Opinion
F071002
02-15-2017
THE PEOPLE, Plaintiff and Appellant, v. AELAM KHENSANPHANH, Defendant and Respondent.
Birgit Fladager, District Attorney, and Brenda Cramton, Deputy District Attorney, for Plaintiff and Appellant. Diane Nichols, under appointment by the Court of Appeal, for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 1480886)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Stanislaus County. Thomas D. Zeff, Judge. Birgit Fladager, District Attorney, and Brenda Cramton, Deputy District Attorney, for Plaintiff and Appellant. Diane Nichols, under appointment by the Court of Appeal, for Defendant and Respondent.
Before Levy, Acting P.J., Gomes, J. and Detjen, J.
-ooOoo-
The People appeal from the denial of their motion for an award of victim restitution. We affirm.
PROCEDURAL HISTORY
By previous order, we have taken judicial notice of the record in People v. Khensanphanh, case No. F021521.
On the evening of March 12, 1993, 17-year-old Terry Beech was shot in the head, apparently during a gang-related conflict over graffiti. Beech died three days later.
On January 31, 1994, a jury convicted Aelam Khensanphanh (defendant) of first degree murder involving the personal use of a firearm (Pen. Code, §§ 187, 12022.5; count I) and conspiracy to commit assault by means of force likely to produce great bodily injury, attempted murder, and murder (§ 182; count II). On March 8, 1994, defendant was sentenced to a total unstayed term of four years plus 25 years to life in prison. Consistent with the recommendation of the probation officer, the trial court imposed a $200 restitution fine pursuant to former Government Code section 13967. The probation officer did not recommend, and the trial court did not impose, victim restitution. Beech's mother, Christine Warren, was notified by mail of the sentencing hearing pursuant to the provisions of section 1191.1. Warren addressed the court at sentencing, but neither she nor the prosecutor said anything about funeral/burial expenses or restitution.
All statutory references are to the Penal Code unless otherwise stated.
At the time of sentencing, section 1191.1 provided, in pertinent part: "The victim of any crime, or the parents . . . of the victim if the victim is a minor, or the next of kin of the victim if the victim has died, have the right to attend all sentencing proceedings . . . and shall be given adequate notice by the probation officer of all sentencing proceedings concerning the person who committed the crime. [¶] The victim, or . . . the victim's parents . . . if the victim is a minor, or the next of kin of the victim if the victim has died, have the right to appear, personally or by counsel, at the sentencing proceeding and to reasonably express his, her, or their views concerning the crime, the person responsible, and the need for restitution. The court in imposing sentence shall consider the statements of victims, parents . . . , and next of kin made pursuant to this section . . . ." (Italics added.)
The issue of restitution was first addressed during a conversation Warren had with a deputy district attorney at a parole hearing for defendant in early 2014. On June 6, 2014, the People filed a motion requesting restitution for funeral/burial expenses, payable to Warren. The People asserted Warren had incurred such expenses in the amount of $4,365.13, of which $3,500 was paid by the California Victim Compensation and Government Claims Board (the Board), and they asked the court to amend the sentencing order to include restitution and to modify defendant's court-ordered financial obligations to include $865.13 payable to Warren. The People argued victim restitution was constitutionally mandated under article I, section 28, subdivision (b) of the California Constitution, and that pursuant to section 1202.46, the court retained jurisdiction for purposes of imposing or modifying restitution until such time as the losses were determined. The People also argued a sentence that was invalid because restitution was not ordered could be corrected at any time, and such correction could be requested by a prosecutor or victim.
Because of the age of the case, the Board was unable to provide documentation to substantiate the amount it paid. Accordingly, repayment of that amount was not requested.
In their supplemental points and authorities, the People represented that at the time defendant was sentenced, the trial court could not make a restitution determination because it did not have the expense information regarding the funeral/burial expenses paid by Warren.
Defendant opposed the motion. He argued section 1202.46 was not enacted until 1999 and was not retroactive; accordingly, pursuant to section 1170, former subdivision (d) (now subd. (d)(1)), the trial court retained jurisdiction to modify the judgment for 120 days after sentencing. Since the 120 days had expired, the judgment could not be modified.
The motion was heard December 16, 2014. After argument, the trial court determined it lacked jurisdiction to award the requested restitution, since section 1202.46 contained no language reflecting an intent to restore jurisdiction in those cases in which the 120-day limitation period of section 1170, former subdivision (d) had expired. Accordingly, the court denied the motion.
DISCUSSION
I. THE ORDER IS APPEALABLE BY THE PEOPLE.
The People filed a timely notice of appeal from the trial court's ruling, in which they stated they were appealing pursuant to section 1238, subdivision (a)(10). Defendant contends no appeal lies under that provision and there is no other statutory authorization for the appeal; hence, the appeal must be dismissed.
"The prosecution's right to appeal in a criminal case is strictly limited by statute. [Citation.]" (People v. Chacon (2007) 40 Cal.4th 558, 564.) "The circumstances allowing a People's appeal are enumerated in section 1238." (Ibid.) " '[T]he courts are precluded from so interpreting section 1238 as to expand the People's right of appeal into areas other than those clearly specified by the Legislature.' [Citation.]" (People v. Benavides (2002) 99 Cal.App.4th 100, 103-104, fn. omitted.) We are required to "adhere[] to these limits even though . . . 'the People may thereby suffer a wrong without a remedy.' [Citation.]" (People v. Chacon, supra, 40 Cal.4th at p. 564.)
Section 1238, subdivision (a)(10) permits the People to appeal from "[t]he imposition of an unlawful sentence . . . . As used in this paragraph, 'unlawful sentence' means the imposition of a sentence not authorized by law . . . ." "[A] sentence is generally 'unauthorized' where it could not lawfully be imposed under any circumstance in the particular case." (People v. Scott (1994) 9 Cal.4th 331, 354.) "Where a sentence is unauthorized, the People are permitted to challenge it either by way of their own appeal (§ 1238, subd. (a)(10)), or on a defendant's appeal. This is so because such a sentence is subject to judicial correction whenever the error comes to the attention of the trial court or a reviewing court. [Citations.]" (People v. Johnwell (2004) 121 Cal.App.4th 1267, 1284, italics omitted.)
Assuming defendant's sentence was unauthorized to the extent it lacked a victim restitution order, the order from which the People purport to appeal did not impose that sentence. Sentence was imposed in 1994. The People neither appealed from that sentence nor did they raise the restitution issue on defendant's appeal. It is now too late. With exceptions not applicable here, "a notice of appeal . . . must be filed within 60 days after the rendition of the judgment or the making of the order being appealed." (Cal. Rules of Court, rule 8.308(a).) " '[T]he filing of a timely notice of appeal is a jurisdictional prerequisite. "Unless the notice is actually or constructively filed within the appropriate filing period, an appellate court is without jurisdiction to determine the merits of the appeal and must dismiss the appeal." [Citations.]' [Citation.]" (People v. Denham (2014) 222 Cal.App.4th 1210, 1213.)
The People assert no statutory authorization for their appeal aside from section 1238, subdivision (a)(10), which does not apply. Although they do not rely on subdivision (a)(5) of that statute, defendant addresses it in an attempt to establish the nonexistence of any other authorization for the appeal. Section 1238, subdivision (a)(5) permits the People to appeal from "[a]n order made after judgment, affecting the substantial rights of the people."
Had defendant not done so, we would have requested supplemental briefing on the issue.
"An 'order after judgment' within the meaning of section 1238 is an order which is rendered after the imposition of sentence. [Citations.]" (People v. Ibanez (1999) 76 Cal.App.4th 537, 543.) As defendant recognizes, the order at issue here clearly qualifies. The more difficult question is whether it affected the People's substantial rights. We conclude it does, and is therefore appealable.
"[I]n order to affect the People's substantial rights an order 'must in some way affect the judgment or its enforcement or hamper the further prosecution of the particular proceeding in which it is made. [Citations.]' [Citation.]" (People v. McGuire (1993) 14 Cal.App.4th 687, 701, fn. omitted.) It is not enough for the order merely to relate to a collateral matter. (People v. Leonard (2002) 97 Cal.App.4th 1297, 1300.)
"The People have a substantial interest in ensuring the enforcement of victim restitution obligations, mandated both by the California Constitution and by statute." (People v. Hamilton (2003) 114 Cal.App.4th 932, 938; see Cal. Const., art. I, § 28, former subd. (b), now subd. (b)(13).) "Restitution orders have as their goal economic compensation for the victim or victims of a defendant's crime, rehabilitation of the defendant, and the deterrence of the defendant and others from committing future offenses. [Citation.]" (People v. Dehle (2008) 166 Cal.App.4th 1380, 1386.) In light of "the state's interest in ensuring the constitutional right to victim restitution is properly enforced [citation]" (People v. Petronella (2013) 218 Cal.App.4th 945, 968) and the fact restitution's purposes of rehabilitation and deterrence directly implicate the protection of public safety (cf. People v. VonWahlde (2016) 3 Cal.App.5th 1187, 1195), the omission of a victim restitution order affects the People's substantial rights. II. THE TRIAL COURT PROPERLY DENIED THE MOTION FOR RESTITUTION.
Although defendant contends the trial court lacked jurisdiction to order restitution, he does not claim the trial court lacked jurisdiction to hear the People's motion. (See People v. Mendez (2012) 209 Cal.App.4th 32, 34, fn. 1 [where trial court did not have jurisdiction to hear motion, order denying motion did not affect substantial rights of moving party and so was not appealable].)
Generally speaking, a sentence imposed without an award of victim restitution is invalid. (People v. Bernal (2002) 101 Cal.App.4th 155, 165.) " '[W]hen the trial court pronounces a sentence which is unauthorized . . . that sentence must be vacated and a proper sentence imposed whenever the mistake is appropriately brought to the attention of the trial court or the reviewing court.' This rule also applies to sentences which are unauthorized because of an error in the matter of restitution. [Citation.]" (People v. Rivera (1989) 212 Cal.App.3d 1153, 1163-1164; accord, People v. Turrin (2009) 176 Cal.App.4th 1200, 1205; see generally People v. Serrato (1973) 9 Cal.3d 753, 764, disapproved on another ground in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1.)
The People fail to convince us defendant's sentence was unauthorized when imposed, and we are cited to no authority for the proposition a sentence lawful when imposed can become unlawful or unauthorized based on subsequently presented information. (Cf. People v. Welch (1999) 20 Cal.4th 701, 739 [appellate court reviews correctness of trial court's ruling at time it was made, not by reference to evidence produced at later date].)
At the time defendant was sentenced, article I, section 28, subdivision (b) of the California Constitution provided: "It 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 restitution from the persons convicted of the crimes for losses they suffer. [¶] Restitution shall be ordered from the convicted persons in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss, unless compelling and extraordinary reasons exist to the contrary. The Legislature shall adopt provisions to implement this section during the calendar year following adoption of this section." The provision was enacted on June 8, 1982.
Because this initiative measure was not self-executing, the Legislature enacted implementing legislation. (People v. Waters (2015) 241 Cal.App.4th 822, 826; see People v. Broussard (1993) 5 Cal.4th 1067, 1068-1069.) In pertinent part, the Legislature amended former Government Code section 13967. (People v. Broussard, supra, at p. 1073.) At the time defendant was sentenced, subdivision (a) of that statute required trial courts to impose a restitution fine on any person convicted of a felony. Subdivision (c) of former Government Code section 13967 provided: "In cases in which a victim has suffered economic loss as a result of the defendant's criminal conduct, and the defendant is denied probation, in lieu of imposing all or a portion of the restitution fine, the court shall order restitution to be paid to the victim. . . . Notwithstanding subdivision (a), restitution shall be imposed in the amount of the losses, as determined. The court shall order full restitution unless it finds clear and compelling reasons for not doing so, and states them on the record. A restitution order imposed pursuant to this subdivision shall identify the losses to which it pertains . . . . [¶] Restitution ordered pursuant to this subdivision shall, to the extent possible, be of a dollar amount that is sufficient to fully reimburse the victim . . . for all determined economic losses incurred as the result of the defendant's criminal conduct. . . ." (Amended by Stats. 1992, ch. 682, § 4, effective Sept. 12, 1992, italics added.) Section 1202.4 was also added to the Penal Code. At the time defendant was sentenced, subdivision (a) thereof mandated imposition of a restitution fine, as provided in former Government Code section 13967, subdivision (a), in any case in which a defendant was convicted of a felony. Pursuant to subdivision (b) of section 1202.4, if the defendant was ordered to pay restitution as a condition of probation, the order to pay the restitution fine could be stayed pending the successful completion of probation. (§ 1202.4, former subds. (a), (b), as amended by Stats. 1990, ch. 45, § 4.)
At defendant's sentencing hearing, there was no information before the trial court indicating a victim had suffered economic loss as a result of defendant's criminal conduct. Accordingly, the trial court properly imposed a $200 restitution fine, pursuant to subdivision (a) of former Government Code section 13967, but did not order victim restitution.
" '[G]enerally a trial court lacks jurisdiction to resentence a criminal defendant after execution of sentence has begun. [Citation.]' [Citations.]" (People v. Turrin, supra, 176 Cal.App.4th at p. 1204.) When defendant was sentenced, one of the few exceptions could be found in section 1170, subdivision (d), which (insofar as is pertinent here) allowed a court to recall a sentence within 120 days of the date of commitment and resentence the defendant. (See Dix v. Superior Court (1991) 53 Cal.3d 442, 455.) At the time of the People's request for an order of restitution, the trial court's jurisdiction to make such an order had expired. (See People v. Turrin, supra, 176 Cal.App.4th at pp. 1205-1206.)
We recognize section 1202.4, subdivision (f) provides that "[i]f the amount of [the victim's economic] loss cannot be ascertained at the time of sentencing, the restitution order shall include a provision that the amount shall be determined at the discretion of the court." While this provision places "no limitation upon when the court must next set a restitution hearing" if the court cannot determine the amount of restitution at sentencing (People v. Bufford (2007) 146 Cal.App.4th 966, 971), it was added by Statutes 1996, chapter 629, section 3, and did not exist when defendant was sentenced. Similarly, section 1202.46 provides: "Notwithstanding Section 1170, when the economic losses of a victim cannot be ascertained at the time of sentencing pursuant to subdivision (f) of Section 1202.4, the court shall retain jurisdiction over a person subject to a restitution order for the purposes of imposing or modifying restitution until such time as the losses may be determined. This section does not prohibit a victim, the district attorney, or a court on its own motion from requesting correction, at any time, of a sentence when the sentence is invalid due to the omission of a restitution order or fine pursuant to Section 1202.4." (Italics added.) This statute was enacted pursuant to Statutes 1999, chapter 888, section 3, however, and did not go into effect until January 1, 2000. (People v. Moreno (2003) 108 Cal.App.4th 1, 10.)
Section 1202.46 was amended by Statutes 2016, chapter 37, section 4, effective January 1, 2017, in a manner that does not affect our analysis.
Contrary to their argument at the hearing on the motion, the People concede on appeal that section 1202.46 is not retroactive. We agree. (See § 3.) Even if the second portion of the statute arguably could be viewed as a clear implication the Legislature intended retroactive application (see People v. Alford (2007) 42 Cal.4th 749, 753-754), it would not apply here because, as we have explained, defendant's sentence was not invalid when imposed.
We have not been cited to, nor has our own research disclosed, any authority allowing the trial court to issue the belated restitution order requested by the People under circumstances akin to those in this case. For instance, in People v. Rowland (1988) 206 Cal.App.3d 119, 126, the Court of Appeal held that failure to impose a restitution fine pursuant to subdivision (a) of former Government Code section 13967 constituted an unauthorized sentence that was subject to correction at any time. In the present case, the trial court imposed the requisite restitution fine. Rowland does not address the issue whether omission of victim restitution renders a sentence unauthorized and subject to correction at any time when, as here, there was no information before the trial court indicating a victim had suffered economic loss as a result of a defendant's criminal conduct. "Cases are not authority for propositions not there considered. [Citations.]" (People v. Darnell (1990) 224 Cal.App.3d 806, 811.)
In People v. Valdez (1994) 24 Cal.App.4th 1194, this court rejected a claim victim restitution was not mandatory under former Government Code section 13967, subdivision (c), so that a trial court had discretion to impose a restitution fine in lieu of direct restitution. (People v. Valdez, supra, at p. 1201.) We stated: "[I]f there is a victim and that victim has suffered economic loss as a result of the defendant's conduct, the court must order restitution to be paid to the victim." (Id. at p. 1202.) Unlike the present case, however, the trial court in Valdez had before it evidence of economic loss. (Id. at p. 1198.)
In People v. Guardado (1995) 40 Cal.App.4th 757, which was decided under the same statutes as were in effect when defendant was sentenced, the trial court ordered restitution to the victim " 'in an amount for any uninsured hospital, counseling, medical expenses that the victim would suffer.' " (Id. at p. 762.) The Court of Appeal found the order not enforceable, since former Government Code section 13967, subdivision (c) required victim restitution to be imposed in the amount of losses, as determined. However, the court read the order as properly reserving jurisdiction as to the amount of restitution. (People v. Guardado, supra, at pp. 762-763.) Assuming Guardado correctly held a trial court had the power to reserve jurisdiction without any explicit statutory authority therefor, the trial court in the present case made no order that could be construed as a reservation of jurisdiction. We do not read Guardado as holding a trial court was required to do so, or that jurisdiction would automatically be reserved or extended without action on the trial court's part.
In People v. Rowland (1997) 51 Cal.App.4th 1745, the appellate court construed section 1202.4, former subdivisions (f) through (h), the provisions of which previously were contained in former Government Code section 13967, subdivisions (a) and (c). (People v. Rowland, supra, at p. 1751 & fn. 3.) The court held: "[V]ictim restitution is mandatory and a sentence without such an award is invalid." (Id. at p. 1751.) In Rowland, unlike the present case, however, the victims of the two counts of grand theft to which the defendant pled no contest appeared at sentencing and requested an award of victim restitution. (Id. at pp. 1748-1749.) " ' " '[T]he language of an opinion must be construed with reference to the facts presented by the case, and the positive authority of a decision is coextensive only with such facts.' " ' [Citations.]" (Trope v. Katz (1995) 11 Cal.4th 274, 284.) Thus, Rowland does not stand for the proposition that under former Government Code section 13967, subdivision (c), omission of a victim restitution award rendered a sentence invalid where no request for such restitution, or evidence a victim suffered economic loss as a result of the defendant's criminal conduct, was presented to the trial court.
In People v. Harvest (2000) 84 Cal.App.4th 641, 651-652, the appellate court upheld an award of restitution made following a remand for resentencing. The court noted there was no express statute of limitations on the matter of victim restitution. Unlike the present case, however, the trial court reserved the issue of victim restitution at the time it initially sentenced the defendant.
In People v. Moreno, supra, 108 Cal.App.4th 1, this court was called upon "to decide whether the trial court, after a criminal judgment has been entered and affirmed on appeal, may order the defendant to reimburse the state for restitution payments it made to the victim's family, even though the original sentence had neglected to make any provision for direct restitution." (Id. at p. 3.) The subject of victim restitution was not broached at the initial sentencing hearing, nor did the trial court retain jurisdiction to make a restitution order in the future. (Id. at p. 4.) Nevertheless, after examining section 1202.46, we concluded: "[N]otwithstanding a trial court's failure to retain jurisdiction to impose or modify a restitution order, the second part of section 1202.46 permits the prosecutor, at any time, to request correction of a sentence that is invalid because . . . the court at the initial sentencing had neither ordered restitution nor found 'compelling and extraordinary reasons' for ordering less than full restitution. The victim too may make such a request, or the trial court may act on its own motion. It follows that the court is not barred from correcting the invalid sentence simply because the prosecutor failed to object when it was imposed. An invalid or unauthorized sentence is subject to correction whenever it comes to the court's attention. [Citations.]" (People v. Moreno, supra, at p. 10.) Unlike the present case, section 1202.46 was in effect at the time Moreno was sentenced. (People v. Moreno, supra, at pp. 3, 10.)
Fairly read in the context of the facts and issues before them, none of the foregoing cases stands for the proposition defendant's sentence was unauthorized for want of a victim restitution award, or the trial court retained jurisdiction to modify that sentence more than 120 days after the date of commitment. Nor have we found any authority retroactively extending the trial court's jurisdiction in that regard after its jurisdiction expired.
DISPOSITION
The order denying the People's motion is affirmed.