Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside Super. Ct. No. SWF008864. Michael S. Hider, Judge. (Retired judge of the Merced S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed as modified.
Kathleen Woods Novoa, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and Peter Quon, Jr., Supervising Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
I
INTRODUCTION
Defendant Mark Anthony Niehouse was initially sentenced on August 9, 2005. We remanded the case for resentencing. We ruled that the sentence violated the plea agreement because defendant was sentenced to five years, instead of the midterm of four years, for his drug offense (Health & Saf. Code, § 11383, subd. (c)(1)). (People v. Niehouse (June 8, 2006, E041761) [nonpub. opn.].)
At the resentencing hearing, defendant pleaded guilty to possession of pseudoephedrine for the production of methamphetamine, as well as having a prior conviction for a similar offense. Defendant also admitted that he had not been free of custody or new convictions within five years of being released from prison under Penal Code section 667.5, subdivision (b).
The trial court sentenced defendant to the midterm of four years for the drug violation, with three years consecutive for the prior conviction and one year consecutive for the Penal Code section 667.5 allegation. The total sentence was eight years. The trial court also imposed (1) a restitution fine of $1,600, which was an increase of the originally set $1,200 restitution fine; and (2) a parole revocation fine of $1,600, which was an increase of the originally set $1,200 parole revocation fine. Neither defendant nor his trial counsel objected to the increased fines being imposed.
On appeal, defendant contends that the $400 increase in the restitution fine after a successful appeal violated his right to due process and right not to be subjected to double jeopardy. The People simply argue that this issue has been waived by defendant’s failure to object. We agree with defendant and reduce his restitution fine to $1,200.
Under Penal Code section 1202.45, “[i]n 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. . . .” Hence, because we reduce defendant’s restitution fine to $1,200, his parole revocation fine must also be reduced to $1,200.
II
ANALYSIS
The only issue on appeal is whether the trial court erred in increasing defendant’s restitution fine from $1,200 to $1,600 at his resentencing hearing.
California courts recognize that imposing a greater restitution fine at resentencing than the one initially imposed before a successful appeal violates California’s constitutional prohibition against double jeopardy. (People v. Hanson (2000) 23 Cal.4th 355, 365; People v. Allen (2001) 88 Cal.App.4th 986, 999.) An increase of a restitution fine after a successful appeal is viewed by the California Supreme Court as either punishment for a successful appeal or as chilling a defendant’s decision to exercise his appellate right at the risk of exposing himself to greater punishment for exercising that right. (Hanson, at p. 366, citing, in part, People v. Collins (1978) 21 Cal.3d 208, 216.)
The People argue that this issue has been waived because a defendant must assert his double jeopardy rights by entering a plea of former jeopardy in order to preserve the issue for appeal. (People v. Scott (1997) 15 Cal.4th 1188, 1201; People v. Marshall (1996) 13 Cal.4th 799, 824, fn. 1.) Here, neither defendant nor his counsel objected to the higher restitution fine or pleaded double jeopardy.
Notwithstanding defendant’s waiver, “[a] matter normally not reviewable upon direct appeal, but which is . . . vulnerable to habeas corpus proceedings based upon constitutional grounds may be considered upon direct appeal.” (People v. Norwood (1972) 26 Cal.App.3d 148, 153.) The California Supreme Court has stated that, when “applying a forfeiture rule . . . would likely have the effect of converting an appellate issue into a habeas corpus claim of ineffective assistance of counsel for failure to preserve the question by timely objection . . ., we would be loath to invoke a rule that would proliferate rather than reduce the nature and scope of legal proceedings. [Citation.] After all, judicial economy is a principal rationale of the forfeiture doctrine. [Citation.]” (People v. Butler (2003) 31 Cal.4th 1119, 1128.)
If we were to decide this appeal on the issue of waiver, defendant presumably would file a petition for habeas corpus on the ground that his counsel provided ineffective assistance of counsel in failing to object to the increased restitution fine. Therefore, in the interest of judicial economy, we shall address the merits of defendant’s claim.
The failure to assert double jeopardy could constitute ineffective assistance of counsel. (People v. Marshall, supra, 13 Cal.4th at p. 824, fn. 1; People v. Moore (1983) 140 Cal.App.3d 508, 511.)
In this case, at the resentencing hearing, the trial court imposed a restitution fine that was $400 greater than the initial restitution fine. As discussed above, when a defendant successfully appeals a criminal conviction, California’s constitutional prohibition against double jeopardy precludes the imposition of a more severe punishment on resentencing. (People v. Hanson, supra, 23 Cal.4th at p. 365.) Restitution fines are punishment and are treated in the same way as prison sentences for the purposes of double jeopardy. (Id. at 361.) The California Supreme Court stated, “The question here is whether a statutorily mandated restitution fine comes within this rule. We conclude such fines constitute punishment and find no principled basis for excluding them from the rationale of [People v.] Henderson [1963) 60 Cal.2d 482].” (Id. at p. 357.)
Therefore, the trial court’s increase of the restitution fine is a violation of the double jeopardy prohibition.
III
DISPOSITION
The trial court is directed to amend the abstract of judgment to strike both the $1,600 restitution fine and the $1,600 parole revocation fine and to reimpose both the originally set $1,200 restitution fine and the $1,200 parole revocation fine. In all other respects, the judgment is affirmed. The clerk of the superior court is directed to prepare a corrected abstract of judgment reflecting the restitution and parole revocation fines of $1,200 each. The clerk is directed to provide a copy of the corrected abstract of judgment to the parties and to the Department of Corrections. The clerk is also directed to correct the sentencing minutes.
We concur: HOLLENHORST, Acting P.J., McKINSTER, J.