Filed 2/27/15 P. v. Damian CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.

           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F068366
         Plaintiff and Respondent,
                                                                           (Super. Ct. Nos. MF10355B,
                   v.                                                   MF10492A, MF10632A, MF10633A )

ANTHONY STEPHEN DAMIAN,
                                                                                         OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kern County. Cory J.
Woodward, Judge.
         John L. Staley, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, and Julie A. Hokans, Deputy
Attorney General, for Plaintiff and Respondent.
                                                        -ooOoo-

*        Before Levy, Acting P.J., Kane, J. and Poochigian, J.
         After being charged with numerous crimes in four cases, defendant Anthony
Stephen Damian was sentenced on September 25, 2013, to a total of six years
eight months according to a plea agreement. On appeal, he contends (1) the trial court
imposed an unauthorized sentence and violated ex post facto principles when it imposed
a restitution fine in the amount of $280 pursuant to Penal Code section 1202.4,
subdivision (b),1 and (2) the trial court improperly ordered victim restitution pursuant to
section 1202.4, subdivision (f) in an amount to be determined by the probation
department. We affirm.
                                          DISCUSSION
I.       Restitution Fines
         Defendant contends that the trial court erred by imposing a $280 restitution fine in
two of his four cases because he committed the crimes charged in those two cases when
section 1202.4 allowed for a minimum fine of $240, not $280.2 He asserts that the court
intended to impose the minimum fine because it imposed the current minimum of $280. 3
We disagree that the fine was unauthorized or that the trial court clearly intended to
impose the minimum fine, and we conclude defendant nevertheless has forfeited his
claim.
         “Under the United States Constitution, ‘“‘any statute … which makes more
burdensome the punishment for a crime, after its commission … is prohibited as ex post

1        All statutory references are to the Penal Code.
2        The two cases that are the subject of this issue are MF010355B and MF010492A.
3        In 2012, when defendant allegedly committed the crimes in these two cases,
section 1202.4 provided in pertinent part: “(b) 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. [¶] (1) The
restitution fine shall be set at the discretion of the court and commensurate with the seriousness
of the offense, but shall not be less than two hundred forty dollars ($240) starting on January 1,
2012, two hundred eighty dollars ($280) starting on January 1, 2013, and three hundred dollars
($300) starting on January 1, 2014, and not more than ten thousand dollars ($10,000) ….”
(§ 1202.4, subd. (b)(1), as amended by Stats. 2011, ch. 45, § 1.)


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facto.’”’ [Citations.] The ex post facto clause of the state Constitution is in accord.
[Citation.]” (People v. Saelee (1995) 35 Cal.App.4th 27, 30.) The prohibition against ex
post facto laws applies to restitution fines, which constitute punishment. (People v.
Souza (2012) 54 Cal.4th 90, 143.) An increase in the minimum restitution fine makes the
authorized punishment more burdensome. (People v. Saelee, supra, at pp. 30-31.)
Therefore, a court cannot apply an increased minimum restitution fine retroactively to a
defendant whose crime occurred prior to the increase in the minimum restitution fine.
       But a defendant can forfeit an ex post facto claim by failing to raise the issue (see
People v. White (1997) 55 Cal.App.4th 914, 917), particularly where any error could
easily have been corrected if the issue had been raised at the sentencing hearing.
Generally, in the interests of fairness and judicial economy, only “claims properly raised
and preserved by the parties are reviewable on appeal. [Citations.]” (People v. Scott
(1994) 9 Cal.4th 331, 354 (Scott).) “‘It is both unfair and inefficient to permit a claim of
error on appeal that, if timely brought to the attention of the trial court, could have been
easily corrected or avoided.’ [Citations.]” (People v. Earp (1999) 20 Cal.4th 826, 882.)
       Although it is true that the forfeiture rule does not apply when a trial court
imposes an unauthorized sentence (Scott, supra, 9 Cal.4th at p. 354), the sentence in this
case was not unauthorized. An unauthorized sentence is one that “could not lawfully be
imposed under any circumstance in the particular case.” (Ibid.) Under the version of
section 1202.4, subdivision (b) in effect when defendant committed the relevant crimes,
the trial court had the discretion to impose a fine in an amount between $240 and
$10,000. Because the $280 fine imposed fell within that range, the fine was authorized
and the trial court had the discretion to impose it.
       The trial court’s imposition of the current minimum fine in two of the cases did
not demonstrate that the court intended to impose the minimum restitution fine in the
other two cases. The court’s intent was not clear from the record, and we cannot assume
the court intended to impose the minimum fine but was unaware that the applicable


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minimum was $240. The court did not expressly state that it intended to impose the
minimum fine, and we will not presume the court applied the wrong statutory law
(People v. Mack (1986) 178 Cal.App.3d 1026, 1032 [“It is a basic presumption indulged
in by reviewing courts that the trial court is presumed to have known and applied the
correct statutory and case law in the exercise of its official duties.”].) The court may
simply have been exercising its discretion to impose the fine it found appropriate in each
case.
        Under these circumstances, it was incumbent upon defendant to object to the fine
amount in the trial court and bring the alleged mistake to the court’s attention. His failure
to do so forfeits the claim on appeal. (Scott, supra, 9 Cal.4th at p. 353 [the forfeiture
doctrine “should apply to claims involving the trial court’s failure to properly make or
articulate its discretionary sentencing choices”].)
II.     Victim Restitution
        In two of the four cases, the trial court ordered victim restitution in an amount to
be determined by the probation department.4 Defendant argues this was an improper
delegation of authority to the probation department. He asserts that section 1202.4,
subdivision (f) requires the trial court to impose restitution. We disagree.5
        Section 1202.4, subdivision (f) provides, in relevant part:

                “[I]n every case in which a victim has suffered economic loss as a
        result of the defendant’s conduct, the court shall require that the defendant
        make restitution to the victim or victims in an amount established by court
        order, based on the amount of loss claimed by the victim or victims or any
        other showing to the court. If the amount of loss cannot be ascertained at
        the time of sentencing, the restitution order shall include a provision that
        the amount shall be determined at the direction of the court.” (Italics
        added.)


4       The two cases that are the subject of this issue are MF010355B and MF010633A.
5       We assume without deciding that defendant has not forfeited this challenge by his failure
to object in the trial court.


                                               4.
       Defendant contends the probation department is not equipped for the fact-finding
hearings often required to determine restitution amounts, and he argues that the
delegation of authority deprived him of his “right to confront the prosecution evidence
and present his own evidence.”
       Defendant acknowledges that the court in People v. Lunsford (1998) 67
Cal.App.4th 901 (Lunsford) rejected this argument. There, the trial court ordered the
defendant to pay restitution “‘in an amount to be determined by the Office of Revenue
Reimbursement.’” (Id. at p. 903.) The Court of Appeal concluded the court’s order
“complies with [section 1202.4, subdivision (f)] in that it ‘directs’ the Office of Revenue
Reimbursement to ‘determine’ the amount of victim restitution because the proper
amount could not be ascertained at the time of sentencing.” (Ibid.) The court noted, “If
[the] defendant is dissatisfied with the agency’s determination, he may obtain judicial
review in accordance with … section 1202.4, subdivision (f)(1), which provides: ‘The
defendant has the right to a hearing before a judge to dispute the determination of the
amount of restitution. The court may modify the amount, on its own motion or on the
motion of the district attorney, the victim or victims, or the defendant. If a motion is
made for modification of a restitution order, the victim shall be notified of that motion at
least 10 days prior to the proceeding held to decide the motion.’” (Id. at p. 904.)
       Defendant contends Lunsford “reached the wrong conclusion.” In our view,
however, the court’s reasoning and its conclusion that a trial court may, under
section 1202.4, subdivision (f), direct an agency other than the trial court to determine the
amount of restitution were correct.
       Defendant also relies on People v. Bernal (2002) 101 Cal.App.4th 155 (Bernal).
In that case, the defendant was placed on felony probation and ordered to make
restitution to the victim. After the defendant’s insurer made a payment to the victim and
she executed a release, the defendant sought an order determining that his restitution
obligation had been satisfied. The trial court issued such an order, and the People


                                             5.
appealed. The Court of Appeal reversed and remanded the matter to the trial court to
determine the defendant’s remaining restitution obligation. The appellate court reasoned
that the objectives of restitution included not only indemnifying the victim, but also
rehabilitating the defendant and deterring the defendant and others, and that while the
victim’s act of executing the release “may [have] reflect[ed] [her] willingness to accept
the amount paid in full satisfaction for all civil liability, it [did] not reflect the willingness
of the People to accept that sum in satisfaction of the defendant’s rehabilitative and
deterrent debt to society.” (Id. at pp. 161, 162.) Remand was necessary because the trial
court, having mistakenly concluded that the victim’s settlement release precluded an
increase of the restitution award, had “failed to exercise its discretion, as it must do.” (Id.
at p. 164.)
       Defendant relies specifically on the first sentence of the following statement in
Bernal: “Although the trial court could properly refer the restitution determination to the
probation department, the parties were entitled to a court review of that department’s
determination, in accordance with section 1202.4, subdivision (f)(1). As a result of the
trial court’s erroneous belief that the settlement release barred further restitution as a
matter of law, the parties did not receive such a hearing.” (Bernal, supra, 101
Cal.App.4th at p. 164, italics added, fn. omitted.) Defendant’s argument, however,
ignores the second sentence. Here, the court was under no erroneous belief that
precluded defendant from having a hearing on the amount of restitution. As indicated
above, if defendant is dissatisfied with the probation department’s determination of the
amount of restitution due, he is entitled to a hearing under section 1202.4, subdivision
(f)(1). Bernal is thus distinguishable, and does not support defendant’s position.
       Finally, defendant argues he was denied his due process rights under the United
States Constitution because “[t]he trial court could not exercise its discretion regarding
the proper amount of restitution,” and because defendant was “denied the opportunity to
be heard regarding the amount of victim restitution ….” Again, we disagree. “Due


                                                6.
process is satisfied if [the] appellant is given notice of the amount sought and a hearing to
contest that amount.” (People v. Thygesen (1999) 69 Cal.App.4th 988, 993.) There is
nothing in the record to suggest that defendant has not been given the required notice or
that he has been denied his right to a hearing. Indeed, there is no indication the probation
department has yet made a determination of the amount of restitution. Thus, the record
does not support the claim of a due process violation.
                                      DISPOSITION
       The judgment is affirmed.




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