Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County. Nos. 06CM0288, 05CM4414, James T. LaPorte, Judge.
David Y. Stanley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Hill, P.J., Levy, J. and Cornell, J.
This is appellant Fernando Jose Ramos’s second appeal from the judgment of conviction in case No. 05CM4414 and case No. 06CM0288, after this court reversed one of his convictions and remanded the matter for resentencing. (People v. Ramos (Feb. 3, 2010, F055948) [nonpub. opn.].) Appellant contends the trial court erred at his resentencing hearing by imposing an increased restitution fine in case No. 06CM0288. We agree and therefore modify the judgment to correct the error.
BACKGROUND
On our own motion, we take judicial notice of our file and our unpublished opinion in the prior appeal, case No. F055948. (Evid. Code, §§ 452, subd. (d)(1), 459, subd. (a).) The background information which follows is based in part on the facts reflected in that file and opinion.
On December 20, 2005, appellant pled no contest in case No. 05CM4414 to second degree burglary (Pen. Code, § 459) and admitted he was armed with a firearm in the commission of the offense (§ 12022, subd. (a)(1)). On January 20, 2006, the court placed appellant on probation for five years and ordered him to serve 139 days in jail. The court also ordered appellant to pay a $200 restitution fine and a $20 court security fee.
Further statutory references are to the Penal Code unless otherwise indicated.
On May 15, 2008, a jury convicted appellant in case No. 06CM0288 of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1); count 1), and dissuading a witness and victim from reporting a crime (§ 136.1, subd. (b)(1); count 2). The jury also found appellant personally inflicted great bodily injury in the commission of the assault (§ 12022.7, subd. (a)), and both crimes of assault and dissuading a witness were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)).
On July 2, 2008, the court sentenced appellant in both cases to an aggregate term of 24 years to life as follows: the upper term of four years on count 1, 10 years for the gang enhancement, and three years for the great bodily injury enhancement, and a consecutive term of seven years to life on count 2 in case No. 06CM0288, and a concurrent low term of 16 months in case No. 05CM4414. In case No. 06CM0288, the court also ordered appellant to pay a $400 restitution fine and a $100 court security fee.
In his first appeal, appellant challenged his conviction of dissuading a witness and raised several issues related to sentencing. We concluded insufficient evidence supported appellant’s conviction of dissuading a witness and reversed his conviction under count 2. We also concluded the court erred in imposing both the three-year great bodily injury enhancement and the 10-year gang enhancement for appellant’s assault conviction, and remanded the matter for the court to restructure appellant’s sentence. Finally, we concluded the court erred by imposing a court security fee in the amount of $100 in case No. 06CM0288, and reduced that amount to $20. We found no support, however, for appellant’s contention the court imposed duplicative restitution fines in case No. 05CM4414.
On June 25, 2010, the trial court resentenced appellant to a total prison term of 14 years in case No. 06CM0288. The court also imposed a restitution fine of $2,800 (§ 1202.4, subd. (b)) and a parole revocation fine of $2,800 (§ 1202.45). !(CT 26-27; 3 RT 205)!
DISCUSSION
The only issue on appeal is whether the trial court erred in increasing appellant’s restitution fine in case No. 06CM0288 from $400 to $2,800.
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 (Hanson); 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, supra, at p. 366, citing, in part, People v. Collins (1978) 21 Cal.3d 208, 216.)
Respondent argues that this issue has been waived because a defendant must assert his or her 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 (Marshall).) Here, neither appellant nor his counsel objected to the higher restitution fine or pleaded double jeopardy.
Notwithstanding appellant’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, appellant 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 appellant’s claim.
The failure to assert double jeopardy could constitute ineffective assistance of counsel. (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 $2,400 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. (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 p. 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, we agree with appellant that the $2,400 increase in the restitution fine after a successful appeal violated his right to due process and double jeopardy and reduce his restitution fine in case No. 06CM0288 to $400.
Under 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 appellant’s restitution fine to $400, his parole revocation fine must also be reduced to $400.
DISPOSITION
The provisions of the judgment reflecting the $2,800 restitution fine and the $2,800 parole revocation fine are vacated and both the originally set $400 restitution fine and the $400 parole revocation fine are reinstituted. The trial court is directed to amend the abstract of judgment and forward it to the appropriate agencies. In all other respects, the judgment is affirmed.