People v. Mendez

Opinion

THE COURT.* Defendant, Francisco C. Mtendez, appeals from the judgment entered following his court trial that resulted in his convictions for numerous offenses. Among his crimes were three separate convictions for rape in concert (Pen. Code, §§ 261, subd. (2), 264.1). The court ordered that the rape convictions be served consecutively and gave a statement of reasons for this sentence choice. The court ordered the defendant to pay a restitution fine pursuant to Government Code section 13967. The court ordered that the fine be paid before the termination of defendant’s parole. Defendant asserts that the court erred in imposing consecutive sentences and erred in imposing the condition of payment of the restitution fine before termination of parole.

I., II.†

[1212]III.

The court imposed a $500 restitution fine pursuant to Government Code section 13967. The court stated, “Although the Defendant has no ability to pay at this time [, it] can be paid at any time before termination of parole.”

Defendant asserts that the court erred when it ordered that the fine be paid before termination of his parole. Defendant contends that the imposition of this condition was a meaningless order because the court is not authorized to order a particular payment time frame. Defendant asks that the condition be stricken by this court.

Government Code section 13967 requires the judge to impose certain fines when a defendant is convicted of a felony. It provides in pertinent part: “Upon a person being convicted of any crime in the State of California, the court shall, in addition to any other penalty provided or imposed under the law, order the defendant to pay restitution in the form of a penalty assessment in accordance with Section 1464 of the Penal Code. In addition, if the person is convicted of one or more felony offenses, the court shall impose a separate and additional restitution fine of not less than one hundred dollars ($100) and not more than ten thousand dollars ($10,000). In setting the amount of the fine for felony convictions, the court shall consider any relevant factors including, but not limited to, the seriousness and gravity of the offense and the circumstances of its commission, any economic gain derived by the defendant as a result of the crime, and the extent to which others suffered losses as a result of the crime. Such losses may include pecuniary losses to the victim or his or her dependents as well as intangible losses, such as psychological harm caused by the crime. Except as provided in Section 1202.4 of the Penal Code and subdivision (c) of this section, under no circumstances shall the court fail to impose the separate and additional restitution fine required by this section. This fine shall not be subject to penalty assessments as provided in Section 1464 of the Penal Code.”