Filed 10/15/13 P. v. Settle CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


THE PEOPLE,                                                          B247906

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. MA058455)
         v.

RICHARD ALLEN SETTLE,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Christopher G. Estes, Judge. Affirmed as modified.


         Richard B. Lennon, 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, Kenneth C. Byrne and Julie A.
Harris, Deputy Attorneys General, for Plaintiff and Respondent.



                                          _____________________________
       After defendant Richard Settle pled no contest to a vandalism charge, the trial
court sentenced him to a state prison term, ordered him to pay restitution to the victim,
and assessed various fees. The court did not impose a restitution fine. However, the
subsequent minute order and abstract of judgment reflected restitution and parole
revocation restitution fines of $600 each. On appeal, Settle contends we should strike the
restitution fines and order the trial court to correct the abstract of judgment. The People
argue we should either remand the case to the trial court for it to determine whether to
impose restitution fines, or impose the minimum allowable fine. We agree with appellant
that the restitution fines must be stricken.
                  FACTUAL AND PROCEDURAL BACKGROUND
       In January 2013, the People charged Settle with one count of felony vandalism
(Pen. Code, § 594, subd. (a)), one count of misdemeanor escape from arrest (Pen. Code,
§ 836.6, subd. (b)), and one misdemeanor count of being under the influence of a
controlled substance (Health & Saf. Code, § 11550, subd. (a)). The People also alleged
Settle had suffered two prior strikes and two prior prison terms (Pen. Code, §§ 667,
subds. (b)-(i), 1170.12, subds. (a)-(d), 667.5, subd. (b)). The People alleged Settle
destroyed over $400 in kitchen equipment belonging to McDonalds.
       Settle pled no contest to the vandalism charge and admitted one prior strike. The
trial court sentenced Settle to a total state prison term of 32 months. The court ordered
Settle to pay restitution of $650 to McDonalds. The court also imposed fees as follows:
“$30 criminal conviction fee and $40 court security fee and ten dollars and submit palm
prints and DNA testing pursuant to a stipulation and all restitution in the amount of $650
to [McDonalds] and victim restitution to be paid prior to the other fines and fees and will
be a forthwith sentence . . . .” The court did not impose a restitution fine or
corresponding parole revocation restitution fine. The People did not object. However,
the subsequent minute order indicated the court imposed a $600 restitution fine pursuant
to Penal Code section 1202.4, subdivision (b), and a $600 parole restitution fine pursuant
to Penal Code section 1202.45, which was stayed. The abstract of judgment reflected
these restitution fines.

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                         The Restitution Fines Must Be Stricken
       On appeal, Settle contends the restitution fines reflected in the abstract of
judgment must be stricken because the court did not impose these fines in court. We
agree. When the clerk’s minute order and the abstract of judgment do not reflect the
sentence pronounced in court, the court’s oral pronouncement controls, and the abstract
of judgment must be corrected accordingly. (People v. Mesa (1975) 14 Cal.3d 466, 471-
472, superseded by statute on another ground as explained in People v. Turner (1998) 67
Cal.App.4th 1258, 1268; People v. Scott (2012) 203 Cal.App.4th 1303, 1324; People v.
Zackery (2007) 147 Cal.App.4th 380, 387-389 (Zackery).) Restitution fines that were not
imposed in court may “not be simply added to the judgment later outside defendant’s
presence.” (Zackery, at p. 389, fn. omitted.)
       While the People agree the $600 fines in the abstract of judgment may not stand,
they disagree that the opportunity to impose a restitution fine has passed. The People
contend this court should remand the case to the trial court to allow it to exercise its
discretion to impose a restitution fine, or state on the record reasons for not doing so.
Alternatively, the People assert we should impose the minimum fine of $280, pursuant to
Penal Code section 1202.4, subdivision (b), which requires the trial court to assess a
restitution fine unless it “finds compelling and extraordinary reasons for not doing so, and
states those reasons on the record.”
       Under the reasoning of People v. Tillman (2000) 22 Cal.4th 300 (Tillman), we
agree with Settle that the fines must be stricken and we will not remand to the trial court
for further proceedings. In Tillman, the trial court did not impose a restitution fine or
state on the record reasons for not doing so. The California Supreme Court considered
whether, on the People’s request, the Court of Appeal may amend a trial court judgment
to add restitution fines when the trial court omits them from the defendant’s sentence, and
the People fail to object in the trial court. The Tillman court “reasoned that the trial
court’s option to forego imposition of a restitution fine for ‘compelling and extraordinary
reasons’ made the fine a discretionary sentencing choice subject to the waiver doctrine
enunciated in People v. Scott (1994) 9 Cal.4th 331 and People v. Welch (1993) 5 Cal.4th

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228 . . . . That is, an appellate court may not correct errors arising from the trial court’s
failure to make or articulate its discretionary sentencing choices if the complaining
party—whether the defendant or the People—failed to object to the omission at trial.
[Citation.]” (People v. Moreno (2003) 108 Cal.App.4th 1, 7-8 (Moreno).)
       The People contend Tillman is inapposite because here, the trial court’s failure to
state reasons for not imposing a restitution fine rendered the sentence invalid and subject
to correction. But the situation presented in this case is identical to the one presented in
Tillman. As in Tillman, the trial court neither imposed a restitution fine nor stated
reasons on the record explaining its actions. (Tillman, supra, 22 Cal.4th at pp. 302, 303.)
The Tillman court concluded the error was the failure to state reasons for making a
discretionary sentencing choice. The court rejected the People’s argument that the
omission was subject to correction by the Court of Appeal, even though the People did
not object in the trial court. (Ibid.) Instead, the People’s failure to object in the lower
court waived further objection on appeal. Here, the People did not object in the trial
court and therefore waived the objection. We are bound to follow Tillman. (Auto Equity
Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) We may not impose the fine in
the first instance on appeal, or remand the case for further proceedings.
       We disagree that Zackery requires a different result. In Zackery, the trial court
failed to impose restitution fines and did not state any reasons for doing so on the record.
After requesting supplemental briefing on this and other issues in response to a Wende
brief,1 the Court of Appeal remanded the case to the trial court to determine whether to
impose restitution fines. However, Zackery did not consider waiver or Tillman.
Decisions are not authority on propositions not considered. (People v. Stone (2009) 46
Cal.4th 131, 140.)




1      (People v. Wende (1979) 25 Cal.3d 436.)

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       We also disagree that we may remand the case or impose restitution fines under
Penal Code section 1202.46. 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 purposes of imposing or modifying restitution until such time as the
       losses may be determined. Nothing in this section shall be construed as
       prohibiting 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 without a finding of
       compelling and extraordinary reasons pursuant to Section 1202.4.”

Section 1202.46 “does not purport to define when a sentence is valid or invalid, it says
only that a sentence that is invalid for lack of a restitution provision may be corrected
at any time.” (Moreno, supra, 108 Cal.App.4th at p. 10, italics in original.) Tillman,
which was decided after the effective date of section 1202.46, concluded a sentence
that omits a restitution fine is not invalid, even when the trial court fails to state its
reasons on the record.
       Moreno also fails to support the People’s position. In Moreno, the court
concluded it was permissible for the trial court to belatedly issue a restitution order
after the original sentencing hearing. The court reasoned the failure to order any
victim restitution rendered the sentence invalid, and correctable at any time under
section 1202.46. (Moreno, at pp. 10-11.) This reasoning does not apply here.
Moreno concerned a victim restitution order, not a restitution fine. An award of
victim restitution is not a discretionary sentencing choice. (§ 1202.4, subd. (f) [court
must order victim restitution in some amount]; Moreno, at p. 9.)
       The restitution fine and corresponding parole revocation fine must be stricken.




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                                    DISPOSITION
       The trial court is ordered to correct its minutes from the sentencing hearing of
February 14, 2013, and the abstract of judgment, by striking the references to the
imposition of restitution and parole revocation fines. The trial court is further ordered
to forward a copy of the corrected abstract of judgment to the Department of
Corrections and Rehabilitation. In all other respects, the judgment is affirmed.




                                                         BIGELOW, P. J.
We concur:


              RUBIN, J.




              FLIER, J.




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