Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC617270
OPINION
ELIA, J.
On July 10, 2006, defendant entered "open" no contest pleas to two counts of commercial burglary (Pen. Code, §§ 459, 460, subd. (b), counts one and two) and one count of grand theft (§ 487, subd. (a), count three). Defendant admitted a prior conviction allegation (§§ 667, subds. (b)-(i), 1170.12) and two prior prison term allegations (§ 667.5, subd. (b)).
Defendant was not made any promises in exchange for his pleas of no contest. Accordingly, his pleas were unconditional. (People v. Holmes (2004) 32 Cal.4th 432, 435 ["There are two types of guilty or no contest pleas in California: (1) a conditional plea, where the plea is conditioned upon receipt of a particular disposition; and (2) an unconditional or open plea"].)
All statutory references are to the Penal Code.
On October 13, 2006, the trial court denied defendant's Romero motion and his motion to reduce his convictions to misdemeanors. The court imposed the lower term of 16 months for count one (burglary) doubled pursuant to sections 667, subdivision (e)(1), and 1170.12, and a subordinate consecutive term of eight months for count two (burglary) similarly doubled (§§ 667, subd. (e)(1), and 1170.12, subd. (c)(1)), for an aggregate term of four years. In addition, the court imposed and stayed a concurrent four-year mid-term for count three (grand theft) pursuant to section 654. The court struck the two prison priors pursuant to section 1385. The court imposed a restitution fund fine of $3000 (§ 1202.4, subd. (b)), and imposed but suspended a parole revocation fine in the same amount (§ 1202.45).
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
On appeal, defendant raises two issues. First, defendant contends the trial court abused its discretion, or failed to appreciate the scope of its discretion, when it denied his motion to reduce his current offenses to misdemeanors. Second, this court should reduce the restitution fine imposed below because the trial court intended to use the statutory formula but miscalculated the amount that formula would have yielded. For the reasons set forth below, we conclude that defendant has forfeited both issues. Accordingly, we affirm the judgment.
Defendant's notice of appeal specifies the appeal is based on the sentence or other matters occurring after the plea. He has not obtained a certificate of probable cause to raise constitutional, jurisdictional or other grounds going to the legality of his plea.
Since defendant entered guilty pleas, the facts are taken from the preliminary hearing transcript.
On the morning of January 13, 2006, Arlene Lawler, a Southwest Airlines customer service agent in the baggage service office at San Jose International Airport, was assigned "carousel duty." During the previous two months of January and December the airline "had a lot of bags missing." Lawler observed defendant standing with a baggage cart by a carousel for 30 to 40 minutes, which Lawler knew was unusual—most people taking 15 to 20 minutes to retrieve their luggage.
Eventually, Lawler saw defendant pull three bags from the carousel. Lawler knew that the bags came in on different flights. After passengers from a San Diego flight had removed their bags from the carousel, Lawler moved the unclaimed bags to a more secure area. No bags were on the carousel for approximately 20 minutes until a Chicago flight arrived. Defendant stood by the carousel for those 20 minutes. When the luggage from the Chicago flight arrived on the carousel, defendant removed a black roller bag worth $450.
When Lawler saw defendant remove the black roller bag she approached him. At the same time, Lawler saw a Chicago passenger by the name of Hossa approach defendant and tell him that the black roller bag was his. Defendant stated that the bag was his. Defendant held the bag's nametag so that its face was obscured as he displayed the bag to Hossa. Defendant put the bag with the other two bags that were on the baggage cart.
Lawler started to follow defendant outside, but was interrupted by a customer's question. When Lawler got outside, she found defendant's luggage cart. Two bags remained on the cart, both missing their baggage identification tags, but the black roller bag was gone. The owners of the two remaining bags had filed missing bag reports and the bags were returned to them.
Officer Jimenez talked to Hossa. Hossa told him that his bag and its contents were worth $4000. Hossa was reimbursed approximately $1500 by Southwest Airlines.
Two days later, on the afternoon of January 15, 2006, Southwest Airlines passenger service agent Ruth Tulafono was working the baggage service. She saw defendant standing next to the carousel holding a black-colored piece of luggage. Tulafono asked defendant if she could help him. Defendant reported that he was missing a piece of luggage. Tulafono asked to see defendant's baggage claim check, but defendant told her he did not have one. Defendant said that he did not have any identification either. When asked if he had just flown to San Jose, defendant replied that he had not.
Tulafono asked defendant if the bag he was holding belonged to him. Defendant said that it did not, but that he was just going to take it over to the office.
San Jose Police Officer Kelly met defendant in the baggage claim office and asked defendant what was happening. Defendant said that he was waiting for a friend by the name of Mike Jones who was flying in from Chicago. The flight manifest showed that there was no Mike Jones on a Chicago flight.
Then, defendant told Officer Kelly he was picking up a bag for a friend. Officer Kelly had looked at the bag defendant had and saw that it had a tag bearing the name Keum Choi. When Officer Kelly pointed out the discrepancy to defendant, defendant became flustered and then told Officer Kelly that he was a little confused because he had a death in the family.
At defendant's request, Officer Kelly accompanied defendant outside the baggage claim office. Defendant told Officer Kelly that he had come to the airport to take something, but decided that it was wrong.
When contacted, Choi reported that he had flown into San Jose that day from Orange County with checked baggage. His bag did not come up on the carousel with the rest of the bags from the flight so he filled out a missing baggage report.
The baggage thefts stopped after January 15, 2006.
Discussion
I. Motion to Reduce Defendant's Convictions to Misdemeanors
Defendant entered an open plea of no contest to three "wobbler" offenses: two counts of second-degree burglary and one count of grand theft. Section 461 provides that second-degree burglary is punishable "by imprisonment in the county jail not exceeding one year or in the state prison." Similarly, section 489, subdivision (b) provides that grand theft not involving the use of a firearm is punishable "by imprisonment in a county jail not exceeding one year or in the state prison."
Section 17(b) provides in relevant part: "When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances: [¶] (1) After a judgment imposing a punishment other than imprisonment in the state prison. . . . [¶] (3) When the court grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor." Crimes that can be punished either as a misdemeanor or a felony depending on the court's discretion under section 17 are commonly referred to as wobblers. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 974 (Alvarez).)
Accordingly, before sentencing, in a written motion, which included a statement in mitigation, defendant asked the court to exercise its section 17 discretion and reduce his offenses to misdemeanors and/or to exercise the court's section 1385 discretion and strike his prior strike conviction under People v. Superior Court (Romero), supra, 13 Cal.4th 497.
In his section 17/section1385 motion, defendant alleged the charged offenses were minor property offenses that did not involve threats or violence. Further, he "has a substance abuse problem and that he is in need of treatment." Defendant asserted that he had a history of drug use that led to his very expensive addiction to "crack" cocaine. He had a history of past gainful employment and he had not intended to set the fire that resulted in his 2002 arson strike conviction. The trial court read the written motion and heard defendant's argument.
At the sentencing hearing, defendant's counsel urged the court to consider striking the strike and imposing three years of local time. Defense counsel's argument generally addressed both the section 17 and section 1385 requests simultaneously by focusing on the mitigating circumstances, which in counsel's view warranted an exercise of discretion under either or both sections.
Judge Del Pozzo stated that he had read the probation report twice. The probation report noted that defendant was on parole when he committed his current offenses. Specifically, the report stated that on January 19, 2005, defendant had been sentenced to the lower term of 16 months for possession of a controlled substance and had been released on parole on September 12, 2005. Defendant has an extensive criminal history consisting of 13 felony convictions and 15 misdemeanor convictions and two probation violations following one of his more recent convictions.
In addition, the probation report noted that the police report indicated that eight bags had been stolen from the San Jose airport in the week before January 13, 2006. The report recited multiple factors in aggravation and no mitigating factors. The report recommended an aggregate term of five years and four months.
Defense counsel argued among other things that defendant's present offenses were "on the low end of seriousness in sophistication." Further, counsel pointed out that the probation officer had failed to acknowledge a factor in mitigation. Specifically, that defendant had admitted culpability at an early point in the proceedings.
In denying defendant's motion to reduce his convictions to misdemeanors the court gave the following reasons: "[L]et me just say that Section 17 would be inappropriate, obviously, due to the long criminal history of the defendant which dates back to North Carolina and here, and any section 17 at this time would be inappropriate. . . . [¶] . . . The 17 would be inappropriate because that's designed for people with little or no criminal history or some big gap in criminal history or something and a really diminimus [sic] new offense. We don't have either of that here, and that motion is denied."
Defendant contends that the court either abused its discretion, or failed to appreciate the scope of its discretion, when it denied his section 17 motion.
Defendant argues that in refusing to exercise its discretion under section 17, the trial court abused its discretion "by isolating two factors, the seriousness of the offense and his prior criminal record and imposing a requirement of a de minimis new offense and a minimal prior record while ignoring the totality of [defendant]'s history, circumstances, prospects and situation." Alternatively, remand for reconsideration of the ruling is necessary "because the court exercised its discretion while operating under the erroneous belief that section 17 could only apply to situations involving persons with minimal criminal records who had committed a de minimis new offense."
"[S]ection 17(b), read in conjunction with the relevant charging statute, rests the decision whether to reduce a wobbler solely 'in the discretion of the court.' By its terms, the statute sets a broad generic standard. [Citation.] The governing canons are well established: 'This discretion . . . is neither arbitrary nor capricious, but is an impartial discretion, guided and controlled by fixed legal principles, to be exercised in conformity with the spirit of the law, and in a manner to subserve and not to impede or defeat the ends of substantial justice. [Citations.]' [Citation.] 'Obviously the term is a broad and elastic one [citation] which we have equated with "the sound judgment of the court, to be exercised according to the rules of law." [Citation.]' [Citation.] Thus, '[t]he courts have never ascribed to judicial discretion a potential without restraint.' (Ibid.) 'Discretion is compatible only with decisions "controlled by sound principles of law, . . . free from partiality, not swayed by sympathy or warped by prejudice . . . ." [Citation.]' [Citation.] '[A]ll exercises of legal discretion must be grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue.' [Citation.]" (Alvarez, supra, 14 Cal.4th at p. 977.)
Furthermore, on appeal, " '[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.' [Citation.] Concomitantly, '[a] decision will not be reversed merely because reasonable people might disagree. "An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge." [Citations.]' [Citation.]" (Alvarez, supra, 14 Cal.4th at pp. 977-978.)
Initially, respondent asserts that defendant did not object in the trial court to the court's reliance on defendant's recidivism and the fact that the current offenses were not "de minimis." Therefore, defendant has "waived" this claim.
Technically, the argument should be that defendant has forfeited this issue. (People v. Saunders (1993) 5 Cal.4th 580, 590, fn. 6 ["the terms 'waiver' and 'forfeiture' have long been used interchangeably. . . . 'Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the "intentional relinquishment or abandonment of a known right." ' "].)
In People v. Scott (1994) 9 Cal.4th 331 (Scott), the California Supreme Court considered whether complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons can be raised for the first time on appeal. The Supreme Court reasoned "[r]outine defects in the court's statement of reasons are easily prevented and corrected if called to the court's attention." (Id. at p. 353.) Thus, the Supreme Court found that "the waiver doctrine should apply to claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices." (Ibid.)
Defendant contends that Scott is inapposite. He argues that Scott "only supports a forfeiture finding where a party fails 'to raise certain issues at the time of sentencing.' " Here, since he raised the issue of reducing his convictions to misdemeanors, he did not forfeit the issue. We disagree.
In Alvarez, supra, 14 Cal.4th at page 978, the court noted the scant judicial authority explicating the criteria that inform an exercise of discretion under section 17, subdivision (b). "However, since all discretionary authority is contextual, those factors that direct similar sentencing decisions are relevant, including 'the nature and circumstances of the offense, the defendant's appreciation of and attitude toward the offense, or his traits of character as evidenced by his behavior and demeanor at the trial.' [Citations.] When appropriate, judges should also consider the general objectives of sentencing such as those set forth in California Rules of Court, rule 410." (Ibid., fn. omitted.)
In footnote 5 on page 978, the Alvarez court noted the following: "California Rules of Court, rule 410 states as follows: 'General objectives of sentencing include: [¶] (a) Protecting society. [¶] (b) Punishing the defendant. [¶] (c) Encouraging the defendant to lead a law abiding life in the future and deterring him from future offenses. [¶] (d) Deterring others from criminal conduct by demonstrating its consequences. [¶] (e) Preventing the defendant from committing new crimes by isolating him for the period of incarceration. [¶] (f) Securing restitution for the victims of crime. [¶] (g) Achieving uniformity in sentencing. [¶] Because in some instances these objectives may suggest inconsistent dispositions, the sentencing judge shall consider which objectives are of primary importance in the particular case. [¶] The sentencing judge should be guided by statutory statements of policy, the criteria in these rules, and the facts and circumstances of the case.' "
California Rules of Court, rule 410 was renumbered 4.410, effective January 1, 2001.
In Alvarez, the trial court reduced a drug possession conviction to a misdemeanor in a three strikes case. The appellate court reversed, focusing on defendant's prior record of four burglaries and four misdemeanors. Applying the extremely deferential and restrained standard of review, the high court found no abuse of discretion by the trial court. In making its decision, the trial court had considered defendant's record, including that the burglary priors were old and did not involve violence, as well as the circumstances of the present case, his cooperation with law enforcement, and testimony that he was caring for a disabled friend. The high court found the appellate court's perspective, limited to just his prior record, incompatible with the very nature of sentencing discretion which requires the entire picture remain exposed. (Alvarez, supra, 14 Cal.4th at p. 981.)
In essence, defendant contends the trial court here was guilty of the same limited perspective as the appellate court in Alvarez, focusing on his prior criminal record and the fact that his current offenses were not de minimis to the exclusion of all other factors. At best, defendant is challenging the trial court's articulation of its decision not to reduce the offenses to misdemeanors. Accordingly, defendant has forfeited any "claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices." (Scott, supra, 9 Cal.4th at p. 353.)
II. Restitution Fine
In imposing a restitution fund fine the trial court stated that the amount would be $3000 "imposed under the formula of 12020.4(b) [sic]." After recommending that defendant be sentenced to prison for five years and four months, the probation report recommended that a restitution fund fine of "$3000 be imposed under the formula permitted by Penal Code Section 1202.4(b)."
Defendant argues that the court miscalculated the restitution fine. He points out that section 1202.4, subdivision (b)(2) provides: " 'In setting a felony restitution fine, the court may determine the amount of the fine as the product of two hundred dollars ($200) 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.' " Thus, defendant argues, as he was convicted of three felonies and sentenced to a total of four years, applying the statutory formula the restitution fine should be $2400 based on the following equation: $200 x 3 x 4. Accordingly, this court should revise the fine to reflect the trial court's stated intention.
Whenever a person is convicted of a crime, section 1202.4 mandates judicial imposition of both a restitution fund fine (§1202.4, subd. (a)(3)(A)), and restitution to the crime victim or victims (§ 1202.4, subd. (a)(3)(B)). The trial court shall impose the restitution fine "unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record." (§1202.4, subds. (b), (c).) In the absence of extraordinary reasons, a minimum fine of $200 is mandatory after a felony conviction. (§ 1202.4, subds. (b)(1), (c), (d)); People v. Hanson (2000) 23 Cal.4th 355, 362.)
Repeatedly, the California Supreme Court has described the minimum restitution fine as mandatory. (People v. Hanson, supra, 23 Cal.4th at p. 362; People v. Walker (1991) 54 Cal.3d 1013, 1027.) However, presumably because the fine need not be imposed in extraordinary cases and the amount is discretionary, the court has characterized the fine as a "discretionary sentencing choice" for purposes of the forfeiture doctrine. (People v. Tillman (2000) 22 Cal.4th 300, 303; People v. Smith (2001) 24 Cal.4th 849, 853.)
Initially, respondent contends that by failing to object, defendant has forfeited the claim of error. However, if the issue is not forfeited, in light of this court's decision in People v. Le (2006) 136 Cal.App.4th 925, the count for which the punishment was stayed may not be used in computing the restitution fine under section 1202.4, subdivision (b)(2).
Defendant argues that the "law has created an exception to the waiver rule for unauthorized sentences, which can be reviewed despite the raising of an objection because such errors present pure questions of law and are 'clear and correctable independent of any factual issues presented by the record at sentencing.' . . . "
"In essence, claims deemed [forfeited] on appeal involve sentences which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner." (Scott, supra, 9 Cal.4th 331, 354.) "[T]he 'unauthorized sentence' concept constitutes a narrow exception to the general requirement that only those claims properly raised and preserved by the parties are reviewable on appeal. [Citations.]" (Ibid.) "[A] sentence is generally 'unauthorized' where it could not lawfully be imposed under any circumstance in the particular case." (Ibid.)
In People v. Le, supra, 136 Cal.App.4th 925 (Le), this court held that the ban on multiple punishments under section 654 applies to restitution fines imposed under section 1202.4 because those fines are a form of punishment. (Id. at p. 933.) "Thus, a restitution fine calculated under the formula provided by section 1202.4, subdivision (b)(2), constitutes a criminal penalty, not a civil remedy. [Citation.]" (Ibid.) Accordingly, this court concluded, "we determine that the section 654 ban on multiple punishments is violated when the trial court considers a felony conviction for which the sentence should have been stayed pursuant to section 654 as part of the court's calculation of the restitution fine under the formula provided by section 1202.4, subdivision (b)(2). For that reason, the trial court erred in the present case to the extent the court used the felony conviction on the burglary count to calculate the amount of the restitution fine." (Id. at p. 934.)
Nevertheless, in Le the record indicated that the trial court relied on the formula provided in section 1202.4 in imposing the restitution fine in that case. (Le, supra, 136 Cal.App.4th at p. 935.) Furthermore, the defendant elected to challenge the trial court's order imposing a restitution fine of $4800 on the ground of ineffective assistance of counsel. Accordingly, this court found that it was reasonably probable that the trial court would have imposed a smaller fine if trial counsel had objected to the trial court's improper inclusion of a burglary conviction when the court calculated the restitution fine under the section 1202.4, subdivision (b)(2) formula. (Ibid.) We cannot say the same in this case.
Although the court said that it was imposing a $3000 restitution fine under the formula set forth in section 1202.4, subdivision(b)(2), the court had not followed the probation report's recommendation of a five year four month prison sentence, which would have yielded a $3000 fine under the statutory formula. Accordingly, it is not apparent that the court was using the statutory formula. Rather, it appears that the court was giving a rote recitation of the probation officer's recommendations.
The imposition of a restitution fine in any amount is a discretionary sentencing choice. (People v. Smith (2001) 24 Cal.4th 849, 853.) The sentencing court has discretion to impose a fine of up to $10,000 in light of all relevant factors. "Express findings by the court as to the factors bearing on the amount of the fine shall not be required. A separate hearing for the fine shall not be required." (§1202.4, subd. (d).) Since we cannot say that a restitution fine of $3000 could not have been lawfully imposed in this case and it is not apparent that the court was relying on the section 1202.4 formula, it would appear that defendant's claim of error was forfeited by failing to object below. We point out that the forfeiture rule reflects important judicial policies, which include promoting development of the record, encouraging the proper exercise of discretion, and reducing both sentencing errors and the costly appeals that ensue. (People v. Smith, supra, 24 Cal.4th at p. 852.) Defendant has offered U.S. no compelling reason to ignore the rule and its underlying policies.
By this, we do not mean that the way the trial court used the statutory formula was correct. Rather, the trial court had discretion to impose a restitution fine of $3000.
Disposition
The judgment is affirmed.
WE CONCUR: RUSHING, P. J., PREMO, J.