People v. Gross

• Decision Date: 27 July 2015
• Docket Number: C076635
• Citation: 238 Cal.App.4th 1313,190 Cal.Rptr.3d 472
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Rickey Glenn GROSS, Defendant and Appellant.

238 Cal.App.4th 1313

190 Cal.Rptr.3d 472

The PEOPLE, Plaintiff and Respondent

v.Rickey Glenn GROSS, Defendant and Appellant.

C076635

Court of Appeal, Third District, California.

Filed July 27, 2015

Pamela R. Elliott, Retained Counsel for Defendant and Appellant.

Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Eric Christoffersen and Jennevee H. de Guzman, Deputy Attorneys General, for Plaintiff and Respondent.

Opinion

ROBIE, Acting P.J.

Under former Welfare and Institutions Code section 3200, a trial court could dismiss the criminal charges against a defendant who successfully completed a commitment to the California Rehabilitation Center (CRC) and the dismissal had (with one exception not applicable here) “the same force and effect as a dismissal under Section 1203.4 of the Penal Code.”¹ (Former Welf. & Inst.Code, § 3200, subd. (b) ; see People v. Rodriguez (1966) 243 Cal.App.2d 522, 527, 52 Cal.Rptr. 643.) When an accusation or information is dismissed under section 1203.4, the defendant is, with certain exceptions, “released from all penalties and disabilities resulting from the offense of which he or she has been convicted.” (§ 1203.4, subd. (a)(1).)

In this case, defendant Rickey Glenn Gross contends the dismissal of the criminal charges against him pursuant to Welfare and Institutions Code former section 3200 following his successful completion of a CRC commitment operated to release him from the obligation to pay restitution to the victims of his crimes because direct victim restitution “qualifies as a ‘penalty and disability’ pursuant to ... section 1203.4.” We disagree. The obligation to make a victim whole through direct victim restitution is a constitutional mandate that serves to protect public safety and welfare, rather than to punish the defendant, and thus it is not a penalty or disability from which a defendant is released upon the dismissal of criminal charges pursuant to Welfare and Institutions Code former section 3200 or section 1203.4. Accordingly, we affirm.

BACKGROUND

In 1998, defendant pled guilty to two counts of second degree burglary and possession of a destructive device in Sacramento County Superior Court cases Nos. 97F07570 (People v. Gross (Super. Ct. Sacramento County, 1998, No. 97F07570)), 97F07782 (hereafter case No. 782) and 97F07859 (hereafter case No. 859). The trial court sentenced defendant to an aggregate term of five years four months in state prison but suspended execution of defendant's sentence and committed him to the CRC.

At sentencing, the trial court ordered defendant to pay various fines and fees as well as direct restitution to his victims. To his victims, the trial court ordered defendant to pay $14,230 in case No. 859, $31,083.92 in case No. 782, and a total of $34,826.59 in several cases dismissed with Harvey² waivers (Sacramento County Super. Ct. cases Nos. “97/53823,” “97/76959,” and “97/70929”).³ In sum, the trial court ordered defendant to pay $80.140.51 in direct restitution to his victims.

In 2001, after defendant successfully completed his CRC commitment, the trial court reinstated the criminal proceedings and dismissed the charges pursuant to Welfare and Institutions Code former section 3200.

Years later, on September 24, 2013, defendant received a “Demand for Payment –Court-Ordered Debt Collections” from the Franchise Tax Board, advising defendant that he was delinquent in paying the direct restitution ordered by the court in cases Nos. 859 and 782, now totaling $59,185.97.⁴ Soon thereafter, defendant filed and served a “NOTICE AND MOTION TO BE RELIEVED OF RESTITUTION OBLIGATION AND FOR REFUND OF FUNDS COLLECTED CONTRARY TO WELFARE & INSTITUTIONS CODE SECTION 3200 AND PENAL CODE SECTION 1203.4.”

On April 21, 2014, the trial court heard defendant's motion. After hearing argument from defendant's counsel, the trial court ruled as follows: “Both the California Constitution and statutes show that victim restitution was intended to remain in effect well beyond the conclusion of criminal cases, and there's no indication, in my view, that relief under 1203.4 was ever, ever, intended to impair the right of a criminal victim to restitution that had previously been ordered. In this case, there are 11 victims, including all the Harvey waived counts.

“Dismissing a case following a completion of a CRC program which would release liability for a continuing victim restitution obligation would not, in any way, have been in the interest of justice. That is required.

“So, for all those reasons, I'm going to deny your motion to relieve [defendant] of his restitution obligation.”

Defendant appeals from that order.

DISCUSSION

Defendant contends the trial court erred in denying his motion because “when [the criminal charges against him were] dismissed pursuant to [Welfare and Institutions Code former] section 3200,” “he was statutorily released” from the obligation to pay direct victim restitution because that obligation “qualifies as a ‘penalty and disability’ pursuant to ... section 1203.4.” We disagree.

IThe Victims' Bill of Rights

Article I, section 28 of the California Constitution, as amended by Proposition 9, the Victims' Bill of Rights Act of 2008, known as Marsy's Law, provides for a broad spectrum of victims' rights, including restitution.

Article I, section 28, subdivision (b)(13) of the California Constitution, states that: “[i]t is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to seek and secure restitution from the persons convicted of the crimes causing the losses they suffer. [¶] ... Restitution shall be ordered from the convicted wrongdoer in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss.”

A victim's right to restitution is, therefore, a constitutional one; it cannot be bargained away or limited, nor can the prosecution waive the victim's right to receive restitution. (See People v. Valdez (1994) 24 Cal.App.4th 1194, 1202–1203, 30 Cal.Rptr.2d 4 ; accord People v. Brown (2007) 147 Cal.App.4th 1213, 1226, 54 Cal.Rptr.3d 887 [“Victim restitution cannot be bargained away by the People”].) Moreover, “[a] sentence without an award of victim restitution is invalid.” (Brown, at p. 1225, 54 Cal.Rptr.3d 887 ; People v. Bernal (2002) 101 Cal.App.4th 155, 164–165, 123 Cal.Rptr.2d 622 ; People v. Rowland (1997) 51 Cal.App.4th 1745, 1750–1752, 60 Cal.Rptr.2d 351.) Indeed, on the motion of a victim, a court may at any time correct a sentence that is rendered invalid due to the omission of a restitution order. (§ 1202.46.)

The constitutional provision for victim restitution, however, is not self-executing. Accordingly, the Legislature has enacted implementing legislation. (People v. Giordano (2007) 42 Cal.4th 644, 652, 68 Cal.Rptr.3d 51, 170 P.3d 623.) Section 1202.4 authorizes the imposition of restitution fines, which support a fund that compensates victims, and direct restitution payments to victims. (§ 1202.4, subds. (e), (f).)⁵

IIWelfare and Institutions Code Former Section 3200 And Penal Code Section 1203.4

Welfare and Institutions Code former section 3200 provided in relevant part as follows: “If at any time the director is of the opinion that a person committed for a period of 24 months, or less, pursuant to Article 2 ... while in outpatient status has abstained from the use of narcotics, other than as medically prescribed in a narcotic treatment program ... , for at least 12 consecutive months and has otherwise complied with the conditions of his or her release, or if at any time the director is of the opinion that a person committed for a period of more than 24 months pursuant to Article 2 ... while in outpatient status has abstained from the use of narcotics, other than as medically prescribed in a narcotic treatment program ... , for at least 16 consecutive months and has otherwise complied with the conditions of his or her release, the director shall so advise the Narcotic Addict Evaluation Authority. If the authority concurs in the opinion of the director, it shall file with the superior court of the county in which the person was committed a certificate alleging those facts and recommending to the court the discharge of the person from the program. The authority shall serve a copy of the certificate upon the district attorney of the county. Upon the filing of the certificate, the court shall discharge the person from the program. The court may unless otherwise prohibited by law, modify the sentence, dismiss the criminal charges of which the person was convicted, or suspend further proceedings, as it deems warranted in the interests of justice. ... The dismissal shall have the same force and effect as a dismissal under Section 1203.4 of the Penal Code, except the conviction is a prior conviction for purposes of Division 10 ... of the Health and Safety Code.”

In relevant part, subdivision (a)(1) of section 1203.4 provides as follows: “In any case in which a defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation, or in any other case in which a court, in its discretion and the interests of justice, determines that a defendant should be granted the relief available under this section, the defendant shall, at any time after the termination of the period of probation, if he or she is not then serving a sentence for any offense, on probation for any offense, or charged with the commission of any offense, be permitted by the court to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty; or, if he or she has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and, in either case, the court shall thereupon dismiss the accusations or information against the defendant and except as noted below, he or she...