People v. Forshay

[688]

Opinion

CORRIGAN, J.

Herein, we hold defendant cannot object for the first time on appeal to the imposition of a restitution fine on the ground of an inability to pay. Defendant appeals from separate judgments following (1) his plea of guilty to second degree murder and his admission of the use of a deadly weapon and the intentional infliction of great bodily injury, and (2) the revocation of his probation as a result of that plea. He alleges error only in the court’s order of restitution and a restitution fine. We, in large part, affirm the judgments, remanding solely for the determination of the amount of actual restitution and possible recalculation of the fine.

Statement of Relevant Facts

The narrow focus of defendant’s appeal makes extensive discussion of the underlying facts unnecessary. The facts relating to defendant’s challenge are as follows. Defendant was on probation for felony auto theft and misdemeanor driving under the influence when he was charged with murder, the special circumstance of lying in wait, use of a deadly weapon, and intentional infliction of great bodily injury. By agreement, defendant pled guilty to reduced charges, and the court revoked his probation on the basis of that plea. At the time he admitted commission of second degree murder, use of a deadly weapon, and intentional infliction of great bodily injury, he was represented by counsel and fully informed of his constitutional rights, the terms of the agreement, and the consequences of his plea. Defendant was told he could be given a fine of up to $10,000 and required to pay restitution to the victim.

A probation officer prepared the requisite presentence report, which recommended, inter alia, a $10,000 restitution fine (Gov. Code, § 13967, former subd. (a))

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and restitution to the decedent’s survivors in an amount to be determined by the court (Gov. Code, § 13967, former subd. (c)). Neither defendant nor his counsel challenged the report or objected to its recommendations. Neither raised any question about defendant’s ability to comply with the restitution orders. Defendant’s sole objection at sentencing involved the sentence imposed for the auto theft.