P. v. Hamilton

Filed 8/2/06 P. v. Hamilton CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Keith L. Schwartz, Judge. Affirmed as modified.

John F. Schuck, 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, Assistant Attorney General, Victoria B. Wilson and Sharon E. Loughner, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant Eddie L. Hamilton pled nolo contendre to one count of committing a lewd act upon a child (Pen. Code, § 288, subd. (a)).[1] The trial court placed him on formal probation and ordered him to pay, inter alia, a $200 restitution fine. Thereafter, the trial court found appellant had violated multiple conditions of his probation. The court revoked probation, sentenced appellant to the mid-term of 6 years, and imposed an additional $200 restitution fine.

On this appeal, appellant argues that the sentencing court abused its discretion by selecting the mid-term instead of the low-term. He also claims that the sentencing court erred in imposing a second restitution fine. We hold that the trial court did not abuse its discretion in selecting the mid-term of confinement, but find that the law provides only for one restitution fine in each case. We shall therefore strike the second restitution fine and, as so modified, affirm the judgment.

Procedural Background

A felony complaint charged appellant with two counts of committing a lewd act upon a child (§ 288, subd. (a)) and alleged that he engaged in substantial sexual conduct with a minor under the age of 14 years (§ 1203.066, subd. (a)(8)). Appellant pled not guilty.

Pursuant to a plea agreement, appellant withdrew his plea of not guilty and pled no contest to count 1. In return, the trial court dismissed count 2, placed appellant on formal probation,[2] and imposed a one-year county jail sentence. The trial court's order included numerous probation conditions. In addition, the court ordered appellant to pay, inter alia, a $200 restitution fine pursuant to section 1202.4, subdivision (b).

When appellant failed to appear for a scheduled progress hearing, the trial court revoked his probation and issued a bench warrant. After conducting an evidentiary hearing, the court found appellant to be in violation of probation. The court terminated probation and sentenced appellant to the midterm of six years. The court ordered appellant to register as a sex offender and to pay an additional $200 restitution fine pursuant to section 1202.4, subdivision (b). Appellant received 616 days of custody credit.

Facts

I. The Conviction

The facts underlying appellant's conviction pursuant to section 288 are drawn from the pre-plea probation report. The victim is appellant's adopted daughter. On the date of the offense, appellant was 56 years old and the victim was five years old. The victim's mother reported the offense to the police after she found appellant molesting the victim in the bathroom. She stated that appellant was standing in front of victim and, when caught, immediately pulled up his pants. The mother stated that appellant had an erection. The victim later told authorities that appellant placed his mouth on her vagina and put his penis in her mouth.

II. The Probation Violation Hearing

At the probation violation hearing, the People called appellant's supervising probation officer, Thelma Davis, as a witness. Because appellant does not challenge the sufficiency of the evidence to support the trial court's finding that he had violated probation, there is no need to set forth the specifics of her testimony. Suffice it to note that the trial court, after hearing Davis' testimony, found that appellant had violated numerous probation conditions.

III. Sentencing Hearing

At the sentencing hearing, appellant's counsel argued that the mitigating factors--â€