IN THE SUPREME COURT OF CALIFORNIA
Plaintiff and Respondent,
Ct.App. 6 H031237
MARCOS HIJINIO SORIA,
Santa Clara County
Defendant and Appellant.
Super. Ct. Nos. CC506587,
The Penal Code requires the imposition of a restitution fine “[i]n every case
where a person is convicted of a crime.” (Pen. Code, § 1202.4, subd. (b).)1 A
suspended parole revocation restitution fine is also mandatory “[i]n every case
where . . . [the] sentence includes a period of parole.” (§ 1202.45.) Here, the
Court of Appeal held that when several separately filed cases are disposed of at a
single hearing under a plea bargain, the cases have been “effectively consolidated”
and only one set of fines may be imposed under sections 1202.4 and 1202.45. We
In case No. CC506587, filed September 30, 2005, defendant was charged
with two counts of vehicle theft, reckless driving, hit-and-run driving, resisting an
Further statutory references are to the Penal Code.
officer, and driving without a license. The complaint alleged that these crimes
took place on or about September 28, 2005.
Case No. CC507417 was filed October 11, 2005. Defendant and a
codefendant were charged with attempted premeditated murder, two counts of
assault with a firearm, and shooting at an occupied motor vehicle, all on
September 20, 2005. An amended complaint was filed March 16, 2006, in which
enhancement allegations regarding use and possession of handguns were modified.
In case No. CC508203, filed October 18, 2005, defendant was charged with
stealing a vehicle on May 19, 2005.
On March 16, 2006, before any preliminary hearing was held, defendant
entered negotiated pleas in all three cases. The premeditation allegation was
stricken from the murder charge, and defendant agreed to a total sentence of 35
years eight months. The plea bargain reduced his maximum exposure by six years
four months. The court advised defendant that he was “subject to a restitution
fund fine of not less than $200 nor more than $10,000 as to each case.” Defendant
said he understood.
In taking defendant‟s pleas, the court disposed of each complaint
individually. Beginning with the amended complaint in docket No. CC507417,
the court read each charge and allegation and asked defendant if he understood
them. After receiving affirmative answers, it accepted defendant‟s plea of guilty
to the accusations in that complaint. The court followed the same procedure in
docket Nos. CC506587 and CC508203, each time reading the charges and
confirming that defendant understood them before taking his plea.
The court imposed the agreed-upon sentence on August 25, 2006. The
prison term included the following components: in case No. CC507417,
defendant was sentenced to nine years for the attempted murder, with a 20-year
enhancement for firearm use. He received one year for each of the two assaults,
with firearm enhancements of one year four months each. A concurrent five-year
term was imposed for shooting at a vehicle. In case Nos. CC506587 and
CC508203, defendant received eight months on each of the three vehicle theft
charges. Sentence was suspended on the misdemeanor charges in case No.
The court ordered restitution to the victims in case Nos. CC507417 and
CC508203. It also imposed restitution fines of $10,000 in case No. CC507417,
$400 in case No. CC506587, and $200 in case No. CC508203, with matching
suspended parole revocation fines. Defendant did not object.
On appeal, however, defendant claimed that imposing separate fines in each
case was unauthorized. The Court of Appeal agreed, holding that the phrase “in
every case” in sections 1202.4 and 1202.45 “may reasonably be construed to
include multiple cases that are fully and completely resolved at the same time
under a package plea bargain.”2 The court erred.
We are here concerned not with direct restitution payable by defendants to
victims under section 1202.4, subdivision (a), but with fines payable to the state
Restitution Fund under section 1202.4, subdivision (b) (section 1202.4(b)) and
section 1202.45. Section 1202.4(b) requires the court to impose “a separate and
additional restitution fine” of not less than $200 or more than $10,000 “[i]n every
case where a person is convicted of a crime,” absent “compelling and
extraordinary reasons for not doing so.” Section 1202.45 similarly requires “an
additional parole revocation restitution fine in the same amount as that imposed
pursuant to subdivision (b) of Section 1202.4,” “[i]n every case where a person is
The Court of Appeal also rejected the Attorney General‟s argument that
defendant had waived his right to appeal. That issue has not been raised in this
court, and we express no view on it.
convicted of a crime and [the] sentence includes a period of parole. . . . This
additional parole revocation restitution fine . . . shall be suspended unless the
person‟s parole is revoked.”
The Court of Appeal found the statutory term “in every case” to be
ambiguous as applied to a plea bargain resolving separately filed charges. The
court strayed off course at this initial step. When separate pleas are entered in
separately charged cases, “every case” plainly means each case filed against the
defendant. (See People v. Schoeb (2005) 132 Cal.App.4th 861, 864; People v.
Enos (2005) 128 Cal.App.4th 1046, 1049.)3
In concluding otherwise, the Court of Appeal relied on a materially
distinguishable case, People v. Ferris (2000) 82 Cal.App.4th 1272. The defendant
in Ferris was charged in separate informations on different dates, but the trial
court granted the prosecution‟s motion to consolidate the cases for trial. (Id. at pp.
1274-1275.) The defendant argued that because the two cases against him had
been consolidated, the imposition of restitution fines in both cases was
unauthorized. (Id. at p. 1276.) The court noted that the cases were “not formally
consolidated.” (Ibid.) Apparently, this comment reflected the fact that the cases
were not merged into a single action with one case number. The jury returned
verdicts under separate case numbers, and separate probation reports were
We note that here, there was no confusion in the trial court as to the
meaning of “every case.” The court informed defendant that he would be subject
to “a restitution fund fine of not less than $200 nor more than $10,000 as to each
case.” Defendant said he understood this advisement, and there was only one way
to understand it. The district attorney had presented the terms of the bargain by
reference to the separate docket numbers, explaining that the premeditation
allegation would be stricken in case No. CC507417, and that defendant would “be
pleading as charged to his other two cases before the Court, docket ending 203 and
docket ending 587.” This is not a case where seemingly plain statutory language
was ambiguous as applied. (Compare In re Reeves (2005) 35 Cal.4th 765, 770.)
prepared for sentencing. However, the Ferris court deemed it clear that the
defendant “was substantively tried and sentenced in one joint case.” (Id. at p.
The court noted that sections 1202.4(b) and 1202.45 “do not specify
whether the phrase „every case‟ means every separately charged and numbered
case or every jointly tried case.” (Ferris, supra, 82 Cal.App.4th at p. 1277.) It
resolved the ambiguity by adopting the construction most favorable to the
defendant, concluding that “ „every case‟ . . . includes a jointly tried case although
it involves charges in separately filed informations.” (Ibid.)4 Accordingly, the
court modified the restitution order to include only one set of fines. (Ferris, at pp.
Here, there was no motion to consolidate and no joint trial. Nevertheless,
the Court of Appeal extended the holding of Ferris to conclude that the resolution
of multiple charges in a single plea bargain amounts to an “effective
consolidation.” The analysis in Ferris, however, was limited to jointly tried cases.
The Ferris court distinguished People v. Smith (1992) 7 Cal.App.4th 1184, which
held that separately filed cases resolved by guilty plea on the same date are
nevertheless “brought and tried separately” for purposes of the enhancement
provisions of section 667.5 (Smith, at p. 1193.) It reasoned that Smith was
Ferris relied in part on an earlier case involving restitution imposed after
the defendant pleaded guilty to separate charges at separate hearings. (People v.
McNeely (1994) 28 Cal.App.4th 739, 742; see Ferris, supra, 82 Cal.App.4th at p.
1277.) However, the McNeely court applied a Government Code provision that
did not include language equivalent to the “in every case” terminology of sections
1202.4 and 1202.45. (McNeely, at pp. 743-744; see Stats. 1988, ch. 975, § 1, pp.
3151-3152.) Therefore, it has no bearing on the question before us.
Section 667, subdivision (a)(1) authorizes a sentence enhancement for
certain prior felony convictions “on charges brought and tried separately.” The
defendant in Smith argued, unsuccessfully, that this requirement was not met
(footnote continued on following page)
“inapposite because it involved separate case numbers and the separate cases were
not consolidated or joined for trial, sentencing, or otherwise.” (Ferris, supra, 82
Cal.App.4th at p. 1278, fn. 11.) Of these grounds for distinguishing Smith, only
the absence of consolidation for trial was valid. There were separate case numbers
and joint sentencing proceedings in both Ferris and Smith. (Ferris, at p. 1276;
Smith, at pp. 1189-1190, fn. 4.) Therefore, the consolidation of separate cases for
trial was critical to Ferris‟s holding that only one set of restitution fines may be
imposed in jointly tried cases.
The rule applied in Smith is a settled one. Unconsolidated cases resolved
jointly by plea bargain remain formally distinct for purposes of sentencing under
section 667. (People v. Shea (1995) 39 Cal.App.4th 1257, 1272; People v.
Wagner (1994) 21 Cal.App.4th 729, 736-737; People v. Gonzalez (1990) 220
Cal.App.3d 134, 140-144; see People v. Wiley (1995) 9 Cal.4th 580, 590.) A
similar rationale applies to restitution fines in separately charged cases. In People
v. Schoeb, supra, 132 Cal.App.4th 861, and People v. Enos, supra, 128
Cal.App.4th 1046, multiple restitution fines were imposed under sections
1202.4(b) and 1202.45. The courts declined to follow Ferris because the cases
before them had not been consolidated, but merely disposed of at the same time by
plea bargain. (Schoeb, at pp. 863-865; Enos, at pp. 1048-1049.)
The Court of Appeal here distinguished Schoeb and Enos on the ground
that in those cases, the total fines did not exceed the $10,000 statutory limit. The
Schoeb and Enos courts reasoned that no prejudice could be shown in that
(footnote continued from previous page)
because his prior convictions were the product of pleas entered and sentences
imposed on the same dates. The record indicated that two sets of priors were
resolved by plea bargain, and one set was simply resolved simultaneously. (Smith,
supra, 7 Cal.App.4th at p. 1189, fn. 4.)
circumstance. (Schoeb, supra, 132 Cal.App.4th at p. 865; Enos, supra, 128
Cal.App.4th at p. 1049.) However, this was an alternative rationale. Schoeb and
Enos support the proposition that without consolidation, separately filed cases
remain separate for purposes of the restitution statutes, even when they are jointly
resolved at the plea and sentencing stages. In the context of sections 1202.4(b)
and 1202.45, a “case” is a formal criminal proceeding, filed by the prosecution and
handled by the court as a separate action with its own number.
The Court of Appeal, following Ferris, reasoned that ambiguity in a
criminal statute should be resolved in favor of lenity, giving the defendant the
benefit of every reasonable doubt on questions of interpretation. But as we have
frequently noted, “that rule applies „only if two reasonable interpretations of the
statute stand in relative equipoise.‟ [Citation.]” (People v. Oates (2004) 32
Cal.4th 1048, 1068; see also, e.g., People v. Farrell (2004) 28 Cal.4th 381, 394;
People v. Avery (2002) 27 Cal.4th 49, 58.) The Court of Appeal‟s construction of
the “in every case” terms of sections 1202.4(b) and 1202.45 does not stand
comfortably beside the commonsense approach of Schoeb and Enos. When
several cases are resolved by a single plea bargain in which the defendant enters
separate pleas, it is plain that there is one bargain but multiple cases. “Although it
is the policy of this state to have courts construe penal laws as favorably to
criminal defendants as reasonably permitted by the statutory language and
circumstances of the application of the particular law at issue [citations], that
policy generally comes into play only when the language of the penal law „is
susceptible of two constructions‟ [citation], a situation not present here.” (People
v. Gardeley (1996) 14 Cal.4th 605, 622; see also In re Derrick B. (2006) 39
Cal.4th 535, 539 [“When the statutory language is clear, we need go no further”].)
The Court of Appeal recognized that the Ferris rule “does not maximize the
amount of money that could be collected from convicted felons for purposes of
restitution,” but concluded that the rule “is not inconsistent with the statutory
purpose and does not frustrate or defeat it.” We need not consider whether this
reasoning is sound in the relatively unusual circumstances addressed in Ferris,
which are not before us. However, if routinely applied to the common situation of
a plea bargain resolving multiple unconsolidated cases, the Ferris rule would
considerably reduce restitution fines, with consequences inimical to the statutory
The “in every case” terms of sections 1202.4 and 1202.45 may be traced
back to the initiative measure adopting article I, section 28, subdivision (b) of our
state Constitution.7 Although that measure was aimed at restitution paid directly
We note that defendants are free to negotiate the amount of restitution fines
as part of their plea bargains.
The Court of Appeal accurately noted the origin of the statutory language
before us: “The phrase „in every case‟ was apparently taken from the 1982 voter
initiative called the Victim‟s Bill of Rights. The initiative added article I, section
28, subdivision (b) to the California Constitution, which established the right of
crime victims to receive restitution directly „from the persons convicted of the
crimes for losses they suffer.‟ (Cal. Const., art. I, § 28, subd. (b).) The new
provision stated, „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.‟
(Ibid., italics added.)
“The new provision, which was not self-executing, also directed the
Legislature to adopt implementing legislation, and one piece of responsive
legislation was section 1202.4. (People v. Narron (1987) 192 Cal. App.3d 724,
732, fn. 4; see People v. Giordano (2007) 42 Cal.4th 644, 651–654 [reviewing the
history of California‟s restitution statutes].)”
We need not repeat here the history set out in Giordano. We note,
however, that section 1202.4 was originally enacted in 1983, the year following
passage of the Victim‟s Bill of Rights. The “in every case” language of section
1202.4(b) first appeared in a 1994 amendment. Before then, the Legislature used
the term “in any case.” (Stats. 1994, ch. 1106, § 3, p. 6548; see Giordano, supra,
(footnote continued on following page)
by defendants to victims, it remains the case that the legislative purpose of the
entire statutory restitution scheme is to recoup from prisoners and parole violators
some of the costs of providing restitution to crime victims. (People v. Oganesyan
(1999) 70 Cal.App.4th 1178, 1184; see also People v. Andrade, supra, 100
Cal.App.4th at pp. 356-357.) Restitution fines serve additional important
objectives of rehabilitation and deterrence. (People v. Jennings (2005) 128
Cal.App.4th 42, 57; Stats. 1994, ch. 1106, § 1, pp. 6547-6548.) 8
None of these goals is furthered by a rule that contravenes the statutory
language by allowing only one set of fines to be imposed after a plea bargain,
regardless of how many cases are resolved by the bargain. Defendants who
commit multiple crimes, and are consequently before the court in multiple cases
when their pleas are taken, are properly subject to multiple fines. This
straightforward application of the requirement that fines be imposed “in every
case” serves the purpose of the state Restitution Fund, as well as the rehabilitative
and deterrent functions of restitution fines. (§§ 1202.4(b), 1202.45.)
(footnote continued from previous page)
42 Cal.4th at p. 652.) Section 1202.45 was added in 1995, with little
documentation of its legislative history. (Stats. 1995, ch. 313, § 6, p. 1758; People
v. Andrade (2002) 100 Cal.App.4th 351, 356.)
Section 1 of this 1994 enactment, which largely shaped the current version
of section 1202.4, includes the following uncodified legislative findings and
“(a) Section 28(b) of Article I of the California Constitution secures the
right to restitution for „all persons who suffer losses as a result of criminal
“(b) Restitution is recognized to have a rehabilitative effect on criminals.
“(c) Restitution is recognized as a deterrent to future criminality.
“(d) The right of persons to receive restitution for losses suffered as a result
of criminal activity shall be secured as provided in this act.” (See Giordano,
supra, 42 Cal.4th at pp. 653-654.)
We reverse the Court of Appeal‟s judgment.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion People v. Soria
Review Granted XXX 163 Cal.App.4th 247
Date Filed: Febuary 11, 2010
County: Santa Clara
Judge: Rodney J. Stafford
Attorneys for Appellant:Jeffrey A. Glick, under appointment by the Supreme Court, for Defendant and Appellant.
Attorneys for Respondent:Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A.
Engler, Assistant Attorney General, Laurence K. Sullivan and Catherine A. Rivlin, Deputy Attorneys
General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):Jeffrey A. Glick
5715 Florence Terrace
Oakland, CA 94611
Catherine A. Rivlin
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
Petition for review after the Court of Appeal modified and affirmed a judgment of conviction of criminal offenses. This case presents the following issue: Can a restitution fine of up to $10,000 be imposed in each non-consolidated case resolved by a package plea agreement, or is the total restitution fine for the cases as a whole limited to $10,000?
|Date:||Citation:||Docket Number:||Category:||Status:||Cross Referenced Cases:|
|Thu, 02/11/2010||48 Cal. 4th 58, 224 P.3d 99, 104 Cal. Rptr. 3d 780||S164796||Review - Criminal Appeal||opinion issued|| |
PEOPLE v. TORRES (S171429)
|1||The People (Plaintiff and Respondent)|
Represented by Catherine A. Rivlin
Office of the Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA
|2||Soria, Marcos Hijinio (Defendant and Appellant)|
California State Prison
P. O. Box 3461
Corcoran, CA 93212
Represented by Jeffrey A. Glick
Attorney at Law
5715 Florence Terrace
|Opinion||Justice Carol A. Corrigan|
|Feb 11 2010||Opinion: Reversed|
|Jul 1 2008||Petition for review filed|
The People, plaintiff and respondent by Catherine A. Rivlin, counsel
|Jul 2 2008||Record requested|
|Jul 3 2008||Received Court of Appeal record|
|Jul 18 2008||Answer to petition for review filed|
Marcos Soria, appellant Jeffrey A. Glick, counsel
|Aug 27 2008||Petition for review granted (criminal case)|
Votes: George, C.J., Kennard, Baxter, Werdegar, and Corrigan, JJ.
|Sep 10 2008||Counsel appointment order filed|
Upon request of appellant for appointment of counsel, Jeffrey Glick is hereby appointed to represent appellant on the appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before thirty (30) days from the date respondent's opening brief on the merits is filed.
|Sep 23 2008||Request for extension of time filed|
30-days, to serve and file the opening brief on the merits The People, respondent Catherine A. Rivlin, Supervising Deputy Attorney General
|Sep 25 2008||Extension of time granted|
On application of respondent and good cause appearing, it is ordered that the time to serve and file the respondent's opening brief on the merits is extended to and including October 26, 2008.
|Oct 22 2008||Request for extension of time filed|
by respondent, The People, requesting a 30-day extension to and including November 25, 2008 to file respondent's opening brief on the merits. by Catherine A. Rivlin, counsel
|Oct 24 2008||Extension of time granted|
On application of respondent and good cause appearing, it is ordered that the time to serve and file the respondent's opening brief on the merits is extended to and including November 25, 2008. No further extension of time is contemplated.
|Nov 25 2008||Request for extension of time filed|
14 days, to and including December 9, 2008, to serve and file the opening brief on the merits The People, respondent by Catherine A. Rivlin, Supervising Deputy Attorney General
|Dec 3 2008||Extension of time granted|
On application of respondent and good cause appearing, it is ordered that the time to serve and file respondent's opening brief on the merits is extended to and including December 9, 2008.
|Dec 9 2008||Opening brief on the merits filed|
The people, respondent By, Catherine A. Rivlin, Attorney
|Jan 6 2009||Request for extension of time filed|
29 days, to and including February 6, 2009, to serve and file the appellant's answer brief on the merits Marcos Soria, appellant by Jeffrey A. Glick, counsel
|Jan 12 2009||Extension of time granted|
On application of appellant and good cause appearing, it is ordered that the time to serve and file the appellant's answer brief on the merits is extended to and including February 6, 2009.
|Feb 9 2009||Answer brief on the merits filed|
Marcos Soria, appellant by Jeffrey A. Glick, counsel CRC 8.25b
|Mar 2 2009||Time for filing final brief expired; case fully briefed|
|Oct 29 2009||Case ordered on calendar|
to be argued Tuesday, December 8, 2009, at 2:00 p.m., in Los Angeles
|Dec 8 2009||Cause argued and submitted|
|Feb 10 2010||Notice of forthcoming opinion posted|
To be filed Thursday, February 11, 2010 @ 10 a.m.
|Feb 11 2010||Opinion filed: Judgment reversed|
Majority Opinion by Corrigan, J. joined by George, CJ., Kennard, Baxter, Werdegar, Chin & Moreno, JJ.
|Dec 9 2008||Opening brief on the merits filed|
|Feb 9 2009||Answer brief on the merits filed|
|May 27, 2010|
Annotated by billyb1
Issues: ambiguity, consolidate, criminal law, jointly tried, legislative intent, multiple charges, parole, plea bargain, Restitution, sentence, separate charge, statutory language
Facts: Defendant was charged in three different cases. The first included two counts of vehicle theft, reckless driving, hit-and-run driving, resisting an arrest, and driving without a license. The second included attempted premeditated murder, assault with a firearm, and shooting at an occupied motor vehicle. The third charge was stealing a vehicle. Before any preliminary hearing was held, Defendant entered negotiated pleas in all three cases, and pled guilty to a maximum of 35 years in prison. The court also found that Defendant was to pay a fine in each case going toward the restitution fund of not less than $200 and not greater than $10,000 as to each case. Defendant nodded that he understood this. After receiving a detailed explanation of what his punishment entailed for each case, including the fines, Defendant nodded in understanding again. The court then imposed the agreed-upon sentence, including fines of $400 in the first case, $10,000 in the second case, and $200 in the third case.
Procedural Posture: Defendant appealed the imposition of separate fines, arguing that only one fine should have been imposed. The California Court of Appeal, Sixth Appellate District agreed and modified the restitution order to require only one set of fines. It based its decision on the language of Pen. Code §§ 1202.4, 1202.45. It decided that when the statute required fines “in every case,” it was ambiguous as to separate charges filed, and decided to construe the language in the light most favorable to a defendant. Therefore, they held that when multiple cases are not joined into one yet all affected by the same “package plea bargain,” the language of the statute should be interpreted to permit only one fine in such cases. The California Supreme Court then granted review.
Opinion (J. Corrigan)
The California Supreme Court unanimously reversed the Court of Appeal’s decision on three grounds. First, the Court of Appeal did not interpret the statute correctly. Second, the legislative purpose of the statute did not allow for such an interpretation. Finally, other policy justifications such as rehabilitation and deterrence require multiple fines in separate cases resolved jointly by a plea bargain.
The term “in every case” under §§ 1202.4 and 1202.45 is not ambiguous when applied to a plea bargain resolving separately filed charges. The Court of Appeal relied on People v. Ferris, 82 Cal. App. 4th 1272 (2000), which in actuality only authorized one fine for multiple charges when those charges are consolidated or there is a joint trial, and neither of those situations are present here. This is further clarified by People v. Smith, 7 Cal. App. 4th 1184 (1992), which Ferris relied on. Smith ruled that separately filed cases resolved by a guilty plea on the same date are nevertheless brought and tried separately, mirroring the language of the state. Defendant’s cases were all brought and tried separately, on the same day, only resolved by the same plea bargain. Thus, it is clear that when multiple cases are merely disposed of at the same time, fines apply to each of them separately. It is only when the charges are consolidated or there is a joint trial on them that the court can consider one fine. Any policy of lenity toward the defendant only comes into play if there could be one of two equally plausible interpretations, and the court did not find that here.
Also, the intent of the legislature in enacting the statute is that of the intention for any restitution statute- to provide victims of crimes the proper amount in restitution for crimes committed against them. The purpose of the statutory restitution scheme is to recoup from prisoners and parole violators some of the costs of meeting victims’ needs in this regard. By allowing such a broad exception to demanding restitution in every case as the Court of Appeal has done, the ability to care for the victims of such criminals is severely crippled.
Finally, there are additional policy considerations that make requiring restitution fines for every case appealing. Both rehabilitation and deterrence goals for criminals can be realized by maximizing the ability to recoup both physical and social costs from them. See People v. Jennings, 128 Cal. App. 4th 42, 57 (2005). The Court summed up its ruling as follows: “[n]one of these goals is furthered by a rule that contravenes the statutory language by allowing only one set of fines to be imposed after a plea bargain, no matter how many cases are resolved by the bargain.”
Annotated by: William Jackson