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People v. Holman

March 29, 2013

THE PEOPLE, PLAINTIFF AND APPELLANT,
v.
LAURA MICHELLE HOLMAN, DEFENDANT AND RESPONDENT.



APPEAL from the Superior Court of Riverside County. Elaine M. Johnson, Judge. Affirmed. (Super.Ct.Nos. RIF10000006, RIF152972 & RIF147618)

The opinion of the court was delivered by: McKINSTER, J.

CERTIFIED FOR PUBLICATION

OPINION

This is a People's appeal from an order of the trial court dismissing the restitution fines originally imposed on defendant and respondent Laura Michelle Holman. Defendant had several different cases and charges, for which she was on probation through a drug court program. Eventually, defendant successfully completed her court-ordered drug treatment program, and the court terminated probation early. The court dismissed all the pending cases, and suspended or dismissed all the imposed fines, including any restitution fines that had not been fully paid. The People now appeal, contending that the trial court erred in suspending, or dismissing, or otherwise terminating the unpaid restitution fines. We affirm.

FACTS AND PROCEDURAL HISTORY

In 2008, a felony complaint was filed in case No. RIF147618, charging defendant with sale or transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)), possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), passing a counterfeit bill (Pen. Code, § 475, subd. (a)), misdemeanor charges of sale or transportation of marijuana, and possession of a controlled drug without a prescription. The complaint alleged that these charges constituted a violation of defendant's probation. Defendant agreed to plead guilty to a single count, the possession of methamphetamine charge. The court granted probation for 36 months and imposed various fines and fees, including payment of a restitution fine of $200, pursuant to Penal Code section 1202.4, subdivision (b). The payment of the restitution fine was made a condition of defendant's probation.

In February 2009, the People filed a petition to violate defendant's probation based on a new drug charge. Defendant admitted the probation violation, and was reinstated on probation with the provision that 90 days of custody time would be added to the terms. Later that year (Aug. 2009), defendant again admitted violations of probation, but was reinstated on probation.

In September 2009, the court arraigned defendant in case No. RIF152972, which alleged one felony count of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), and a violation of the probation in case No. RIF147618. The day after her arraignment, defendant agreed to plead guilty to the possession of methamphetamine charge; the proceedings were suspended and defendant was again admitted to 36 months' probation, including a condition that she pay a restitution fine of $200 under Penal Code section 1202.4, subdivision (b). Defendant's conditions of probation under case No. RIF152972 also included provisions that she complete a drug and alcohol treatment program, and that she be evaluated for eligibility to participate in diversion under Proposition 36.*fn1 In case No. RIF147618, defendant admitted the probation violation and was reinstated on probation on the same terms and conditions as before, with the addition of an extra 30 days of actual custody.

In January 2010, the People filed a new complaint in case No. RIF10000006, alleging two counts of receiving a stolen vehicle (Pen. Code, § 496d, subd. (a)), as well as a violation of probation in defendant's other cases. In February 2010, defendant agreed to plead guilty to the new theft-related charges. The court imposed the upper term of three years on count 1, and a concurrent term of three years on count 2. Execution of sentence was suspended, and defendant was granted formal probation for 36 months. Added to her terms of probation was the requirement that she complete the ROC program (Recovery Opportunity Center); this term was added to the terms of defendant's probation in case Nos. RIF147618 and RIF152972 as well. The agreements that defendant executed to enter the ROC program included an advisement that, "I understand that upon successful completion my attorney can file a 1203.4 to allow me to withdraw my plea and enter a not-guilty plea. If the Court grants my attorney's motion, this will allow for a possible dismissal or reduction in the charges that brought me to this program."

Defendant's probation in case No. RIF10000006, as with defendant's previous cases, included a term that she pay a restitution fine of $200, pursuant to Penal Code section 1202.4, subdivision (b). In all three probations, the court ordered the payment of all fines and fees suspended, pending defendant's participation in the ROC program.

With the exception of a setback in the early months of the program, defendant progressed well and was promoted to the successive phases of the program in due course. She was consistently cooperative with the ROC staff and peers. She began attending school and working part-time. On September 14, 2011, defendant graduated from the ROC program, and the drug court terminated her probation early. The minutes in each case recited that the court ordered "all fines suspended," and granted the defense motion under Penal Code section 1203.4, setting aside defendant's guilty pleas in each case, and entering a plea of not guilty. The court thereupon dismissed the cases.

At the hearing, the court inquired, "is there a motion by the Defense?" Defense counsel responded, "Yes, your Honor. Make the same motion to stay and suspend all fines and fees and dismiss all of her cases pursuant to 1203 on the ROC contract." The prosecutor, however, stated, "Same objection as to the fines and fees." The court implicitly overruled the People's objection and granted the defense motion "to set aside your pleas, dismiss the charges, and terminate probation, and suspend all fines and fees."

The People filed a notice of appeal from the ruling suspending all fines and fees.

ANALYSIS

I. Standard of Review

The issue presented is whether the trial court had the authority or discretion to suspend, or dismiss, or otherwise do away with or terminate the restitution fine with respect to each of defendant's cases. The issue turns on the interpretation of the relevant statutory provisions and, thus, presents essentially an issue of law, which we review de novo. "[W]hen the propriety of a restitution order turns on the interpretation of a statute, a question of law is raised, which is subject to de novo review on appeal." (People v. Williams (2010) 184 Cal.App.4th 142, 146.) "Questions of statutory interpretation are, of course, pure matters of law upon which we may exercise our independent judgment." (Jones v. Pierce (1988) 199 Cal.App.3d 736, 741.) Accordingly, the standard of review is de novo.

II. The State's Claim is Not Forfeited

Preliminarily, defendant contends that the People are precluded from raising the restitution fine suspension issue, because it was not preserved for appeal by a proper objection below. As already noted, the trial court had inquired whether "there [is] a motion by the Defense," to which defense counsel had responded, "Yes, your Honor. Make the same motion to stay and suspend all fines and fees and dismiss all of her cases pursuant to 1203 on the ROC contract." The prosecutor raised the "Same objection as to the fines and fees."

Defendant urges that the prosecutor's objection was insufficient to preserve the matter for appeal. We reject the argument for several inter-related reasons.

First, the objection that was made was sufficient to satisfy the purposes of the "specific objection" rule. "The critical point for preservation of claims on appeal is that the asserted error must have been brought to the attention of the trial court." (Boyle v. CertainTeed Corp. (2006) 137 Cal.App.4th 645, 649.) As to claims of error in the admission and exclusion of evidence, for example, " 'The reason for the requirement is manifest: a specifically grounded objection to a defined body of evidence serves to prevent error. It allows the trial judge to consider excluding the evidence or limiting its admission to avoid possible prejudice. It also allows the proponent of the evidence to lay additional foundation, modify the offer of proof, or take other steps designed to minimize the prospect of reversal.' " (People v. Partida (2005) 37 Cal.4th 428, 434.) In addition, "a 'contrary rule would deprive the People of the opportunity to cure the defect at trial and would "permit the defendant to gamble on an acquittal at his trial secure in the knowledge that a conviction would be reversed on appeal." ' " (Ibid.) As the California Supreme Court stated in Partida, "Thus, the requirement of a specific objection serves important purposes. But, to further these purposes, the requirement must be interpreted reasonably, not formalistically. 'Evidence Code section 353 does not exalt form over substance.' [Citation.] The statute does not require any particular form of objection. Rather, 'the objection must be made in such a way as to alert the trial court to the nature of the anticipated evidence and the basis on which exclusion is sought, and to afford the People an opportunity to establish its admissibility.' " (Id. at pp. 434-435.)

Here, the only matter or ruling in issue was the suspension or dismissal of the fines and fees. That was, in turn, the sole matter to which the People objected. No particular form of objection was necessary, so long as the court and the opposing party were apprised of the nature of the People's objection. As noted, the ground raised on appeal is strictly one of statutory construction; rather than an evidentiary ruling, which depends upon foundational matters and the exercise of the court's discretion, the nature of the claim here is a purely legal one, to the effect that the trial court had no discretion to exercise with respect to the suspension or dismissal of the restitution fine. The objection that was raised was sufficient to alert the trial court to this purely legalistic claim and, thus, the purpose of the "specific objection" rule was satisfied.

Second, we view the matter in context, i.e., drug court. The proceedings on the date in question included a graduation ceremony for defendant and a number of other persons, each of whom had successfully completed the ROC program. The ROC program was a rigorous treatment program, encompassing five phases, with each phase addressing multiple aspects of rehabilitation, including individual and group counseling, drug testing, obtaining employment and/or education, volunteer service, and other activities. The program required a commitment of at least 18 months, including at least six months in the aftercare (final) phase. Where multiple parties were before the court, each seeking to set aside the pleas in his or her individual case, it is understandable that both the defense attorneys and the People's representative would fail to fully articulate repetitive motions and objections. The reporter's transcript of the hearing in defendant's case consists of only one page. The reporter's transcript articulates defense counsel's request to suspend all the fines and fees. The reporter's transcript and the court's minutes reflect the trial court's ultimate order suspending all the fines and fees. Inferentially, the prosecutor's "objection as to the fines and fees," refers to the defense request to order the fines and fees suspended, which request the court then proceeded to fulfill. It could hardly be understood otherwise. Just as defendant's counsel made the "same motion" as had been made in other cases (i.e., to suspend all fines and fees and to dismiss all the charges under Pen. Code, § 1203), the prosecutor made the "same objection," specifically "as to the fines and fees." The objection clearly refers to antecedent similar objections, as to which the foundation was understood among the parties and the court.*fn2

Third, and finally, not all issues are subject to the "specific objection" rule. The present issue is not in the nature of an evidentiary ruling. Although it is true that the waiver doctrine also applies to "claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices" (People v. Scott (1994) 9 Cal.4th 331, 353), the gist of the People's contention on appeal is that suspending or dismissing the restitution fine is not such a "discretionary sentencing choice." Rather, the People contend that the trial court possesses no discretion to do so. Thus, the claim is one, in essence, of a species of unauthorized sentence. A claim of unauthorized sentence is reviewable on appeal even in the absence of an objection in the trial court; it is correctable at any time. (See People v. Stowell (2003) 31 Cal.4th 1107, 1113.) A challenged sentence falls within the "unauthorized sentence" exception (to the general rule that a specific objection to a sentencing error is required) when it "could not lawfully be imposed under any circumstance in the particular case," such that it is " 'clear and correctable' independent of any factual issues presented by the record at sentencing." (Scott, at p. 354.) The claim presented by the People in this case is just such a claim.

The prosecutor's objection at the hearing was thus sufficient to preserve for appeal the issue that the trial court erred in entering its order suspending, dismissing, or otherwise disposing of the restitution fine and, in any case, the claim may be characterized as a species of unauthorized sentence, as to which no objection was required.

We next examine the merits of the statutory claim.

III. The Trial Court Could Properly Suspend or Dismiss the Restitution Fines in the Context of Drug Court Early Termination of Probation

A. Background of the Law Concerning Victim Restitution and Restitution Fines

1. Legislative History: Victims' Bill of Rights

In June 1982, the electorate passed Proposition 8, known as "The Victims' Bill of Rights." Among other things, Proposition 8 declared a state constitutional right of crime victims to restitution from those persons convicted of crimes, which crimes caused losses to the victims. (Cal. Const., art. I, § 28, subd. (b)(13)(A).) In response to the new constitutional provisions, the Legislature amended some old statutes and enacted new ones to implement the right to restitution. (See People v. Giordano (2007) 42 Cal.4th 644, 652.)

The statutes recognize two kinds of restitution: (1) restitution fines (Pen. Code, § 1202.4, subd. (b)), which are not directly related to the amount of loss sustained by a victim; and (2) direct restitution to the victim (Pen. Code, § 1202.4, subd. (f)), which is based on the amount of the loss the victim actually sustained. The purposes of the two kinds of restitution are different. The imposition of a restitution fine is punishment. (See People v. Kunitz (2004) 122 Cal.App.4th 652, 656.) The purpose of direct victim restitution, however, is to reimburse the victim for economic losses caused by the defendant's criminal conduct, i.e., to make the victim reasonably whole. (People v. Taylor (2011) 197 Cal.App.4th 757, 763; cf. People v. Phu (2009) 179 Cal.App.4th 280, 283.) Secondary goals of direct restitution include rehabilitation of the defendant and deterrence of future criminality. (People v. Jennings (2005) 128 Cal.App.4th 42, 57.)

Formerly, both restitution fines and direct victim restitution were limited to a maximum imposition of $10,000. (See former Gov. Code, § 13967, subd. (c); Pen. Code, § 1202.4, subd. (b).) Now, however, the victim (direct) restitution statute requires the trial court to order full restitution, in the amount of the losses resulting from the defendant's criminal acts, unless the court finds clear and compelling reasons for not doing so, and states these reasons on the record. (Pen. Code, § 1202.4, subds. (f), (g).)*fn3

The restitution fines are not paid directly to the victims of crime. Rather, they are deposited to the restitution fund. (Pen. Code, § 1202.4, subd. (e).) The restitution fund is in the state treasury department, and is used to compensate victims for certain kinds of "pecuniary losses they suffer as a direct result of criminal acts." (Gov. Code, § 13950, subd. (a).) Crime victims may apply to the restitution fund as one avenue to recover monetary losses caused by criminal conduct. "If the victim has received assistance from the Victim Compensation Program under Govt.C. 13950 et seq., restitution to the victim is also paid to the Restitution Fund. (P.C. 1202.4(f)(2).)" (3 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Punishment, § 110, p. 194.) Thus, when direct victim restitution has been satisfied by the victim's application to the victim compensation program, the amounts a defendant is ordered to pay as direct victim restitution are instead paid to the restitution fund. "[T]o the extent that the victim has received assistance from the Restitution Fund under Govt.C. 13950 et seq. . . . payment must be made to the fund. (P.C. 1202.4(f)(2).)" (3 Witkin & Epstein, supra, Cal. Criminal Law, Punishment, § 117, p. 204.) Penal Code section 1202.4, subdivision (j), includes a reciprocal provision, to the effect that "[t]he making of a restitution order pursuant to subdivision (f) shall not affect the right of a victim to recovery from the Restitution Fund as otherwise provided by law, except to the extent that restitution is actually collected pursuant to the order." Thus, direct victim restitution payments, which the victim actually collects from the defendant, are offset from the victim's eligibility to recover from the restitution fund.

An order for direct victim restitution does not preclude a separate civil action by the victim. Penal Code section 1202.4, subdivision (j), also provides that "[r]estitution collected pursuant to this subdivision shall be credited to any other judgments for the same losses obtained against the defendant arising out of the crime for which the defendant was convicted."

Penal Code section 1202.4, subdivision (f)(11), provides that, "If a defendant has any remaining unpaid balance on a restitution order or fine 120 days prior to his or her scheduled release from probation or 120 days prior to his or her completion of a conditional sentence, the defendant shall prepare and file a new and updated financial disclosure . . ." to facilitate future enforcement of the remainder of the unpaid restitution or restitution fine. Penal Code section 1202.4, subdivision (i), provides that "A restitution order imposed pursuant to subdivision (f) shall be enforceable as if the order were a civil judgment." Penal Code section 1202.4, subdivision (m), provides that, "In every case in which the defendant is granted probation, the court shall make the payment of restitution fines and orders imposed pursuant to this section a condition of probation. Any portion of a restitution order that remains unsatisfied after a defendant is no longer on probation shall continue to be enforceable by a victim pursuant to Section 1214 until the obligation is satisfied."

2. Unpaid Portions of Victim Restitution and Restitution Fines Generally Survive, Even When the Defendant Is No Longer on Probation

The complex intertwining of the various statutory provisions has resulted in the recognition that, in general, the Legislature intended the unpaid balance of restitution orders to survive a probationary term.

a. A restitution fine survives the termination of probation when probation is revoked

In People v. Chambers (1998) 65 Cal.App.4th 819, the Third District Court of Appeal considered the question with respect to restitution fines. When the defendant was first sentenced, the trial court had imposed a restitution fine of $200. Later, the court revoked the defendant's probation, and made a second order imposing a restitution fine of $500. The appellate court concluded that the trial court was not authorized to impose a second restitution fine, because the initial restitution fine survived the revocation of probation. The imposition of a restitution fine was mandatory upon conviction of a felony, whether or not the defendant was admitted to probation. (Id. at p. 821.) The restitution fine could be imposed as a condition of probation, if probation were granted. (Id. at pp. 821-822.) But, "[e]ven if the restitution fine was imposed as a condition of probation, the statutes contemplated that it would survive the probationary term. For example, former Penal Code section 1202.4, subdivision (c) provided that, if a restitution fine was imposed as a condition of probation but stayed, the stay would be lifted upon revocation of probation and imposition of sentence. While the restitution fine in this case was not stayed at the time probation was granted, it is apparent from the statutory scheme in existence in 1993 that it survived the revocation of the defendant's probation because (1) the court was required to impose a restitution fine regardless of whether probation was granted, and (2) former Penal Code section 1202.4, subdivision (c) exhibits the Legislature's intent not to void a restitution fine when probation is revoked. Furthermore, there was no provision for imposing a restitution fine upon revocation of probation and the triggering event for imposition of a restitution fine was conviction. (Former Gov. Code, § 13967; former Pen. Code, § 1202.4.)

"In 1994, the Legislature amended Government Code section 13967 and Penal Code section 1202.4, deleting the requirement of a restitution fine from section 13967 and incorporating it into section 1202.4. (Stats. 1994, ch. 1106, §§ 2, 3.) Present law still requires imposition of a restitution fine when a person is convicted of a felony, regardless of whether probation is granted. (Pen. Code, § 1202.4, subd. (b) [requirement of fine unless compelling and extraordinary reasons found].) If the defendant is granted probation, the court must make payment of restitution and the restitution fine conditions of probation. (Pen. Code, § 1202.4, subd. (m).) Restitution to a ...


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