P. v. Brown CA2/3

Filed 5/16/13 P. v. Brown CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B242565
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA078159)
v.
BALEEGH JIHAD BROWN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Eric C. Taylor, Judge. Affirmed.
Cheryl Lutz, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr. and
Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
Baleegh Jihad Brown appeals the judgment entered following his plea of no
contest to three counts of robbery in which a principal used a firearm, assault with a
semiautomatic firearm in which he personally used a firearm and two counts of attempted
robbery in which he personally used a firearm. (Pen. Code, §§ 211, 12022.53, subd. (b),
245, subd. (b), 664/211, 12022.5, subd. (a).)1 Brown also admitted a prior serious or
violent felony conviction within the meaning of the Three Strikes law. (§§ 667, subds
(a)-(i), 1170.12 (a)-(d).) Pursuant to a plea bargain, Brown was sentenced to 34 years in
state prison and was ordered to pay, inter alia, a $240 restitution fine pursuant to section
1202.4, subdivision (b), and a $240 parole revocation fine pursuant to section 1202.45.2
Brown contends the restitution fine and the parole revocation fine must be reduced
to $200 because the record indicates the trial court intended to impose the minimum fine
and $200 was the minimum fine at the time of Brown’s offenses. We conclude Brown
forfeited this claim by failing to raise the issue in the trial court and affirm the judgment.
FACTS AND PROCEDURAL BACKGROUND
Brown waived a preliminary hearing. The report of the probation officer indicates
Brown was involved in two incidents of armed robbery. On June 4, 2009, four men
entered a pawnshop in Hawthorne, pointed guns at store employees, took jewelry valued
at more than $200,000 from display cases and fled in two cars. Five days later, three men
attempted to commit an armed robbery at a pawnshop in Long Beach. During the
incident, Robert Howes shot one of the would-be robbers in the thigh. In response, one
of the robbers fired four shots, one of which struck Howes in the face. Analysis of blood
found outside the Long Beach location matched Brown’s DNA. Also, a photograph of
Brown appeared to match photographs taken by security cameras in both robberies.
1
Subsequent unspecified statutory references are to the Penal Code.
2
If a sentence includes a period of parole, section 1202.45 requires the trial court to
impose a probation revocation fine in the same amount as the restitution fine imposed
under section 1202.4.
2
In photographic lineups, two witnesses identified Brown as a participant in the
Hawthorne robbery.
Before Brown pleaded no contest as indicated above, the prosecutor advised him,
“The court will also order you to pay a mandatory restitution fine ranging anywhere from
$200 to $10,000.” The matter was continued for sentencing. At the sentencing hearing,
the trial court imposed the negotiated term of 34 years in state prison, calculated
Brown’s custody credits and stated, “There’s a $240 restitution fine payable in all felony
cases . . . .” The trial court thereafter imposed a restitution fine and a parole revocation
fine in the amount of $240. Brown did not object to the amount of either fine. He now
contends both fines must be reduced to $200.
DISCUSSION
Brown’s argument proceeds from the premise a restitution fine is a criminal
penalty which is governed by ex post facto principles. (People v. Saelee (1995)
35 Cal.App.4th 27, 30.) Brown contends the trial court intended to impose the statutory
minimum restitution fine. Thus, the amount of the restitution fine should have been
$200, which was the minimum fine when Brown committed his crimes in 2009.
(See Stats. 2008, ch. 468, § 1.) However, the trial court imposed a fine of $240 under the
law in effect in 2012 when Brown was sentenced. (§ 1202.4, subd. (b)(1).) Brown
requests modification of the judgment and remand with directions to amend the abstract
of judgment. (People v. Saelee, supra, at pp. 30-31.)
However, Brown did not object when the court imposed the restitution fine or
advise the trial court the minimum amount of the restitution fine was $200 when the
crimes were committed. As a result, Brown forfeited this claim by failing to raise it in
the trial court. “[C]omplaints about the manner in which the trial court exercises its
sentencing discretion and articulates its supporting reasons cannot be raised for the first
time on appeal.” (People v. Scott (1994) 9 Cal.4th 331, 356.) The rule applies to the
imposition of restitution fines. (People v. Bradley (2012) 208 Cal.App.4th 64, 90
[defendant failed to object to imposition of a restitution fine of $8,523.37]; People v. Le
(1995) 39 Cal.App.4th 1518, 1523[claim an $800 restitution fine was imposed without
3
first considering the defendant’s ability to pay forfeited]; People v. Gibson (1994)
27 Cal.App.4th 1466, 1468-1469.)
Brown argues the forfeiture rule does not apply because the trial court failed
to exercise it discretion, resulting in a illegal sentence as to which no objection was
required. (In re Sean W. (2005) 127 Cal.App.4th 1177, 1181.) He claims that, had the
trial court been aware the minimum fine was $200, it is likely a fine in that amount would
have been imposed.
We are not persuaded. Brown’s plea bargain did not contemplate imposition of
the minimum fine. Indeed, the prosecutor advised Brown the trial court would impose a
restitution fine in an amount between $200 and $10,000. Brown’s argument the trial
court intended to impose the minimum possible fine is based on the trial court’s
statement, “There’s a $240 restitution fine payable in all felony cases . . . .” However,
the trial court, in the exercise of its sentencing discretion, reasonably could impose a
restitution fine in the amount of the current minimum rather than the minimum at the
time of the offenses. Given the nature of Brown’s crimes, the monetary loss involved
and the physical harm visited on Howes, who was shot in the face in the attempted
robbery, the $240 fine was well within the trial court’s discretion. (See, § 1202.4,
subd. (d).)
In sum, Brown’s claim of error fails.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KLEIN, P. J.
We concur:
KITCHING, J. ALDRICH, J.
4