P. v. >Jackson>

 

 

 

 

 

 

 

 

 

 

 

 

Filed 11/6/13  P. v. Jackson CA4/1

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b).  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115>.

 

COURT
OF APPEAL, FOURTH APPELLATE DISTRICT

 

DIVISION
ONE

 

STATE
OF CALIFORNIA

 

 

 
>

THE PEOPLE,               Plaintiff and Respondent,               v.   LEON GERARD JACKSON,               Defendant and Appellant.

D062946         (Super. Ct. No. SCE320691)

 

            APPEAL from
a judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">San Diego
County, Allan J. Preckel, Judge.  Affirmed.

 

            Jared G.
Coleman, under appointment by the Court of Appeal, for Defendant and Appellant.

            Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie
L. Garland, Assistant Attorney General, and Charles C. Ragland, Deputy Attorney
General, for Plaintiff and Respondent.

            In
September 2012, a jury found Leon Gerard Jackson guilty of robbery (Pen. Code,
§ 211).href="#_ftn1" name="_ftnref1"
title="">[1]  Jackson
waived his right to a jury trial on
the enhancements and admitted the allegations he had suffered a prior serious
felony conviction (§ 667,
subd. (a)) and a prior strike conviction (§ 667, subds. (b)-(i)), and had served three
prior prison terms (§ 667.5,
subd. (b)).  In November, the
court dismissed the prior prison term allegations and sentenced Jackson
to nine years in prison: twice the two-year lower term for robbery and five
years for the prior serious felony conviction.  The court imposed a $1,000 restitution fine (§ 1202.4, subd.
(b)).href="#_ftn2" name="_ftnref2" title="">[2]  Jackson appeals, contending a restitution
fine above the $240 statutory minimum required a judicial finding he had the
ability to pay, and imposition of the fine without that finding violated his
Sixth Amendment right to a jury trial.  We
affirm.

BACKGROUND

            In May
2012, Jackson entered a grocery
store.  He took a bottle of vodka,
deodorant and razors from the shelves and put them in his pockets.  He left the store without paying for items in
his pockets, although he did pay for other merchandise.  Outside the store, security officers
confronted Jackson.  Jackson
punched one of the officers in the jaw and ear, chipping the officer's
tooth.  Jackson
ran to a van, got in and drove away.

            The
probation report recommended a $2,600 restitution fine.href="#_ftn3" name="_ftnref3" title="">[3]
 Jackson's
counsel did not object to the imposition of the restitution fine.

DISCUSSION

            The People
argue Jackson forfeited the right
to object to the restitution fine by not objecting at sentencing.  Jackson
argues there was no forfeiture.  Even
assuming a forfeiture, we retain the discretion to review the issue on the
merits.  (People v. McCullough (2013) 56 Cal.4th 589, 593.)

            "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."  (§ 1202.4,
subd. (b).)  In 2012, section 1202.4,
subdivision (b), provided the court had discretion to set the restitution fine
at an amount between $240 and $10,000, "commensurate with the seriousness
of the offense."  (§ 1202.4, subd.
(b)(1).)  Section 1202.4, subdivision (d),
states:  "In setting the amount of
the fine pursuant to subdivision (b) in excess of the minimum fine pursuant to paragraph
(1) of subdivision (b), the court shall consider any relevant factors,
including, but not limited to, the defendant's inability to pay, the
seriousness and gravity of the offense and the circumstances of its commission,
any economic gain derived by the defendant as a result of the crime, the extent
to which any other person suffered losses as a result of the crime, and the
number of victims involved in the crime. . . .  A defendant shall bear the burden of
demonstrating his or her inability to pay.  Express findings by the court as to the
factors bearing on the amount of the fine shall not be required. . . ."  Section 1202.4, subdivision (b), allowed the
court to determine the amount of the fine by multiplying $240 "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."  (§ 1202.4, subd. (b)(1) & (2).)

            "Other
than the fact of a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt."  (>Apprendi v. >New Jersey
(2000) 530 U.S.
466, 490 (Apprendi).)  "[T]he rule of Apprendi applies to the imposition of criminal fines."  (Southern
Union Co. v. U.S. (2012) __U.S. __, 132 S.Ct.
2344, 2357.)  Jackson
asserts the maximum restitution fine allowed by Apprendi is $240 because higher amounts require factual findings by
the sentencing court.  Other courts of
appeal have rejected this argument.  ">Apprendi and Southern Union Co. do not apply when, as [with section 1202.4], the
trial court exercises its discretion within a statutory range."  (People
v. Kramis (2012) 209 Cal.App.4th 346, 351 (Kramis); accord People v.
Urbano (2005) 128 Cal.App.4th 396, 405 (Urbano).)
 We agree with the reasoning in those
cases.

            "It is
the fact of the conviction that triggers imposition of a section 1202.4,
subdivision (b)(1) restitution fine." 
(Kramis, supra, 209
Cal.App.4th at pp. 349-350.)  " '[N]othing
in [the common law and constitutional history] suggests that it is
impermissible for judges to exercise discretion—taking into consideration
various factors relating both to the offense and offender—in imposing a
judgment within the range prescribed
by statute.'  (Apprendi, supra, 530 U.S.
at p. 481; accord, [Urbano,] >supra, 128 Cal.App.4th at pp. 405-406.)  As the Court of Appeal for the Fifth
Appellate District noted in Urbano, '>Apprendi distinguishes a "sentencing
factor"—a "circumstance, which may be either aggravating or
mitigating in character, that supports a specific sentence within the range authorized by the jury's finding that the
defendant is guilty of a particular offense"—from a "sentence
enhancement"—"the functional equivalent of an element of a greater
offense than the one covered by the jury's guilty verdict" constituting "an
increase beyond the maximum authorized statutory sentence."  ([Apprendi,
supra, 530 U.S.]
at p. 494, fn. 19.)'  ([>Urbano, at pp. 405-406.])  Nothing in Southern
Union Co. alters that holding.  Under
the applicable version of section 1202.4, subdivision (b)(1), absent compelling
and extraordinary circumstances, the trial court was required to impose a
restitution fine in an amount between $200[href="#_ftn4" name="_ftnref4" title="">[4]]
and $10,000.  The $1,000 section 1202.4,
subdivision (b) restitution fine imposed in the present case was within that
statutory range.  The trial court did not
make any factual findings that increased the potential fine beyond what the
jury's verdict—the fact of the conviction—allowed.  Therefore, Apprendi
and its progeny do not preclude its imposition.  ([Urbano,
supra, 128 Cal.App.4th at pp. 405-406.])"  (Kramis,
supra, 209 Cal.App.4th at pp. 351-352.)

            We need not
discuss Jackson's contention that
trial counsel was ineffective because he did not object to the restitution
fine.

DISPOSITION

            The
judgment is affirmed.

 

 

 

McDONALD, J.

 

WE CONCUR:

 

 

McCONNELL, P. J.

 

 

AARON, J.