People v. Harvey CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCD256543
- Trial judge
- David J. Danielsen
- Outcome
- modified — Affirmed as modified.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), Gilbert Nares
Analysis
The trial court resentenced the defendant to a misdemeanor under Proposition 47, imposing a one-year parole period and a $300 restitution fine. The Court of Appeal affirmed the judgment as modified, striking the parole period and finding the restitution fine issue forfeited.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Imposition of a one-year parole period upon resentencing to a misdemeanor under Penal Code section 1170.18.“In People v. Pinon (2015) 238 Cal.App.4th 1232 (Pinon), the court held that the added one-year parole period upon resentencing is an additional term within the meaning of section 1170.18, subdivision (e).” | de novo | error | agree with court The court correctly applied the holding in People v. Pinon, which interprets Penal Code section 1170.18, subdivision (e) to prohibit adding a parole term that extends the total time of supervision beyond the original sentence. Since the original sentence did not include parole, adding it violated the statute's prohibition against imposing a longer term. |
Imposition of a $300 restitution fine upon resentencing to a misdemeanor.“Where the court imposes a fine within the lawful range of fines, the absence of a timely objection deprives this court of a record on which to review the court's exercise of discretion. Failure to timely raise sentencing issues in the trial court forfeits such issues for appellate review.” | abuse of discretion | not reached | agree with court The court held the issue was forfeited because the defendant failed to object to the fine amount at the time of resentencing. Under California law, failure to raise a sentencing issue in the trial court generally waives the right to appeal that issue, as the appellate court lacks a developed record to review the trial court's exercise of discretion. |
Authorities
- relied: People v. Pinon (2015) 238 Cal.App.4th 1232 — The one-year parole period added upon resentencing under Penal Code section 1170.18 is an additional term that violates subdivision (e) if it results in a term longer than the original sentence.
- relied: People v. Garcia (2010) 185 Cal.App.4th 1203 — Failure to timely raise sentencing issues in the trial court forfeits such issues for appellate review.
- relied: People v. Scott (1994) 9 Cal.4th 331 — Failure to object to a sentencing issue in the trial court generally results in forfeiture of the issue on appeal.
The appellate opinion: sound — The opinion is sound because it correctly applies the controlling precedent from People v. Pinon to strike the parole term and correctly applies the forfeiture doctrine to the restitution fine issue. The reasoning is concise and directly addresses the arguments raised by the parties.
How this analysis was made · dispute it
unusual dispositionOn a Proposition 47 petition the trial court reduced Harvey's felony drug possession conviction to a misdemeanor, imposed the same custody term, added a one-year parole period under Penal Code section 1170.18, subdivision (d), and reimposed the original $300 restitution fine. The Court of Appeal accepted the People's concession and struck the parole period as exceeding the original sentence under section 1170.18, subdivision (e) and People v. Pinon, held the credit arguments moot, held the restitution fine challenge forfeited for lack of objection, and affirmed as modified.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Imposition of a one-year parole period under Penal Code section 1170.18, subdivision (d) upon resentencing the offense to a misdemeanor“We agree with the court's analysis in Pinon, supra, 238 Cal.App.4th 1232 and therefore we accept the People's concession and will strike the parole term.” | de novo | error (statutory interpretation) | unsure The court applied Pinon, which read the parole period as an additional 'term' barred by section 1170.18, subdivision (e) when it lengthens the original sentence, and accepted the People's concession without independent analysis. At the time there was a published split: People v. Hickman (2015) 237 Cal.App.4th 984 reached the opposite conclusion, and the court did not acknowledge it. The California Supreme Court later resolved the split against Pinon in People v. Morales (2016) 63 Cal.4th 399, holding the parole period is not a 'term' limited by subdivision (e) and that excess custody credits do not reduce it. Under then-existing authority the result was defensible, but the statutory reading the court adopted did not survive, so I cannot say the trial court erred. |
Entitlement to apply excess custody credits against the parole period“Harvey's additional arguments about entitlement to credits against the parole term are moot in light of our disposition.” | unclear | not reached | agree with court Because the court struck the parole term entirely, it had no occasion to decide whether excess credits reduce parole; treating the issue as moot followed logically from the disposition. Subsequent Supreme Court authority (Morales) holds excess credits do not reduce the parole period, but that question was not decided here. |
Reimposition of the $300 restitution fine under Penal Code section 1202.4 upon misdemeanor resentencing“Where the court imposes a fine within the lawful range of fines, the absence of a timely objection deprives this court of a record on which to review the court's exercise of discretion.” | abuse of discretion | not reached | agree with court A $300 fine falls within the $150 to $1,000 misdemeanor range in section 1202.4, subdivision (b)(1), so it is not an unauthorized sentence correctable without objection; the choice of amount is a discretionary sentencing decision that People v. Scott holds is forfeited absent a timely objection in the trial court. Harvey made no objection at resentencing, so the forfeiture holding is consistent with Scott and Garcia. |
Authorities
- relied: People v. Pinon (2015) 238 Cal.App.4th 1232 — A one-year parole period added on Proposition 47 resentencing is an additional term within the meaning of Penal Code section 1170.18, subdivision (e), and may not make the total term longer than the original sentence; this holding was later disapproved by the Supreme Court in People v. Morales (2016) 63 Cal.4th 399.
- relied: People v. Garcia (2010) 185 Cal.App.4th 1203 — Sentencing issues not raised in the trial court are forfeited on appeal.
- relied: People v. Scott (1994) 9 Cal.4th 331 — Claims involving the trial court's failure to properly make or articulate discretionary sentencing choices are forfeited if not raised by timely objection at sentencing.
The appellate opinion: sound with gaps — The forfeiture holding on the restitution fine is correctly grounded in Scott and Garcia, and the parole ruling followed existing published authority (Pinon) and a concession by the People. The court did not acknowledge the contemporaneous contrary published decision in People v. Hickman (2015) 237 Cal.App.4th 984 or independently analyze the statute, and the Supreme Court's later decision in People v. Morales (2016) 63 Cal.4th 399 rejected Pinon's reading, so the parole result rested on a statutory interpretation that did not hold.
Opinion
Filed 10/22/15 P. v. Harvey CA4/1 NOT TO BE PUBLISHED IN 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D067922
Plaintiff and Respondent, v. (Super. Ct. No. SCD256543)
JAMES O. HARVEY, Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, David J.
Danielsen, Judge. Affirmed as modified.
Christian C. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Andrew S.
Mestman and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.
On June 26, 2014, James O. Harvey entered a guilty plea to one count of possession of a controlled substance without a prescription (Health & Saf. Code, § 11350, subd. (a)), then a felony. Harvey was sentenced to eight months in prison, to be served locally.
In December 2014, Harvey filed a petition under Proposition 47 (Pen. Code,1 § 1170.18; the Safe Neighborhoods and Schools Act of 2014) for resentencing. The trial court granted the relief and reduced the offense to a misdemeanor. The court imposed the same custody period as before but added a one-year parole period. The court also imposed the same $300 restitution fine as previously ordered.
Harvey appeals contending the court erred in adding a one-year parole period, and that his excess credits should be counted against the parole period. Harvey also argues the restitution fine should be reduced because the minimum restitution fine for a misdemeanor is $150.
The People agree the parole period should be stricken and thus the other arguments about credits are moot. The People also argue there was no abuse of discretion by the court in setting the restitution fine at $300. In any event they contend the issue of the fine amount has been waived by failure to object in the trial court.
We agree with the parties that the parole period must be stricken. In our view that renders the credit issues moot. With regard to the fine, we find the issue has been 1 All further statutory references are to the Penal Code unless otherwise specified.
2 forfeited. Thus, we will direct the trial court to strike the parole term. In all other respects we will affirm.2
DISCUSSION
I
PAROLE TERM
Harvey contends the trial court erred in imposing a one-year parole period after he was resentenced to a misdemeanor pursuant to section 1170.18. The People agree and ask that we strike the parole term.
Section 1170.18, subdivision (d) provides in part: "A person who is resentenced pursuant to subdivision (b) shall be given credit for time served and shall be subject to parole for one year following completion of his or her sentence, unless the court, in its discretion, as part of its resentencing order, releases the person from parole."
Section 1170.18, subdivision (e) provides: "Under no circumstances may resentencing under this section result in the imposition of a term longer than the original sentence."
In People v. Pinon (2015) 238 Cal.App.4th 1232 (Pinon), the court held that the added one-year parole period upon resentencing is an additional term within the meaning of section 1170.18, subdivision (e). (Pinon, supra, at p. 1238.) The People do not challenge the reasoning of the Pinon decision.
2 The facts of the underlying offense are not relevant to any issue presented by this appeal. Therefore, we will omit the traditional statement of facts. 3 We agree with the court's analysis in Pinon, supra, 238 Cal.App.4th 1232 and therefore we accept the People's concession and will strike the parole term. Harvey's additional arguments about entitlement to credits against the parole term are moot in light of our disposition.
II
RESTITUTION FINE
At the original felony sentencing in this case the court imposed the minimum $300 restitution fine. When the court resentenced Harvey it imposed the original $300 fine.
Harvey did not object to the fine or the amount.
On appeal, counsel contends the court erred in not reducing the fine to $150 which is the minimum fine for misdemeanor sentences. We find the issue has been forfeited by failure to raise it in the trial court.
Section 1202.4, subdivision (b)(1) requires that persons convicted of a felony pay a restitution fine of not less than $300, nor more than $10,000. In the case of persons convicted of misdemeanors the fine is not less than $150 nor more than $1,000.
The fine imposed was well within the range of fines appropriate for the newly sentenced misdemeanor. Harvey argues the fine is unauthorized because the court did not exercise its discretion. We disagree. Where the court imposes a fine within the lawful range of fines, the absence of a timely objection deprives this court of a record on which to review the court's exercise of discretion. Failure to timely raise sentencing issues in the trial court forfeits such issues for appellate review. (People v. Garcia (2010)
185 Cal.App.4th 1203, 1218; People v. Scott (1994) 9 Cal.4th 331, 355-357.)
4 DISPOSITION
The one-year parole period added to Harvey's term upon resentencing is ordered stricken. The superior court is ordered to modify its minutes accordingly. In all other respects the judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
NARES, J.
PRAGER, J.* * Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 5
Cites, in this corpus
- People v. Garcia E048416 · 2010-06-23
- People v. Scott No. S037757 · 1994-12-30