P. v. Hill

Filed 8/16/06 P. v. Hill CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 SIX

In case number TA078476, Darryal Hill entered a plea of nolo contendre to possession of a firearm by a felon. (Pen. Code, § 12021, subd. (a)(1).)^[1] Appellant admitted violating probation in a second case, TA067936, in which the trial court had previously imposed a three-year suspended sentence for possession of marijuana for sale. (Health & Saf. Code, § 11359.) At a combined sentencing hearing, the trial court revoked probation in case number TA067936 and ordered appellant to serve the three-year sentence, to run concurrent to a two-year prison sentence in case number TA078476. Appellant was ordered to pay a $400 restitution fine and a $400 parole revocation fine in case number TA078476, plus a $600 restitution fine and a $600 parole revocation fine in case number TA067936. (§§ 1202.4, subd. (b); 1202.45.)

Appellant appeals, contending that the trial court erred in imposing multiple restitution fines and parole revocation fines. We affirm. (People v. Enos (2005) 128 Cal.App.4th 1046, 1049-1050.)

Multiple Restitution Fines and Parole Revocation Fines

Citing People v. Ferris (2000) 82 Cal.App.4th 1272 (Ferris), appellant argues that the trial court was precluded from imposing separate restitution fines and parole revocation fines in each case. In Ferris, two cases were consolidated for trial and guilty verdicts were returned in each case. At the sentencing hearing, the trial court imposed maximum statutory fines: a $10,000 restitution fine and a $10,000 parole revocation fine in each case. On appeal, defendant claimed that the sentence was unauthorized because section 1202.4, subdivision (b) and section 1202.45 provided that

" '[i]n every case where a person is convicted of a crime' " the maximum fine was $10,000.^[2] (Id., at p. 1277.)

The Court of Appeal in Ferris concluded that the phrase "[i]n every case" was ambiguous where cases are joined or consolidated for trial and sentencing. (Ibid.) Resolving the ambiguity in defendant's favor, the court held that the trial court erred in imposing multiple $10,000 restitution fines and multiple $10,000 parole revocation fines. (Ibid.) "To allow separate restitution fines in a case involving separate informations but joint trials and sentencing could lead to prosecutorial abuse." (Id., at pp. 1277-1278.)

In Ferris, the "primary concern was not with the trial court's imposition of more than one section 1202.4, subdivision (b) restitution fine and more than one suspended section 1202.45 parole revocation fine but rather with the resulting total of the fines that exceeded the $10,000 statutory limit. [Citation.]" (People v. Enos, supra, 128 Cal.App.4th at p. 1049; see also People v. McNeely (1994) 28 Cal.App.4th 739, 743-744 [trial court erred in combining cases at sentencing hearing and ordering $93,000 victim restitution; statutory maximum was $10,000].) Where the cases are not consolidated for trial or sentencing and the aggregate restitution fines and aggregate parole revocation fines do not exceed the $10,000 statutory maximum, Ferris does not apply. (People v. Schoeb (2005) 132 Cal.App.4th 861, 865.) "To read these statutes as precluding separate fines that do not exceed the statutory maximum would result in a rule of law with no practical effect, because a defendant could never show prejudice." (People v. Enos, supra, 128 Cal.App.4th at p. 1049.)

Ferris and McNeely are distinguishable on several grounds. First, the cases were not joined or consolidated for trial or sentencing. The trial court and parties treated the probation violation and new case as separate matters at the sentencing hearing. Separate minute orders and abstracts of judgment were prepared in each case.

Second, the aggregate fines imposed do not exceed the $10,000 statutory maximum. (§§ 1202.4, subd. (b); 1202.45.) The restitution fines total $1,000, as do the parole revocation fines, well below the statutory maximum. We accordingly reject the argument that the fines are unauthorized. (People v. Enos, supra, 128 Cal.App.4th at p. 1049; People v. Schoeb, supra, 132 Cal.App.4th at p. 865.)

Abstract of Judgment

Appellant argues, and the Attorney General agrees, that the abstract of judgment in case number TA078476 incorrectly states that appellant received a three year sentence. The plea agreement provides for a two-year midterm sentence. On March 21, 2006, the trial court amended the abstract of judgment to reflect that appellant was sentenced to a two-year midterm.

The amended abstract of judgment states that appellant was awarded 133 days custody credit. Appellant claims that he is entitled to 309 days custody credit. The Attorney General responds that the issue must be presented to the trial court.^[3] (§ 1237.1.) In the interests of judicial economy, we resolve the issue on appeal. (People v. Jones (2000) 82 Cal.App.4th 485, 493; People v. Sylvester (1997) 58 Cal.App.4th 1493, 1496, fn. 3.)

In case number TA078476, appellant was arrested March 23, 2005. He was sentenced 89 days later on June 20, 2005. At the sentencing hearing, counsel agreed that appellant should receive 89 days actual credit, and 44 days good time/work time credit. The trial court did not err in awarding 133 days custody credit.

The judgments are affirmed.

NOT TO BE PUBLISHED.

YEGAN, Acting P.J.

We concur:

COFFEE, J.

PERREN, J.

Jack W. Morgan, Judge

Superior Court County of Los Angeles

______________________________

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, Lance E. Winters, Supervising Deputy Attorney General, Laura J. Hartquist, Deputy Attorney General, for Plaintiff and Respondent.

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^[1] Unless otherwise stated, all statutory references are to the Penal Code.

^[2] Section 1202.4, subdivision (b) provides: "In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record. [¶] (1) The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense, but shall not be less than two hundred dollars ($200), and not more than ten thousand dollars ($10,000), if the person is convicted of a felony . . . ." (Emphasis added.)

Section 1202.45 states in pertinent part: "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 parole revocation restitution fine in the same amount . . . ." (Emphasis added.)

^[3] On September 8, 2005, the trial court denied a habeas petition to recalculate custody credits.