*1 23,May S090710. [No. 2002.] PEOPLE,
THE Plaintiff and Respondent, TALIBDEEN,
NAASIR A. Defendant and Appellant.
Counsel Lennon, under Laura P. Gordon and Richard appointments by Supreme Court, for Defendant and Appellant. Anderson, General,
Bill David P. Druliner and Robert R. Lockyer, Attorney General, Chief Carol Pollack and Pamela C. Assistant Wendelin Attorneys Hamanka, General, Assistant Kenneth C. Lance E. Winters Attorneys Byrne, Voet, General, A. for Plaintiff and David Attorneys Respondent. Deputy Opinion
BROWN, (2000) 22 v. Tillman Cal.4th In People J. (Tillman), 992 P.2d we held that courts appellate 1109] not correct a choice” if the failed to may “discretionary sentencing People at object Because such an error is “not correctable without sentencing. factual considering issues the record or for addi presented by remanding tional not findings,” have waived the issue and raise it for the first time on v. Smith Cal.4th appeal. Smith, (Smith).) In we a narrow recognized to this waiver rule for at “obvious errors that are
exception legal sentencing correctable without to factual in the record or referring findings remanding for further (Id. at we consider findings.” Today, application Tillman and Smith the state and context. county penalty case,
In this (Health defendant no contest to cocaine & pled possession Code, 11350, Saf. (a)) (Pen. subd. and admitted a “strike” § prior allegation Code, 1170.12, (a)-(d)). subds. At the trial court § sentencing, imposed, $50 other among fee of to Health and things, laboratory analysis pursuant 11372.5, Code section Safety (a). (a) subdivision Although Penal Code1 section and (a) of Government Code section 76000 called for the of state and based on such imposition county penalties fee, the trial court did not these levy did not penalties, Nonetheless, the Court of object sentencing.2 Appeal imposed penal ties because were they mandatory—and discretionary—sentencing Smith, choices. Defendant con tends the Court of erred because the trial court had discretion to Appeal (d) these under of Penal sentencing Code section 1464. We and affirm. disagree (a)
Under subdivision of Penal Code section the trial court “shall ($10) state in an amount to ten dollars for ten [levy] penalty, equal every thereof, fine, ($10) dollars or fraction or forfeiture upon every penalty, statutory 1All further references are to the Penal indicated. Code unless otherwise fee, Code, (see laboratory $50 $50 2Based on the Pen. penalty would have been Code, (a)), (see county $35 penalty subd. and the have been Gov. § § would (a)). subd. (Italics and collected the courts for criminal offenses . . . imposed by added.) Subdivision of Government Code section 76000 then provides ($7) “there shall be levied an additional of seven dollars penalty ($10) ten dollars or fraction thereof which shall be collected every together and in by the same manner as the amounts established Section 1464 Code, the Penal or forfeiture and collected upon every penalty, (Italics added.) the courts for criminal offenses . . . .”3 by (see the use of the “shall” in these Pen. word Despite penalty provisions Code, 1464, Code, 76000, (a); (a)), Gov. defendant contends § § these are of subdivision of section 1464. discretionary light Subdivision of section 1464 states: “In case where a con- any person offense, victed of which this section is in applies, satisfied, waive all or of the state judge may any part penalty, of which would work a convicted or his or hardship defendant, her immediate family.” According gave *4 trial court the to the state and power county penalties sentencing Thus, the him because court sentenced for his criminal convictions. choice, the of these was imposition penalties discretionary sentencing Tillman, (See the to the waived omission any objection sentencing. Defendant, however, 22 Cal.4th at misconstrues subdivision supra, (d) of section 1464. The of subdivision the court language only gives discretion to waive these if the defendant is “in penalties actually prison” 1464, not, (§ (d).) failure to a fine. Because defendant the trial Thus, court had no discretion to the waive these sentencing. penalties Smith, (See Court of corrected the omission on Appeal properly appeal. 24 Cal.4th at As with the canons of construction. we always, begin statutory statute, statute, “When ‘we turn first to the of the language interpreting ” (2000) the words their v. Rubalcava 23 giving ordinary meaning.’ 322, 735, 52], 328 v. Birkett quoting [96 226, 205, (1999) 912].) “If the 21 Cal.4th 231 P.2d 980 [87 construction, is clear and there is no need for nor is language unambiguous .” it to resort to indicia of the intent of the . . . necessary 115, 727, 45 Cal.3d (Lungren Deukmejian Cal.Rptr. 299].) P.2d
Here, 1464, of section subdivision clear. appears if defendant in prison waive the “is may” judge “[T]he 76000, (a) agree applies that parties 3Because the Government Code section subdivision county depends the Court of propriety imposing penalty and that this on whether analysis. penalty, treat the as one in our Appeal properly we added.) “in (d), italics The (§ phrase until the is satisfied.” fine of confine- defendant’s “state is a referring descriptive phrase prison” (10th 1993) ed. Diet. (Webster’s ment or Collegiate captivity.” Thus, added.) (Webster’s), only applies italics in a term of if the defendant is the midst imprisonment. the fine is further limits appli- “until satisfied” modifying phrase this (d). For in guidance interpreting
cability (a)—which contains the same we look to section phrase, in an context. Section provides analogous phrase that the defendant or without other punish- “[a] ment, direct that he or she be until the also may imprisoned fine satisfied further direct that the at and continue after and may imprisonment begin as a of the or expiration any imprisonment imposed part punishment been other to which he or she theretofore have imprisonment added.) (Italics sentenced. . . .”4 We have long interpreted phrase he this context to mean that the defendant shall be either imprisoned the fine or a sentence dictated the amount of the fine left pays completes by Ex Cal. P. parte [holding Krouse unpaid. “ ” that a the fine ‘until satisfied’ judgment imposing imprisonment [is] means that the defendant of the fine and the rest of the may pay part satisfy a term of commensurate with the by serving unpaid amount].) this context of section subdi- Applying interpretation (d)—where vision “until the fine modifies the is satisfied” phrase *5 “in conclude that the a state and prison”—we judge may only county if the defendant is in the midst of a sentence serving imposed he because failed to a fine. Absent this condition pay precedent, imposition Code, 1464, (See (a); of these is subd. Pen. Gov. penalties mandatory. § Code, 76000, (a).) § full; fine, 1205, judgment pay 4Section states in “A that the defendant punishment, may or the fine imprisoned with without other also direct that he or she be may imprisonment begin is satisfied and further direct that the at and continue after the any imprisonment any of the or of other expiration part punishment as of imprisonment may to which he or she theretofore been sentenced. Each of these have fine,
judgments specify imprisonment nonpayment shall the extent of the of the which for ($30) day thirty nor in case shall not be more than one for each dollars of the exceed might the term for which the defendant be sentenced to for the offense of which a fine be custody nonpayment he or she has been convicted. A defendant held in shall day custody, specified entitled to credit on the fine for each he or she is so held in at the rate misdemeanor, judgment. in the When the defendant has been convicted of a that pay the defendant a fine that he the fine a limited time or also direct or she within therein he specified payment stipulated in installments on dates and that default of as or she or imprisoned be in the discretion of the court either until the defaulted installment is satisfied full; given judgment, until the fine is satisfied in but unless the direction is in the the fine shall payable be forthwith.” 1156 further for such an legislative history provides support interpretation. 13521, 1464, (d),
Former section the to section precursor gave the if discretion to waive assessment the defendant “is judges penalty 1970, 1009, 1, (Stats. until the fine is satisfied.” ch. imprisoned p. § 1205, This identical to the of section virtually language (a), and this that the Legislature similarity strongly suggests intended to the this same in both statutes. give phrase meaning Upon 1464, however, (d) made one enacting Legislature, it “in revision: word significant changed “imprisoned” phrase with former ch. Stats. prison.” (Compare § § so, 1816.) In to defendant’s doing Legislature, contrary § assertion, narrowed the of a discretion to waive unsupported scope judge’s (See Preston penalties. Cal.App.4th statute, alters the of a we Legislature wording 778] [when must, rule, aas assume that the intended to alter the general law].) Because the “in connotes the state of confine- phrase prison” only ment, the word both the while con- “imprisoned” may encompass finement and the decision to sentence the defendant to confinement judge’s Webster’s, means “a state of confinement supra, (compare [“prison” Webster’s, or means “to or captivity”] put [“imprison” as if in revision establishes has prison”]), legislative judge discretion to waive the the defendant is a sentence if ante, (See for failure to the fine. this page.) Sierra Cal.App.4th omitted the “until the fine is satisfied” Sierra inapposite. Although when of a court’s discretion under subdivision describing scope did not establish an alternative this omission interpretation Sierra, this are subdivision. 1695-1696 courts given pp. [“Trial discretion under subdivision of section 1464 not to impose penalty assessment where an inmate remains in and the of the his or her assessment ‘would work a convicted or hardship unintended ”].) an over- immediate The omission was family’ just probably *6 1511, (See (1998) v. 65 1521 sight. People Cal.App.4th [77 Martinez the “until the fine is satisfied” when Cal.Rptr.2d [inserting 492] event, is, most, Sierra].) In the cited in Sierra quoting 1464, not dicta because the subdivision was nonbinding scope at issue. claim that our would render defendant’s
Finally, interpretation meaning 1464, (d), because the trial less the waiver provision it, the court would lack to exercise is erroneous. Where jurisdiction to a has the trial court “jurisdiction mitigate explicitly granted
1157 commenced,” the state sentence even execution of a sentence has after do so. Karaman trial court retains the to jurisdiction necessarily 335, 801, (1992) 100].) 4 P.2d Be 842 Cal.Rptr.2d [14 1464, terms, (d), the cause section its by mitigation contemplates a defendant’s sentence execution of his sentence has the trial begun, after court to so as the defendant retains jurisdiction long faces the to a fine. specter imprisonment failing pay now our construction of section to this
We apply Defendant for failure at the case. sentence Indeed, (d).) time of had (See trial court never sentencing. § a term of on he failed to defendant if fine. Thus, (See (a).) at the time of the trial court had no sentencing, § choice and had and in a deter impose county penalties statutorily mined amount on defendant. erroneous omission of these penalties therefore .” of law with one answer . . . “presented] question pure (Smith, Cal.4th at we follow our lower courts Accordingly, and hold that the Court of corrected the trial court’s Appeal properly omission of state and even raised the county penalties though People issue (1999) for the first time on People v. Stone appeal. Cal.App.4th 707, 717-718 court omitted state [appellate may impose [89 401] and v. Terrell 1256- county penalties]; People 69 Cal.App.4th Martinez, [same]; People supra, Cal.App.4th 231] [same]; 1521-1522 v. Heisler pp. 192 Cal.App.3d [same].) Cal.Rptr.
Disposition
We affirm the Court of judgment Appeal. J., Kennard, J., Baxter, J., Chin, J., C.
George, concurred. that, WERDEGAR, J., with the because the Concurring. I agree majority state and were under a construction county penalties mandatory proper Penal Code section 14641 and Government Code the Court of did not err in the trial court’s omission of the Appeal correcting even time raised issue for first Accord though appeal. I of the ingly, Court of join affirming Appeal. result, however, In I differ with on several my reaching colleagues I (section As will believe that subdivision of section 1464 points. appear, 1464(d)) refers to a defendant who is to an order of conditional subject (a). to section imprisonment pursuant *7 to the Penal 1Unlabeled section references are Code. First, I with the that “the disagree majority “ ante, 1154), clear” at such that ‘there appears (maj. p. opn., is no need for construction . . . resort to indicia of the intent of the [or] ” (ibid.,
Legislature’ 45 Cal.3d quoting Lungren Deukmejian 299]). 755 P.2d To the I Cal.Rptr. contrary, agree defendant that in to waive state permitting sentencing judges penalties “[i]n offense, case where a any convicted to which person any [section 1464] 1464(d) is in until the is section is prison satisfied,” applies, ambiguous. fine (Italics added.) on its face the “in refer to a Although might phrase prison” term, defendant who is “in the midst of as the serving” prison majority ante, 1155), at when read in context it says (maj. opn., p. reasonably might also include circumstances in which a defendant has been sentenced to prison satisfied, until the fine is but has not been taken actually away placed inside of a “until the fine is satisfied” prison facility. Similarly, that the defendant is in “because he might suggest majority’s gloss prison (ibid.), failed to a fine” but it also refer to the defendant’s in might being at the time a paid. is to be 1464(d) section As is we must in it ambiguous, consider construing indicia of (Hoechst intent its legislative beyond Celanese plain language. v. Franchise Tax Bd. 25 Cal.4th Corp. a statute “is to more one than reasonable susceptible 324] [when aids, then we look to ‘extrinsic ostensible
interpretation, including achieved, remedied, to be the evils to be objects legislative history, construction, and the statu public administrative policy, contemporaneous ”].) scheme of which the statute is a The tory part’ majority impliedly concedes when it looks to section point ante, 1464(d). in guidance section If interpreting (Maj. opn., p. 1464(d) were no such would be unambiguous, guidance necessary. Second, 1464(d) I cannot in the construction of section which join settles—viz., that the waiver if defend “only provision applies ante, ant in the is midst of a term of imprisonment” (maj. opn., 1155). construction is faithful to Although majority’s literally perhaps of the statute that refers to a who “is as part prison,” out, own construction should not majority’s authority points prevail “[l]iteral if it is to the intent in the statute” contrary legislative (Lungren apparent Here, 735). 45 Cal.3d at it is from the Deukmejian, supra, apparent waiver case” which statutory language conferring authority “[i]n that the intended to confer waiver in a applies authority cases, time, i.e., class of at a when the defendant is just specified ante, physically prison. maj. opn., 1464(d) construction of section leads to the absurd result majority’s
that a if the defendant judge may already actually *8 Thus, inside a but not prison, otherwise. a not waive judge may penalties but, in the case of a defendant inis court as a of a sentence who consequence at that being and which includes both incarceration very proceeding fine, satisfied,” and a will be “in until the fine if the even is judge that “the would work a persuaded [applicable penalties] hardship (§ 1464(d)). convicted or his or her immediate a Such family” limitation runs to the obvious intent of the contrary statute.
Moreover, the construction ludicrous inefficiencies on majority’s imposes a sentencing exercise of discretion to under judge’s waive section penalties 1464(d). construction, Under the a defendant a even seek majority’s waiver until execution of his sentence hardship has begun” (maj. opn., “after ante, at what p. 1157)—by does not The procedure majority specify. asserts that the trial majority court retains the to “necessarily jurisdiction” mitigate “so as the defendant penalties long faces the specter imprison- ment for (ibid., a fine” failing v. Karaman citing People 100]), but I am not per- suaded. v. Karaman to a trial speaks only court’s under the authority terms of express section to recall a sentence and resentence the defendant within 120 of the first of commitment. days day (Karaman, at p.
Third, the fails to avail itself of a more direct and sensible route out, its result. As the (a) section majority points contains phraseology 1464(d) that in section paralleling and that also ap- 1464(d)’s ante, peared precursor. at 1155- maj. opn., pp. statutes, The two as the “in an majority acknowledges, operate (id. context” analogous 1155).2 that the majority opines slightly greater linguistic 1464(d)’s between section similarity and section precursor (a) over that between the two statutes as exist they today that the “strongly suggests intended to this [formerly] give ante, the same in both meaning 1156) statutes” but (maj. opn., and, inexplicably its mind changed when the current enacting 1464(d), “narrowed the of a discretion scope judge’s to waive the penalties” (id. 1156). As I do not believe the explained, legislative history demonstrates that the Legislature intended to hobble courts with sentencing incarcerate, that requirement first they actually and then recall for resen- whose fees tencing, desire to prisoners they grounds. hardship A more reasonable 1464(d) construction of section is available. I submit that the when Legislature, waiver of where authorizing hardship imposition 2Section 1464 concerns the management on fines. Section management 1205 concerns the imposition and of fines. Section alia, provides, inter that the defendant with or without other “[a] punishment, may direct imprisoned also that he or she be until the fine .” is satisfied . . . *9 (§ 1464(d)), until the fine is satisfied” is to be “in the defendant prison direction with a section 1205 based on fines referring imposed (id., (a), satisfied” until the fine is that the defendant “be imprisoned added). statutory language by would honor understanding italics Such an defendant to the court has sentenced the prison when waiver allowing such efficiency by allowing but would promote in commonsense It also would accord the time of sentencing. waiver at defendant’s mitigate discretion “judicial fashion with recognized (or execution of restraint by) to commencement of sentence prior prison Karaman, italics original 4 Cal.4th at supra, sentence.” omitted, added.) italics that leads to the one is amenable to alternative interpretations,
If a statute Deukmejian, (Lungren should be followed. the more reasonable result 735; (1948) 32 Dist. v. Adams Water Metropolitan 45 Cal.3d case, 543].) ground In this affirming 630-631 P.2d Cal.2d context, that, refers to 1464(d) evidently penalties imposed than on the (a), rather under section fines conditioned result reach the same 1464(d) is would unambiguous, that section pretense vindicate (on more defensible grounds), reaches linguistically intent, in sentenc- efficiency and commonsense preserve apparent legislative ing procedure. 1464(d)’s I would construe with the foregoing,
In accordance order “is to an satisfied” to mean subject until the “is prison (a).” Because under section conditional under section in this case was defendant’s sentence discretion to waive (a), the trial court had no as err in them mandatory. did not imposing the Court of Appeal J., Moreno, concurred.