People v. Lee CA2/5 ( 2014 )

Filed 10/10/14 P. v. Lee CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B252810
Plaintiff and Respondent, (Los Angeles County Super. Ct.
No. BA404953)
v.
CLIFTON LEE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Clifford
Klein, Judge. Affirmed.
Evan Charles Greenberg, under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Lance E. Winters, Senior Assistant Attorney
General, Margaret E. Maxwell, Supervising Deputy Attorney General, and Corey J.
Robins, Deputy Attorney General, for Plaintiff and Respondent.
_____________________
Defendant Clifton Lee appeals from a restitution order entered after he was
convicted of assault (Pen. Code, § 240).1 The trial court ordered defendant to pay
$1,271.46 in restitution to reimburse the Victim Compensation and Government Claims
Board (Board). Defendant contends the court erred in ordering restitution without
requiring documentation proving the amount owed as mandated by statute (§ 1202.4,
subd. (f)(4)(B)). Defendant further contends the matter must be remanded for a new
restitution hearing because the court erroneously believed that it lacked discretion to
award a reduced amount of restitution. We affirm.
FACTS AND PROCEDURAL HISTORY
After the jury rendered its verdict, the trial court sentenced defendant and set a
restitution hearing for November 13, 2013. Defendant said he wanted to be present at the
hearing.
At the first scheduled restitution hearing, the court found that while defendant said
he wanted to be present, he did not appear for the restitution hearing. His attorney said
she did not have a phone number for defendant, and was not able to reach him. The court
stated it would not issue a bench warrant since defendant had served his time on the case,
and it was his choice whether to be present.2 The matter was continued.
At the next hearing, defendant still was not present. His attorney said she
“guess[ed] [defendant] didn’t really want to be here.” The prosecutor asked for more
time to get a “medical statement” from the victim. The matter was again continued
twice.
1 All further statutory references are to the Penal Code, unless otherwise stated.
2
Defendant was sentenced to six months in jail with credit for more than six
months already served, therefore, the court ordered defendant’s immediate release. The
clerk’s transcript erroneously records the sentence as 60 days with credit for 60 days,
instead of the correct term of six months.
2
On February 5, 2014, at the dispositive restitution hearing, the prosecutor
explained that no money was owed directly to the victim because the Board had paid the
“initial medical bills” of $1,271.46.3 The court found that while defendant had not
waived his right to be present, defense counsel had notified him about the hearings by
mail, and there had been no contact with defendant. Defense counsel objected to an
award to the Board on the ground that the Board “is funded through the victim restitution
fine and fees that are assessed on criminal defendants,” and here, such a fee was already
assessed on defendant. Moreover, the victim had already been compensated. The court
stated, “I think I have to order this amount to be paid,” and ordered that defendant pay
$1,271.46 because the “Board is entitled to restitution based on the amount they already
paid to the victim.”
DISCUSSION
Defendant contends the trial court erred in ordering restitution to be paid to the
Board without requiring documentation of the amount due. He points to section 1202.4,
subdivision (f)(4)(B), which states: “The amount of assistance provided by the
Restitution Fund shall be established by copies of bills submitted to the California Victim
Compensation and Government Claims Board reflecting the amount paid by the board
and whether the services for which payment was made were for medical or dental
expenses, funeral or burial expenses, mental health counseling, wage or support losses, or
rehabilitation. Certified copies of these bills provided by the board and redacted to
protect the privacy and safety of the victim or any legal privilege, together with a
statement made under penalty of perjury by the custodian of records that those bills were
submitted to and were paid by the board, shall be sufficient to meet this requirement.”
Defendant asserts that the trial court erred by relying on the prosecutor’s oral
3 The prosecutor “found out through our restitution paralegal from our office that
the Victim Compensation and Government Claims Board paid the initial medical bills on
behalf of [the victim] in the amount of $1,271.46.”
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representation that $1,271.46 was paid to the victim, in the absence of documentary
evidence supporting that conclusion.
The Attorney General asserts defendant forfeited his right to challenge the lack of
documentary evidence because defendant failed to object on that basis at the restitution
hearing. “‘Ordinarily, a criminal defendant who does not challenge an assertedly
erroneous [sentencing] ruling of the trial court in that court has forfeited his or her right
to raise the claim on appeal.’ [Citation.] ‘“The purpose of this rule is to encourage
parties to bring errors to the attention of the trial court, so that they may be corrected.
[Citation.]”’ [Citation.]” (People v. McCullough (2013) 56 Cal.4th 589, 593.) The
forfeiture rule is quite broad and has even been applied in cases where the defendant’s
sentencing claim is couched in terms of a sufficiency-of-the-evidence argument. (Id. at
pp. 593, 597 [by failing to raise issue in trial court, the defendant forfeited claim there
was insufficient evidence he had the ability to pay booking fee].) This court will not
reverse erroneous rulings that could have been, but were not, challenged below.
(Imperial Bank v. Pim Electric, Inc. (1995) 33 Cal.App.4th 540, 546.)
Defendant maintains that his claim is reviewable on appeal notwithstanding his
failure to object, because the restitution award was unauthorized by statute. (See People
v. Brasure (2008) 42 Cal.4th 1037, 1075.) There is “a narrow exception to the
[forfeiture] rule for ‘“unauthorized sentences” or sentences entered in “excess of
jurisdiction.”’ [Citation.] Because these sentences ‘could not lawfully be imposed under
any circumstance in the particular case’ [citation], they are reviewable ‘regardless of
whether an objection or argument was raised in the trial and/or reviewing court.’
[Citation.]” (People v. Smith (2001) 24 Cal.4th 849, 852.) Appellate intervention has
been deemed “appropriate in these cases because the errors presented ‘pure questions of
law’ [citation], and were ‘“clear and correctable” independent of any factual issues
presented by the record at sentencing.’ [Citation.] In other words, obvious legal errors at
sentencing that are correctable without referring to factual findings in the record or
remanding for further findings are not [forfeited].” (Ibid.)
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Defendant cannot escape the consequences of failure to object by characterizing
the award as unauthorized by statute, rather than unwarranted by the evidence. (People v.
Brasure, supra, 42 Cal.4th at p. 1075.) Defendant does not claim that the trial court
lacked authority to issue a restitution order or question the amount claimed by the Board;
he instead contends that copies of bills submitted to the Board were not produced at the
restitution hearing. We find this merely an evidentiary failure and because defendant
failed to object below, his claim is forfeited. Claims deemed forfeited on appeal involve
sentences which, though otherwise permitted by law, were imposed in a procedurally or
factually flawed manner. (People v Scott (1994) 9 Cal.4th 331, 354; see People v. Smith,
supra, 24 Cal.4th at p. 852.) The restitution order was otherwise within the court’s
statutory authority (see generally § 1202.4) and an objection for failure to provide copies
of bills was required to preserve defendant’s claim for appellate review.
Defendant lastly contends the trial court erroneously believed it lacked discretion
to award a reduced amount of restitution. A trial court has no discretion over the
issuance of the award itself (People v. Rowland (1997) 51 Cal.App.4th 1745, 1751-1752)
and “really very little discretion” over the amount of the award (id. at p. 1754). “The
statute requires the award be set in an amount which will fully reimburse the victim for
his losses unless there are clear and compelling reasons not to do so.” (Id. at p. 1754.) A
court’s reasons for awarding less than full restitution must be stated on the record. (§
1202.4, subd. (f).) Remand for resentencing is not required if the record demonstrates the
trial court was aware of its sentencing discretion. (People v. Belmonte (1983) 34 Cal.3d
335, 348, fn. 8; People v. White Eagle (1996) 48 Cal.App.4th 1511, 1523.) Further,
remand is unnecessary if the record is silent concerning whether the trial court
misunderstood its sentencing discretion. Error may not be presumed from a silent record.
(People v. White Eagle, supra, at p. 1523.) “‘[A] trial court is presumed to have been
aware of and followed the applicable law.’ [Citations.]” (People v. Martinez (1998) 65
Cal.App.4th 1511, 1517.)
In this case, the victim’s initial medical bills amounted to $1,271.46 and absent a
clear and compelling reason to reduce the amount, the court was required to impose it. In
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the trial court and now on appeal, defendant failed to identify any compelling and
extraordinary reasons for a reduced award. (People v. Rowland, supra, 51 Cal.App.4th at
p. 1754.) The court properly noted the Board was entitled to reimbursement for the
amount already paid to the victim, which is presumed to be a direct result of the
defendant’s criminal conduct. (§ 1202.4, subd. (f)(4)(A).) The court is not required by
section 1202.4 to explain an award which will fully reimburse the victim for his losses,
only if the award is reduced.
DISPOSITION
The restitution order is affirmed.
KRIEGLER, J.
We concur:
TURNER, P. J.
MOSK, J.
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