In re Martinez CA2/5

Filed 1/9/14 In re Martinez CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

B247697 In re JAVIER MARTINEZ, (Los Angeles County Super. Ct. No. KA078629) on Habeas Corpus.

ORIGINAL PROCEEDING. Petition for Writ of Habeas Corpus, Steven P. Sanora, Judge. Granted. California Appellate Project, Jonathan B. Steiner and Richard B. Lennon for Petitioner. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey, Margaret E. Maxwell and Yun K. Lee, Deputy Attorneys General, for Respondent.

Defendant, Jaiver Martinez, has filed a habeas corpus petition seeking to set aside a post-judgment order imposing restitution and parole restitution fines and their inclusion on the abstract of judgment. (Pen. Code, §§ 1202.4, subd. (b)(1), 1202.45.1) When originally sentenced, the trial court never orally imposed these fines. However, the abstract of judgment incorrectly stated they were imposed. When the matter was brought to the trial court’s attention after the judgment was final, it issued a nunc pro tunc order imposing the restitution and parole restitution fines. We agree with defendant that the failure to orally pronounce the restitution fine prevents it from being imposed later on a nunc pro tunc basis after the judgment was final. Although mandatory, imposition of a restitution fine is a discretionary sentencing choice. (People v. Tillman (2000) 22 Cal.4th 300, 303; see In re Sheena K. (2007) 40 Cal.4th 875, 882, fn. 3; People v. Smith (2001) 24 Cal.4th 849, 852-853.) This is because although the trial court was required to impose the restitution fine, it had discretion not to do so if compelling and extraordinary reasons were present. (§ 1202.4, subd. (b)(1); People v. Tillman, supra, 22 Cal.4th at p. 303; see People v. Walz (2008) 160 Cal.App.4th 1364, 1369 [failure to impose § 290.3, subd. (a) sex offense fine is not a jurisdictional error because of ability to pay provision].) In our case the trial court’s failure to impose the section 1202.4, subdivision (b)(1) restitution fine is presumed to be the result of an implied finding that compelling and extraordinary reasons existed. (People v. Dickerson (2004) 122 Cal.App.4th 1374, 1379, fn. 5.) The prosecutor’s failure to object to the trial court’s failure to have imposed the restitution fine forfeits the issue. (People v. Smith, supra, 24 Cal.4th at p. 853; People v. Moreno (2003) 108 Cal.App.4th 1, 8.) The failure to impose the section 1202.4, subdivision (b)(1) restitution fine was not a jurisdictional error because the trial court had the power to not impose it. (People v. Walz, supra, 160 Cal.App.4th at p. 1371 [sex offender fine]; People v. Martinez (1998) 65 Cal.App.4th 1511, 1516-1519 [drug program fee].)