People v. Hicks

• Decision Date: 03 February 1994
• Docket Number: No. A061318,A061318
• Citation: 27 Cal.Rptr.2d 292,22 Cal.App.4th 12
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 22 Cal.App.4th 12, 27 Cal.App.4th 1191 22 Cal.App.4th 12, 27 Cal.App.4th 1191 The PEOPLE, Plaintiff and Respondent, v. John Eugene HICKS, Defendant and Appellant.

Page 292

27 Cal.Rptr.2d 292

Previously published at 22 Cal.App.4th 12, 27 Cal.App.4th 1191

22 Cal.App.4th 12, 27 Cal.App.4th 1191

The PEOPLE, Plaintiff and Respondent, v. John Eugene HICKS, Defendant and Appellant.

No. A061318.

Court of Appeal, First District, Division 2, California.

Feb. 3, 1994.

Review Granted April 21, 1994.

Review Dismissed and Cause Remanded to the Court of Appeal Oct. 13, 1994.

[27 Cal.App.4th 1192] Susan K. Amato, Santa Rosa, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Sr. Asst. Atty. Gen., Ronald S. Matthias, Supervising Deputy Atty. Gen., David D. Salmon, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

PHELAN, Associate Justice.

Defendant John Eugene Hicks appeals from a judgment of conviction entered in the

municipal court for felony driving with a blood alcohol level of .08 percent or more. (Veh.Code, § 23152, subd. (b); see also Pen.Code, §§ 1462, subd. (b), 1466, subd. (b).) He contends that the court erred when it imposed a $200 restitution fine without making a prior express finding that defendant had the ability to pay. We hold that defendant waived the issue by not raising it in the trial court and that, in any event, a prior finding is not required. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant was charged by complaint filed on October 13, 1992, with the following related offenses occurring on October 10, 1992: Count I--driving under the influence of alcohol, with three or more convictions of the same offense within seven years (Veh.Code, §§ 23152, subd. (a), 23175); count II--driving with a blood alcohol level of .08 or more, with three or more such convictions in seven years (Veh.Code, §§ 23152, subd. (b), 23175); and count III--driving with a license that had been suspended for driving under the influence of alcohol (Veh.Code § 14601.2, subd. (a) [misdemeanor] ). As to counts I and II the complaint alleged a prior separate prison term served in 1991 for receiving stolen property (Pen.Code, §§ 496, 667.5, subd. (b)).

Defendant pled not guilty and denied the prior. On October 28, 1992, counsel moved that the offenses be deemed misdemeanors. (Pen.Code, § 17, subd. (b).) Defendant waived preliminary hearing and submitted the motion on the police reports which showed that he had driven with a blood alcohol level of .12. Defendant acknowledged that at the time of the offense he had been on parole only a few months and that a condition of parole was that he abstain from using alcohol. The court denied the section 17, subdivision (b) motion.

Defendant, having been advised of his rights and the consequences of his plea, including the dismissal of the remaining two counts (but not of the possibility of a restitution fine), withdrew his not guilty plea to count II and entered a plea of no contest; he admitted the three prior vehicle code violations.

At the sentencing hearing on February 16, 1993, the court acknowledged receipt of a presentence and a supplemental probation report. Defense counsel was also familiar with the presentence report, in which the probation officer recommended imposition of a $200 restitution fine, though this point was not discussed at the hearing.

The court denied probation, citing appropriate factors. The court imposed the middle term of two years for the felony to which defendant pled no contest, with credit for time served of 197 days. The court also revoked defendant's driver's license for four years and, without discussion or objection, ordered him to pay a $200 restitution fine in a manner to be determined by the Department of Corrections. Defendant filed a timely notice of appeal. ¹

DISCUSSION

The Statute

Government Code section 13967, subdivision (a) (hereafter referred to as section 13967) requires that the court impose a restitution fine on a person convicted of any crime. Prior to September 14, 1992, the statute provided for a minimum restitution fine of $100 in all cases. Effective that date Defendant contends that the trial court erred when it imposed a $200 restitution fine without first determining whether he was able to pay.

the Legislature amended the section to provide for a restitution fine of "not less than two hundred dollars ($200) subject to the defendant's ability to pay...." (Stats.1992, ch. 682, § 4, No. 5 Deering's Adv.Legis.Service, p. 2491.)

Waiver

There is no indication in the record that defendant's change of plea was the result of a plea bargain. At the time he changed his plea no one mentioned a restitution fine. The probation report recommended that probation be denied, that defendant be sentenced to prison, and that a $200 restitution fine be imposed.

Defendant was represented by the public defender's office throughout the proceedings. At sentencing he was represented by Norman Howard of that office. Mr. Howard exhibited familiarity with the facts of the case and the probation report when he argued against the probation officer's statement that defendant was statutorily ineligible for probation and when he argued that the interests of justice would be served by a grant of probation. He neither mentioned nor objected to the proposed restitution fine. After the court pronounced judgment, including imposition of the fine, neither counsel nor defendant objected. We hold that any error regarding the restitution fine was waived.

We note initially that a trial court is required to admonish a defendant that a restitution fine is a possible direct consequence of a change of plea. The requirement is a judicially declared rule of criminal procedure, and a court's erroneous failure to advise is waived absent a timely objection at or before sentencing. (People v. Walker (1991) 54 Cal.3d 1013, 1022-1023, 1 Cal.Rptr.2d 902, 819 P.2d 861.)

It is also established that where the probation report apprises a defendant of the amount of restitution to be paid to a victim and the defense fails to object to the amount or to request a hearing on the issue, the question of the propriety of the imposition of restitution, including the defendant's ability to pay, is waived for purposes of appeal. (People v. Rivera (1989) 212 Cal.App.3d 1153, 1160-1161, 261 Cal.Rptr. 93; accord, People v. Foster (1993) 14 Cal.App.4th 939, 944, 18 Cal.Rptr.2d 1.) Although Rivera and Foster dealt with restitution to be paid to a victim under subdivision (c) of section 13967, we hold that their reasoning applies equally to a restitution fine imposed under subdivision (a) of that section.

We conclude that defendant cannot properly raise objection to the restitution fine for the first time on appeal. ² In any event, for the reasons stated below we consider defendant's contention to be without merit.

Statutory Construction

Defendant interprets the Legislature's addition of the words "subject to the defendant's ability to pay" to section 13967, as meaning that the Legislature "added a requirement that there be a determination made prior to the imposition of the fine regarding the defendant's ability to pay even the minimum fine." We think that a proper interpretation of the statute negates defendant's position.

Plain meaning. In arriving at a correct interpretation of the statute we first examine its actual language to see if its plain meaning is clear and unambiguous. (Halbert's Lumber, Inc. v. Lucky Stores, Inc. (1992) 6 Cal.App.4th 1233, 1238-1239, 8 Cal.Rptr.2d 298; see generally 7 Witkin, Summary of Cal.Law (9th ed. 1988) Constitutional Law, § 94, p. 146.) The phrase "subject to" is ambiguous. It has more than one meaning depending on the circumstances of its use.

(Interway, Inc. v. Alagna (Ill.App.1980) 85 Ill.App.3d 1094, 41 Ill.Dec. 117, 119, 407 N.E.2d 615, 619.)

One reasonable reading of the statutory language, which we will adopt here, is that the trial court is required first to impose at least a minimum fine of $200, but if the defendant objects that he or she is unable to pay, then the court must hear sufficient evidence to enable it to make a factual determination on that point. We recognize, however, that our reading is not the only possible one. In People v. McMahan (1992) 3 Cal.App.4th 740, 4 Cal.Rptr.2d 708, the court interpreted Penal Code section 290.3, which provides that a person convicted of certain enumerated sex offenses must pay a special minimum fine of $100 for the first offense and $200 for each subsequent offense "unless the court determines that the defendant does not have the ability to pay the fine." Defendant McMahan contended, as does defendant here, that before the court could properly impose the special fine, it was required to make a determination that he was able to pay. (Id., at p. 748, 4 Cal.Rptr.2d 708.) The Court of Appeal rejected the claim that the determination of ability to pay was a condition precedent to imposition of the minimum fine and held that the quoted phrase placed "the burden upon the defendant to timely raise the issue." (Id., at p. 749, 4 Cal.Rptr.2d 708.)

The court then noted in unfortunate dictum that "if the Legislature clearly intended to require the court to make a determination of ability to pay prior to its order, it could have used the words 'provided' or 'subject to' instead of 'unless.' " (People v. McMahan, supra, 3 Cal.App.4th at p. 749, 4 Cal.Rptr.2d 708.) Thus the McMahan court, albeit in dictum, stated that the phrase "subject to" would create a condition precedent. Although it is possible for the phrase "subject to" to have that meaning in certain contexts, we do not agree that it has that meaning in the context of the statutory scheme before us. While we agree with the holding in McMahan, we disagree with its dictum, and we cite the dictum only for the proposition that reasonable minds may differ as to the meaning of "subject to." We must look to further tools of statutory construction to resolve the ambiguity.

Legislative history. When the meaning of...