Filed 11/1/13 P. v. Dean 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

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

THE PEOPLE,
                                                                                           F065938
         Plaintiff and Respondent,
                                                                        (Stanislaus Super. Ct. No. 1037386)
                   v.

JERMAINE MICHAEL DEAN,                                                                   OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Stanislaus County. Donald E.
Shaver, Judge.
         Charles M. Bonneau, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Office of the Attorney General, Sacramento, California, for Plaintiff and
Respondent.
                                                        -ooOoo-



         *   Before Kane, Acting P.J., Detjen, J. and Franson, J.
                                      INTRODUCTION
       Appellant/defendant Jermaine Michael Dean was convicted of first degree
premeditated murder with a robbery special circumstance, and sentenced to life in prison
without possibility of parole. The court ordered him to pay a $10,000 restitution fine
pursuant to Penal Code1 section 1202.4, and victim restitution of 5,861.42 for the
victim’s funeral expenses. Defendant did not object.
       On appeal, his appellate counsel has filed a brief which summarizes the facts, with
citations to the record, raises no issues, and asks this court to independently review the
record. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) By letter on December 11,
2012, we invited defendant to submit additional briefing.
       Defendant has filed a briefing letter, and contends the restitution fine and
restitution for the victim’s funeral expenses must be stricken because the sentencing court
failed to consider his ability to pay. We affirm.
                    FACTUAL AND PROCEDURAL BACKGROUND
       In 2007, after a jury trial, defendant Dean and codefendants Kevin Trice and
Tommy Nichols were convicted of count I, first degree premeditated murder of Jose Ruiz
(§ 187), with a robbery special circumstance (§ 190.2, subd. (a)(17)), and a personal use
allegation (§ 12022.53, subd. (d)).
       Defendant was also convicted of counts III and IV, robbery (§ 212.5); and counts
V and VI, false imprisonment (§ 236); with additional firearm allegations (§ 12022.53,
subd. (d), § 12022.5).




       1   All further statutory citations are to the Penal Code unless otherwise indicated.



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Sentencing hearing
        On April 21, 2008, the court conducted the sentencing hearing for defendant,
Trice, and Nichols. The prosecutor anticipated that a restitution hearing would also be
held.
        The court began the hearing by sentencing Nichols and Trice to life in prison
without possibility of parole, with additional determinate and indeterminate terms for the
other counts and enhancements. The court also imposed restitution fines of $10,000
against each codefendant.
        As the court sentenced Nichols, his attorney stated that he had filed “documents
with regards to restitution,…” The court agreed and said it would continue with the
sentences and return to Nichols’s objections to restitution. Defendant’s attorney
interjected that defendant “will be objecting to any restitution order without a Cervantes
hearing.”2 The court acknowledged defendant’s objection and said it would “take that up
separately,…” Trice’s attorney also requested a Cervantes hearing for restitution.
        The court continued with the hearing and sentenced defendant to life in prison
without possibility of parole for murder, plus 25 years to life for the section 12022.53,
subdivision (d) allegation; six years for count IV plus 25 years to life for the personal use
allegation; concurrent terms of two years for count V, plus four years for the firearm
enhancement; and concurrent terms of two years for count VI, plus four years for the
firearm enhancement. The court stayed the term for count III. The court also imposed a
$10,000 restitution fine.
        The court then addressed the restitution objections. Trice’s attorney withdrew his
request for a Cervantes hearing. An off-the-record conversation occurred between all the


        2In People v. Cervantes (1984) 154 Cal.App.3d 353, 356-357 (Cervantes), the
court held that a sentencing court cannot delegate absolute power to a probation officer to
determine the propriety, amount, and manner of restitution.


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parties and their attorneys. When they returned on the record, the attorneys for both
defendant and Nichols said they were prepared to submit, and they withdrew their
requests for a hearing on the restitution issues.
       The court continued with the restitution orders. It had already imposed $10,000
restitution fines as to all defendants. It also ordered restitution of $5,861.42 for the
murder victim’s funeral expenses and $236.04 to the City of Modesto for ambulance
expenses, with the three defendants jointly and severally liable for those two orders.
Defendant and his codefendants did not object.
Appellate review
       On June 29, 2010, this court affirmed defendant’s convictions in a joint appeal.
As to all defendants, however, we ordered the restitution order for $236.04 for ambulance
services stricken because the City of Modesto was not a direct victim of their offenses,
and that order constituted an unauthorized sentence. While defendant challenged the
restitution order for Modesto, he did not challenge the restitution fine or victim restitution
order for funeral expenses. (See People v. Nichols et al. (June 29, 2010, F055572)
[nonpub. opn.].)
Defendant’s motion to strike
       On July 20, 2012, defendant filed a motion in superior court to strike the
restitution fine of $10,000 and the victim restitution order of $5,861.42, because the
sentencing court never considered his ability to pay. Defendant requested reduction of
the restitution fine to $200.
       On August 15, 2012, the superior court denied the motion, and held defendant
waived the issue because he failed to object to the orders at the sentencing hearing,
pursuant to People v. Forshay (1995) 39 Cal.App.4th 686.
                                       DISCUSSION
       On appeal, defendant contends the $10,000 restitution fine and the victim
restitution order of $5,861.42 for funeral expenses must be stricken because the superior

                                              4.
court failed to consider his ability to pay when it imposed these orders at the sentencing
hearing.
       In this case, the sentencing court was prepared to grant the request of defendant
and his codefendants for a hearing on the restitution issues. However, defendant,
Nichols, and Trice withdrew their requests for a hearing, and they did not object to the
court’s imposition of the restitution orders.
       As noted by the superior court, defendant’s failure to object at the sentencing
hearing to the court’s imposition of the restitution fine, or claim that he lacked the ability
to pay, results in forfeiture of that issue on appeal. (People v. Forshay, supra, 39
Cal.App.4th at pp. 689-690.) This principal was recently reaffirmed by the California
Supreme Court. (People v. McCullough (2013) 56 Cal.4th 589, 598-599.)
       As this court previously held, the restitution order to the City of Modesto
constituted an unauthorized sentence since the city was not a direct victim of defendant’s
crimes. In contrast, the court’s orders for the $10,000 restitution fine, and restitution for
the victim’s funeral expenses were authorized by statute and did not constitute
unauthorized sentences. Defendant has forfeited review of these orders given his failure
to object and the withdrawal of his request for a restitution hearing.3
       After independent review of the record, we find that no further reasonably
arguable factual or legal issues exist.
                                          DISPOSITION
       The judgment is affirmed.


       3 Defendant did not challenge the restitution fine or victim restitution order in his
first appeal. Thereafter, the superior court heard and denied his subsequent motion to
strike these orders, without addressing whether the motion was properly before the court
since it was filed two years after the appeal was final. Given defendant’s forfeiture of the
issues, we will not address the validity of defendant’s belated challenge to the restitution
orders which did not constitute unauthorized sentences.



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