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People v. Smith (2001) 24 Cal.4th 849 , 102 Cal.Rptr.2d 731; 14 P.3d 942

[No. S088387. Jan. 11, 2001.]

THE PEOPLE, Plaintiff and Respondent, v. DONTE OSBON SMITH et al., Defendants and Appellants.

(Superior Court of Los Angles County, No. BBFN_259749, Lance A. Ito, Judge.)

(The Court of Appeal, Second Dist., Div. Five, No. FFN_229442.)

(Opinion by Brown, J., with George, C. J., Kennard, Baxter, Werdegar, and Chin, JJ., concurring. Concurring opinion by Mosk, J. (see p. 854).)

COUNSEL

Matthew D. Alger, under appointment by the Supreme Court, for Defendant and Appellant Donte Osbon Smith.

Peter A. Leeming, under appointment by the Supreme Court, for Defendant and Appellant Jack Loney.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Carol Wendelin Pollack, Assistant Attorney General, Linda C. Johnson, Suzann E. Papagoda, Kyle S. Brodie and Kent J. Bullard, Deputy Attorneys General, for Plaintiff and Respondent. [24 Cal.4th 851]

OPINION

BROWN, J.-

Under subdivision (b) of Penal Code section 1202.4, fn. 1 a trial court must impose "a separate and additional restitution fine" as part of the judgment of conviction entered against a criminal defendant, "unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record." If the "sentence includes a period of parole," then the court must also impose a parole revocation fine "in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4." (§ 1202.45.) fn. 2 This second fine, however, is automatically suspended unless the court later revokes parole. (Ibid.)

Despite these statutory mandates, trial courts, at times, omit these fines from the judgment of conviction. In many of these cases, the People have asked the Court of Appeal to impose the fines even though it did not object at sentencing. We recently held that appellate courts may not correct these errors if the trial court failed to state a reason for its failure to impose a restitution and parole revocation fine, and the People failed to object below. (People v. Tillman (2000) 22 Cal.4th 300, 303 [92 Cal.Rptr.2d 741, 992 P.2d 1109] (Tillman).) [1a] We now address an issue left unresolved by Tillman: Where the trial court imposes a restitution fine but omits or imposes [24 Cal.4th 852] an erroneous parole revocation fine, may appellate courts correct this error even though the People failed to object at sentencing? fn. 3 Here, the trial court imposed a $5,000 restitution fine, but only imposed and suspended a $200 parole revocation fine in violation of section 1202.45. Distinguishing Tillman, the Court of Appeal found the erroneous imposition of a parole revocation fine correctable despite the People's failure to object. We agree.

[2] As a general rule, only "claims properly raised and preserved by the parties are reviewable on appeal." (People v. Scott (1994) 9 Cal.4th 331, 354 [36 Cal.Rptr.2d 627, 885 P.2d 1040] (Scott).) We adopted this waiver rule "to reduce the number of errors committed in the first instance" (id. at p. 353), and "the number of costly appeals brought on that basis" (People v. Welch (1993) 5 Cal.4th 228, 235 [19 Cal.Rptr.2d 520, 851 P.2d 802] (Welch)). In the sentencing context, we have applied the rule to claims of error asserted by both the People and the defendant. (Tillman, supra, 22 Cal.4th at p. 303.) Thus, all "claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices" raised for the first time on appeal are not subject to review. (Scott, supra, 9 Cal.4th at p. 353 [refusing to correct defects in the trial court's statement of reasons for its discretionary sentencing choices]; see also Welch, supra, 5 Cal.4th at p. 236 ["[t]raditional objection and waiver principles encourage development of the record and a proper exercise of discretion in the trial court"].)

We have, however, created a narrow exception to the waiver rule for " 'unauthorized sentences' or sentences entered in 'excess of jurisdiction.' " (Welch, supra, 5 Cal.4th at p. 235.) Because these sentences "could not lawfully be imposed under any circumstance in the particular case" (Scott, supra, 9 Cal.4th at p. 354), they are reviewable "regardless of whether an objection or argument was raised in the trial and/or reviewing court." (Welch, supra, 5 Cal.4th at p. 235.) We deemed appellate intervention appropriate in these cases because the errors presented "pure questions of law" (ibid.), and were " 'clear and correctable' independent of any factual issues presented by the record at sentencing." (Scott, supra, 9 Cal.4th at p. 354.) 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 waivable.

In Tillman, we applied the waiver rule to a case in which the trial court failed to articulate a reason for its omission of the restitution and parole revocation fines. Because the People failed to object at sentencing, we [24 Cal.4th 853] barred the Court of Appeal from correcting the judgment by adding the minimum restitution and parole revocation fines. (Tillman, supra, 22 Cal.4th at p. 303.) We found the waiver rule applicable because the imposition of a restitution fine under section 1202.4 was "a discretionary sentencing choice ...." (Tillman, supra, 22 Cal.4th at p. 303.) In doing so, we implicitly recognized that the erroneous omission of a restitution fine was not correctable without considering factual issues presented by the record or remanding for additional findings. (See Scott, supra, 9 Cal.4th at p. 353 [limited exception to the waiver rule for sentencing errors that are correctable independent of the factual issues in the record].) By waiving any objection to the restitution fine, the People also effectively waived any objection to the parole revocation fine, because the parole revocation fine had to match the restitution fine as a matter of law. (See § 1202.45.)

[1b] After considering Tillman and our other waiver cases in the sentencing context, we conclude that the Court of Appeal may correct the erroneous amount of the parole revocation fine in this case. Unlike Tillman, where the trial court failed to articulate a discretionary sentencing choice—the imposition of a restitution fine—the trial court in this case properly imposed a $5,000 restitution fine. (See § 1202.4.) It erred only when it imposed a parole revocation fine in an amount different from the amount of the restitution fine. (See § 1202.45.) In contrast to the erroneous omission of a restitution fine, this error did not involve a discretionary sentencing choice. (See Tillman, supra, 22 Cal.4th at p. 303.) Under section 1202.45, a trial court has no choice and must impose a parole revocation fine equal to the restitution fine whenever the "sentence includes a period of parole." Because the erroneous imposition of a parole revocation fine presents a pure question of law with only one answer, any such error is obvious and correctable without reference to any factual issues in the record or remanding for further findings. Accordingly, an invalid parole revocation fine falls within the narrow class of sentencing errors exempt from the waiver rule. (See Scott, supra, 9 Cal.4th at p. 354; Welch, supra, 5 Cal.4th at pp. 235-236.)

Defendants counter that the trial court could have imposed a $200 parole revocation fine if it had imposed a $200 restitution fine. Thus, the error is not exempt from the waiver rule because the $200 parole revocation fine could have been lawfully imposed in this case. (See Scott, supra, 9 Cal.4th at p. 354.) Defendants further speculate that the trial court would have imposed a lesser restitution fine if it had realized that the parole revocation fine must equal the restitution fine. Defendants, however, do not challenge the propriety of the $5,000 restitution fine imposed by the trial court. Given that the restitution fine was proper and unchallenged, the $200 parole revocation fine could never be lawfully imposed in this "particular case." (Ibid.) [24 Cal.4th 854]

Finally, defendants' invocation of principles of judicial economy is unavailing. A timely objection to a sentencing error always reduces the likelihood of error and the unnecessary waste of judicial resources. We have, however, determined that certain errors are so obvious and so easily fixable that correction of these errors in the absence of an objection at sentencing will not unduly burden the courts or the parties. (See Scott, supra, 9 Cal.4th at p. 354; Welch, supra, 5 Cal.4th at pp. 235-236.) The trial court's erroneous imposition of a $200 parole revocation fine is one of these errors. Accordingly, we hold that the Court of Appeal may correct this error without remanding for further proceedings in the presence of defendants. (Cf. People v. Fuhrman (1997) 16 Cal.4th 930, 946 [67 Cal.Rptr.2d 1, 941 P.2d 1189] [refusing to remand for a new sentencing hearing in the interests of judicial economy where no "realistic possibility" of relief appears to exist].) In doing so, we agree with the published decisions of those Courts of Appeal that have addressed this issue. (See, e.g., People v. Rodriguez (2000) 80 Cal.App.4th 372, 378 [95 Cal.Rptr.2d 299]; People v. Terrell (1999) 69 Cal.App.4th 1246, 1255-1256 [82 Cal.Rptr.2d 231]; People v. Hong (1998) 64 Cal.App.4th 1071, 1084 [76 Cal.Rptr.2d 23].)

Disposition

We affirm the judgment of the Court of Appeal.

George, C. J., Kennard, J., Baxter, J., Werdegar, J., and Chin, J., concurred.

CONCURRING OPINION:

MOSK, J.-

I concur in the opinion of the court.

I do so because I find the following propositions implicit in the court's analysis.

First, what is called "waiver" (maj. opn., ante, at p. 852) is, strictly speaking, forfeiture by a party in failing to preserve a claim of error for review on appeal. (See generally People v. Williams (1999) 21 Cal.4th 335, 340, fn. 1 [87 Cal.Rptr.2d 412, 981 P.2d 42]; Cowan v. Superior Court (1996) 14 Cal.4th 367, 371 [58 Cal.Rptr.2d 458, 926 P.2d 438].)

Second, forfeiture does not prohibit an appellate court from reaching a nonpreserved claim, but merely allows it not to do so. (See generally People v. Williams (1998) 17 Cal.4th 148, 161-162, fn. 6 [69 Cal.Rptr.2d 917, 948 P.2d 429].) [24 Cal.4th 855]

Third, forfeiture nevertheless counsels an appellate court not to reach a nonpreserved claim when it has resulted in a void in the record that the court itself cannot or should not fill.

­FN 1. All further statutory references are to the Penal Code. Subdivision (b) of section 1202.4 states in relevant part: "In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record."

­FN 2. Section 1202.45 states in full: "In every case where a person is convicted of a crime and whose sentence includes a period of parole, the court shall at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4. This additional restitution fine shall be suspended unless the person's parole is revoked."

­FN 3. Although defendants raised a number of issues in their petition for review, we limited review to this sentencing issue.

Petitions for reveiw after the Court of Appeal modified and affirmed judgments of conviction of a criminal offense. The court limited review to the issue whether the People, without having raised the issue of the trial court, may seek correction of the error on appeal when the trial court has imposed a restitution fine but has failed to impose a parole revocation restitution fine in the proper amount (See Pen. code, sections 1202.4, 1202.45.)

Opinion Information

Date:	Citation:	Docket Number:	Category:	Status:	Cross Referenced Cases:
Thu, 01/11/2001	24 Cal.4th 849	S088387	Review - Criminal Appeal	closed; remittitur issued	PEOPLE v. VALENTINE (S087446) PEOPLE v. MCCOY (S088767) PEOPLE v. TALIBDEEN (S090710)

Disposition
Jan 11 2001	Opinion: Affirmed

Dockets
May 18 2000	Petition for review filed Appellant Donte Osbon Smith [Record]
May 18 2000	Received: CA - 1 Doghouse
May 22 2000	Petition for review filed Applt [ Jack Loney ] by Counsel Second Petition
Jun 14 2000	Petition for Review Granted; issues limited (criminal case) Appellants'. the issues to be briefed and Argued Shall be Limied to whether the People May Seek correction of the error on Appeal, without Having Raised the issue of the Trial Court, when the Trial Court has Failed to Impose A Parole Revoca- Tion Restitution Fine (Pen. Code, Section 1202.45) In the Proper Amount Although it did Impose A Restitution Fine (Pen. Code, Section 1202.4). Votes: Geo,CJ.,Mos,Bax,Wer & Chi, JJ.
Jun 15 2000	Received: CA Record: 1 Doghouse
Jul 27 2000	Counsel appointment order filed PETER LEEMING APPOINTED TO REPRESENT APPELLANT JACK LONEY . APPELLANT'S OPENING BRIEF ON THE MERITS DUE W/IN 30 DAYS OF THE FILING OF THIS ORDER
Jul 27 2000	Counsel appointment order filed MATTHEW ALGER TO REPRESENT DONTE OSBON SMITH . APPELLANT'S OPENING BRIEF ON THE MERITS DUE W/IN 30 DAYS OF THE FILING OF THIS ORDER
Aug 25 2000	Application for Extension of Time filed COUNSEL FOR APPELLANT DONTE OSBON SMITH REQUEST TO SEPT. 25, 2000 TO FILETHE OPENING BRIEF ON THE MERITS FOR SMITH. OK TO SEPT 9, 2000. NO FURTHER EXT OF TIME W/BE CONTEMPLATED. (ORDER BEING PREPARED)
Aug 28 2000	Opening brief on the merits filed by counsel for appellant
Sep 5 2000	Extension of Time application Granted TO & INCLUDING SEPT. 8, 2000 FOR APPELLANT DONTE OSBON SMITH TO FILE THE OPENING BRIEF ON THE MERITS. NO FURTHER EXT W/B CONTEMPLATED.
Sep 5 2000	Opening brief on the merits filed APPELLANT DONTE OSBON SMITH
Sep 25 2000	Answer brief on the merits filed Respondent People
Oct 13 2000	Reply brief filed (case fully briefed) Appellant Donte Smith
Nov 1 2000	Case Ordered on Calendar: ***reset to 12-5-00, 9am, L.A.
Nov 15 2000	Compensation awarded counsel
Dec 5 2000	Cause Called, Argued and Submitted
Jan 11 2001	Opinion filed: Judgment affirmed in full Majority Opinion by Brown, J. -- joined by George C.J., Kennard, Baxter, Werdegar & Chin JJ. Concurring Opinion by Mosk, J.
Feb 14 2001	Remittitur issued (criminal case) CA-2/5
Feb 23 2001	Received: receipt for remittitur from CA 2/5
Mar 14 2001	Compensation awarded counsel Atty Alger
Apr 11 2001	Compensation awarded counsel Atty Leeming

Briefs
Aug 28 2000	Opening brief on the merits filed by counsel for appellant
Sep 5 2000	Opening brief on the merits filed APPELLANT DONTE OSBON SMITH
Sep 25 2000	Answer brief on the merits filed Respondent People
Oct 13 2000	Reply brief filed (case fully briefed) Appellant Donte Smith

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