Opinion
BROWN, J. In People v. Tillman (2000) 22 Cal.4th 300, 303 [92 Cal.Rptr.2d 741, 992 P.2d 1109] (Tillman), we held that appellate courts may not correct a “discretionary sentencing choice” if the People failed to object at sentencing. Because such an error is “not correctable without considering factual issues presented by the record or remanding for additional findings,” the People have waived the issue and may not raise it for the first time on appeal. (People v. Smith (2001) 24 Cal.4th 849, 853 [102 Cal.Rptr.2d 731, 14 P.3d 942] (Smith).) In Smith, we recognized a narrow exception to this waiver rule for “obvious legal errors at sentencing that are correctable without referring to factual findings in the record or remanding for further findings.” (Id. at p. 852.) Today, we consider the application of Tillman and Smith in the state and county penalty context.
In this case, defendant pled no contest to cocaine possession (Health & Saf. Code, § 11350, subd. (a)) and admitted a prior “strike” allegation (Pen. Code, § 1170.12, subds. (a)-(d)). At sentencing, the trial court imposed, among other things, a laboratory analysis fee of $50 pursuant to Health and Safety Code section 11372.5, subdivision (a). Although subdivision (a) of Penal Code1 section 1464 and subdivision (a) of Government Code section 76000 called for the imposition of state and county penalties based on such a fee, the trial court did not levy these penalties, and the People did not object at sentencing.2 Nonetheless, the Court of Appeal imposed the penalties because they were mandatory—and not discretionary—sentencing choices. (See Smith, supra, 24 Cal.4th at p. 852.) Defendant contends the Court of Appeal erred because the trial court had discretion to waive these penalties at sentencing under subdivision (d) of Penal Code section 1464. We disagree and affirm.
Under subdivision (a) of Penal Code section 1464, the trial court “shall [levy] a state penalty, in an amount equal to ten dollars ($10) for every ten dollars ($10) or fraction thereof, upon every fine, penalty, or forfeiture [1154]imposed and collected by the courts for criminal offenses . . . (Italics added.) Subdivision (a) of Government Code section 76000 then provides that “there shall be levied an additional penalty of seven dollars ($7) for every ten dollars ($10) or fraction thereof which shall be collected together with and in the same manner as the amounts established by Section 1464 of the Penal Code, upon every fine, penalty, or forfeiture imposed and collected by the courts for criminal offenses . . . .”3 (Italics added.)
Despite the use of the word “shall” in these penalty provisions (see Pen. Code, § 1464, subd. (a); Gov. Code, § 76000, subd. (a)), defendant contends these penalties are discretionary in light of subdivision (d) of section 1464. Subdivision (d) of section 1464 states: “In any case where a person convicted of any offense, to which this section applies, is in prison until the fine is satisfied, the judge may waive all or any part of the state penalty, the payment of which would work a hardship on the person convicted or his or her immediate family.” According to defendant, subdivision (d) gave the trial court the power to waive the state and county penalties at sentencing because the court sentenced him to prison for his criminal convictions. Thus, the imposition of these penalties was a discretionary sentencing choice, and the People waived any objection to the omission at sentencing. (See Tillman, supra, 22 Cal.4th at p. 303.) Defendant, however, misconstrues subdivision (d) of section 1464. The language of subdivision (d) only gives the court discretion to waive these penalties if the defendant is actually “in prison” for failure to pay a fine. (§ 1464, subd. (d).) Because defendant was not, the trial court had no discretion to waive these penalties at sentencing. Thus, the Court of Appeal properly corrected the omission on appeal. (See Smith, supra, 24 Cal.4th at p. 853.)
As always, we begin with the canons of statutory construction. “When interpreting a statute, ‘we turn first to the language of the statute, giving the words their ordinary meaning.’ ” (People v. Rubalcava (2000) 23 Cal.4th 322, 328 [96 Cal.Rptr.2d 735, 1 P.3d 52], quoting People v. Birkett (1999) 21 Cal.4th 226, 231 [87 Cal.Rptr.2d 205, 980 P.2d 912].) “If the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent of the Legislature . . . .” (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735 [248 Cal.Rptr. 115, 755 P.2d 299].)
Here, the language of section 1464, subdivision (d) appears clear. “[T]he judge may” waive the penalties only if the defendant “is in prison [1155]until the fine is satisfied.” (§ 1464, subd. (d), italics added.) The phrase “in prison” is a descriptive phrase referring to the defendant’s “state of confinement or captivity.” (Webster’s Collegiate Diet. (10th ed. 1993) p. 927 (Webster’s), italics added.) Thus, section 1464, subdivision (d) only applies if the defendant is in the midst of serving a term of imprisonment.
The modifying phrase “until the fine is satisfied” further limits the applicability of section 1464, subdivision (d). For guidance in interpreting this phrase, we look to section 1205, subdivision (a)—which contains the same phrase in an analogous context. Section 1205, subdivision (a) provides that “[a] judgment that the defendant pay a fine, with or without other punishment, may also direct that he or she be imprisoned until the fine is satisfied and may further direct that the imprisonment begin at and continue after the expiration of any imprisonment imposed as a part of the punishment or of any other imprisonment to which he or she may theretofore have been sentenced. . . .”4 (Italics added.) We have long interpreted the phrase in this context to mean that the defendant shall be imprisoned until he either pays the fine or completes a sentence dictated by the amount of the fine left unpaid. (See Ex parte Krouse (1905) 148 Cal. 232, 233 [82 P. 1043] [holding that a judgment imposing imprisonment “ ‘until the fine [is] satisfied’ ” means that the defendant may pay part of the fine and satisfy the rest of the fine by serving a term of imprisonment commensurate with the unpaid amount].) Applying this interpretation in the context of section 1464, subdivision (d)—where the phrase “until the fine is satisfied” modifies the phrase “in prison”—we conclude that a judge may only waive the state and county penalties if the defendant is in the midst of serving a sentence imposed because he failed to pay a fine. Absent this condition precedent, imposition of these penalties is mandatory. (See Pen. Code, § 1464, subd. (a); Gov. Code, § 76000, subd. (a).)
[1156]The legislative history provides further support for such an interpretation. Former section 13521, the precursor to section 1464, subdivision (d), gave judges discretion to waive the penalty assessment if the defendant “is imprisoned until the fine is satisfied.” (Stats. 1970, ch. 1009, § 1, p. 1816.) This language was virtually identical to the language of section 1205, subdivision (a), and this similarity strongly suggests that the Legislature intended to give this phrase the same meaning in both statutes. Upon enacting subdivision (d) of section 1464, the Legislature, however, made one significant revision: it changed the word “imprisoned” to the phrase “in prison.” (Compare § 1464, subd. (d) with former § 13521, Stats. 1970, ch. 1009, § 1, p. 1816.) In doing so, the Legislature, contrary to defendant’s unsupported assertion, narrowed the scope of a judge’s discretion to waive the penalties. (See People v. Preston (1996) 43 Cal.App.4th 450, 460 [50 Cal.Rptr.2d 778] [when the Legislature alters the wording of a statute, we must, as a general rule, assume that the Legislature intended to alter the law].) Because the phrase “in prison” only connotes the state of confinement, while the word “imprisoned” may encompass both the state of confinement and the judge’s decision to sentence the defendant to confinement (compare Webster’s, supra, p. 927 [“prison” means “a state of confinement or captivity”] with Webster’s, supra, p. 584 [“imprison” means “to put in or as if in prison”]), the legislative revision establishes that the judge has discretion to waive the penalties only if the defendant is serving a sentence for failure to pay the fine. (See ante, this page.)
People v. Sierra (1995) 37 Cal.App.4th 1690 [44 Cal.Rptr.2d 575] is inapposite. Although Sierra omitted the phrase “until the fine is satisfied” when describing the scope of a court’s discretion under subdivision (d) of section 1464, this omission did not establish an alternative interpretation of this subdivision. (See Sierra, at pp. 1695-1696 [“Trial courts are given discretion under subdivision (d) of section 1464 not to impose the penalty assessment where an inmate remains in prison and the payment of the assessment ‘would work a hardship on the person convicted or his or her immediate family’ ”].) The omission was probably just an unintended oversight. (See People v. Martinez (1998) 65 Cal.App.4th 1511, 1521 [77 Cal.Rptr.2d 492] [inserting the phrase “until the fine is satisfied” when quoting Sierra].) In any event, the cited language in Sierra is, at most, nonbinding dicta because the scope of section 1464, subdivision (d) was not at issue.
Finally, defendant’s claim that our interpretation would render meaningless the waiver provision in section 1464, subdivision (d), because the trial court would lack jurisdiction to exercise it, is erroneous. Where the Legislature has explicitly granted the trial court “jurisdiction to mitigate a [1157]state prison sentence even after execution of a sentence has commenced,” the trial court necessarily retains the jurisdiction to do so. (People v. Karaman (1992) 4 Cal.4th 335, 351 [14 Cal.Rptr.2d 801, 842 P.2d 100].) Because section 1464, subdivision (d), by its terms, contemplates the mitigation of a defendant’s sentence after execution of his sentence has begun, the trial court retains jurisdiction to waive the penalties so long as the defendant faces the specter of imprisonment for failing to pay a fine.
We now apply our construction of section 1464, subdivision (d) to this case. Defendant was not serving a sentence for failure to pay a fine at the time of sentencing. (See § 1464, subd. (d).) Indeed, the trial court had never imposed a term of imprisonment on defendant if he failed to pay the fine. (See § 1205, subd. (a).) Thus, at the time of sentencing, the trial court had no choice and had to impose state and county penalties in a statutorily determined amount on defendant. The erroneous omission of these penalties therefore “presented] a pure question of law with only one answer . . . .” (Smith, supra, 24 Cal.4th at p. 853.) Accordingly, we follow our lower courts and hold that the Court of Appeal properly corrected the trial court’s omission of state and county penalties even though the People raised the issue for the first time on appeal. (See People v. Stone (1999) 75 Cal.App.4th 707, 717-718 [89 Cal.Rptr.2d 401] [appellate court may impose omitted state and county penalties]; People v. Terrell (1999) 69 Cal.App.4th 1246, 1256-1257 [82 Cal.Rptr.2d 231] [same]; People v. Martinez, supra, 65 Cal.App.4th at pp. 1521-1522 [same]; People v. Heisler (1987) 192 Cal.App.3d 504, 507 [237 Cal.Rptr. 452] [same].)
Disposition
We affirm the judgment of the Court of Appeal.
George, C. J., Kennard, J., Baxter, J., and Chin, J., concurred.
All further statutory references are to the Penal Code unless otherwise indicated.
Based on the $50 laboratory fee, the state penalty would have been $50 (see Pen. Code, § 1464, subd. (a)), and the county penalty would have been $35 (see Gov. Code, § 76000, subd. (a)).
Because the parties agree that Government Code section 76000, subdivision (a) applies and that the propriety of imposing this county penalty depends on whether the Court of Appeal properly imposed the state penalty, we treat the penalties as one in our analysis.
Section 1205, subdivision (a) states in full; “A judgment that the defendant pay a fine, with or without other punishment, may also direct that he or she be imprisoned until the fine is satisfied and may further direct that the imprisonment begin at and continue after the expiration of any imprisonment imposed as a part of the punishment or of any other imprisonment to which he or she may theretofore have been sentenced. Each of these judgments shall specify the extent of the imprisonment for nonpayment of the fine, which shall not be more than one day for each thirty dollars ($30) of the fine, nor exceed in any case the term for which the defendant might be sentenced to imprisonment for the offense of which he or she has been convicted. A defendant held in custody for nonpayment of a fine shall be entitled to credit on the fine for each day he or she is so held in custody, at the rate specified in the judgment. When the defendant has been convicted of a misdemeanor, a judgment that the defendant pay a fine may also direct that he or she pay the fine within a limited time or in installments on specified dates and that in default of payment as therein stipulated he or she be imprisoned in the discretion of the court either until the defaulted installment is satisfied or until the fine is satisfied in full; but unless the direction is given in the judgment, the fine shall be payable forthwith.”