Opinion
B159370.
11-20-2003
THE PEOPLE, Plaintiff and Respondent, v. ARTHUR LEE BRYANT, Defendant and Appellant.
Koryn & Koryn and Sylvia Koryn, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, and Russell A. Lehman, Deputy Attorney General, for Plaintiff and Respondent.
Arthur Lee Bryant appeals from the judgment entered following his pleas of no contest to grand theft by embezzlement (Pen. Code, § 487, subd. (a)), and grand theft from the person (Pen. Code, § 487, subd. (c)). Imposition of sentence was suspended, and appellant was placed on formal probation for three years.
In this case, we conclude the trial court did not abuse its discretion or deny appellant his right to due process at the restitution hearing by precluding him from cross-examining the theft victim regarding her monetary loss. We hold the trial court erroneously imposed a Penal Code section 1202.45 restitution fine.
FACTUAL SUMMARY
The record reflects that in 1990, the husband of Frances Cullinan died. His estate went into probate. In 1998, appellant, who had been introduced to Cullinan, told Cullinan that appellant was an insurance agent who worked with attorneys, and that he could get the probate "back in court." From November 1998 through September 1999, Cullinan hired appellant to assist in the probate of the estate, obtain property insurance, "do a homestead," and prepare a living trust for Cullinan, her father, and her children. Cullinan paid appellant over $33,000 to assist in the probate of the estate. Appellant neither assisted in the probate of the estate, obtained insurance, nor prepared a living trust. Appellant was not a licensed California insurance agent.
CONTENTIONS
Appellant contends: (1) "[t]he trial court abused its discretion and denied appellant his constitutional right to due process during the restitution hearing when it did not allow cross-examination of the victim regarding her monetary loss" and (2) "[s]ince appellants sentence did not include a period of parole, the $200 parole revocation fine pursuant to Penal Code section 1202.45 should be stricken."
DISCUSSION
1. The Court Did Not Abuse Its Discretion Or Deny Appellant His Right To Due Process At The Restitution Hearing.
a. Pertinent Facts.
The amended information alleged as count one that "[o]n and between November 1, 1998 and September 1, 1999, . . . the crime of grand theft by embezzlement, in violation of Penal Code section 487(a), a felony, was committed by Arthur Lee Bryant, who on and between November 1998 and September[] 1999, and while said defendant(s) was an agent, servant, and employee of [Cullinan], did unlawfully take from said [Cullinan] money and personal property of a value exceeding four hundred dollars ($ 400)." (Some capitalization omitted.)
The amended information alleged as count two that "[o]n and between November 1, 1998 and September 1, 1999, . . . the crime of grand theft person, in violation of Penal Code section 487(c), a felony, was committed by Arthur Lee Bryant, who did unlawfully take property from the person of another, to wit, [Cullinan]." (Some capitalization omitted.)
On February 7, 2002, during the taking of the previously mentioned pleas, the prosecutor advised appellant that count two charged, inter alia, that he committed "grand theft from a person," "involving the property of . . . [Cullinan]." The prosecutor asked if appellant understood the charges, and appellant replied in the affirmative.
The prosecutor also advised appellant that a restitution fine would be imposed, and "the court will impose restitution which means that you will be required to pay restitution owing to the victim. And thats an amount to be determined at a later hearing." Appellant replied in the affirmative.
After appellant waived his constitutional rights, the following occurred: "[The Prosecutor]: Mr. Bryant, to count 1, a charge of grant theft by embezzlement, in violation of Penal Code section 487(a), a felony, how do you plead? [¶] The Defendant: No contest." The following later occurred: "[The Prosecutor]: And to count 2, grand theft of a person, in violation of Penal Code section 487(c), a felony, how do you plead? [¶] The Defendant: No contest." Appellants counsel joined in the waivers and concurred in the pleas. He refused to stipulate to a factual basis, but represented that appellant was entering his pleas because it was in his best interests. The court scheduled a restitution hearing.
At the restitution hearing, the prosecutor indicated he intended to call Cullinan as a witness. However, the prosecutor expressed concern that appellant wanted to turn the restitution hearing into a trial on criminal liability. The prosecutor advised the court concerning the facts of the case, including the fact that Cullinan gave appellant more than $33,000 to do the legal work previously described.
At the hearing, the prosecutor represented that the probation report reflected that appellant owed over $ 33,000 in restitution to Cullinan. The court refused to rely on the report since the basis for its information was not Cullinan, but probably statements by police.
Appellants counsel urged that "some, if not all, the money was stolen by [Cullinan] and, therefore, is not something to restitution order to her." (Sic.) Appellant asked the court to take judicial notice of certain files, suggesting they were civil files pertaining to estates which Cullinan felt owed her money. Appellants counsel commented, "we believe there was serious misconduct on Ms. [Cullinans part] in those matters." Appellant urged he was entitled to impeach Cullinan as if she "were a witness in any other kind of proceeding." Appellant also urged that the purpose of a restitution hearing was to determine not only the amount of restitution, but whether restitution was owed at all.
The court observed that if Cullinan gave appellant the money, where she got it from was irrelevant. The court indicated it noted that if Cullinan obtained the money illegally, her victim could sue Cullinan. The court ruled that testimony would have to be presented as to what appellant owed, "[b]ut as to where she got it from, Im not allowing that today."
Cullinan subsequently testified consistent with the Factual Summary ante. Cullinan personally gave appellant checks totaling $31,589. The checks were drawn on a savings and checking account which Cullinan "had," on her husbands estates account, and on her fathers estates account, the last of which she managed. She also gave appellant $1,230 and $ 4,358 in cash in 1998 and 1999, respectively. The total of the checks and cash was $37,177. Cullinan recovered no money from appellant.
During cross-examination, appellant asked Cullinan for which estate Cullinan had retained a certain attorney. The prosecutor posed a relevance objection. As an offer of proof, appellants counsel stated, "Its the very estate that were talking about that she wanted Mr. Bryant to inquire into as well." (Sic.) The court sustained the objection. The prosecutor commented, "hes already pled no contest to these charges." Appellant later asked Cullinan when she married Patrick Cullinan, her husband, and whether she tried to have herself appointed administrator to the estate of her cousin, John Lloyd. The court sustained the prosecutors relevance objections to both questions and, as to latter question, denied appellant an opportunity to make an offer of proof. Appellant asked Cullinan if it were true that she never married Patrick Cullinan; the court sustained the prosecutors objection to that question. The court ordered that appellant pay restitution in the amount of $37,177.
b. Analysis.
Appellant claims, in essence, that the trial court abused its discretion and denied his right to due process by preventing appellant from impeaching Cullinan by cross-examining her regarding her monetary loss, specifically, whether she stole some, if not all, of the property (checks and cash) she gave to appellant. We disagree. Moreover, while respondent correctly urges that the proposed cross-examination was irrelevant, we think it appropriate to explain clearly why that was so.
We note appellant waived his due process claim by failing to raise it below. (Cf. People v. Sanders (1995) 11 Cal.4th 475, 512, fn. 4; In re Christopher S. (1992) 10 Cal.App.4th 1337, 1344.)
The California Constitution guarantees that victims of crime have a right to restitution from convicted defendants for the losses suffered by the victims. (People v. Broussard (1993) 5 Cal.4th 1067, 1072-1073; Cal. Const., art. I, § 28, subd. (b).) Penal Code section 1202.4, subdivision (a)(3)(B), requires the court to order defendants to pay such restitution to victims in accordance with subdivision (f). Subdivision (f), states, inter alia, that the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court. That subdivision also states that the court shall order full restitution unless the court finds compelling and extraordinary reasons for not doing so, and states them on the record. The restitution must be of a dollar amount that is sufficient to fully reimburse the victim for every determined economic loss incurred as the result of the defendants criminal conduct.
Penal Code section 1202.4, states, in relevant part, "(a)(1) It is the intent of the Legislature that a victim of crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime. [¶] . . . [¶] (3) The court, in addition to any other penalty provided or imposed under the law, shall order the defendant to pay both of the following: [¶] . . . [¶] (B) Restitution to the victim or victims, if any, in accordance with subdivision (f), which shall be enforceable as if the order were a civil judgment. [¶] . . . [¶] (f) In every case in which a victim has suffered economic loss as a result of the defendants conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court. If the amount of loss cannot be ascertained at the time of sentencing, the restitution order shall include a provision that the amount shall be determined at the direction of the court. The court shall orderfull restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record. [¶] . . . [¶] (3) To the extent possible, the restitution order shall be prepared by the sentencing court, shall identify each victim and each loss to which it pertains, and shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendants criminal conduct, . . ." (Italics added.)
The requirement that the amount of loss be determined by the court means that the court must decide the amount of the loss on grounds which will withstand review for abuse of discretion. The trial court is vested with broad discretion in setting the amount of restitution, and it may use any rational method of fixing the amount of restitution which is reasonably calculated to make the victim whole. (People v. Ortiz (1997) 53 Cal.App.4th 791, 800.) All that is required is that the courts award have a rational basis. (Id. at p. 799.)
A plea of guilty is "deemed to constitute a judicial admission of every element of the offense charged. [Citation.] Indeed, it serves as a stipulation that the People need introduce no proof whatever to support the accusation: the plea ipso facto supplies both evidence and verdict. [Citation.] . . . ." (People v. Chadd (1981) 28 Cal.3d 739, 748.) As the Supreme Court explained in People v. Martin (1973) 9 Cal.3d 687, a guilty plea constitutes an "implied admission that the People have established or can establish every element of the charged offense, thus obviating the need for the People to come forward with any evidence. [Citations.]" (People v. Martin , supra, 9 Cal.3d at pp. 693-694.) Accordingly, "[a] plea of guilty admits every element of the offense charged [citation], all allegations, and factors comprising the charge contained in the pleading. [Citations.]" (People v. Tuggle (1991) 232 Cal.App.3d 147, 154, italics added.) A plea of no contest has the same effect as a plea of guilty. (Pen. Code, § 1016, par. 3.)
"Embezzlement is the fraudulent appropriation of property by a person to whom it has been intrusted." (Pen. Code, § 503.) The "`essential elements of embezzlement are the fiduciary relation arising where one intrusts property to another, and the fraudulent appropriation of the property by the latter." (People v. Talbot (1934) 220 Cal. 3, 15.) More expansively, it is settled that "The elements of an embezzlement are: (1) The accused must be the agent or bailee of the prosecuting witness in holding the allegedly embezzled property; (2) the property must actually belong to the alleged principal; (3) it must be lawfully in the possession of the accused at the time of the alleged embezzlement; (4) the accused must have been guilty of the conversion which the statute denounces; and (5) there must be shown an intent on the part of the accused to deprive the owner of his property unlawfully." (People v. Riley (1963) 217 Cal.App.2d 11, 17-18, italics added; People v. Schwenkner (1961) 191 Cal.App.2d 46, 50-51 [one "element[]" is "property ownership in principal"; italics added]; People v. Hewlett (1951) 108 Cal.App.2d 358, 367 [accord].)
In light of the above, when appellant pled no contest to count one, that plea constituted a judicial admission, not only that he was Cullinans agent, that is, that she was his principal, when he took property from her exceeding $400 in value, but that said property was owned by Cullinan as principal. Accordingly, to the extent appellant sought to cross-examine Cullinan to prove that all property taken by appellant from Cullinan was stolen by her, therefore, she did not originally own it and was not entitled to restitution, appellant came to the restitution hearing already having judicially admitted that he unlawfully took $400.01, owned by Cullinan. That fact was, by judicial admission, conclusively established (cf. People v. Chadd, supra, 28 Cal.3d at p. 748; People v. Martin, supra, 9 Cal.3d at pp. 693-694; People v. Tuggle, supra, 232 Cal.App.3d at p. 154), and appellant was therefore precluded from proffering evidence to the contrary.
Appellant does not clearly articulate why the fact, if true, that Cullinan stole the property she later gave to appellant was evidence, or meant, that she was not entitled to restitution. Appellant apparently argues either (1) she was not entitled to restitution because she did not originally own the property, or (2) she would have been entitled to restitution but for the fact that she was a bad person. We summarily reject the latter argument. (See also Evid. Code, § 350.)
To the extent appellant sought to cross-examine Cullinan to prove that some property (beyond $400.01) taken by appellant from Cullinan was stolen by her, therefore, she did not own it and was not entitled to restitution, other considerations, discussed below, precluded him from doing so.
Appellant pled no contest to a charge that he committed embezzlement. It has been observed that "Where one person has been entrusted with property by another, he or she is estopped in a prosecution for embezzling the property to deny the ownership of the property by the person who entrusted it to him or her, [fn. omitted] . . . ." (18A Cal.Jur.3d (2001) Criminal Law: Crimes Against Property, § 228, p. 259, italics added.)
The above omitted footnote cites People v. Riordan (1926) 79 Cal.App. 488 (Riordan), and People v. Cannon (1947) 77 Cal.App.2d 678 (Cannon). In Riordan, the defendant claimed an assignment of notes to the defendant divested the assignor of ownership, therefore, the assignor had no interest therein capable of being embezzled. However, evidence had been presented that title to the notes had not transferred to the defendant, but that he held them only as an attorney and agent of the assignor. (Riordan , supra, 79 Cal.App. at p. 493.) Riordan concluded, "Under such circumstances [the defendant] cannot question his principals ownership." (Ibid ., italics added.)
In Cannon, the victim loaned bonds to the defendant, agreeing the defendant could use them as collateral to obtain a bank loan as long as the amount did not risk foreclosure. The defendant used the bonds as collateral but, contrary to the above agreement, had the bank sell them, pay off the loans, and give the balance to the defendant. (Cannon , supra, 77 Cal.App.2d at pp. 682-683.) Cannon observed, "Defendant contends that the record fails to disclose ownership in [the victim] of the bonds which [the defendant] is charged with embezzling in that, by delivering these bearer bonds to [the defendant] title must have passed as this was necessary in order that he might post them as his own for collateral security. While the banks with which defendant dealt in posting and selling these bonds might readily raise this estoppel against [the victim], defendant, under the evidence herein, is in no position toquestion his principalsownership. (People v. Riordan, supra, 79 Cal.App. 488, 493 . . . ; People v. Stafford (1927), 81 Cal.App. 159, 161 . . . .)" (Cannon, supra, 77 Cal.App.2d at p. 690, italics added.)
See also People v. Torp (1940) 40 Cal.App.2d 187 (Torp ). There, buyers of real property gave the defendant money to pay off a mortgage on the property, but the defendant converted the money to his own use. (Torp, supra, 40 Cal.App.2d at pp. 189-190.) Convicted of grand theft (id . at p. 189), the defendant appealed, urging instructional error. Torp observed, "As to criticism directed toward certain instructions, it is the theory of appellant, apparently, that it was necessary to establish the actual legal title to the money paid by the [victims] to Torp. That was unnecessary. It is sufficient if the money was given to appellant by [the victim], and the evidence shows it was not a gift or a loan but was a trust fund for a specific purpose. Whether the legal title to the money was in the [buyers], the [lender] or [the seller], is immaterial in this criminal proceeding. As far as the defendant is concerned he had no legal title to the money and his possession was for a limited purpose only. He cannot, in defense of his act, raise the question of title as between others. Instructions, therefore, along those lines, were properly refused." (Torp, supra, 40 Cal.App.2d at pp. 192-193, italics added.)
It is undisputed that appellant was entrusted with property by Cullinan. If this case had gone to trial, where the serious issue of guilt would have been in dispute, and where the People would have been free to prove the extent of Cullinans loss, the above mentioned rule would have estopped appellant from denying Cullinans ownership of the property. Appellant already having admitted guilt by pleading no contest to embezzlement, we see no reason not to apply that estoppel rule at a constitutionally- and statutorily-mandated restitution hearing where the sole issue is the determination of the extent of Cullinans loss.
Moreover, appellant pled no contest to grand theft from the person. There is no dispute the theft was larceny. "The elements of theft by larceny are well settled: [T]he offense is committed by every person who (1) takes possession (2) of personal property (3) owned or possessed by another, (4) by means of trespass and (5) with intent to steal the property, and (6) carries the property away." (People v. Davis (1998) 19 Cal.4th 301, 305.)
It has been observed that "[c]onsidered as an element of larceny, `ownership and `possession may ordinarily be regarded as synonymous, for one who has the right of possession as against a thief is, so far as the thief is concerned, the owner. [Fn. omitted.] Any legally recognizable interest is sufficient to sustain an averment of ownership in a charge of theft by larceny. [Fn. omitted.]" (18A Cal.Jur.3d (2001) Criminal Law: Crimes Against Property, § 127, p. 161, italics added.)
The first above omitted footnote cites People v. Brunwin (1934) 2 Cal.App.2d 287 (Brunwin), and People v. Price (1941) 46 Cal.App.2d 59 (Price). Brunwin discussed general principles of larceny while deciding the sufficiency of allegations in an indictment alleging, inter alia, grand theft. (Brunwin, supra, 2 Cal.App.2d at pp. 288, 296-297.) Brunwin observed, "It is an essential element of the crime of larceny that the thing which is taken and carried away shall be the property of another (18 Am. & Eng. Ency. of Law, 2d ed., p. 498). But the exact status of the legal title to the property need not be meticulously alleged in the pleading which charges the commission of the offense. `Considered as an element of larceny, "ownership" and "possession" may be regarded as synonymous terms; for one who has the right of possession as against the thief is, so far as the latter is concerned, the owner. (People v. Edwards , 72 Cal.App. 102, 116 . . . .) It is, after all, a matter of no concern to a thief that legal title to the stolen property is not in the complainant. (People v. Edwards, supra.) It is essential that the pleading which charges the commission of the crime of larceny shall contain an averment that the property which is the subject of the offense is not the property of the defendant. [Citations.] ` Possession alone, as against the wrongdoer, is a sufficient interest to justify an allegation and proof of ownership in a prosecution for larceny. (People v. Kirsch , 204 Cal. 599, 602 . . . .)" (Brunwin, supra, 2 Cal.App.2d at p. 297, italics added.)
The defendant in Price challenged the sufficiency of allegations in an information alleging grand theft from the person. (Price, supra, 46 Cal.App.2d at p. 60.) Price quoted Brunwin s observation quoted in the preceding paragraph. (Price, supra, 46 Cal.App.2d at pp. 61-62.) Price also observed that an information alleging that the stolen property was taken from a named person was a sufficient allegation that the stolen property was in the possession of that person at the time of its taking. (Id. at p. 61.)
In People v. Edwards (1925) 72 Cal.App.102, the defendant was convicted of grand larceny (People v. Edwards, supra, 72 Cal.App. at p. 108), and the defendant challenged, inter alia, the sufficiency of the evidence. (Id. at p. 112.) The victim in that case asked an attorney for money so the victim could give it to the defendant to enable him to bribe law enforcement personnel. A prosecutor learned of this and, apparently illegally, gave county money to the attorney so the latter could entrap the defendant. (Id. at pp. 108-112.)
The court observed, "The third essential element in the crime of larceny is that the thing taken and carried away should be the property of another. [Citation.] That is, someone other than the taker must have in the thing taken a general or special property right which is invaded by the trespass committed in the taking. Considered as an element of larceny, `ownership and `possession may be regarded as synonymous terms; for one who has the right of possession as against the thief is, so far as the latter is concerned, the owner. [Citation.] Since appellant acquired possession of the money by fraud and chicanery, he held it all the while without right, and as against him [the victim] had the right of possession. [Citation.] It is of no consequence that the legal title to the bills was in the county. The actual status of the legal title to the stolen property is of no concern to the thief. [The victims]possession, though the bills may have come into her hands illegally, was sufficient to make them the subject of larceny, and the ownership was properly laid in her. [Citation.]" (People v. Edwards, supra, 72 Cal.App. at p. 116, italics added.)
See 3 LaFave, Substantive Criminal Law (2003) Theft, Personal Property Of Another, § 19.4(c), p. 86. "A second thief is guilty of larceny even though he steals the property from the first thief. Many modern codes expressly provide, as does the Model Penal Code, that property may be the subject of theft even though the `victim is a person whose interest in the property is unlawful. This is as it should be. `It is inconsequential with the objectives of the criminal law of theft to permit one who wrongfully appropriates wealth to escape from liability merely because the victim of the misappropriation has also incurred criminal liability of forfeiture of his rights with respect to the property." (Fns. omitted.) (3 LaFave, supra, at p. 86, italics added.) See also 50 Am.Jur.2d (2003) Larceny, § 27, p. 38, which states, "it is not even necessary that the person from whom the property is taken should have the right of possession as against the true owner, or any enforceable property rights in the thing taken, so long as the accused has no greater right thereto. It is sufficient, therefore, if such person is in possession by virtue of a purchase from a thief, by virtue of acquisition by illegal means, such as gambling, or even by robbery or theft committed." (Fns. omitted.)
In light of the above authorities, Cullinan had the right of possession of the property as against appellant and was, so far as appellant was concerned, the owner, and even if she originally stole the property which appellant later stole from her. Her possession was a legally recognizable interest and appellant misappropriated the property from her. Again, we see no reason why this analysis should not apply at a restitution hearing.
There is no dispute that, absent appellants claims, Cullinans testimony at the restitution hearing provided a rational basis for the court to conclude that, prior to appellants theft, Cullinan owned and possessed the $37,177, which he later stole, causing her loss. Insofar as appellant was convicted of embezzlement, we conclude he was estopped at the restitution hearing to deny Cullinans ownership of the property which she gave him and which he misappropriated. Insofar as he was convicted of grand theft from the person, we conclude Cullinan owned and possessed the property he took. Thus, to the extent appellant sought to cross-examine Cullinan to prove that some property taken by appellant from Cullinan was stolen by her, therefore, she did not own it and was not entitled to restitution, the proposed cross-examination was irrelevant.
The trial courts award to Cullinan of $37,177 in restitution was proper in its entirety. (Cf. People v. Broussard, supra, 5 Cal.4th at pp. 1072-1073; People v. Ortiz, supra, 53 Cal.App.4th at p. 800; Cal. Const., art. I, § 28, subd. (b); Pen. Code, § 1202.4, subd. (f).) The court did not abuse its discretion as claimed by appellant, and there is no constitutional right to present irrelevant evidence. None of the cases cited by appellant compels a contrary conclusion.
2. The Court Erred By Imposing A Penal Code Section 1202.45 Restitution Fine.
Appellants claim that the court erroneously imposed a Penal Code section 1202.45 restitution fine is well-taken. Penal Code section 1202.45, states, "In every case where a person is convicted of a crime and whose sentence includes a period of parole, the court shall at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4. This additional restitution fine shall be suspended unless the persons parole is revoked."
In the present case, on February 7, 2002, imposition of sentence was suspended and appellant was placed on formal probation for three years. The court later stated, "Pay $200 pursuant to Penal Code section 1202.4; $200 as a parole revocation fine pursuant to [Penal Code section] 1202.45. However, that fine is stayed unless parole is revoked." There is no dispute that the court thereby imposed a Penal Code section 1202.4, subdivision (b) restitution fine, and purported to assess and suspend a Penal Code section 1202.45 restitution fine.
In the present case, imposition of sentence was suspended and appellant was placed on probation. Probation is not a sentence. (People v. Daniels (2003) 106 Cal.App.4th 736, 742; People v. Carter (1975) 48 Cal.App.3d 369, 375.) "`Probation is defined as `the suspension of the imposition or execution of a sentence . . . . ([Pen. Code, §] 1203, subd. (a).) `Sentence is defined as `The judgment formally pronounced . . . upon the defendant after his conviction in a criminal prosecution, imposing the punishment to be inflicted. (Blacks Law Dict. (5th ed. 1979) p. 1222.) The granting of probation is not a `sentence or a form of punishment, but an act of clemency extended to the defendant by suspending the sentence. [Citations.])" (People v. Cushway (1987) 193 Cal.App.3d 776, 778, first bracketed material added.) Accordingly, the imposition of "sentence" which triggers application of Penal Code section 1202.45 never occurred in this case, and the section was, by its terms, inapplicable.
In People v. Oganesyan (1999) 70 Cal.App.4th 1178, the court, rejecting imposition of a Penal Code section 1202.45 fine, noted, "The statutory language itself is clear, the additional restitution fine is only imposed in a `case where a sentence has been imposed which includes a `period of parole. ([Pen. Code,] § 1202.45.)" (People v. Oganesyan , supra, 70 Cal.App.4th at p. 1183, italics added.) In Oganesyan, the defendant received life without the possibility of parole, that is, a sentence was imposed, but the sentence precluded parole. (Id . at p. 1183.)
We note that in People v. Tye (2000) 83 Cal.App.4th 1398, a case in which sentence was imposed but execution suspended (People v. Andrade (2002) 100 Cal.App.4th 351, 355), the court concluded imposition of a Penal Code section 1202.45 fine was appropriate. (People v. Tye, supra, 83 Cal.App.4th at pp. 1400-1402.) However, in dicta, Tye concluded that it made sense not to impose a Penal Code section 1202.45 fine "when probation is granted upon suspension of imposition of sentence, for in that situation the defendant has not been sentenced to a prison term." (People v. Tye, supra, 83 Cal.App.4th at p. 1401.) People v. Calabrese (2002) 101 Cal.App.4th 79, another case in which sentence was imposed but execution suspended, agreed with Tye and concluded that imposition of a Penal Code section 1202.45 fine was appropriate, but also agreed with Tyes dicta. (People v. Calabrese, supra, 101 Cal.App.4th at p. 86.) We find Tyes dicta persuasive. None of the cases cited by respondent compels a contrary conclusion.
DISPOSITION
The judgment is modified by striking the Penal Code section 1202.45 restitution fine and, as modified, the judgment is affirmed. The trial court is directed to forward to the Department of Corrections an amended abstract of judgment reflecting the above modification.
We concur: KITCHING, J. and ALDRICH, J.