From Casetext: Smarter Legal Research

People v. Jackson

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Jan 23, 2012
E053228 (Cal. Ct. App. Jan. 23, 2012)

Opinion

E053228

01-23-2012

THE PEOPLE, Plaintiff and Respondent, v. ANTHONY JACKSON, Defendant and Appellant.

Jan B. Norman, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Kevin Vienna, Deputy Attorney General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super.Ct.No. RIF10005724)


OPINION

APPEAL from the Superior Court of Riverside County. Elaine M. Johnson, Judge. Affirmed in part; reversed in part and remanded with directions.

Jan B. Norman, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Kevin Vienna, Deputy Attorney General, for Plaintiff and Respondent.

Defendant and appellant Anthony Jackson pled guilty to possessing marijuana in prison (Pen. Code, § 4573.8) and admitted a prison prior (§ 667.5, subd. (b)) as well as a strike prior (§ 667, subds. (c) & (e)(1)). Defendant was immediately sentenced pursuant to his plea agreement to three years eight months in prison, consisting of the low term of 16 months, doubled due to the strike, with an additional one year for the prison prior. Defendant contends the setting of the section 1202.4 restitution fine at $600 was an abuse of discretion. We reverse the imposition of the fine, direct the trial court to exercise its discretion to set the fine, and otherwise affirm.

All further statutory references are to the Penal Code.

BACKGROUND

After the trial court recited its sentence, including the setting of the restitution fine at $600, it noticed that defendant appeared to have a question and gave him the opportunity to address his counsel. Defendant's trial counsel then stated, "Your Honor, he had a question about the restitution."

The trial court responded, "those are the minimums that the Court can order. It's $200 per year for each year that you are incarcerated. So $300—or $200 times 3 years. So that is the amount. It's statutory."

"THE DEFENDANT: That's not statutory.

"THE COURT: Thank you, sir.

"THE DEFENDANT: That's not statutory. I just paid $200 for 8 years.

"THE COURT: Sir, please don't speak any further.

"THE DEFENDANT: I paid $200 for 8 years."

DISCUSSION

Defendant contends the imposition of $600 for the section 1202.4 restitution fine was an abuse of discretion. The People contend defendant forfeited the issue, the trial court properly used the formula provided in section 1202.4, and that any remand for recalculation of the fine would be an idle act. We conclude that the trial court misunderstood its discretion, and reject the People's contentions.

A. Standard of Review

Defendants bear a heavy burden when attempting to show an abuse of discretion. (People v. Aubrey (1998) 65 Cal.App.4th 279, 282.) " 'In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.' [Citation.]" (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.) However, when a sentencing choice "is based on an erroneous understanding of the law, the matter must be remanded for an informed determination. [Citations.]" (People v. Downey (2000) 82 Cal.App.4th 899, 912.)

B. Forfeiture

The People note defendant's waiver of the preparation of a probation report, which would have provided information relevant to the imposition of a restitution fine, and note that defendant did not specifically make an ability to pay objection to the restitution fine. They thus assert that defendant "has forfeited his claim that the trial court failed to consider his ability to pay when imposing the $600 restitution fine." However, the issue is not whether the trial court failed to consider defendant's ability to pay, but whether it understood that it had the discretion to impose an amount less than $600. Accordingly, we reject the People's contention.

C. The Section 1202.4 Restitution Fine

"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 . . . . [¶] (2) In setting a felony restitution fine, the court may determine the amount of the fine as the product of two hundred dollars ($200) 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." (§ 1202.4, subd. (b).)

"In setting the amount of the fine pursuant to subdivision (b) in excess of the two hundred-dollar ($200) . . . minimum, 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 any losses as a result of the crime, and the number of victims involved in the crime. Those losses may include pecuniary losses to the victim or his or her dependents as well as intangible losses, such as psychological harm caused by the crime. Consideration of a defendant's inability to pay may include his or her future earning capacity. 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." (§ 1202.4, subd. (d).)

The People note that express findings as to the amount of the fine are not required, and assert that "[t]he court's meaning cannot be readily determined from the court's statements or exchange with [defendant]." We disagree.

The trial court selected $600 in apparent reliance on the optional formula provided by subdivision (b) of Section 1202.4. When questioned about that amount, it stated "those are the minimums that the Court can order" and referenced the factors used by the optional formula. Thus, the record before us indicates that the trial court misunderstood its discretion to impose the statutory minimum of $200 without relying on the optional formula.

D. Remand as an Idle Act

The People contend that remand would be an idle act because "there is no indication the trial court would impose a lesser fine on remand." However, the trial court stated that the $600 that it was imposing was the minimum it could impose. Thus, it is possible that the trial court could decide to set the restitution fine at the actual minimum of $200. More importantly, "A limited remand is appropriate . . . for the exercise of any discretion that is vested by law in the trial court. [Citations.]" (People v. Braxton (2004) 34 Cal.4th 798, 818-819.) Thus, as we recited above, when a sentencing choice "is based on an erroneous understanding of the law, the matter must be remanded for an informed determination. [Citations.]" (People v. Downey (2000) 82 Cal.App.4th 899, 912.)

DISPOSITION

The imposition of the section 1202.4 restitution fine, and the related suspended section 1202.45 parole revocation restitution fine, is reversed. The superior court is directed to hold a hearing to exercise its discretion to impose the fines in an amount as required by section 1202.4. If an amount other than $600 is imposed, the superior court clerk is directed to forward certified copies of the minute order and amended abstract of judgment reflecting the imposition of the new amount to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

MILLER

J.

CODRINGTON

J.


Summaries of

People v. Jackson

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Jan 23, 2012
E053228 (Cal. Ct. App. Jan. 23, 2012)
Case details for

People v. Jackson

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ANTHONY JACKSON, Defendant and…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

Date published: Jan 23, 2012

Citations

E053228 (Cal. Ct. App. Jan. 23, 2012)