Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. Lisa M. Chung, Judge. Los Angeles County Super. Ct. No. MA030936
William L. Heyman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Theresa A. Patterson and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
COOPER, P. J.
Fritz Steven Schacknies appeals from his conviction of two counts of corporal injury to a cohabitant and one count of assault by means likely to cause great bodily injury. He challenges the fines imposed at sentencing. We reverse a $400 fine imposed pursuant to Penal Code section 1203.097. In all other respects, we affirm the judgment.
Undesignated statutory citations are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
Cynthia Smith and appellant had a romantic relationship. In 2003, appellant injured Smith. He did not strike or punch her that time. But on January 29, 2005, he did just that. He stomped on her body such that her lung had blood and air in it. For this, he was convicted of corporal injury to a cohabitant and assault by means of force likely to cause great bodily injury. He also hit her eye causing her a black eye and him a conviction for a second count of corporal injury on a cohabitant. With respect to both counts of corporal injury on a cohabitant, the jury found true a section 12022.7, subdivision (e) allegation that he inflicted great bodily injury under circumstances involving domestic violence.
Some conflicting evidence was admitted on cross-examination suggesting that Smith did not have a heopneumothorax in her lung, but the finding is consistent with the jury verdict.
After the jury deadlocked, mistrial was declared as to other charges including attempted murder, two counts of assault with a deadly weapon, corporal injury to a cohabitant, and dissuading a witness from reporting a crime. There was conflicting testimony on those charges. Smith initially told her neighbor, deputy sheriffs, physicians, social workers, her sister, and her mother that appellant tried to kill her and the 12-inch wound in her chest was made when appellant stabbed her and then pushed a 32-inch sword deeper into her chest. In contrast, at trial, Smith testified that she accidentally fell on a sword. Smith testified that her memory was different at trial “since I’ve walked through it and had many anxiety ridden flashbacks. . . .”
Appellant admitted two prior convictions, which were alleged as section 667.5, subdivision (b) priors. Appellant was sentenced to a total term of 12 years which included (1) four years for the corporal injury on a cohabitant plus five years for the great bodily injury allegation (count 5); (2) a stayed term of nine years for the assault by force likely to produce great bodily injury and the great bodily injury allegation (count 6); (3) one-third the midterm for the second count corporal injury on a cohabitant for a total of one year (count 7); and (4) two consecutive years for the prior convictions.
Without objection, the court imposed a $10,000 victim restitution fine pursuant to section 1202.4 and a $400 domestic violence fine pursuant to section 1203.097. The court also imposed and suspended a $10,000 parole revocation fine. At the request of the prosecutor, the court dismissed those counts for which a mistrial had been declared. Appellant filed a timely notice of appeal.
DISCUSSION
Appellant argues that (1) the court abused its discretion in imposing a $10,000 restitution fine and a $10,000 parole revocation fine and that such fines are unconstitutional; (2) the $400 fine pursuant to section 1203.097 was error; and (3) the abstract of judgment fails to indicate that the enhancement imposed for count 6 was stayed. The Attorney General contests the first issue and concedes error on the remaining issues.
I. The $10,000 Restitution Fine and $10,000 Parole Revocation Fine Were Proper
The trial court did not abuse its discretion in imposing a $10,000 restitution fine. The court has wide discretion in determining the amount of the fine. (People v. Gangemi (1993) 13 Cal.App.4th 1790, 1798.) Appellant was convicted of two counts of corporal injury against a cohabitant; with respect to each, the jury found a great bodily injury allegation to be true. In addition, appellant admitted that he suffered two prior convictions and the probation report reflects a long criminal history. Appellant presented no evidence that he would be unable to pay the fine, which is his burden. (§ 1202.4, subd. (d).)
Appellant seeks to minimize his current convictions by pointing out that they arose out of domestic disputes, only Smith was physically injured (though her mother and sister identified at sentencing the harm they suffered), and that the jury did not convict him of other more serious crimes. Those arguments do not show the trial court abused its discretion in imposing the $10,000 restitution fine. The fact that appellant was charged with other crimes or the fact that the victim was his girlfriend do not diminish the severity of the crimes for which he was found guilty. Nor does his argument that “[h]e was apparently becoming frantic to go out and drive somewhere to obtain more drugs, after Smith had, earlier that day, disposed of the drugs he had” identify any abuse of discretion. Although the court could have calculated the fine differently, as appellant argues, its decision to impose a $10,000 fine was within the bounds of reason.
Nor was the fine in violation of the Eighth Amendment excessive fine clause as appellant argues. “The touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality: The amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish.” (United States v. Bajakajian (1998) 524 U.S. 321, 334; see also People v. Urbano (2005) 128 Cal.App.4th 396, 406.) A fine of $357,144 was found disproportionate to the offense of failing to report exported currency because the defendant’s culpability was minimal and the harm caused was minimal and the maximum sentence under the federal sentencing guidelines was 6 months and a $5000 fine. (United States v. Bajakajian, supra, 524 U.S. at pp. 338-339.)
Appellant fails to show a fine of $10,000 is grossly disproportionate to the crimes for which he was convicted. The jury found that appellant personally inflicted great bodily injury on Smith. In addition, appellant admitted two prior convictions and the probation report reflects that he has a long criminal history. In contrast to Bajakajian, neither appellant’s culpability nor the harm he caused was minimal, he caused serious harm to Smith (who was in the hospital for five days), and the fine was significantly lower than the $357,144 held unconstitutional. The fact that the crimes were the result of domestic violence enhances Schacknies’ crime, rather than diminishing it as he argues. (§ 12022.7, subd. (e).) Finally, appellant’s argument that his $10,000 parole revocation fine is unconstitutional is entirely premised on the amount of the restitution fine, which we have upheld.
We need not consider appellant’s ineffective assistance of counsel claim because we have considered his alleged errors on the merits. Based on the record on appeal, he provides no evidence that if counsel had objected to the imposition of the fines, such an objection would have been meritorious.
II. The $400 Fine Must Be Reversed
As the parties agree, section 1203.097 applies to a person “granted probation for a crime in which the victim is a person defined in Section 6211 of the Family Code. . . .” (§ 1203.097, subd. (a).) Appellant was not granted probation and therefore the statute does not apply to him. The $400 fine imposed pursuant to his statute must be reversed.
III. The Abstract of Judgment Must Be Modified
Appellant correctly points out that the abstract of judgment does not reflect that the court stayed the enhancement in count 6.
DISPOSITION
The section 1203.097 fine is reversed. In all other respects, the judgment is affirmed. The trial court is directed to prepare a new abstract of judgment identifying that the enhancement in count 6 is stayed and forward the abstract of judgment to the appropriate prison authorities.
We concur: RUBIN, J. FLIER, J.