Opinion
H044309 H045181 H045389
06-20-2018
THE PEOPLE, Plaintiff and Respondent, v. LORENZO GARCIA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1511832)
Defendant Lorenzo Garcia pleaded no contest to second degree robbery, attempting to dissuade a witness by force, possession of a firearm by a felon, driving or taking a vehicle with a prior conviction, and participating in a criminal street gang. He also admitted associated firearm and gang enhancement allegations, as well as prior conviction allegations. The trial court sentenced defendant to a term of 23 years eight months in prison, as called for in his plea agreement. The court also imposed a $10,000 restitution fine under Penal Code section 1202.4, subdivision (b). Defendant's sole contention on appeal is that the trial court abused its discretion in imposing that fine. We disagree and affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
I. BACKGROUND
The facts are taken from the preliminary hearing transcript. --------
On May 7, 2015, loss prevention officers at a Walmart in San Jose observed defendant take a pair of pants and put them in the purse of a woman with whom he was shopping. When the pair left the store without paying for the merchandise, a loss prevention officer approached them and told the woman to go back inside. Defendant responded that his companion would not go back into the store. According to the loss prevention officer, defendant said he had a gun and reached into his waistband, revealing something brown and wooden. Defendant also told the loss prevention officer not to call the police, saying he had been to prison and could not go back. The officer permitted defendant and his companion to leave.
On May 28, 2015, San Jose Police patrol officers observed a light blue Honda Civic parked in the driveway of the Valley Palms Apartments, a "known Sureño-criminal-street-gang hangout." Three individuals dressed in blue, a color associated with Sureños, were standing outside the vehicle talking to the driver. When the individuals standing outside the vehicle saw the officers, they "walked away in a hurried fashion." At the same time, the vehicle started to drive away. The officers followed the vehicle. They also ran a check of the license plate and discovered the car had been reported stolen. In an effort to cut off the Honda, the officers took a different route and briefly lost sight of it. When they saw the vehicle again, it was stopped in the middle of the street, unoccupied, with both front doors open. The patrol officers called for backup. Witnesses helped police determine that the driver and passenger had fled to a particular nearby property. Police set up a perimeter and searched the property, eventually finding the suspected driver and passenger—defendant and a woman—hiding behind a van on the property. Police ordered the pair to come out with their hands up, but they did not comply. The two were apprehended only after the use of rubber projectiles and a canine. Police recovered a black revolver with a wooden handle five feet from where the suspects had been hiding.
Both defendant and the woman with him had Sureño-related tattoos. The woman admitted to an officer that she is a Sureña. At the preliminary hearing, a gang expert opined that defendant is a Sureño based on his tattoos, photographs, and the people with whom he associates.
B. Procedural History
On March 17, 2016, the Santa Clara County District Attorney charged defendant by information with second degree robbery (§§ 211-212.5, subd. (c); count 1); attempting to dissuade a witness by force (§ 136.1, subd. (c)(1); count 2); possession of a firearm by a felon (§ 29800, subd. (a)(1); count 3); possession of ammunition by a prohibited person (§ 30305, subd. (a)(1); count 4); carrying a loaded firearm (§ 25850, subd. (a); count 5); driving or taking a vehicle with a prior conviction (Veh. Code, § 10851, subd. (a)/ § 666.5, count 6); and participating in a criminal street gang (§ 186.22, subd. (a); count 7). The information alleged defendant personally used a firearm within the meaning of section 12022.53, subdivision (b) in the commission of count 1 and personally used a firearm within the meaning of section 12022.5, subdivision (a) in the commission of count 2. The information further alleged that defendant committed counts 3 through 6 for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(B)). Finally, the information alleged one prior strike (§ 667, subds. (b)-(i)), one prior serious felony conviction (§ 667, subd. (a)), and one prior prison term (§ 667.5, subd. (b)).
On September 14, 2016, defendant pleaded no contest to second degree robbery (§§ 211-212.5, subd. (c); count 1); attempting to dissuade a witness by force (§ 136.1, subd. (c)(1); count 2); possession of a firearm by a felon (§ 29800, subd. (a)(1); count 3); driving or taking a vehicle with a prior conviction (Veh. Code, § 10851, subd. (a)/ § 666.5, count 6); and participating in a criminal street gang (§ 186.22, subd. (a); count 7) and admitted the enhancement allegations associated with those counts. Defendant also admitted the prior convictions. In exchange, the district attorney agreed to seek dismissal of counts 4 and 5 and the associated enhancement allegations and agreed to a prison term of 23 years eight months.
The trial court sentenced defendant on October 3, 2016. The court imposed the midterm of six years on count 1 plus a consecutive 10-year term on the firearm enhancement; the midterm of six years on count 2, to run concurrently, plus four years on the firearm enhancement, stayed; one-third the midterm (16 months) on count 3, to run consecutively; the mitigated term of four years on count 6, to run concurrently; one-third the midterm (16 months) on count 7, to run consecutively; plus a consecutive five-year term for the prior serious felony conviction for a total prison term of 23 years eight months. The court imposed various fines and fees including a $10,000 restitution fine under section 1202.4, subdivision (b). Defense counsel did not object. Defendant timely appealed on November 4, 2016, giving rise to appeal No. H044309.
On March 31, 2017, defendant, citing section 1237.2, submitted an informal letter to the trial court requesting that the restitution fine be reduced. Apparently at the court's urging, defendant then filed a formal motion to reduce the restitution fine on June 5, 2017. Relying on section 1237.2, he sought to have the fine reduced to the statutory minimum of $300 based on his "lack of financial resources," lengthy prison sentence, and limited earning capacity while incarcerated. The trial court denied that motion on July 21, 2017. The court noted that while its "practice" is "not [to] impos[e] the mandated fees on the formula stated in the statutes where there is sufficient evidence to believe that someone is not employable either due to grave disability or mental incompetence or whatever might be the case," the court saw nothing to suggest that defendant was not employable and capable of earning income while in custody and on parole. Defendant timely appealed from the order denying his motion on August 22, 2017, giving rise to appeal No. H045181.
On October 2, 2017, the trial court ordered further briefing on the restitution fine issue, apparently based on the informal letter of March 31, 2017. On December 12, 2017, the court again refused to reduce the $10,000 restitution fine. The trial judge noted his "curio[sity]" when he first became a judge "as to how the legislature would set fines at $10,000 and expect [it] to be paid" by inmates earning low prison wages. In rejecting defendant's request, the court concluded that "this is a matter that the legislature has considered in its infinite wisdom, rightfully or wrongfully. This is their conclusion, and I'm going to respect that." On December 27, 2017, appellant filed a notice of appeal, giving rise to appeal No. H045389.
This court ordered appeal Nos. H044309, H045181, and H045389 considered together for briefing, oral argument, and decision.
II. DISCUSSION
Defendant contends the trial court failed to exercise its discretion in setting the restitution fine because it was under the mistaken belief that the formula set forth in section 1202.4, subdivision (b)(2) was mandatory. Alternatively, he says the trial court abused its discretion in ordering the maximum restitution fine of $10,000 because he is indigent and his offenses were "not violent, nor did they cause physical suffering or significant financial loss."
A. Legal Principles and Standard of Review
Section 1202.4, subdivision (b), requires the court to impose a restitution fine "[i]n every case where a person is convicted of a crime, . . . unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record." The restitution fine, which "shall not be less than three hundred dollars ($300) and not more than ten thousand dollars ($10,000)," is to "be set at the discretion of the court and commensurate with the seriousness of the offense." (§ 1202.4, subd. (b)(1).) "In setting the amount of the fine pursuant to subdivision (b) in excess of the [$300] 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 losses as a result of the crime, and the number of victims involved in the crime." (§ 1202.4, subd. (d).) Section 1202.4, subdivision (b)(2) provides that, "[i]n setting a felony restitution fine, the court may determine the amount of the fine as the product of the minimum fine pursuant to paragraph (1) 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." Here, that formula results in an amount much higher than the $10,000 maximum fine.
We review an order imposing a restitution fine for abuse of discretion. (People v. Nelson (2011) 51 Cal.4th 198, 227 (Nelson).)
"[I]n cases where the erroneous imposition or calculation of fines, penalty assessments, surcharges, fees, or costs are the sole issue on appeal," section 1237.2 requires "the defendant first [to] present[] the claim in the trial court at the time of sentencing, or if the error is not discovered until after sentencing, . . . [in a] motion for correction in the trial court, which may be made informally in writing." That provision further provides that "[t]he trial court retains jurisdiction after a notice of appeal has been filed to correct any error in the imposition or calculation of fines, penalty assessments, surcharges, fees, or costs upon the defendant's request for correction." Section 1237.2 went into effect on January 1, 2016. (Stats. 2015 ch. 197, § 3.)
B. Jurisdiction
The Attorney General argues defendant's challenge to the restitution fine "is not properly before this court" and "the appeal must be dismissed" because the trial court lacked jurisdiction to reconsider its restitution order after execution of sentence began. Section 1237.2 "does not apply" here, according to the Attorney General, because defendant failed to object at the time of sentencing and the supposed "error"—the court's alleged abuse of discretion—was apparent at the time of sentencing. Defendant does not respond to this contention.
As a practical matter, we need not address the Attorney General's argument because, even if correct, it disposes of only defendant's appeals from the orders denying his post-sentencing request to reduce the restitution fine (appeal Nos. H045181 & H045389), not his appeal of his sentence (appeal No. H044309). And, as to that appeal, the Attorney General does not argue forfeiture, despite defendant's failure to object at that hearing. Nor does the Attorney General contend that section 1237.2 bars defendant's appeal of his sentence (appeal No. H044309) given his failure to object at the time of sentencing. Therefore, we will address the merits of defendant's claim.
C. Defendant's Contentions Fail on the Merits
Defendant's first contention fails because the record does not show that the trial court erroneously believed it lacked discretion in determining the amount of the restitution fine. At the time of sentencing, the court said nothing regarding whether it had discretion in imposing the restitution fine. Because "[e]rror may not be presumed from a silent record" and " ' "[a] trial court is presumed to have been aware of and followed the applicable law" [citations]' [citation]," based on the sentencing hearing transcript alone, we would reject defendant's claim that the trial court misunderstood the scope of its discretion. (People v. Brown (2007) 147 Cal.App.4th 1213, 1229.) But we need not rely on the court's silence in this case. At the July 21, 2017 hearing on defendant's motion to reduce the restitution fine, the court affirmatively demonstrated its awareness of its discretion. Specifically, the court noted that its "practice" is "not [to] impos[e] the mandated fees on the formula stated in the statutes where there is sufficient evidence to believe that someone is not employable either due to grave disability or mental incompetence or whatever might be the case." Plainly, the court was familiar with the fact that the amount of the fine was discretionary.
For his argument to the contrary, defendant relies on the court's December 12, 2017 statement that, "this is a matter that the legislature has considered in its infinite wisdom, rightfully or wrongfully. This is their conclusion, and I'm going to respect that." In defendant's view, that comment indicates the trial court believed it was bound by the section 1202.4, subdivision (b)(2) formula. Based on the court's other comments at that hearing, we disagree with defendant's interpretation. As noted, the court expressed "curio[sity]" as to the legislature's decision to impose fines as high as $10,000 on inmates earning prison wages. Given that context, we understand the court's later comment to mean that, despite its skepticism regarding the statutory scheme, it would "respect" the legislature's decision in section 1202.4, subdivision (b), to require the imposition of restitution fines between $300 and $10,000 "[i]n every case where a person is convicted of a crime, . . . [absent] compelling and extraordinary reasons for not doing so . . . ." The court's statements at the July 21, 2017 hearing, which demonstrate it was aware of its discretion, confirm our understanding of the December 12, 2017 comments.
We also reject defendant's second contention, that the trial court abused its discretion in imposing the maximum fine. With respect to ability to pay, defendant " 'points to no evidence in the record supporting his inability to pay, beyond the bare fact of his impending incarceration. Nor does he identify anything in the record indicating the trial court breached its duty to consider his ability to pay; as the trial court was not obligated to make express findings concerning his ability to pay, the absence of any findings does not demonstrate it failed to consider this factor. Thus, we cannot say on this record that the trial court abused its discretion.' " (Nelson, supra, 51 Cal.4th at p. 227.)
As to the seriousness of the crimes, defendant's lengthy prison sentence belies his claim that his crimes were not sufficiently serious to support a $10,000 restitution fine. Nor can we agree with his characterization of his crimes—second degree robbery with the use of a firearm, dissuading a witness with the use of a firearm, felon in possession of a firearm for the benefit of a criminal street gang, vehicle theft with a prior for the benefit of a criminal street gang, and participation in a criminal street gang—as nonviolent.
III. DISPOSITION
The judgment and post-judgment orders are affirmed.
/s/_________
ELIA, J. WE CONCUR: /s/_________
GREENWOOD, P. J. /s/_________
MIHARA, J.