People v. Romero

• Decision Date: 08 May 1985
• Citation: 213 Cal.Rptr. 774,167 Cal.App.3d 1148
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Consuelo Gomez ROMERO, Defendant and Appellant. Crim. F004289.

Page 774

213 Cal.Rptr. 774

167 Cal.App.3d 1148

The PEOPLE, Plaintiff and Respondent, v. Consuelo Gomez ROMERO, Defendant and Appellant.

Crim. F004289.

Court of Appeal, Fifth District, California.

May 8, 1985.

[167 Cal.App.3d 1149] Mark D. Greenberg, Berkeley, under appointment by the Court of Appeal, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Joel Carey and Esteban Hernandez, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

WOOLPERT, Acting Presiding Justice.

Sixty years ago "Mrs. Floyd Magoni" was convicted of two sales of jackass brandy. She was sentenced to serve jail time and fined $2,000. She appealed, claiming the fine to be excessive. The trial court gave no reason for the fine which was the maximum amount allowed by law. (People v. Magoni (1925) 73 Cal.App. 78, 238 P. 112.) The appellate court affirmed, concluding the fine imposed in the superior court was not disproportionate to the offense, was not shocking to public sentiment and in the judgment of reasonable people, would be right and proper under the circumstances. This conclusion was based on a bit of evidence which the court summarized:

"A witness for the prosecution testified: 'Accompanied by Haacke we visited defendant's residence and had several drinks of jackass brandy served by the defendant and for which Haacke paid fifty cents per drink. Mr. Haacke asked the defendant for a pint bottle of jackass. Defendant stated that she had to be awful careful. Afterwards Mrs. Magoni brought in a pint bottle for which Haacke paid three dollars. A pint bottle of jackass, for which Haacke paid three dollars.... He proceeded to put it in his bib overalls, when Mrs. Magoni said, "Don't put it there, if they catch you they will see it." Mr. Haacke handed the bottle back to Mrs. Magoni and she wrapped it up in a paper sack. She says, "If you meet anybody in the road, ... dash it to the ground and break it." ' The trial court, in fixing the amount of punishment, may have inferred from this evidence that the defendant was not a novice in the unlawful sale of liquors." (Id., at p. 81, 238 P. 112.)

In our case, defendant has been fined $250 in addition to her prison sentence. This is a new restitution fine which applies to all felony convictions. Under certain circumstances the fine may be waived; it may be as high as $10,000. Here, as in the case of Mrs. Magoni, the judge did not give reasons for selecting the particular fine. Because of the determinate sentencing law, counsel urges we should strike the fine or remand the case for a statement of reasons. We do neither. Instead, although concluding the fine has the appearance of a "sentence choice," we hold that the determinate sentencing rules applicable to the superior court do not require a formal statement of reasons when fines are imposed. As in the municipal court, the test on appeal is the traditional one requiring the fine to be supported by the record. We do suggest reasons should be given to make appellate review more meaningful.

One afternoon in 1984 defendant and a friend were arrested as shoplifting suspects. Nine packages of sheets worth about $280 were recovered. Initially defendant was charged with burglary, receipt of stolen property, use of heroin and possession of paraphernalia. Subsequently, a plea bargain was struck; in exchange for defendant pleading guilty to receiving stolen property (Pen.Code, § 496), all other counts against her were dismissed.

At the sentencing hearing defendant's counsel urged the court to impose the mitigated prison term. Probation was not suggested. Noting defendant was on parole when the current offense was committed, the court imposed the middle term of two years in prison. In addition, the court ordered defendant to pay a restitution fine of $250, payable upon release at the rate of $25 per month.

On this appeal defendant challenges the court's failure to give reasons for the fine. Counsel also cites the court's failure to give reasons for rejecting probation.

REASONS FOR REJECTING PROBATION

No one expected probation to be granted in this case in light of defendant's lengthy criminal history. As a result, defense counsel appears to have made the reasonable tactical choice not to request probation and to ask for his client to receive the mitigated term instead. Nevertheless, the court erred by failing to state any reasons for denying probation.

The sentencing rules for superior courts require the court to state in simple language the primary factors which support the exercise of its discretion in denying probation and sentencing the defendant to state prison. (Rules 439(d) and 443 of the Cal. Rules of Court; Pen.Code, § 1170, subd. (c); People v. Mobley (1983) 139 Cal.App.3d 320, 324, 188 Cal.Rptr. 583; People v. Arceo (1979) 95 Cal.App.3d 117, 121, 157 Cal.Rptr. 10.) Here, the court made no such statement whatsoever. The fact the entire sentencing attention was focused on the length of the prison term did not excuse a brief recital of reasons for denying probation.

Still, in this instance the sentencing error does not require a remand for resentencing. The probation report section subheaded "Criteria Affecting Probation" noted two criteria which weighed in favor of a grant of probation:

(1) The nature, seriousness and circumstances of the underlying offense justify the consideration of a grant of probation (Rule 414(c)(1) of the Cal. Rules of Court.); and

(2) Defendant has family ties to the area. (Rule 414(d)(4).)

Three criteria weighed against probation:

(1) Defendant's criminal history indicates a pattern of regular criminal conduct ¹ (Rule 414(d)(1).);

(2) Defendant's prior performances on probation and parole have been less than satisfactory and she was on parole at the time of the commission of the present offense (Rule 414(d)(2).); and

(3) Defendant's parole officer indicated defendant may have been abusing narcotics at that time. (Rule 414(d)(6).)

Weighing all the criteria together, it is clear defendant would not be placed on probation if this case were remanded for resentencing due to her extensive criminal history and the fact that she was on parole at the time she committed the current offense. Consequently, a remand for resentencing on this issue would not benefit defendant. (See People v. Lambeth (1980) 112 Cal.App.3d 495, 501, 169 Cal.Rptr. 193.)

REASONS FOR IMPOSING THE RESTITUTION FINE

This novel issue concerns whether the superior court must state reasons for selecting a particular fine. Defendant's argument is a simple one. Although the law limits the court's discretion in terms of a minimum and a maximum fine, the court's discretion to impose a fine within that range constitutes a sentence choice for which reasons must be stated. Specifically, defendant argues that any fine over the $100 minimum mandatory amount, required for any felony by Government Code section 13967, ² constitutes a "sentence choice" for which reasons must be stated, within the meaning of Penal Code section 1170, subdivision (c).

Some support for defendant's position can be found in the general provisions which govern statement of reasons under the determinate sentencing law. The sentencing judge in the superior court is obliged by Penal Code section 1170, subdivision (c), to state reasons on the record for any "sentence choice." "Sentence choice" is defined in rule 405(f) of the California Rules of Court to mean "the selection of any disposition of the case which does not amount to a dismissal, acquittal, or grant of a new trial." Since the imposition of a restitution fine under Government Code section 13967 is neither a dismissal, acquittal, nor a grant of a new trial, it may be a sentencing choice within the meaning of rule 405(f).

Furthermore, the decision whether to impose a fine in excess of the $100 minimum amount is obviously left to the discretion of the court under Government Code section 13967. The code section provides that the court shall impose a fine "of not less than one hundred dollars ($100) and not more than ten thousand dollars ($10,000)." The code section then supplies a partial list of factors which the sentencing court should consider when deciding the amount of a restitution fine. These factors include "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."

Common sense suggests that where, as here, a court has been given broad discretion to decide whether to impose a fine in excess of a specified minimum amount, and where the court exercises that discretion to impose a fine in excess of the mandatory minimum amount, the court has made a sentencing choice, within the meaning of Penal Code section 1170, subdivision (c).

In addition, at least one public policy would be served by requiring a statement of reasons for fines in excess of the prescribed minimum amount. The legislative purpose in requiring superior courts to state reasons for sentencing choices is to permit meaningful appellate review. (People v. Lock (1981) 30 Cal.3d 454, 459, 179 Cal.Rptr. 56, 637 P.2d 292.) Mandating superior courts to recite the reasons for imposing fines in excess of the statutory minimum, likewise, could provide appellate courts with a meaningful basis upon which to review potentially abusive fines.

Nevertheless, the historical background surrounding the enactment of the determinate sentencing law suggests its original provisions requiring stated reasons did not apply to the imposition of fines. Before determinate sentencing, wide range penal terms were made certain by the parole decision of the Adult Authority, subject to habeas corpus review by the courts. Determinate sentencing returned the decisions about the length of incarceration to the superior courts, within ranges set by the Legislature. Instead of the habeas...