People v. Castro

• Decision Date: 16 May 1994
• Docket Number: F019367,Nos. F019366,s. F019366
• Citation: 24 Cal.App.4th 1661,30 Cal.Rptr.2d 188
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 24 Cal.App.4th 1661 24 Cal.App.4th 1661 The PEOPLE, Plaintiff and Respondent, v. Andres Antonio CASTRO, Defendant and Appellant.

Page 188

30 Cal.Rptr.2d 188

Previously published at 24 Cal.App.4th 1661

24 Cal.App.4th 1661

The PEOPLE, Plaintiff and Respondent, v. Andres Antonio CASTRO, Defendant and Appellant.

Nos. F019366, F019367.

Court of Appeal, Fifth District, California.

May 16, 1994.

Certified for Partial Publication ^*

As Modified May 19, 1994.

Review Granted July 24, 1994.

Review Dismissed and Cause Remanded Oct. 13, 1994.

[24 Cal.App.4th 1663] William P. Daley, Oakland, under appointment by the Court of Appeal, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson, Asst. Atty. Gen., Michael J. Weinberger and Thomas Y. Shigemoto, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

THAXTER, Associate Justice.

Following his conviction by a jury on several felony charges, with enhancements, appellant Andres Antonio Castro was sentenced to prison for 11 years 8 months and was ordered to pay a restitution fine of $5,000 pursuant to Government Code section 13967, subdivision (a). In the unpublished portion of this opinion we will conclude that one sentence enhancement was improperly imposed, and we will order it stricken. In the published portion we will address several issues involving the restitution fine.

PROCEDURAL HISTORY ^**

FACTS *

DISCUSSION

I.-IV.**

V. Restitution Fine

Appellant contends it was error to impose the $5,000 restitution fine pursuant to Government Code section 13967, subdivision (a) because the trial court did not consider appellant's ability to pay the fine and because there is nothing in the record to support an implicit finding that appellant has an ability to pay the fine. Appellant notes the probation report recommends a $5,000 fine without discussion of ability to pay and notes appellant has no assets and has been unemployed since 1990. Respondent contends appellant waived any right to challenge the fine by failing to object to its imposition and that appellant has not made a showing that he cannot pay the fine. Respondent suggests the record supports the opposite conclusion because the probation report states appellant is in good health, has no handicaps, and has no liabilities.

The parties' positions in this case raise several issues concerning the imposition of restitution fines pursuant to Government Code section 13967, subdivision (a).

Must the court consider and make a finding on the defendant's ability to pay?

If a finding is required, must it be express or may it be implied?

Does a defendant, with notice that a Government Code section 13967 fine is being recommended, waive the right to challenge the fine by failing to object at sentencing?

What must appear in the record to support a finding of ability to pay?

A. Is an ability-to-pay finding required?

Government Code section 13967, subdivision (a) provides as follows:

"Upon a person being convicted of any crime in the State of California, the court shall, in addition to any other penalty provided or imposed under the law, order the defendant to pay restitution in the form of a penalty assessment in accordance with Section 1464 of the Penal Code and to pay restitution to the victim in accordance with subdivision (c). In addition, if the person is convicted of one or more felony offenses, the court shall impose a separate and additional restitution fine of not less than two hundred dollars ($200), subject to the defendant's ability to pay, and not more than ten thousand dollars ($10,000). In setting the amount of the fine for felony convictions, the court shall consider any relevant factors including, but not limited to, the seriousness and gravity of the offense and the circumstances of its commission, any economic gain derived by the defendant as a result of the crime, and the extent to which others suffered losses as a result of the crime. Those losses may include pecuniary losses to the victim or his or her dependents as well as intangible losses, such as psychological harm caused by the crime. Except as provided in Section 1202.4 of the Penal Code and subdivision (c) of this section, under no circumstances shall the court fail to impose the separate and additional restitution fine required by this section. This fine shall not be subject to penalty assessments as provided in Section 1464 of the Penal Code." (Emphasis added.)

Penal Code section 1202.4, which is referred to in Government Code section 13967, subdivision (a), provides as follows:

"(a) In any case in which a defendant is convicted of a felony, the court shall order the defendant to pay a restitution fine as provided in subdivision (a) of Section 13967 of the Government Code. Such restitution fine shall be in addition to any other penalty or fine imposed and shall be ordered regardless of the defendant's present ability to pay. However, if the court finds that there are compelling and extraordinary reasons, the court may waive imposition of the fine. When such a waiver is granted, the court shall state on the record all reasons supporting the waiver.

"(b) In any case in which the defendant is ordered to pay restitution as a condition of probation, the order to pay the restitution fine, or portion thereof, may be stayed pending the successful completion of probation, and thereafter the stay shall become permanent.

"(c) If the restitution fine has been stayed pending successful completion of probation, upon revocation of probation and imposition of sentence the stay shall be lifted. The amount of restitution fine shall be offset by any restitution payments actually made as a condition of probation. Nothing in this section authorizes the stay of an order of restitution to the victim."

There is an apparent conflict between Government Code section 13967's "ability to pay" language and that in Penal Code section 1202.4.

The legislative history of the "ability to pay" language can be divided into three stages. When Government Code section 13967 was first enacted in 1973, it allowed a trial court to assess restitution fines only against defendants convicted of a "crime of violence" if the court found that the defendant had a present ability to pay. (Gov.Code, § 13967, added by Stats.1973, ch. 1144, § 2, p. 2351.) Later amendments did not affect the "ability to pay" language. (People v. Vega-Hernandez (1986) 179 Cal.App.3d 1084, 1090-1091, 225 Cal.Rptr. 209.)

In 1983, Proposition 8 (The Victim's Bill of Rights) was passed by the voters of California, adding article I, section 28, subdivision (b) to the state Constitution. As a result of Proposition 8, pursuant to the enabling authority, Government Code section 13967 was rewritten and Penal Code section 1202.4 was enacted. (People v. Vega-Hernandez, supra, 179 Cal.App.3d at pp. 1090-1091, 225 Cal.Rptr. 209; People v. Romero (1985) 167 Cal.App.3d 1148, 1155, 213 Cal.Rptr. 774.) Both the revised Government Code section 13967 and Penal Code section 1202.4 made it very clear that the defendant's ability to pay was not relevant to the decision to impose a restitution fine. Under the new (post-Prop. 8) scheme, a trial court imposing a restitution fine had to consider several identified factors, none of which relate to the defendant's present or future ability to pay: seriousness and gravity of the offense, the circumstances of its commission, any economic gain derived by the defendant, and the extent others suffered loss as a result of the crime. (Gov.Code, § 13967, as amended Stats.1983, ch. 1092, § 135.2, p. 3998; Pen Code, § 1202.4, added by Stats.1983, ch. 1092, § 320.1, p. 4058; People v. Romero, supra, 167 Cal.App.3d at p. 1155, fn. 4, 213 Cal.Rptr. 774.)

Thus, before 1983, a defendant's ability to pay was a part of the equation in determining whether a restitution fine could be imposed. Between 1983 and 1992 it was not, and the trial court was required to impose at least the minimum (initially $10, later raised to $100) and could impose up to $10,000 without any consideration of a defendant's ability to pay. ⁹ (People v. McGhee (1988) 197 Cal.App.3d 710, 715, 243 Cal.Rptr. 46.) After 1992, the defendant's ability to pay became a factor again, although Penal Code section 1202.4 continues to state that a fine shall be ordered "regardless of the defendant's present ability to pay."

The state appellate courts have attempted to reconcile the apparent conflict in the language of the two statutes. In People v. Frye (1994) 21 Cal.App.4th 1483, 27 Cal.Rptr.2d 52, the Third Appellate District held that the clear language of the 1992 amendment and the link between the increase in the minimum fine and the "ability to pay" language in the legislative history requires the trial court to consider the defendant's ability to pay before imposing a restitution fine. (Id. at p. 1486, 27 Cal.Rptr.2d 52.) Other courts have decided the issue depending on the amount of fine imposed. Whether this is a valid approach under the statute is an issue currently before the California Supreme Court in a series of cases in which review has been granted. (See People v. Wilson (1994) 21 Cal.App.4th 885, 26 Cal.Rptr.2d 537, review granted, 29 Cal.Rptr.2d 152, 871 P.2d 204; People v. Robles (1994) 22 Cal.App.4th 256, 27 Cal.Rptr.2d 196, review granted, 29 Cal.Rptr.2d 152, 871 P.2d 204; People v. Hicks (1994) 22 Cal.App.4th 12, 27 Cal.Rptr.2d 292, review granted, 29 Cal.Rptr.2d 538, 871 P.2d 1133.)

The trial court imposed a $5,000 restitution fine on appellant. This is a significant fine well above the minimum of $200. We believe the clear language of Government Code section 13967, subdivision (a), as amended in 1992, requires a finding that the defendant has the ability to pay the fine before it can be imposed. This interpretation is consistent with earlier cases requiring such a finding under the pre-1983 language. (See People v. Maestas (1987) 194 Cal.App.3d 1499, 1511, 240 Cal.Rptr. 360; People v. Gray (1986) 187 Cal.App.3d 213, 221-223, 231 Cal.Rptr. 658; People...