People v. Guillen (218 Cal. App. 4th 975, 2013)

Opinion

McKINSTER, Acting P. J.

This is a People’s appeal from an order of the trial court dismissing the restitution fines originally imposed on defendant and respondent Armando Guillen. Defendant was admitted to probation through a drug court program. Eventually, defendant successfully completed his court-ordered drug treatment program, and the court terminated probation early. The court dismissed all the charges and suspended or dismissed all the imposed fines, including any restitution fines that had not been fully paid. The People now appeal, contending that the trial court erred in suspending, dismissing or otherwise terminating the unpaid restitution fines. We affirm.

FACTS AND PROCEDURAL HISTORY

In 2010, defendant was charged by a complaint with three offenses: felony possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), felony sale or transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)), and misdemeanor driving while his license was suspended for driving under the influence of drugs or alcohol (Veh. Code, § 14601.2, subd. (a)). Soon after being charged, defendant agreed to change his plea, and to plead guilty, in exchange for probation and admission to a drug court program. The court granted supervised drug program probation for 36 months and imposed various fines and fees, including payment of a restitution fine of $200, pursuant to Penal Code section 1202.4, subdivision (b). The payment of the restitution fine was made a condition of defendant’s probation.

From the outset, defendant progressed well and was promoted to the successive phases of the program in due course. He was consistently rated as cooperative with the ROC (Recovery Opportunity Center) staff and peers, and enthusiastic in his participation in the program. He successfully completed family reunification and obtained employment. In January 2011, he celebrated a one-year anniversary of sobriety. In March 2011, he transitioned to the aftercare phase of the program. Throughout the approximately 20 months in the program, defendant was drug tested 90 times, without a positive result. On September 14, 2011, after approximately six months in the aftercare phase of treatment, defendant graduated from the ROC program and the drug court terminated his probation early. The minutes recite that the court ordered “all fines suspended,” and granted the defense motion under Penal Code section 1203.4, setting aside defendant’s guilty pleas, and entering a plea of not guilty. The court thereupon dismissed the case.

At the hearing, defense counsel stated, “I make a motion to stay and suspend all fines and fees and dismiss the case pursuant to 1203 and the ROC contract.” The prosecutor, however, stated, “Same objection as to the fines.” The court implicitly overruled the People’s objection and granted the defense motion “to set aside your plea, dismiss the charges, and terminate probation and suspend all fines and fees.”

The People filed a notice of appeal from the ruling suspending all fines and fees.

ANALYSIS

I. Standard of Review

The issue presented is whether the trial court had the authority or discretion to suspend, dismiss, or otherwise do away with or terminate the restitution fine in defendant’s case. The issue turns on the interpretation of the relevant statutory provisions and, thus, presents essentially an issue of law, which we review de novo: “[W]hen the propriety of a restitution order turns on the interpretation of a statute, a question of law is raised, which is subject to de novo review on appeal.” (People v. Williams (2010) 184 Cal.App.4th 142, 146 [108 Cal.Rptr.3d 772]; see also In re Anthony M. (2007) 156 Cal.App.4th 1010, 1016 [67 Cal.Rptr.3d 734].) Questions of law are reviewed de novo. (In re Tobacco II Cases (2009) 46 Cal.4th 298, 311 [93 Cal.Rptr.3d 559, 207 P.3d 20].) “Questions of statutory interpretation are, of course, pure matters of law upon which we may exercise our independent judgment.” (Jones v. Pierce (1988) 199 Cal.App.3d 736, 741 [245 Cal.Rptr. 149].) Accordingly, the standard of review is de novo.

II. The Trial Court Could Properly Suspend or Dismiss the Restitution Fines in the Context of Drug Court Early Termination of Probation

A. Background of the Law Concerning Victim Restitution and Restitution Fines

1. Legislative History: Victims’ Bill of Rights

In June 1982, the electorate passed Proposition 8, known as The Victims’ Bill of Rights. Among other things, Proposition 8 declared a state constitutional right of crime victims to restitution from those persons convicted of crimes, which crimes caused losses to the victims. (Cal. Const., art. I, § 28, subd. (b), par. (13)(A).) In response to the new constitutional provisions, the Legislature amended some old statutes and enacted new ones to implement the right to restitution. (See People v. Giordano (2007) 42 Cal.4th 644, 652 [68 Cal.Rptr.3d 51, 170 P.3d 623].)

The statutes recognize two kinds of restitution: (1) restitution fines (Pen. Code, § 1202.4, subd. (b)), which are not directly related to the amount of loss sustained by a victim, and (2) direct restitution to the victim (Pen. Code, § 1202.4, subd. (f)), which is based on the amount of the loss the victim actually sustained. The purposes of the two kinds of restitution are different. The imposition of a restitution fine is punishment. (See People v. Kunitz (2004) 122 Cal.App.4th 652, 656 [18 Cal.Rptr.3d 843].) The purpose of direct victim restitution, however, is to reimburse the victim for economic losses caused by the defendant’s criminal conduct, i.e., to make the victim reasonably whole. (People v. Taylor (2011) 197 Cal.App.4th 757, 763 [128 Cal.Rptr.3d 399]; cf. People v. Phu (2009) 179 Cal.App.4th 280, 283 [101 Cal.Rptr.3d 601].) Secondary goals of direct restitution include rehabilitation of the defendant and deterrence of future criminality. (People v. Jennings (2005) 128 Cal.App.4th 42, 57 [26 Cal.Rptr.3d 709].)

There was no direct victim restitution ordered in this case. Rather, defendant was ordered to pay only a restitution fine, i.e., punishment. Restitution fines are not paid directly to the victims of crime. Rather, they are payable to the state. Restitution fines are deposited to the Restitution Fund. (Pen. Code, § 1202.4, subd. (e).) The Restitution Fund is in the State Treasury department, and is used to compensate victims for certain kinds of “pecuniary losses they suffer as a direct result of criminal acts.” (Gov. Code, § 13950, subd. (a).)

Penal Code section 1202.4, subdivision (f)(ll), provides that, “If a defendant has any remaining unpaid balance on a restitution order or fine 120 days prior to his or her scheduled release from probation or 120 days prior to his or her completion of a conditional sentence, the defendant shall prepare and file a new and updated financial disclosure . . .” to facilitate future enforcement of the remainder of the unpaid restitution or restitution fine. Penal Code section 1202.4, subdivision (i), provides that, “A restitution order imposed pursuant to subdivision (f) shall be enforceable as if the order were a civil judgment.” Penal Code section 1202.4, subdivision (m), provides that, “In every case in which the defendant is granted probation, the court shall make the payment of restitution fines and orders imposed pursuant to this section a condition of probation. Any portion of a restitution order that remains unsatisfied after a defendant is no longer on probation shall continue to be enforceable by a victim pursuant to Section 1214 until the obligation is satisfied.”

2. Unpaid Portions of Victim Restitution and Restitution Fines Generally Survive, Even When the Defendant Is No Longer on Probation

The complex intertwining of the various statutory provisions has resulted in the recognition that, in general, the Legislature intended the unpaid balance of restitution orders to survive a probationary term.

a. A Restitution Fine Survives the Termination of Probation When Probation Is Revoked

In People v. Chambers (1998) 65 Cal.App.4th 819 [76 Cal.Rptr.2d 732], the Third District Court of Appeal considered the question with respect to restitution fines. When the defendant was first sentenced, the trial court imposed a restitution fine of $200. Later, the court revoked the defendant’s probation and made a second order imposing a restitution fine of $500. The appellate court concluded that the trial court was not authorized to impose a second restitution fine because the initial restitution fine survived the revocation of probation. The imposition of a restitution fine was mandatory upon conviction of a felony, whether or not the defendant was admitted to probation. (Id. at p. 821.) The restitution fine could be imposed as a condition of probation, if probation were granted. (Id. at pp. 821-822.) But, “[e]ven if the restitution fine was imposed as a condition of probation, the statutes contemplated that it would survive the probationary term. For example, former Penal Code section 1202.4, subdivision (c), provided that if a restitution fine was imposed as a condition of probation but stayed, the stay would be lifted upon revocation of probation and imposition of sentence. While the restitution fine in this case was not stayed at the time probation was granted, it is apparent from the statutory scheme in existence in 1993 that it survived the revocation of the defendant’s probation because (1) the court was required to impose a restitution fine regardless of whether probation was granted, and (2) former Penal Code section 1202.4, subdivision (c), exhibits the Legislature’s intent not to void a restitution fine when probation is revoked. Furthermore, there was no provision for imposing a restitution fine upon revocation of probation and the triggering event for imposition of a restitution fine was conviction. (Former Gov. Code, § 13967; former Pen. Code, § 1202.4.)

“In 1994, the Legislature amended Government Code section 13967 and Penal Code section 1202.4, deleting the requirement of a restitution fine from section 13967 and incorporating it into section 1202.4. (Stats. 1994, ch. 1106, §§ 2, 3.) Present law still requires imposition of a restitution fine when a person is convicted of a felony, regardless of whether probation is granted. (Pen. Code, § 1202.4, subd. (b) [requirement of fine unless compelling and extraordinary reasons found].) If the defendant is granted probation, the court must make payment of restitution and the restitution fine conditions of probation. (Pen. Code, § 1202.4, subd. (m).) Restitution to a victim remaining unpaid at the end of the probationary term is enforceable against the defendant as if it were a civil judgment. (Pen. Code, §§ 1202.4, subd. (m), 1214.)

“There is nothing in the current statutory scheme to suggest any change in the Legislature’s intent to have a restitution fine survive the revocation of probation. Indeed, the statutory scheme suggests otherwise. Restitution fines are required in all cases in which a conviction is obtained. Furthermore, there is no provision for imposing a restitution fine after revocation of probation. The triggering event for imposition of the restitution fine is still conviction. (Pen. Code, § 1202.4, subd. (b).)” (People v. Chambers, supra, 65 Cal.App.4th at p. 822.)

People v. Arata (2004) 118 Cal.App.4th 195 [12 Cal.Rptr.3d 757] was another decision of the Third District Court of Appeal, which reiterated the principles set forth in Chambers. Arata paralleled the events in Chambers: the defendant was admitted to probation in November 1999, at which time the trial court imposed a $600 restitution fine pursuant to Penal Code section 1202.4. (Arata, at p. 197.) The defendant thereafter violated his probation on several occasions and was reinstated on probation with modifications to the sentence or probation terms. Ultimately, the trial court revoked the defendant’s probation and sentenced him to state prison for four years, lifting the stay of execution on the sentence. In addition, at the time the court sentenced the defendant to state prison, it ordered the defendant to pay a restitution fine of $800. (Id. at p. 201.) The defendant in Arata, like the defendant in Chambers, argued that the trial court erred in imposing a second restitution fine at the time of the state prison sentence because it had already imposed a restitution fine at the time the defendant was granted probation. The Arata court stated, “Despite the fact that the restitution fine is imposed as a condition of probation, however, it survives the probationary term” (ibid.), citing its earlier decision in Chambers (People v. Chambers, supra, 65 Cal.App.4th 819, 822). “[B]ecause the first restitution fine remained in effect, the trial court was without authority to impose the second restitution fine.” (Arata, at p. 202.) Following Chambers, the court struck the second, $800, restitution fine and left in force the $600 restitution fine originally imposed at the time of granting probation. If the defendant had paid the $600 restitution fine, he was entitled to credit for having paid it. If he had not paid the $600 restitution fine, then his obligation to pay continued during and, if necessary, after his prison term. (Id. at p. 203.)

Additional cases apply the same principles in similar contexts. In People v. Kleinman (2004) 123 Cal.App.4th 1476 [20 Cal.Rptr.3d 885], the defendant struck a pedestrian with his car and fled the scene. In 1998, he pleaded no contest to a charge of hit and run, causing injury. The trial court granted probation, and imposed a restitution fine as a condition of probation, although it left the amount of the restitution fine open to future setting to allow the victim time to gather information on the amount of his medical costs and lost wages. In 2001, the trial court revoked the defendant’s probation and issued a bench warrant. In 2003, the defendant waived his right to a probation violation hearing and admitted the violation of probation. The trial court sentenced the defendant to state prison for two years and ordered direct victim restitution in the amount of $9,000. On appeal, the defendant urged that the restitution order was no longer authorized at the time he was sentenced to state prison, on the view that “the gravamen of the hit and run offense is fleeing the scene, which did not cause [the victim’s] injuries. The noncriminal accident did.” (Id. at p. 1479.) The appellate court rejected the contention as without merit. In People v. Carbajal (1995) 10 Cal.4th 1114 [43 Cal.Rptr.2d 681, 899 R2d 67], the California Supreme Court had settled the question that victim restitution is properly imposed as a condition of probation for a hit-and-run offense causing damage. A defendant may be ordered to pay restitution for the damage as a condition of probation. The Kleinman court declined to resolve the issue whether an order for restitution is proper for a hit-and-run conviction when the defendant is sentenced to state prison because (1) the restitution condition had been properly imposed as a condition of the defendant’s probation (as in Carbajal) and (2) the restitution originally imposed as a condition of probation survived the revocation of the defendant’s probation (as in Chambers and Arata), notwithstanding that the specific amount of restitution had not been initially set at the time probation was granted.

In People v. Urke (2011) 197 Cal.App.4th 766 [128 Cal.Rptr.3d 405], a more recent case, the appellate court again had occasion to hold that, when a defendant’s probation is revoked, the mandatory restitution fine imposed as a condition of probation survives the revocation of probation, so that it is improper and beyond the trial court’s authority to impose another restitution fine upon sentencing the defendant to state prison. (Id. at p. 779.)

In People v. Cropsey (2010) 184 Cal.App.4th 961 [109 Cal.Rptr.3d 324], the trial court purported to “reimpose” a $200 restitution fine when it revoked and reinstated probation. The appellate court held that the trial court had not erred, because it had not imposed a second restitution fine; rather, it had effectively confirmed the same restitution fine originally imposed. The Cropsey court noted that the language purporting to “reimpose” a restitution fine was inconsistent with the principle of Chambers and Arata, that the restitution fine originally imposed survives the revocation of probation, and continues in effect. “Simply stated, there is no need to reimpose an extant restitution fine.” (Id. at p. 966.) “Where a restitution fine(s) has been previously imposed, the trial court should simply say, ‘The abstract of judgment should reflect the restitution fine(s) previously imposed.’ ” (Ibid.)

All these cases highlight the general principles that (1) imposition of restitution orders (victim restitution and a restitution fine) is mandatory, (2) when a defendant is granted probation, any such mandatory restitution fine must be made a condition of probation, and (3) the mandatory restitution fine continues in force even if a defendant’s probation is revoked.

b. A Restitution Fine Survives the Termination of Probation When a Probationer Completes the Probationary Term

All of the cited cases concern the survival of the restitution fine when probation is revoked, and the defendant is sentenced to state prison. None has applied the stated principles in a context where the probationary term has been successfully served (expired) without revocation.

Defendant argues that the principle articulated in the cited cases—i.e., that the restitution fine survives a revocation of probation—is not applicable to the question whether the trial court has the authority to suspend the payment of the restitution fine upon the termination of a successful term of probation. The district attorney contends, on the other hand, that the survival of the restitution fine upon the unsuccessful termination of probation should apply equally in cases where a defendant completes probation successfully: “[I]t is a logical corollary [to the survivability of the restitution fine on the revocation of probation] that a trial court does not have authority to suspend any unpaid balance of the restitution fine upon a defendant’s successful completion of probation. Otherwise, the ‘survivability’ of the restitution fine after probation would be negated. ...[][] Defendant is correct that procedural circumstances in each of the four cases cited by the People are not identical to the procedural circumstances in the instant case. However, that observation does not detract from the proposition that a restitution fine survives the probationary term.”

We agree with the People’s contention that, in principle, a mandatory restitution fine will survive after the end of a period of probation, regardless of whether the probation was terminated negatively (e.g., revocation) or positively (successfully completed). Even though the cited cases all concerned revocation of probation, we discern in Chambers and Arata the legislative basis for the survivability of the restitution fine: i.e., the conviction itself.

As the court made clear in Chambers, imposition of a restitution fine is mandatory, whether or not the defendant is granted probation. The imposition of a restitution fine is required unless compelling and extraordinary reasons are found to overcome the requirement. Restitution to a victim remaining unpaid at the end of a probationary period is enforceable against the defendant as if it were a civil judgment. Penal Code section 1202.4, subdivision (f)(ll), expressly provides that a probationer approaching the expiration of the probationary period (120 days) must file an updated financial disclosure statement, in direct contemplation of the continuing obligation to pay even after probation has ended. All these factors show the legislative intent to have the restitution fine survive the probationary period, not merely to survive a revocation of probation. “The triggering event for imposition of the restitution fine is still conviction.” (People v. Chambers, supra, 65 Cal.App.4th at p. 822, italics added.)

Arata similarly articulates that, “when a person is convicted of a felony, a restitution fine must be imposed, irrespective of whether probation is granted.” (People v. Arata, supra, 118 Cal.App.4th at p. 201, italics added.) Thus, both probationers and defendants who are not granted probation are subject to mandatory imposition of a restitution fine. The difference is that the restitution fine must also be made a condition of probation for any defendant admitted to probation. The mandatory orders for restitution are made part of the conditions of probation because “[fjailure to do so would lead to successful probationers avoiding the mandatory nature of subdivision (b).” (Id. at p. 203.)

Under the statutes, the defendant is responsible to pay whatever portion of the restitution fine remains unpaid, even after completion of probation or prison sentence. As the Arata court noted, “a restitution fine imposed as a condition of probation survives a subsequent revocation and state prison commitment. [Citation.] Defendant is either entitled to credit for its payment or is responsible for paying it during and, if necessary, after his prison sentence.” (People v. Arata, supra, 118 Cal.App.4th at p. 203, italics added.)

A criminal conviction is therefore clearly demarcated as the event that brings into existence the mandate to impose a restitution fine. It is also the basis upon which the mandated restitution order remains in force following a period of probation and after a prison sentence has been completed.

B. General Principles Applicable to Dismissal of a Charge Under Penal Code Section 1203.4

Penal Code section 1203.4 provides in part: “(a)(1) 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 ... 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 . . . and . . . 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. The probationer shall be informed, in his or her probation papers, of this right and privilege and his or her right, if any, to petition for a certificate of rehabilitation and pardon. . . . However, 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. The order shall state, and the probationer shall be informed, that the order does not relieve him or her of the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office, for licensure by any state or local agency, or for contracting with the California State Lottery Commission. [