P. v. Lee CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCE316239
- Trial judge
- John M. Thompson
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- McINTYRE (author), Judith L. Haller, Cynthia Aaron
Analysis
The trial court sentenced Melody Lee to three years in prison and imposed a $1,500 restitution fine under Penal Code section 1202.4 for elder abuse. The Court of Appeal affirmed the judgment, finding that Lee forfeited her challenge to the fine by failing to object at trial, but reviewing the issue on the merits and concluding the trial court did not abuse its discretion in setting the fine amount.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Imposition of a $1,500 restitution fine under Penal Code section 1202.4“Given the evidence that Sally suffered serious neglect over a long period of time, we cannot conclude that the trial court abused its discretion by imposing the $1,500 fine.” | abuse of discretion | correct | agree with court agree with court |
Forfeiture of the claim that the evidence did not support the fine“Lee forfeited the claim that the evidence did not support the fine by failing to object at her sentencing hearing.” | de novo | correct | agree with court agree with court |
Authorities
- relied: People v. Nelson (2011) 51 Cal.4th 198 — Failure to object to a restitution fine at sentencing results in forfeiture of the claim, and the absence of express findings on ability to pay does not demonstrate an abuse of discretion.
- relied: People v. Gamache (2010) 48 Cal.4th 347 — The trial court is not required to make specific findings or conduct a separate hearing concerning the amount of the restitution fine under section 1202.4.
- relied: People v. Hanson (2000) 23 Cal.4th 355 — The Legislature intended restitution fines as punishment.
- relied: People v. Romero (1996) 43 Cal.App.4th 440 — The statute impliedly presumes a defendant has the ability to pay, and it is the defendant's burden to show inability to pay.
- relied: People v. Lewis (2009) 46 Cal.4th 1255 — A decision of the trial court in setting the amount of the restitution fine will not be overturned absent a showing of an abuse of discretion.
- relied: People v. Frye (1994) 21 Cal.App.4th 1483 — In determining ability to pay, the trial court may consider the defendant's future ability to pay, including the ability to earn wages while in prison.
- relied: People v. Staley (1992) 10 Cal.App.4th 782 — Where a defendant is capable of supporting herself with legitimate employment, the trial court may consider her ability to find and maintain productive employment once her sentence is completed.
- relied: People v. DeFrance (2008) 167 Cal.App.4th 486 — Absent a showing of absolute inability to ever pay, the amount of a fine is not an abuse of discretion even if payment would be difficult or take a long time.
The appellate opinion: sound — The court correctly applied the abuse of discretion standard and relied on binding Supreme Court authority (Nelson, Gamache) to establish that no specific findings are required for restitution fines. It properly distinguished the defendant's inability to pay from an absolute inability to pay, citing relevant appellate precedent (DeFrance, Frye, Staley) to support the consideration of future earning capacity.
How this analysis was made · dispute it
unusual dispositionThe trial court, after Melody Lee pleaded guilty to felony elder abuse likely to cause great bodily injury, sentenced her to three years in prison and imposed a $1,500 restitution fine under Penal Code section 1202.4 without objection. On appeal Lee argued the fine was unsupported by evidence and the court failed to consider her ability to pay; the Court of Appeal held the claim forfeited, reviewed it anyway to dispose of the ineffective-assistance claim, found no abuse of discretion, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Imposition of a $1,500 restitution fine under Penal Code section 1202.4 above the $200 statutory minimum, challenged as unsupported by evidence and as made without consideration of ability to pay and other subdivision (d) factors“Given the evidence that Sally suffered serious neglect over a long period of time, we cannot conclude that the trial court abused its discretion by imposing the $1,500 fine.” | abuse of discretion | correct | agree with court Section 1202.4, subdivision (d) places the burden of showing inability to pay on the defendant, requires no express findings or separate hearing, and the Supreme Court in Nelson and Gamache held the absence of findings does not show the court failed to consider ability to pay. The probation report showed age 46, education, 62 certification programs, and inconsistencies about her claimed illness, supporting future earning capacity under Frye and Staley; $1,500 for a three-year felony sentence involving prolonged neglect of a 92-year-old victim is within the $200-$10,000 range and consistent with the statutory formula ($200 x 3 years). The opinion's reasoning tracks the governing statute and binding authority. |
Forfeiture of the restitution-fine challenge for failure to object at sentencing, with the merits reached to resolve the alternative ineffective assistance of counsel claim“Lee forfeited the claim that the evidence did not support the fine by failing to object at her sentencing hearing.” | de novo | correct | agree with court Nelson and Gamache squarely hold that a defendant who does not object to a restitution fine on ability-to-pay grounds forfeits the claim; Lee's attempt to recast it as a sufficiency-of-evidence claim does not fit those holdings. Reaching the merits anyway, and finding no abuse of discretion, necessarily defeats the ineffective-assistance claim because an objection would have been futile and no prejudice is shown. The court's approach is a sensible and correct application of the forfeiture doctrine. |
Authorities
- relied: People v. Nelson (2011) 51 Cal.4th 198 — Failure to object to a restitution fine on ability-to-pay grounds forfeits the claim; absence of express findings does not show the court failed to consider ability to pay
- relied: People v. Gamache (2010) 48 Cal.4th 347 — Forfeiture of unobjected-to restitution fine; trial court need not make express findings on ability to pay under section 1202.4
- relied: People v. Hanson (2000) 23 Cal.4th 355 — The Legislature intended restitution fines as punishment
- relied: People v. Romero (1996) 43 Cal.App.4th 440 — Section 1202.4 places the burden on the defendant to show inability to pay and impliedly presumes ability to pay
- relied: People v. Lewis (2009) 46 Cal.4th 1255 — A trial court's setting of the restitution fine amount is reviewed for abuse of discretion
- relied: People v. Frye (1994) 21 Cal.App.4th 1483 — In assessing ability to pay a restitution fine, the court may consider future ability to pay, including prison wages
- relied: People v. Staley (1992) 10 Cal.App.4th 782 — The court may consider a defendant's ability to find and maintain productive employment after release
- relied: People v. DeFrance (2008) 167 Cal.App.4th 486 — Absent a showing of absolute inability to ever pay, a fine is not an abuse of discretion even if payment will be difficult and prolonged
The appellate opinion: sound — The opinion correctly applies Nelson and Gamache on forfeiture and the no-findings rule, then independently supports the fine with record evidence of future earning capacity and the gravity of the offense, answering each of Lee's arguments. The result is squarely within the statutory range and consistent with the formula in section 1202.4, subdivision (b)(2), leaving no unaddressed argument of substance.
Opinion
Filed 4/5/13 P. v. Lee 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, D062040
Plaintiff and Respondent, v. (Super. Ct. No. SCE316239)
MELODY LEE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, John M.
Thompson, Judge. Affirmed.
For three years, Melody Lee lived with her boyfriend, codefendant Timothy Gross, and Timothy's 92-year-old mother, Sally. Lee helped care for Sally. Lee pleaded guilty to elder abuse likely to cause great bodily injury or death based on her neglect of Sally, which included evidence that Sally was left alone in a home with no running water or edible food and in extremely unsanitary conditions. The trial court sentenced her to a total term of three years in prison. It also imposed various fines and fees, including a $1,500 restitution fine under Penal Code section 1202.4. (Undesignated statutory references are to the Penal Code.) Lee did not object to the imposition of the restitution fine on any grounds. She appeals, contending the trial court abused its discretion when it imposed the fine. We reject her contention and affirm the judgment.
DISCUSSION
Lee contends the trial court abused its discretion and violated her right to due process when it ordered her to pay a $1,500 restitution fine under section 1202.4 because there was no evidence to support the order and the trial court failed to consider the relevant factors under subdivision (d) of section 1202.4 or her ability to pay the fine. She acknowledges that she failed to raise this issue in the trial court, but contends the forfeiture doctrine does not apply because her claim is based on the sufficiency of the evidence. Alternatively, she contends her counsel was ineffective by failing to object to the fine.
Lee forfeited the claim that the evidence did not support the fine by failing to object at her sentencing hearing. (People v. Nelson (2011) 51 Cal.4th 198, 227; People v. Gamache (2010) 48 Cal.4th 347, 409 (Gamache).) Nonetheless, we will review her claim on its merits to avoid her ineffective assistance of counsel claim and because the California Supreme Court is currently considering whether the forfeiture doctrine applies with respect to booking fees. (People v. Mason, review granted Aug. 29, 2012, S203747;
People v. McCullough, review granted June 29, 2011, S192513.)
"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 2 reasons for not doing so, and states those reasons on the record." (§ 1202.4, subd. (b).)
The "Legislature intended restitution fines as punishment." (People v. Hanson (2000) 23 Cal.4th 355, 361.) At the time of Lee's offense, section 1202.4 provided that when a defendant is convicted of a felony, the trial court must impose a restitution fine that is not less than $200 and not more than $10,000. (§ 1202.4, former subd. (b)(1) as amended Stats. 2011, ch. 358, § 1, pp. 4008–4009 [increasing minimum restitution fine to $240 as of January 1, 2012].)
The court may set the fine by multiplying $200 by the number of years of imprisonment ordered and multiplying that number by the number of felony convictions.
(§ 1202.4, subd. (b)(2).) Alternatively, the court may exercise its discretion to set the restitution fine without reference to the statutory formula. (§ 1202.4, subd. (b)(1).)
Regardless of what method the trial court uses to set the fine, in setting the fine at more than $200, it "shall consider any relevant factors, including . . . the defendant's inability to pay, the seriousness and gravity of the offense and the circumstances of its commission, . . . and the number of victims involved in the crime." (§ 1202.4, subd. (d).)
It is the defendant's burden to show his or her inability to pay (§ 1202.4, subd. (d)), and "[t]he statute thus impliedly presumes a defendant has the ability to pay." (People v. Romero (1996) 43 Cal.App.4th 440, 449.) The court is not required to make specific findings or conduct a separate hearing concerning the amount of the fine to be imposed under section 1202.4. (§ 1202.4, subd. (d); Gamache, supra, 48 Cal.4th at p. 409.) We will not overturn a decision of the trial court in setting the amount of the restitution fine 3 absent a showing of an abuse of discretion. (People v. Lewis (2009) 46 Cal.4th 1255, 1321.)
Lee does not " 'identify anything in the record indicating the trial court breached its duty to consider [her] ability to pay; as the trial court was not obligated to make express findings concerning [her] ability to pay, the absence of any findings does not demonstrate it failed to consider this factor. Thus, we cannot say on this record that the trial court abused its discretion.' " (People v. Nelson, supra, 51 Cal.4th at p. 227, citing Gamache, supra, 48 Cal.4th at p. 409.)
In any event, in determining whether a defendant has the ability to pay a restitution fine, the trial court may consider the defendant's future ability to pay, including the ability to earn wages while in prison. (People v. Frye (1994) 21 Cal.App.4th 1483, 1487.) Additionally, where the defendant is capable of supporting herself with legitimate employment, the trial court may also consider her ability "to find and maintain productive employment once [her] sentence is completed." (People v. Staley (1992) 10 Cal.App.4th 782, 786.)
Here, the probation report contained evidence showing Lee had future earning capacity. Lee was 46 years old, had a high school education, attended two years of junior college and had, remarkably, completed 62 certification programs at Grossmont Adult School. Although, she had been receiving "SSI" benefits for the past two years due to medical problems and reportedly had untreatable cancer, the probation report noted inconsistencies in Lee's story regarding her illness. (People v. DeFrance (2008) 167 Cal.App.4th 486, 505 [absent showing of "absolute inability to ever pay" fine, amount of 4 fine was not abuse of discretion even though payment would be difficult and would take a long time and fine might never be paid].)
Finally, while the trial court set the fine above the $200 statutory minimum, it was well below the statutory maximum of $10,000. (§ 1202.4, former subd. (b)(1).) Given the evidence that Sally suffered serious neglect over a long period of time, we cannot conclude that the trial court abused its discretion by imposing the $1,500 fine.
DISPOSITION
The judgment is affirmed.
MCINTYRE, J.
WE CONCUR:
HALLER, Acting P. J.
AARON, J.
Cites, in this corpus
- People v. Nelson S085193 · 2011-01-20
- People v. Gamache S052808 · 2010-03-18
- People v. Lewis S069959 · 2009-07-16
- People v. DeFrance C055878 · 2008-10-09
- People v. Hanson S078689 · 2000-06-19
- People v. Romero C021099 · 1996-03-11
- People v. Frye C015620 · 1994-01-19
- People v. Staley C011983 · 1992-10-27