Filed 11/19/15 P. v. Tufono 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F069184
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. F11907014)
                   v.

TINO KISIUETA TUFONO,                                                                    OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. Hilary A.
Chittick, Judge.
         Athena S. Shudde, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D.
Cary and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-

*        Before Poochigian, Acting P.J., Franson, J. and Peña, J.
       Defendant Tino Kisiueta Tufono was convicted by jury trial of murder (Pen. Code,
§ 187),1 assault with a deadly weapon (§ 245, subd. (a)(1)), and residential burglary
(§§ 459, 460, subd. (a)). The jury found true the allegation that as to count 1, defendant
personally and intentionally discharged a firearm, causing great bodily injury or death
(§ 12022.53, subd. (d)). Defendant admitted one prior felony conviction allegation
(§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), one prior serious felony conviction
allegation (§ 667, subd. (a)(1)), and two prior prison term allegations (§ 667.5, subd. (b)).
The trial court sentenced defendant to 69 years to life and imposed various fines and fees,
including a $10,000 restitution fine—the maximum within the $200 to $10,000 statutory
range (§ 1202.4, subd. (b)(1)).2 On appeal, defendant contends the court misunderstood

1      All statutory references are to the Penal Code unless otherwise noted.
2      All references to sections 1202.4 and 1202.45 are to the versions effective at the
time defendant committed the crimes on December 5, 2011. (See People v. Souza (2012)
54 Cal.4th 90, 143 [restitution fine must be based on the law at the time the offense was
committed].)
        At that time, 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 dollars ($200), and not more than ten thousand dollars ($10,000), if the
person is convicted of a felony, and shall not be less than one hundred dollars ($100), and
not more than one thousand dollars ($1,000), if the person is convicted of a misdemeanor.
[¶] (2) In setting a felony restitution fine, the court may determine the amount of the fine
as the product of two hundred dollars ($200) multiplied by the number of years of
imprisonment the defendant is ordered to serve, multiplied by the number of felony
counts of which the defendant is convicted. [¶] (c) The court shall impose the restitution
fine unless it finds compelling and extraordinary reasons for not doing so, and states
those reasons on the record. A defendant's inability to pay shall not be considered a
compelling and extraordinary reason not to impose a restitution fine. Inability to pay may
be considered only in increasing the amount of the restitution fine in excess of the two
hundred-dollar ($200) or one hundred-dollar ($100) minimum. The court may specify
that funds confiscated at the time of the defendant's arrest, except for funds confiscated
pursuant to Section 11469 of the Health and Safety Code, be applied to the restitution
fine if the funds are not exempt for spousal or child support or subject to any other legal

                                             2.
its discretion in imposing the $10,000 restitution fine. We modify the judgment and
affirm.
                                       BACKGROUND
          The probation officer’s report, prepared in anticipation of sentencing,
recommended that the court impose a 73-year-to-life sentence; a $10,000 restitution fine
pursuant to Penal Code section 1202.4, subdivision (b); a matching $10,000 parole
revocation restitution fine pursuant to Penal Code section 1202.45; and victim restitution
of $1,693.10 for funeral expenses pursuant to Penal Code section 1202.4, subdivision (f),
with the determination of further victim restitution to be reserved. In addition, the report
recommended a $40 court security fee for each conviction (totaling $120) pursuant to
Penal Code section 1465.8, subdivision (a)(1), a $30 criminal conviction assessment fee
for each conviction (totaling $90) pursuant to Government Code section 70373, a $296
probation report fee pursuant to Penal Code section 1203.1b, and attorney fees pursuant
to Penal Code section 987.8.

exemption. [¶] (d) In setting the amount of the fine pursuant to subdivision (b) in excess
of the two hundred-dollar ($200) or one hundred-dollar ($100) minimum, the court shall
consider any relevant factors, including, but not limited to, the defendant's inability to
pay, the seriousness and gravity of the offense and the circumstances of its commission,
any economic gain derived by the defendant as a result of the crime, the extent to which
any other person suffered any losses as a result of the crime, and the number of victims
involved in the crime. Those losses may include pecuniary losses to the victim or his or
her dependents as well as intangible losses, such as psychological harm caused by the
crime. Consideration of a defendant's inability to pay may include his or her future
earning capacity. A defendant shall bear the burden of demonstrating his or her inability
to pay. Express findings by the court as to the factors bearing on the amount of the fine
shall not be required. A separate hearing for the fine shall not be required.” (§ 1202.4, as
amended by Stats. 2011, ch. 45, § 1, italics added.)
        Section 1202.45 provided in part: “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 parole revocation restitution fine in the same amount as that imposed pursuant
to subdivision (b) of Section 1202.4.” (§ 1202.45, as amended by Stats. 2007, ch. 302,
§ 15, italics added.)


                                               3.
       At the sentencing hearing, the trial court stated its intention to follow the probation
officer’s report. Defendant asked the court to stay whatever fines it could and then order
the minimum fines. The following occurred:

              “THE COURT: The Court has reviewed the letters that have been
       submitted, including the letter just received from [defendant]. I have
       received all the materials that I previously indicated. I’m prepared to
       proceed with matters. The Court’s tentative position is to deny the Romero
       motion [to dismiss the prior felony conviction allegation3] and to sentence
       in accordance with the probation report. The only question the Court has is
       whether Count 3 should be concurrent or consecutive. But the rest of it,
       which is the bulk of the time, the Court would essentially intend to follow
       the recommendation. [¶]…[¶] Does anyone wish to be heard further with
       respect to the sentence?

               “[DEFENSE COUNSEL]: Your Honor, with regards to the
       sentence, you know, [defendant] has always, you know, maintained that
       particularly the homicide was an act of self-defense. However, he is
       philosophical in regards to his acceptance of the jury verdict as well as to
       the mandatory sentences attached to it. His issue, and what he always had
       brought up to me, was that if there’s any way that the restitution and fines
       could be stayed or at least fine him the minimum allowed by law in regards
       to—basically he’s going to be spending the rest of his life in prison and I
       think, as the Court notes or may note from the letters received from his
       family, he hasn’t exactly had an ideal upbringing and an ideal life. And as
       [defendant] himself put it in his letter, that knowing that he’s going to be
       spending the rest of his life and also having the burden of a restitution order
       that he doesn’t believe he’ll be in any position to pay off is just, you know,
       an added concern and possibly adds to his depression. And he’s asking
       me—he’s asking through me if the Court could, again, stay what can be
       stayed and fine him the minimum allowed by law.

              “THE COURT: Do you have a position with respect to what the
       Court can stay?

               “[DEFENSE COUNSEL]: Your Honor, I believe the Court can stay
       the minimum fines in regards to court—or the probation fee as well as the
       court security fees and all that. I do think under the law the restitution has
       to be reserved.

3      People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).


                                             4.
             “THE COURT: I think the restitution has to be reserved. I think the
       Court’s obligated to impose a fine.

               “[DEFENSE COUNSEL]: I have not found anything to counter
       that, your Honor.

              “THE COURT: Okay.

              “[PROSECUTOR]: Judge, I’ll submit with respect to restitution. I
       think the amount that’s being requested from Victim Compensation and
       Government Claims Board is a minimal amount. All it is is for
       reimbursement for funeral expenses that went to the victim’s family.
       [¶]…[¶]

              “THE COURT: Well, this case is a tragedy. There’s a young man
       who died, and he died at the hands of another young man who clearly had a
       horrible life. I thought the letters from [defendant’s] family, particularly
       the one from Ms. Carmona, was very helpful to the Court in understanding
       [defendant’s] background. The Court doesn’t have the ability to change
       anybody’s background, so I have to deal with the situation that we have,
       and the situation that we have is a young man was killed by [defendant] and
       the sentence that is set out in the probation report it appears to be—to the
       Court to be the appropriate sentence in this matter. And the Court doesn’t
       have a lot of discretion in any event. Even if the Court did have discretion,
       someone is dead.

              “With respect to the Romero motion, the Court doesn’t find that
       there’s anything that takes this case outside the heartland of the Three
       Strikes law, and the Romero motion is denied.

              “Probation in this case is not available to the defendant and
       probation in any event is inappropriate given the nature of the case and the
       facts of the case. Probation in this case is therefore denied.

               “There are no factors in aggravation relating to the crime. The
       defendant does have a history of violent conduct and prior adult sustained
       petitions … are numerous. The Court does find that—as a factor in
       mitigation the defendant’s significant difficulties in his upbringing and the
       fact that [he] was probably not completely in his right mind at the time this
       occurred due to the ingestion of significant amounts of substances.”
       The court sentenced defendant to 69 years to life, then imposed fines and fees,
including a $10,000 restitution fine, as follows:



                                             5.
             “[THE COURT]: In compliance with Penal Code Section 1202.4,
       defendant’s ordered to pay the minimum restitution fine, which is $10,000.

              “In compliance with [section] 1202.4(f), the defendant’s ordered to
       pay $1693.10 to the victim[] compensation fund. [¶] Restitution
       [determination] is reserved for possible future expenses. [¶]…[¶]

              “In light of the sentence, the amount of restitution that’s due and the
       amount of fine that is ordered, the court security fee and assessment fees,
       the probation report fee and other fees, including attorney’s fees, are
       waived by the court.

              “I think I neglected to say in compliance with [section] 1202.45
       defendant is to pay an additional restitution fine of [$]10,000 if parole is
       ordered, and it is suspended unless parole is revoked. In light of the fact I
       think the defendant’s unlikely to ever get out on parole, it’s kind of a moot
       point. [¶]…[¶]

             “… That’s fine. Is there anything else before the Court gives
       [defendant] his appellate rights?

              “[DEFENSE COUNSEL]: No, your Honor.

              “[PROSECUTOR]: No. Thank you.
                                       DISCUSSION
       Section 1202.4, subdivision (b) generally requires the imposition of a restitution
fine in every case where a person is convicted of a crime. At the time defendant
committed the crimes, section 1202.4, subdivision (b)(1) provided that “[t]he 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 dollars ($200), and not more than ten
thousand dollars ($10,000), if the person is convicted of a felony ….” (§ 1202.4,
subd. (b)(1).) In setting the restitution fine in excess of the statutory minimum, “the court
shall consider any relevant factors, including, but not limited to, the defendant’s inability
to pay, the seriousness and gravity of the offense and the circumstances of its
commission, any economic gain derived by the defendant as a result of the crime, the
extent to which any other person suffered any losses as a result of the crime, and the



                                              6.
number of victims involved in the crime…. Express findings by the court as to the
factors bearing on the amount of the fine shall not be required.” (Id., subd. (d).) The
court may use the formula provided in section 1202.4, subdivision (b)(2) to calculate the
fine.
        Section 1202.45 requires that the court also impose a parole revocation restitution
fine in the same amount as the restitution fine under section 1202.4, suspended unless and
until parole is revoked.
        We review the restitution fine ordered under section 1202.4 for abuse of
discretion. (People v. Nelson (2011) 51 Cal.4th 198, 227.) A court abuses its discretion
“when its determination is arbitrary or capricious or ‘“exceeds the bounds of reason, all
of the circumstances being considered.”’” (People v. Welch (1993) 5 Cal.4th 228, 234.)
“A discretionary order based on the application of improper criteria or incorrect legal
assumptions is not an exercise of informed discretion and is subject to reversal ….” (F.T.
v. L.J. (2011) 194 Cal.App.4th 1, 26, italics omitted.)
        Defendant contends the totality of the record demonstrates that the trial court
misunderstood the scope of its discretion regarding the restitution fine and the
corresponding parole revocation fine. We disagree with defendant’s interpretation of the
record, as we will explain.
        First, defendant claims the trial court’s statement that it was obligated to impose a
restitution fine was an incorrect statement of law that revealed a lack of awareness of the
court’s discretion under the statute. In our opinion, however, the court’s statement was
simply a recognition of the very limited exceptions to the otherwise mandatory
imposition of a restitution fine under section 1202.4 (§ 1202.4, subds. (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.”] & (c) [“The court shall impose the restitution fine
unless it finds compelling and extraordinary reasons for not doing so, and states those

                                              7.
reasons on the record. A defendant’s inability to pay shall not be considered a
compelling and extraordinary reason not to impose a restitution fine.”]).
       Next, defendant argues the probation report did nothing to correct the trial court’s
erroneous belief about the mandatory nature or the amount of the fine because the report
merely recommended the $10,000 fine without providing justification or mentioning the
optional statutory formula set out in section 1202.4, subdivision (b)(2). He says this bare
statement implied the $10,000 fine was mandatory, possibly leading the court to believe
it had no choice but to impose a fine of that amount. Defendant further argues that even
if the probation report did not mislead the court, the court’s statements and orders “point
to its confusion about, or misunderstanding of, the fines in the case.” He maintains the
trial court’s statement it was imposing “the minimum restitution fine, which is $10,000”
(italics added) suggests the court either misspoke when it said “$10,000” or mistakenly
believed $10,000 was the minimum possible fine.
       Defendant contends the opposite conclusion—that the trial court misspoke when it
said “minimum”—is impossible because it contravenes the court’s apparent intent to
limit the fines and other penalties, evidenced by its waiving of the court security fee,
assessment fee, probation report fee, and attorney fees. Defendant argues this effort at
mitigation demonstrates that the court intended to minimize, rather than maximize, the
fines and fees, but did not know how to do so.4 He cites the court’s statement that it was
waiving some of the fees “[i]n light of the sentence, the amount of restitution that’s due
and the amount of fine that is ordered,” as evidence that the court was “acutely cognizant
of the financial obligation it had imposed on top of the sentence and wanted to mitigate


4     As defendant recognizes, the court security fee and criminal conviction assessment
fee were mandatory, even for a conviction whose sentence was stayed, and they may be
added on appeal. (People v. Rodriguez (2012) 207 Cal.App.4th 1540, 1543, fn. 2; People
v. Woods (2010) 191 Cal.App.4th 269, 272-273; People v. Sharret (2011) 191
Cal.App.4th 859, 865-870.)


                                             8.
it—but was constrained by the absence of any vehicle for doing so in any meaningful
way.” Defendant believes remand is required to insure proper exercise of the trial court’s
discretion.
       Of course, we agree that the trial court’s description of the $10,000 restitution fine
as the “minimum” fine was incorrect. But we do not agree that the record demonstrates
the trial court believed the $10,000 fine was mandatory and intended somehow to
minimize the remaining fines and fees to counteract the hefty mandatory fine.
       Courts often order the $10,000 statutory maximum restitution fine when imposing
life sentences. (See, e.g., People v. Crayton (2002) 28 Cal.4th 346, [life term & $10,000
fine]; People v. Masbruch (1996) 13 Cal.4th 1001 [same]; People v. Oganesyan (1999)
70 Cal.App.4th 1178 [same]; People v. Kinsey, (1995) 40 Cal.App.4th 1621 [same].) A
lengthy prison term usually reflects the defendant’s plentiful and/or serious criminal
conduct and provides him time to pay a large fine commensurate with his conduct.
Defendant was convicted of murder, assault with a deadly weapon, and burglary; he
personally and intentionally discharged a firearm; and he had a history of conviction and
prison time. For this, the court imposed 69 years to life. The $10,000 maximum
restitution fine was an appropriate accompaniment to this lengthy prison sentence, as
both the aforementioned cases and the discretionary statutory formula (§ 1202.4,
subd. (b)(2)) attest. A $200 minimum fine, on the other hand, would seem
inappropriately trivial in this situation.
       We therefore believe the court misspoke when it described the $10,000 fine as the
“minimum” fine. Moreover, nothing in the record alters our conclusion. The court’s
waiving of the various fees, done in light of the life sentence and $10,000 restitution fine,
was likely to acknowledge the “significant difficulties in [defendant’s] upbringing” that
the court found in mitigation and the request for stayed fees. But apart from this gesture,
the court did not express an inclination toward leniency. Rather, it stated it could not
change the tragic fact that defendant had a horrible life; instead it had to deal with the

                                              9.
reality that defendant killed a young man and that the sentence recommended by the
probation officer (which included a 73-year-to-life sentence and $10,000 fines) seemed
appropriate. The court denied the Romero motion, concluding defendant’s case inhabited
the “heartland of the Three Strikes law.” The court explained that any exercise of
discretion in sentencing defendant would be constrained by the fact that he had
committed murder (“someone is dead”). In light of the entire record, the court’s waiving
of the various minor fees is not enough to convince us the court believed it had no
discretion to impose a restitution fine other than the maximum $10,000 fine. Indeed, as a
general rule, we presume the court knew and properly followed established law. (People
v. Diaz (1992) 3 Cal.4th 495, 567.) On this record, defendant has not affirmatively
shown error (Denham v. Superior Court (1970) 2 Cal.3d 557, 564)—neither a
misunderstanding of discretion nor an abuse of discretion in the imposition of the
$10,000 fine.
                                     DISPOSITION
       The judgment is modified to impose the $120 ($40 for each conviction) court
security fees (Pen. Code, § 1465.8, subd. (a)(1)) and the $90 ($30 for each conviction)
criminal conviction assessment fees (Gov. Code, § 70373). The trial court is directed to
amend the abstract of judgment and forward certified copies to the appropriate entities.
As so modified, the judgment is affirmed.




                                            10.
