Filed 7/27/15
                               CERTIFIED FOR PUBLICATION




                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                               THIRD APPELLATE DISTRICT
                                         (Sacramento)
                                              ----




THE PEOPLE,                                                         C076635

                  Plaintiff and Respondent,                (Super. Ct. Nos. 97F07782,
                                                                   97F07859)
        v.

RICKEY GLENN GROSS,

                  Defendant and Appellant.


      APPEAL from a judgment of the Superior Court of Sacramento County, Michael
A. Savage, Judge. Affirmed.

        Pamela R. Elliott, Retained Counsel for Defendant and Appellant.

       Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Eric Christoffersen and Jennevee H. de Guzman, Deputy Attorneys General, for
Plaintiff and Respondent.




        Under former Welfare and Institutions Code section 3200, a trial court could
dismiss the criminal charges against a defendant who successfully completed a

                                               1
commitment to the California Rehabilitation Center (CRC) and the dismissal had (with
one exception not applicable here) “the same force and effect as a dismissal under
Section 1203.4 of the Penal Code.”1 (Former Welf. & Inst. Code, §3200, subd. (b); see
People v. Rodriguez (1966) 243 Cal.App.2d 522, 527.) When an accusation or
information is dismissed under section 1203.4, the defendant is, with certain exceptions,
“released from all penalties and disabilities resulting from the offense of which he or she
has been convicted.” (§ 1203.4, subd. (a)(1).)
       In this case, defendant Rickey Glenn Gross contends the dismissal of the criminal
charges against him pursuant to former section 3200 following his successful completion
of a CRC commitment operated to release him from the obligation to pay restitution to
the victims of his crimes because direct victim restitution “qualifies as a ‘penalty and
disability’ pursuant to . . . section 1203.4.” We disagree. The obligation to make a
victim whole through direct victim restitution is a constitutional mandate that serves to
protect public safety and welfare, rather than to punish the defendant, and thus it is not a
penalty or disability from which a defendant is released upon the dismissal of criminal
charges pursuant to former section 3200 or section 1203.4. Accordingly, we affirm.
                                     BACKGROUND
       In 1998, defendant pled guilty to two counts of second degree burglary and
possession of a destructive device in Sacramento County Superior Court cases
Nos. 97F07570, 97F07782 (hereafter case No. 782) and 97F07859 (hereafter case No.
859). The trial court sentenced defendant to an aggregate term of five years four months
in state prison but suspended execution of defendant’s sentence and committed him to the
CRC.



1     Welfare and Institutions Code section 3200 was repealed effective January 1,
2015. (See Stats. 2012, ch. 41, § 119.) We will refer to that statute as former section
3200. Otherwise, however, all undesignated section references are to the Penal Code.

                                              2
       At sentencing, the trial court ordered defendant to pay various fines and fees as
well as direct restitution to his victims. To his victims, the trial court ordered defendant
to pay $14,230 in case No. 859, $31,083.92 in case No. 782, and a total of $34,826.59 in
several cases dismissed with Harvey2 waivers (Sacramento County Superior Court cases
Nos. “97/53823,” “97/76959,” and “97/70929”).3 In sum, the trial court ordered
defendant to pay $80.140.51 in direct restitution to his victims.
       In 2001, after defendant successfully completed his CRC commitment, the trial
court reinstated the criminal proceedings and dismissed the charges pursuant to former
section 3200.
       Years later, on September 24, 2013, defendant received a “Demand for Payment -
Court-Ordered Debt Collections” from the Franchise Tax Board, advising defendant that
he was delinquent in paying the direct restitution ordered by the court in cases Nos. 859




2      People v. Harvey (1979) 25 Cal.3d 754.
3      We note there are some discrepancies in the record on appeal with regard to the
amount of direct restitution ordered: The court reporter’s transcript indicates that in case
No. 859, the trial court ordered defendant to pay $14,230 to his victim. This is consistent
with the recommended amount of restitution contained in the probation report. The
“Chronological History” in the clerk’s transcript, however, list the amount ordered at
$14,230.69.

       The court reporter’s transcript also indicates that in case No. 782, the trial court
ordered defendant to pay $31,083.92 in direct restitution. This is consistent with the
amount of restitution recommended by the probation department. The “Chronological
History” and minute order, however, list the amount ordered at $31,503.92.

       We conclude the amount of restitution ordered is that listed in the court reporter’s
transcript because “ ‘[r]endition of judgment is an oral pronouncement.’ ” (People v.
Mesa (1975) 14 Cal.3d 466, 471, citing People v. Hartsell (1973) 34 Cal.App.3d 8, 14.)
“Entering the judgment in the minutes being a clerical function [citation], a discrepancy
between the judgment as orally pronounced and as entered in the minutes is presumably
the result of clerical error.” (Mesa, at p. 471.)

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and 782, now totaling $59,185.97.4 Soon thereafter, defendant filed and served a
“NOTICE AND MOTION TO BE RELIEVED OF RESTITUTION OBLIGATION
AND FOR REFUND OF FUNDS COLLECTED CONTRARY TO WELFARE &
INSTITUTIONS CODE SECTION 3200 AND PENAL CODE SECTION 1203.4.”
       On April 21, 2014, the trial court heard defendant’s motion. After hearing
argument from defendant’s counsel, the trial court ruled as follows: “Both the California
Constitution and statutes show that victim restitution was intended to remain in effect
well beyond the conclusion of criminal cases, and there’s no indication, in my view, that
relief under 1203.4 was ever, ever, intended to impair the right of a criminal victim to
restitution that had previously been ordered. In this case, there are 11 victims, including
all the Harvey waived counts.
       “Dismissing a case following a completion of a CRC program which would
release liability for a continuing victim restitution obligation would not, in any way, have
been in the interest of justice. That is required.
       “So, for all those reasons, I’m going to deny your motion to relieve [defendant] of
his restitution obligation.”
       Defendant appeals from that order.
                                       DISCUSSION
       Defendant contends the trial court erred in denying his motion because “when [the
criminal charges against him were] dismissed pursuant to [former] section 3200,” “he
was statutorily released” from the obligation to pay direct victim restitution because that
obligation “qualifies as a ‘penalty and disability’ pursuant to . . . section 1203.4.” We
disagree.



4      It is not clear from the record why the Franchise Tax Board did not include in its
demand the trial court’s order for restitution in the cases dismissed with Harvey waivers,
totaling $34,826.59.

                                               4
                                               I
                                 The Victims’ Bill Of Rights
       Article I, section 28 of the California Constitution, as amended by Proposition 9,
the Victims’ Bill of Rights Act of 2008, known as Marsy’s Law, provides for a broad
spectrum of victims’ rights, including restitution. Article I, section 28, subdivision
(b)(13) of the California Constitution, states that: “[i]t 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 seek and secure restitution from the persons convicted of
the crimes causing the losses they suffer. [¶] Restitution shall be ordered from the
convicted wrongdoer in every case, regardless of the sentence or disposition imposed, in
which a crime victim suffers a loss.”
       A victim’s right to restitution is, therefore, a constitutional one; it cannot be
bargained away or limited, nor can the prosecution waive the victim’s right to receive
restitution. (See People v. Valdez (1994) 24 Cal.App.4th 1194, 1202-1203; accord
People v. Brown (2007) 147 Cal.App.4th 1213, 1226 [“Victim restitution cannot be
bargained away by the People”].) Moreover, “[a] sentence without an award of victim
restitution is invalid.” (Brown, at p. 1225; People v. Bernal (2002) 101 Cal.App.4th 155,
164-165; People v. Rowland (1997) 51 Cal.App.4th 1745, 1750-1752.) Indeed, on the
motion of a victim, a court may at any time correct a sentence that is rendered invalid due
to the omission of a restitution order. (§ 1202.46.)
       The constitutional provision for victim restitution, however, is not self-executing.
Accordingly, the Legislature has enacted implementing legislation. (People v. Giordano
(2007) 42 Cal.4th 644, 652.) Section 1202.4 authorizes the imposition of restitution




                                               5
fines, which support a fund that compensates victims, and direct restitution payments to
victims. (§ 1202.4, subds. (e), (f).)5
                                              II
                         Former Section 3200 And Section 1203.4
       Former section 3200 provided in relevant part as follows: “If at any time the
director is of the opinion that a person committed for a period of 24 months, or less,
pursuant to Article 2 . . . while in outpatient status has abstained from the use of
narcotics, other than as medically prescribed in a narcotic treatment program . . . , for at
least 12 consecutive months and has otherwise complied with the conditions of his or her
release, or if at any time the director is of the opinion that a person committed for a
period of more than 24 months pursuant to Article 2 . . . while in outpatient status has
abstained from the use of narcotics, other than as medically prescribed in a narcotic
treatment program . . . , for at least 16 consecutive months and has otherwise complied
with the conditions of his or her release, the director shall so advise the Narcotic Addict
Evaluation Authority. If the authority concurs in the opinion of the director, it shall file
with the superior court of the county in which the person was committed a certificate
alleging those facts and recommending to the court the discharge of the person from the
program. The authority shall serve a copy of the certificate upon the district attorney of
the county. Upon the filing of the certificate, the court shall discharge the person from
the program. The court may unless otherwise prohibited by law, modify the sentence,
dismiss the criminal charges of which the person was convicted, or suspend further


5        Prior to the approval of Marsy’s Law by the voters in 2008, article I, section 28,
subdivision (b) of the California Constitution, enacted by the voters in Proposition 9,
mandated that “[r]estitution 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.” (Former Cal. Const.,
art. I, § 28, subd. (b), as adopted June 8, 1982, italics added.) Marsy’s law removed that
discretion.

                                              6
proceedings, as it deems warranted in the interests of justice. . . . The dismissal shall
have the same force and effect as a dismissal under Section 1203.4 of the Penal Code,
except the conviction is a prior conviction for purposes of Division 10 . . . of the Health
and Safety Code.”
       In relevant part, subdivision (a)(1) of section 1203.4 provides as follows: “In any
case in which a defendant has fulfilled the conditions of probation for the entire period of
probation, or has been discharged prior to the termination of the period of probation, or in
any other case in which a court, in its discretion and the interests of justice, determines
that a defendant should be granted the relief available under this section, the defendant
shall, at any time after the termination of the period of probation, if he or she is not then
serving a sentence for any offense, on probation for any offense, or charged with the
commission of any offense, be permitted by the court to withdraw his or her plea of
guilty or plea of nolo contendere and enter a plea of not guilty; or, if he or she has been
convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and, in
either case, the court shall thereupon dismiss the accusations or information against the
defendant and except as noted below, he or she shall thereafter be released from all
penalties and disabilities resulting from the offense of which he or she has been
convicted, except as provided in Section 13555 of the Vehicle Code.”
                                               III
                      An Order For Direct Restitution Implements The
             Constitutional Mandate To Make Victims Whole, And This Is An
       Obligation From Which A Defendant Is Not Released Under Section 1203.4
       As we have noted, defendant contends the trial court’s orders for direct restitution
here were a “penalty and disability,” from which he was statutorily released when his
cases were dismissed under former section 3200. We are not persuaded.
       Generally, “ ‘section 1203.4 does not, properly speaking, “expunge” the prior
conviction. The statute does not purport to render the conviction a legal nullity. Instead,

                                               7
it provides that, except as elsewhere stated, the defendant is “released from all penalties
and disabilities resulting from the offense.” The limitations on this relief are numerous
and substantial . . . .’ ” (People v. Vasquez (2001) 25 Cal.4th 1225, 1230, quoting
People v. Frawley (2000) 82 Cal.App.4th 784, 791.)
       These limitations arise from “a distinction between penalties imposed . . . as
further punishment for the crime, as to which vacation under . . . section 1203.4 generally
affords relief, and nonpenal restrictions adopted for the protection of public safety and
welfare.” (People v. Vasquez, supra, 25 Cal.4th at p. 1230.) Thus, California courts have
consistently upheld the denial of professional licenses due to a conviction following
dismissals under section 1203.4. (Adams v. County of Sacramento (1991)
235 Cal.App.3d 872, 880 [discussing cases].) Underlying these decisions is the rationale
that while section 1203.4 may operate to free the convicted defendant from penalties and
disabilities “of a criminal or like nature,” it does not “obliterate the fact that the defendant
has been ‘finally adjudged guilty of a crime’ ” for purposes of protecting public welfare.
(Adams, at pp. 877-881, quoting In re Phillips (1941) 17 Cal.2d 55, 61.)
       Moreover, numerous statutes impose continuing liabilities upon persons who have
obtained a dismissal pursuant to section 1203.4. (People v. Frawley, supra,
82 Cal.App.4th at pp. 791-792.) Section 1203.4, subdivision (a)(1) itself places several
limitations on the relief it offers, including that “in any subsequent prosecution of the
defendant for any other offense, the prior conviction may be pleaded and proved and
shall have the same effect as if probation had not been granted or the accusation or
information dismissed.” Other statutes also expressly provide that a dismissal under
section 1203.4 does not limit the consequences of a conviction. (E.g., Evid. Code, § 788,
subd. (c) [defendant may be impeached with prior conviction, notwithstanding dismissal
under § 1203.4]; Veh. Code, § 13555 [dismissal under § 1203.4 does not affect
revocation or suspension of driver’s license due to conviction]; see Frawley, at p. 792
[discussing statutes and case law].)

                                               8
       A statute also may impose a continuing liability upon a person who has obtained a
dismissal under section 1203.4, even though the statute does not contain an express
provision to this effect. In Vasquez, the defendant suffered a conviction in Texas for
sexually abusing a child and obtained a dismissal of the action under a Texas statute that
closely resembled section 1203.4. (People v. Vasquez, supra, 25 Cal.4th at p. 1227.) In
California, he was civilly committed pursuant to the Sexually Violent Predators Act
(SVPA) (Welf. & Inst. Code, § 6600 et seq.) on the basis of his convictions, including the
Texas conviction. (Vasquez, at pp. 1227-1228.) Our Supreme Court affirmed the
judgment, concluding that although the SVPA does not expressly state that convictions
set aside under section 1203.4 provide a basis for commitment, the defendant’s
commitment properly relied on the Texas conviction, as the SVPA is intended to protect
the public, rather than to impose additional punishment. (Vasquez, at pp. 1230-1234.)
       We reach a similar conclusion here. Although the constitutional provision and
statutory scheme governing victim restitution do not refer to section 1203.4, the
constitutional provision is unequivocal in its declaration that “all persons who suffer
losses as a result of criminal activity shall have the right to seek and secure restitution . . .
[¶] . . . [¶] . . . regardless of the sentence or disposition imposed . . . .” (Cal. Const., art. I,
§ 28, subd. (b)(13), italics added.) This language, on its face, discloses the voters’ intent
to establish a continuing right to restitution following the disposition of a criminal
proceeding. Although a dismissal under section 1203.4 relieves a defendant of some of
the consequences of a criminal conviction, the dismissal does not itself extinguish the
facts underlying the conviction, including the harm to the victims and thus the defendant
is properly held liable for such harm.
       In support of his argument on appeal, defendant relies on the decision of the
Second Division of the Fourth Appellate District Court of Appeal in People v. Guillen
(2013) 218 Cal.App.4th 975. His reliance is misplaced. In Guillen, the court considered
only whether restitution fines were a penalty or disability from which a defendant could

                                                 9
be relieved under section 1203.4. (Guillen, at pp. 982, 1003-1004.) The court did not
consider an order for direct victim restitution. (Id. at p. 985.) “[A]n opinion is not
authority for a proposition not therein considered.” (Ginns v. Savage (1964) 61 Cal.2d
520, 524, fn. 2.)
       Moreover, even if defendant relies on Guillen only by analogy, that reliance is
misplaced because defendant ignores a critical distinction between restitution fines and
direct victim restitution: restitution fines are punitive in nature; direct victim restitution
is not. (People v. Harvest (2000) 84 Cal.App.4th 641, 646-647; People v. Hanson (2000)
23 Cal.4th 355, 362.) “The purpose of direct victim restitution . . . is to reimburse the
victim for economic losses caused by the defendant’s criminal conduct, i.e., to make the
victim reasonably whole. [Citations.] Secondary goals of direct restitution include
rehabilitation of the defendant and deterrence of future criminality.” (People v. Guillen,
supra, 218 Cal.App.4th at p. 984.) Thus, unlike restitution fines, direct victim restitution
is imposed to protect public safety and welfare, not to punish the defendant, and thus
under the authorities we have previously discussed, the obligation to make restitution to
the victims does not qualify as a penalty or disability from which a defendant is relieved
by a dismissal under former section 3200 or section 1203.4.6



6       Because this case involves a dismissal under former section 3200, rather than a
dismissal under section 1203.4, we have no occasion to consider whether it would even
be lawful to dismiss an accusation or information under section 1203.4 when an order for
direct victim restitution remained unsatisfied. Certainly if a trial court had exercised its
discretion to make direct victim restitution a condition of probation (see § 1203.1,
subd. (b)), dismissal would not be lawful under the first option in subdivision (a)(1) of
section 1203.4 because the defendant would not have “fulfilled the conditions of
probation for the entire period of probation.” (§ 1203.4, subd. (a)(1).) Whether dismissal
might be lawful in other circumstances, i.e., when the obligation to pay direct victim
restitution was not imposed as a condition of probation, or when dismissal was sought
under one of the two other options in subdivision (a)(1) of section 1203.4 (discharge from
probation prior to the termination of the probationary period or in the court’s discretion
and the interests of justice) -- is beyond the scope of our opinion in this case. For our

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                                       DISPOSITION
       The trial court’s order is affirmed.



                                                      ROBIE                       ,
Acting P. J.



We concur:



      MURRAY                , J.



      HOCH                  , J.




purposes, it is sufficient to conclude that a dismissal otherwise lawfully made under
former section 3200 or section 1203.4 does not operate to relieve the defendant from the
obligation to make direct victim restitution.

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