court of Appeal rejected both of these arguments and affirmed the judgment. (Rowland, supra, 51 Cal.App.4th at pp. 1750-1754.) As for the validity of the original sentence, the court said: "[V]ictim restitution is mandated by both the Constitution and section 1202.4. [Citations.] The only discretion retained by the trial court in this regard is in fixing the amount of the award. Although section 1202.4 mandates a sum which will fully reimburse the victim(s), the court can for 'clear and compelling reasons' award a lesser amount. However, in such a case the court must state the reasons for issuing a lesser award. [Citations.] Where the court fails to issue an award altogether, as here, the sentence is invalid. [Citation.]" (Id. at p. 1751.)
In 1995, at the time sentence was imposed in Rowland, the term "clear and compelling" appeared in subdivision (g) of Penal Code section 1202.4.
Similarly, here a restitution fine is mandated by section 1202.4. A sentence without a restitution fine or a finding of compelling and extraordinary reasons not to impose a fine is invalid. An invalid or unauthorized sentence "is subject to being set aside judicially and is no bar to the imposition of a proper judgment thereafter, even though it is more severe than the original unauthorized pronouncement." (People v. Serrato (1973) 9 Cal.3d 753, 764, fn. omitted, disapproved on other grounds in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1; People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6.)
Furthermore, at the time of imposing the restitution fine pursuant to subdivision (b) of Penal Code section 1202.4, the court must assess an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Penal Code section 1202.4 if the defendant's sentence includes a period of parole. (Pen. Code, § 1202.45.) This is exactly what happened here. The court corrected its unauthorized sentence by imposing the restitution fine at the probation revocation hearing and because appellant's sentence included a period of parole, the court imposed but suspended the parole revocation fine in the same amount.
People v. Tillman, supra, 22 Cal.4th 300 (Tillman) is not to the contrary. In Tillman, the question before the Supreme Court was whether the People, by failing to raise the point at sentencing, had waived their objection to the trial court's omission. The court reasoned that the trial court's option to forgo imposition of a restitution fine for "compelling and extraordinary reasons" made the fine a discretionary sentencing choice subject to the forfeiture doctrine enunciated in People v. Scott (1994) 9 Cal.4th 331 and People v. Welch (1993) 5 Cal.4th 228. Simply put, Tillman holds that where the trial court fails to impose a restitution fine at sentencing and the People do not object, the People are precluded on forfeiture principles from seeking imposition of the fine for the first time on appeal. (22 Cal.4th at pp. 302-303.)
In conclusion, because in essence the trial court was correcting an unauthorized sentence when it imposed the fines at the probation revocation hearing, we affirm the judgment.
Disposition
The judgment is affirmed.
WE CONCUR: RUSHING, P. J., PREMO, J.