Opinion
E054999
01-15-2013
THE PEOPLE, Plaintiff and Appellant, v. STACEE DIANE FLYNN, Defendant and Respondent.
Paul E. Zellerbach, District Attorney, and Matt Reilly, Deputy District Attorney, for Plaintiff and Appellant. Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
(Super.Ct.No. RIF153099)
OPINION
APPEAL from the Superior Court of Riverside County. Elaine C. Johnson, Judge. Affirmed.
Paul E. Zellerbach, District Attorney, and Matt Reilly, Deputy District Attorney, for Plaintiff and Appellant.
Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Respondent.
INTRODUCTION
The People appeal the trial court's order dismissing Stacee Diane Flynn's (defendant) unpaid restitution fine. Defendant replies that, absent a proper objection below, the People have waived the claim and that in any case, the court had discretion to dismiss the fine. We will affirm.
FACTS AND PROCEDURAL HISTORY
On December 15, 2009, defendant pled guilty to one charge of petty theft with a prior (Pen. Code, § 484, subd. (a), (a felony)) and admitted three prison priors (§ 667.5, subd. (b)). In exchange, the trial court placed her on probation for 36 months and referred her to a drug court program, Recovery Opportunity Center (ROC). The terms of defendant's probation included various fines and fees. One of these was a $200 restitution fine pursuant to section 1202.4, subdivision (b).
All further statutory references are to the Penal Code
Over the next 10 months, defendant participated faithfully in the ROC program. Out of 110 drug tests administered over the course of the program, only one was positive. On February 28, 2010, defendant had a positive test and admitted that she had used methamphetamine and thus violated probation. Defendant served one week in jail for the violation and thereafter had no more positive tests.
On September14, 2010, the trial court found that defendant had successfully completed ROC, the prescribed course of drug treatment imposed as a condition of probation. The court congratulated defendant and described her performance in the program as "outstanding." On motion of defense counsel and pursuant to section 1203, the court dismissed the plea of guilty, entered a plea of not-guilty, "suspend[ed] all remaining fines and fees," and closed the case. The prosecutor objected to the court's action with just two words: "same objection."
D ISCUSSION
Pointing out that imposition of a restitution fine is mandatory upon conviction and that the fine survives when probation is revoked, the People argue that the trial court acted in excess of its jurisdiction by dismissing the fine in this case.
Defendant replies that: (1) by failing to properly object below, the People did not preserve the asserted error, and (2) that, in any case the court was acting within its jurisdiction to dismiss the fine. We agree with defendant on both points.
Preservation of Sentencing Error
Generally, in the interests of fairness and judicial economy, only "claims of error properly raised below and preserved by the parties are reviewable on appeal." (People v. Scott (1994) 9 Cal.4th 331, 354.) The waiver rule applies to the People as well as to defendants. (People v. Tillman (2000) 22 Cal.4th 300, 302-303.) To be proper, an objection must be specific enough to give the trial court "a meaningful opportunity to correct any sentencing errors." (People v. De Soto (1997) 54 Cal.App.4th 1, 9.)
Here, the prosecutor's words "same objection" were not specific enough to give the trial court—not to mention an appellate court—a meaningful opportunity to correct a possible sentencing error. Any asserted error has not been preserved for review.
Restitution Fines
Even assuming that the People's two-word objection somehow preserved a claim that the restitution fine could not be dismissed, we do not find the argument persuasive. We agree with the People that the imposition of a restitution fine at the time of a criminal conviction is mandatory (§ 1202.4, subd. (b)), and that the fine was correctly imposed as a condition of probation at the time defendant entered her guilty plea in this case. We also agree that a restitution fine may be enforceable as a civil judgment following completion of probation. (§ 1214.2, subds. (a) & (b)(2).) But we do not agree that a trial court lacks discretion to dismiss a restitution fine when probation is terminated early, the guilty plea withdrawn and replaced with a not-guilty plea, and the case is dismissed.
Our conclusion is supported by relevant statutory authority. Section 1203.4 provides, in pertinent part that: "In any case in which a defendant . . . has been discharged prior to the termination of the period of probation, or in any other case in which a court, in its discretion and the interests of justice, determines that a defendant should be granted the relief available under this section, the defendant shall, at any time after the termination of the period of probation, if he or she is not then serving a sentence for any offense, on probation for any offense, or charged with the commission of any offense, be permitted by the court to withdraw his or her plea of guilty . . . and enter a plea of not guilty . . . and . . . the court shall thereupon dismiss the accusations or information against the defendant and . . . he or she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted . . . ." (§ 1203.4, subd. (a)(1), italics added.)
Defendant's case fits exactly into this provision. The trial court clearly determined, in its discretion and in the interests of justice in light of her exemplary performance in the ROC program, that defendant's motion to withdraw her guilty plea and terminate probation should be granted. The record does not show that defendant was then serving a sentence for any other offense, was on probation for any other offense, or had been charged with any other offense. Accordingly, once it had decided to terminate her probation early and permit her to withdraw her guilty plea, the court was authorized (if not required) to release her from all the "penalties and disabilities resulting from the offense of which she had been convicted." The restitution fine was such a disability and the trial court's decision to dismiss it was appropriate.
For support, the People rely on a number of cases where, after probation was revoked and a defendant returned to prison, appellate courts held that the restitution fine survived revocation. (People v. Chambers (1998) 65 Cal.App.4th 819, 822; People v. Arata (2004) 118 Cal.App.4th 195, 201; People v. Urke (2011) 197 Cal.App.4th 766, 779.) This is not such a case.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur: McKINSTER
Acting P. J.
MILLER
J.