P. v. McCarroll

 

 

 

 

 

 

 

 

 

 

 

 

Filed 5/24/13  P.
v. McCarroll CA5

 

 

 

 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

> 

 

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opinion has not been certified for publication or ordered published for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.

 

FIFTH APPELLATE DISTRICT

 
>

THE PEOPLE,               Plaintiff and Respondent,                           v.   TRACY SCOTT MCCARROLL,               Defendant and Appellant.

F064953   (Super. Ct. No. 1422700)   O P I N I O N

 

 

THE COURThref="#_ftn1" name="_ftnref1" title="">^*

            APPEAL from
a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Stanislaus
County.  Ricardo Cordova, Judge.

            James M.
Kehoe, under appointment by the Court of Appeal, for Defendant and Appellant.

            Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and
Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and
Respondent.

-ooOoo-

            A jury convicted
appellant, Tracy Scott McCarroll, of battery on a cohabitant (Pen. Code, §
273.5, subd. (a)),href="#_ftn2" name="_ftnref2"
title="">^[1] evading
a police officer (Veh. Code, § 2800.2, subd. (a)), driving in the direction
opposite to lawful traffic during willful flight (Veh. Code, § 2800.4), href="http://www.fearnotlaw.com/">possession of marijuana for purposes of sale
(Health & Saf. Code, § 11359), and false imprisonment (§§ 236, 237, subd.
(a)).  The court imposed a prison term of
five years and ordered that appellant pay various fines and fees, including a
restitution fine of $1,200 under former section 1202.4, subdivision (b). 

            On appeal,
appellant argues that the restitution
fine, because it exceeded the statutory minimum and was based on facts found by the sentencing court,
rather than by a jury, violated his federal constitutional right to trial by
jury under principles set forth in Apprendi v. New Jersey
(2000) 530 U.S. 466 (Apprendi) and >Southern Union Co. v. U.S. (2012) ___
U.S. ____ [132 S.Ct. 2344, 2357] (Southern
Union Co.).  We affirm.

DISCUSSION

Appellant committed the instant offenses in 2010.  At that time, as now, section 1202.4,
subdivision (b) provided:  “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.”  At the time of the instant offenses, section
1202.4, subdivision (b)(1) provided that the minimum fine was $200, while the
maximum fine was $10,000.  (Former §
1202.4, subd. (b)(1)).href="#_ftn3"
name="_ftnref3" title="">^[2] 
Within that range, then as now, the fine was “to be set at the
discretion of the court and commensurate with the seriousness of the offense” (>ibid.), and the court, in setting the
amount of the fine, was required to “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”  (§
1202.4, subd. (d)).

In Apprendi, the United States Supreme Court held that 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,
supra, 530 U.S. at p. 490.)  In Southern
Union Co., the court held that this rule applied equally to imposition of
criminal fines.  As the court explained
in People v. Kramis (2012) 209
Cal.App.4th 346, 351 (Kramis):  “The statutory fine imposed in >Southern Union Co. was $50,000 for each
day of violation.  In other words, the
amount of the fine was tied to the number
of days the statute was violated.  In
Southern Union Co., the trial court,
not the jury, made a specific finding as to the number of days of
violation.  The United States Supreme
Court held the district court’s factual finding as to the number of days the
defendant committed the crime violated Apprendi.  (Southern
Union Co., supra, 567 U.S. at p.
_____, [132 S.Ct. at p. 2352].)” 

Appellant’s reliance on >Apprendi and Southern Union Co. is misplaced. 
In Kramis, the court, in
addressing an argument virtually identical to the one appellant raises here,
held:  “Southern Union Co. does not impact the restitution
fine imposed in the present case.  >Apprendi and Southern Union Co. do not apply when, as here, the trial court
exercises its discretion within a statutory range.  [Citations.] 
As the United States Supreme Court held in Apprendi, ‘[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, [>People v. Urbano (2005) 128 Cal.App.4th
396, 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.)’  (>People v. Urbano, supra, 128 Cal.App.4th at pp. 405-406.)  Nothing in Southern Union Co. alters that holding.”  (Kramis,
supra, 209 Cal.App.4th at p. 351,
italics omitted.)

Appellant contends Kramis
was wrongly decided.  He argues that
under Apprendi and >Southern Union Co., imposition of a
restitution fine in excess of the statutory minimum required factual findings
on which he had the right to a jury trial. 
His argument ignores the point made in Kramis that Apprendi and >Southern Union Co. do not apply where,
as here, the fine imposed is within the statutory range.  We agree with the reasoning and result in >Kramis.

As indicated earlier, 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 and $10,000.  The $1,200 restitution
fine imposed in the instant case was within that statutory range.  The trial court did not make any factual
findings that increased the potential fine beyond the prescribed statutory
maximum.  Therefore, Apprendi and its progeny do not preclude the imposition of the
$1,200 restitution fine here.  (>Kramis, supra, 209 Cal.App.4th at pp. 351-352; People v. Urbano, supra,
128 Cal.App.4th at pp. 405-406.)

DISPOSITION

            The judgment is affirmed.