People v. Smith

I concur in the opinion of the court.

I do so because I find the following propositions implicit in the court’s analysis.

First, what is called “waiver” (maj. opn., ante, at p. 852) is, strictly speaking, forfeiture by a party in failing to preserve a claim of error for review on appeal. (See generally People v. Williams (1999) 21 Cal.4th 335, 340, fn. 1 [ 87 Cal.Rptr.2d 412 , 981 P.2d 42 ]; Cowan v. Superior Court (1996) 14 Cal.4th 367, 371 [ 58 Cal.Rptr.2d 458 , 926 P.2d 438 ].)

Second, forfeiture does not prohibit an appellate court from reaching a nonpreserved claim, but merely allows it not to do so. (See generally People v. Williams (1998) 17 Cal.4th 148, 161-162, fn. 6 [ 69 Cal.Rptr.2d 917 , 948 P.2d 429 ].)

*855 Third, forfeiture nevertheless counsels an appellate court not to reach a nonpreserved claim when it has resulted in a void in the record that the court itself cannot or should not fill.

Under subdivision (b) of Penal Code section 1202.4, [1] a trial court must impose "a separate and additional restitution fine" as part of the judgment of conviction entered against a criminal defendant, "unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record." If the "sentence includes a period of parole," then the court must also impose a parole revocation fine "in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4." (§ 1202.45.) [2] This second fine, however, is automatically suspended unless the court later revokes parole. (Ibid.)

Despite these statutory mandates, trial courts, at times, omit these fines from the judgment of conviction. In many of these cases, the People have asked the Court of Appeal to impose the fines even though it did not object at sentencing. We recently held that appellate courts may not correct these errors if the trial court failed to state a reason for its failure to impose a restitution and parole revocation fine, and the People failed to object below. ( People v. Tillman (2000) 22 Cal.4th 300, 303 , 92 Cal.Rptr.2d 741 , 992 P.2d 1109 (Tillman ).) We now…

Under subdivision (b) of Penal Code section 1202.4, 1 a trial court must impose “a separate and additional restitution fine” as part of the judgment of conviction entered against a criminal defendant, “unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record.” If the “sentence includes a period of parole,” then the court must also impose a parole revocation fine “in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4.” (§ 1202.45.) 2 This second fine, however, is automatically suspended unless the court later revokes parole. (Ibid.)

Despite these statutory mandates, trial courts, at times, omit these fines from the judgment of conviction. In many of these cases, the People have asked the Court of Appeal to impose the fines even though it did not object at sentencing. We recently held that appellate courts may not correct these errors if the trial court failed to state a reason for its failure to impose a restitution and parole revocation fine, and the People failed to object below. (People v. Tillman (2000) 22 Cal.4th 300, 303 [ 92 Cal.Rptr.2d 741 , 992 P.2d 1109 ] (Tillman).) We now address…