Opinion
H042729
04-20-2017
THE PEOPLE, Plaintiff and Respondent, v. TODD PETER HOWARD, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. C1234958)
Defendant Todd Peter Howard pleaded no contest to four counts of forcible lewd acts on a child under 14 years of age. (Pen. Code, § 288, subd. (b).) The trial court imposed a total term of 30 years. The court also ordered general restitution in the amount of $20,000, in addition to a $200 restitution fine and a $200 sex offender fine under section 290.3.
Subsequent undesignated statutory references are to the Penal Code.
On appeal, Howard contends the $200 restitution fine and the $200 sex offender fine were unauthorized under the versions of the statutes in effect at the earliest time the offenses could have been committed.
We conclude these claims are without merit. We will affirm the judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
The statement of facts is based on the facts set forth in the probation report.
In 2005, Howard's daughter disclosed to her therapist that Howard had molested her between the ages of four and six. She told the therapist that Howard had performed oral sex on her, forced her to perform oral sex on him, showed her pornography, and made her stimulate his penis with her hands. She declined to seek prosecution at the time.
In 2011, Howard's daughter called the San Jose Police Department and asked for her case to be prosecuted. She told the police that, when she was around four to six years old, Howard had her masturbate him and orally copulate him. He would also orally copulate her. She told police this behavior had "continued for a couple years," with all the assaults occurring in Howard's bedroom.
When the victim was around six or seven, Howard began taking her and her brother on overnight fishing trips in his truck. Howard arranged for the brother to sleep in the cab of the truck while Howard and the victim slept in the back under a camper shell. Howard would orally copulate the victim in the back of the truck. On one occasion, when the victim tried to push Howard away, he struck her in the stomach hard enough to knock her breath out.
In 2012, the victim recorded a pretext phone call with Howard. Howard told his daughter "there is no excuse and I knew right from wrong," but he also claimed he had been drinking a lot and his "mind wasn't right." He claimed he was not a pedophile and he said he had never done to anyone else what he had done to her. He said "it wasn't a big crime" at the time, and he said he "wasn't penetrating or anything." When she asked him to clarify what had happened, he said it started when she was three years old. He said he would masturbate in his bedroom and invite her into the room, where he had her masturbate him with lotion. He said he did not think she would remember. He also admitted to having her orally copulate him. Howard said he stopped sexually abusing her when she was around five years old because he thought she would start remembering what was happening.
Police arrested Howard in June 2012. He initially denied molesting his daughter and claimed she was a pathological liar. After the police confronted Howard with the recording of the pretext phone call, he eventually admitted that what he said in the call was true. He admitted having the victim masturbate him and engaging in mutual oral copulation in the back of his truck.
B. Procedural Background
The prosecution charged Howard by information with 13 counts: Counts 1 through 3—Aggravated sexual assault on a child under 14 and 10 or more years younger (§ 269); and Counts 4 through 13—Lewd or lascivious acts on a child under 14 by use of force (§ 288, subd. (b)). Count 10 alleged the offense occurred between September 21, 1994, and November 29, 1994, when the victim was five to six years old. Counts 11 through 13 each alleged the offense occurred between November 30, 1994, and November 4, 1997, when the victim was six to eight years old.
Howard pleaded no contest to Counts 10 through 13. The trial court imposed an aggregate term of 30 years, composed of eight years on each of Counts 10 through 12, plus six years on Count 13, all consecutive. The court ordered $20,000 in general restitution. The court also imposed a $200 restitution fine under section 1202.4 and a $200 sex offender fine under section 290.3. Howard lodged no objections.
At the plea hearing, the trial court recited slightly different date ranges for Counts 11 through 13. None of the differences are material to our analysis.
Howard filed a notice of appeal on August 25, 2015.
Section 1237.2 prohibits appellants from appealing erroneous fines and fees without first filing a motion for correction in the trial court. This statute took effect on January 1, 2016. (Stats. 2015, ch. 194, § 3.) Because Howard filed his notice of appeal before the effective date, section 1237.2 does not preclude this appeal. (People v. Watts (2016) 2 Cal.App.5th 223, 227, fn. 4.)
II. DISCUSSION
A. Imposition of a $200 Restitution Fine
Howard contends the $200 restitution fine was unauthorized. As described above, Count Ten alleged the offense occurred in 1994. Counts 11 through 13 each alleged the offenses occurred between November 1994 and November 1997. Howard argues that, under the law in effect prior to August 3, 1995, the trial court could not have imposed a $200 restitution fine in addition to $20,000 in general restitution. Because he never admitted that any of the offenses occurred on or after August 3, 1995, he contends the court lacked authority to impose the $200 restitution fine. The Attorney General contends Howard forfeited this claim by failing to object below. The Attorney General also contends the fine was proper because the offenses spanned multiple years and Howard was on notice of the change in the restitution laws.
1. Legal Principles
"It is well established that the imposition of restitution fines constitutes punishment, and therefore is subject to the proscriptions of the ex post facto clause and other constitutional provisions." (People v. Souza (2012) 54 Cal.4th 90, 143.)
Prior to August 3, 1995, section 1202.4 provided, in relevant part: "In every case in which a victim has suffered economic loss as a result of the defendant's conduct, and the defendant is denied probation, in lieu of imposing all or a portion of the restitution fine pursuant to subdivision (b), the court shall require that the defendant make restitution to the victim or victims. (Former § 1202.4, subd. (f), Stats. 1994, ch. 46X, § 4, p. 8757, italics added.) The statute mandated that the amount of the fine shall "not be less than two hundred dollars ($200), and not more than ten thousand dollars ($10,000)" in the case of a felony conviction. (Id. at p. 8756) The statute allowed victim restitution "only in lieu of all or a portion of the restitution fine." (People v. Souza, supra, 54 Cal.4th at p. 143.)
In 1995, the Legislature amended section 1202.4 to delete the phrase "in lieu of imposing all or a portion of the restitution fine pursuant to subdivision (b)" from subdivision (f). (Stats. 1995, ch. 313, § 5, p. 1756.) The amendment took effect August 5, 1995.
2. The $200 Restitution Fine Was Authorized
Howard acknowledges he lodged no objection to the restitution fine. He contends the claim is not forfeited because an unauthorized sentence can be corrected on appeal despite the failure to object. "[A] sentence is generally 'unauthorized' where it could not lawfully be imposed under any circumstance in the particular case." (People v. Scott (1994) 9 Cal.4th 331, 354.) But as the Attorney General points out, under the circumstances of this case, the trial court had authority to impose the $200 restitution fine in addition to general restitution. This is true even assuming Howard committed the offenses before August 3, 1995.
The version of section 1202.4 in effect just prior to August 3, 1995, mandated that general restitution could only be ordered "in lieu of imposing all or a portion of the restitution fine." (Former § 1202.4, italics added.) The statutory maximum restitution fine was $10,000. If the court had ordered the full $10,000 restitution fine, that would have been unauthorized. (People v. Souza, supra, 54 Cal.4th at p. 143; People v. Zito (1992) 8 Cal.App.4th 736, 743.) But the actual amount imposed was only $200—far less than the statutory maximum. We note that the probation report recommended $10,000 in restitution fines in addition to general restitution "including, but not limited to $20,000." (Italics added.) Because the court was only required to offset "a portion" of the restitution fine, the court could have offset the recommended maximum of $10,000 to reduce the restitution fine to $200.
Howard expressly declined to request a restitution hearing.
Government Code section 13967 was amended effective September 28, 1994, to remove the $10,000 limit on general restitution. (Stats. 1994, ch. 1106, § 2.) Section 1202.4 was simultaneously amended to mandate the imposition of a restitution fine as "a separate and additional restitution fine." (Stats. 1994, ch. 1106, § 3, p. 6548, italics added.) --------
Had Howard objected below, it is possible the court would have offset all, or some additional portion, of the restitution fine. But because the court was authorized to impose a $200 restitution fine, Howard's failure to object constitutes a waiver. (See In re John H. (1992) 3 Cal.App.4th 1109, 1112 [court was authorized to impose both restitution and restitution fine where the fine was less than the maximum amount].)
For the same reasons, the imposition of the $200 restitution did not violate Howard's right to a jury trial under Apprendi v. New Jersey (2000) 530 U.S. 466. A defendant only has the right to a jury finding regarding "any fact that increases the penalty for a crime beyond the prescribed statutory maximum." (Id. at p. 490.) Because the total restitution fine was less than the possible statutory maximum, the court could impose the fine absent a jury finding the supporting facts.
For the reasons above, we conclude this claim is without merit.
B. The Imposition of a $200 Sex Offender Fine Was Authorized
As set forth above, the trial court imposed a $200 sex offender fine under section 290.3. Howard contends the fine was unauthorized because section 290.3 only authorized a maximum $100 fine prior to January 1, 1995. The Attorney General concedes error. We reject the Attorney General's concession. Under the versions of section 290.3 in effect at the time, the trial court could impose fines for multiple convictions.
The version of section 290.3 in effect just prior to January 1, 1995, provided in relevant part: "Every person convicted of a violation of any offense listed in subdivision (a) of Section 290, in addition to any imprisonment or fine, or both, imposed for violation of the underlying offense, shall be punished by a fine of one hundred dollars ($100) upon the first conviction or a fine of two hundred dollars ($200) upon the second and each subsequent conviction, unless the court determines that the defendant does not have the ability to pay the fine." (Former § 290.3, Stats. 1993, ch. 589, § 110, p. 3019, italics added.) In 1994, the Legislature amended section 290.3 to increase the amounts of the fines as follows: "Every person who is convicted of any offense specified in subdivision (a) of Section 290 shall, in addition to any imprisonment or fine, or both, imposed for violation of the underlying offense, be punished by a fine of two hundred dollars ($200) upon the first conviction or a fine of three hundred dollars ($300) upon the second and each subsequent conviction, unless the court determines that the defendant does not have the ability to pay the fine." (Former §290.3, subd. (a), Stats. 1994, ch. 866, § 1, p. 4355, italics added.)
Howard contends that because the record does not show he committed any of the offenses after January 1, 1995, the court lacked authority to impose the $200 fine, and could only have imposed the $100 fine under the pre-1995 version of the statute. But both versions of section 290.3 differentiate between the amount of the fine applicable upon the first conviction and the amount applicable "upon the second and each subsequent conviction." Howard was convicted on four counts of violating section 288. "The statute does not limit the number of fines that may be imposed for multiple convictions in the same case." (People v. O'Neal (2004) 122 Cal.App.4th 817, 822 [authorizing imposition of multiple sex offender fines for multiple counts in the same proceeding].) Thus, even under the pre-1995 version of the statute, the court was authorized to impose $200 fines for the second conviction and each subsequent conviction. The court also had the authority to strike additional sex offender fines based on Howard's inability to pay them. The imposition of a single $200 fine was therefore authorized under either version of the statute.
For the reasons above, we conclude this claim is without merit.
III. DISPOSITION
The judgment is affirmed.
/s/_________
RUSHING, P.J. WE CONCUR: /s/_________
PREMO, J. /s/_________
ELIA, J.