P. v. Hutcherson

Filed 10/17/06 P. v. Hutcherson CA1/2

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

Larone Hutcherson was convicted, following a jury trial, of one count of misdemeanor vandalism and two counts of resisting a peace officer. On appeal, he contends the trial court erroneously imposed two separate restitution fines. We shall affirm.

PROCEDURAL BACKGROUND

Appellant was charged by information with five felony offenses: making criminal threats (Pen. Code, § 422--counts one and two)[1]; assault with a deadly weapon (§ 245, subd. (a)(1)--count three); kidnapping (§ 207, subd. (a)--count four); and false imprisonment, with an allegation of personal use of a deadly weapon (§§ 236, 12022, subd. (b)(1)--count five). He was also charged with three misdemeanors: vandalism (§ 594, subd. (b)(2)(A)--count six); and resisting a peace officer (§ 148, subd. (a)(1)--counts seven and eight).

Counts two and four were later dismissed. At the conclusion of a jury trial, appellant was acquitted of the remaining three felony counts and was convicted of the three misdemeanor counts.

On September 23, 2005, the court sentenced appellant to 126 days in jail on count six (vandalism), and suspended imposition of sentence on count seven (resisting arrest), placing appellant on three years’ probation. The court stayed sentence on count eight (resisting arrest).

On September 27, 2005, appellant filed a notice of appeal.

DISCUSSION

Appellant’s sole contention on appeal is that the trial court erroneously imposed two separate restitution fines, in violation of section 1202.4, subdivision (b)(1).[2]

At the sentencing hearing, the court imposed a restitution fine in the amount of $100.00 for count seven and a “separate” $100.00 fine for count six.

Section 1202.4, subdivision (b), provides in relevant part: “In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine . . . .” (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 . . . one hundred dollars ($100), and not more than one thousand dollars ($1,000), if the person is convicted of a misdemeanor.”

Appellant relies on People v. Ferris (2000) 82 Cal.App.4th 1272 (Ferris), in arguing that the court erred in imposing two separate $100.00 restitution fines in a single case. (Id. at pp. 1274-1275.) The defendant in Ferris had been convicted in two cases in which separate informations were filed, but there was a joint trial and sentencing hearing. The appellate court found that section 1202.4, subdivision (b), is ambiguous because it does not specify whether the phrase, “every case” means every separately charged and numbered case or every jointly tried case. (Id. at p. 1277.) Because it found the statute was ambiguous, the court adopted the statutory construction favorable to the defendant, and held that the trial court had improperly imposed separate restitution fines in what was effectively one case. (Id. at pp. 1277-1278.)

Respondent, in turn, relies on People v. Enos (2005) 128 Cal.App.4th 1046, 1049, (Enos), in which the appellate court found Ferris inapplicable because, even though there was a joint sentencing hearing in Enos, the cases were not tried together and the trial court and parties treated them as separate, though consolidated, cases. In addition, the Enos court believed that the Ferris court’s “primary concern was not with the trial court’s imposition of more than one section 1202.4, subdivision (b) restitution fine . . . but rather with the resulting total of the fines that exceeded the $10,000 statutory limit [in felony cases].” (Enos, at p. 1049.) In Enos, the trial court had imposed separate fines in consolidated cases that did not exceed the statutory maximum. Thus, “[b]ecause the total fine would be the same, whether imposed in the aggregate or portioned and separately imposed in each case, there cannot be any prejudice to appellant.” (Id. at p. 1050.)

In the present case, like Enos, the total of the two “separately” imposed restitution fines--$200.00--was under the statutory maximum of $1,000.00 for misdemeanor cases, and we find the trial court reasonably intended to impose a total restitution fine in the amount of $200.00. Thus, any technical error on the part of the trial court in describing the fines as separate cannot have prejudiced appellant. (See Enos, supra, 128 Cal.App.4th at p. 1050; cf. § 1202.4, subd. (b)(2) [authorizing court, in setting a felony restitution fine, to determine total amount of fine as product of $200.00 “multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted”].)

DISPOSITION

The judgment is affirmed.

_________________________

Kline, P.J.

We concur:

_________________________

Haerle, J.

_________________________

Lambden, J.

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[1] All further statutory references are to the Penal Code.

[2] Because the facts of the case are not necessary to resolution of this issue, we shall not recount them in this opinion.