People v. Jackson CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCE320691
- Trial judge
- Allan J. Preckel
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Alex C. McDonald (author), Judith D. McConnell, Cynthia Aaron
Analysis
The trial court imposed a $1,000 restitution fine on the defendant for robbery, which the defendant argued violated the Sixth Amendment because the court did not make a specific finding of his ability to pay. The Court of Appeal affirmed the judgment, holding that the fine was within the statutory range and that Apprendi does not require jury findings for discretionary sentencing factors within that range.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Imposition of a $1,000 restitution fine under Penal Code section 1202.4, subdivision (b) without a specific judicial finding of the defendant's ability to pay.“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.” | de novo | correct | agree with court The appellate court correctly applied the holding in People v. Kramis and People v. Urbano, which establish that Apprendi v. New Jersey does not apply to restitution fines imposed within a statutory range where the judge exercises discretion based on sentencing factors. The court correctly identified that the conviction itself triggers the fine, and the amount is a discretionary sentencing factor, not a sentence enhancement requiring proof beyond a reasonable doubt. The reliance on Kramis and Urbano is appropriate as they are published California appellate decisions directly on point regarding the interaction between Apprendi and Penal Code section 1202.4. |
Authorities
- relied: Apprendi v. New Jersey (2000) 530 U.S. 466 — 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, except for the fact of a prior conviction.
- relied: Southern Union Co. v. United States (2012) 132 S.Ct. 2344 — The rule of Apprendi applies to the imposition of criminal fines.
- relied: People v. Kramis (2012) 209 Cal.App.4th 346 — Apprendi and Southern Union do not apply when the trial court exercises its discretion within a statutory range for restitution fines under Penal Code section 1202.4.
- relied: People v. Urbano (2005) 128 Cal.App.4th 396 — Judges may exercise discretion in imposing a judgment within the range prescribed by statute, and Apprendi distinguishes sentencing factors from sentence enhancements.
- relied: People v. McCullough (2013) 56 Cal.4th 589 — Appellate courts retain the discretion to review issues on the merits even if the defendant forfeited the right to object by not raising them at trial.
The appellate opinion: sound — The opinion is sound because it correctly applies established California precedent (Kramis and Urbano) to distinguish between sentencing factors and sentence enhancements under Apprendi. The court accurately notes that the restitution fine was within the statutory range and did not rely on facts not found by the jury to increase the penalty beyond the maximum authorized by the statute.
How this analysis was made · dispute it
unusual dispositionThe trial court, after a jury convicted Leon Gerard Jackson of robbery and he admitted prior-conviction allegations, sentenced him to nine years in prison and imposed a $1,000 restitution fine under Penal Code section 1202.4, subdivision (b), without an express ability-to-pay finding and without objection from defense counsel. On appeal Jackson argued that any fine above the $240 statutory minimum required judicial fact-finding in violation of Apprendi and his Sixth Amendment jury-trial right; the Court of Appeal, following Kramis and Urbano, held Apprendi does not apply to a discretionary fine set within the statutory range and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Imposition of a $1,000 restitution fine under section 1202.4, subdivision (b) without a jury finding or express judicial finding of ability to pay (Apprendi/Sixth Amendment challenge)“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.” | unclear | correct | agree with court The opinion does not state a standard of review, but the question is a pure constitutional one. The conviction itself authorizes a fine anywhere from $240 to $10,000; section 1202.4, subdivision (d) expressly says express findings are not required and places the burden of showing inability to pay on the defendant. Because the court chose a figure within the range authorized by the verdict and made no finding that raised the ceiling, Apprendi's rule (reaffirmed for fines in Southern Union) is not implicated, as Kramis and Urbano correctly hold. The $1,000 fine was also well below the probation recommendation and within the statutory formula. |
Forfeiture of the restitution-fine objection by failure to object at sentencing“Even assuming a forfeiture, we retain the discretion to review the issue on the merits.” | unclear | not reached | agree with court The court assumed without deciding that the claim was forfeited and exercised its discretion to reach the merits, citing McCullough. That is a permissible course; because the merits were resolved against Jackson, nothing turned on the forfeiture question. |
Claim that trial counsel was ineffective for failing to object to the restitution fine“We need not discuss Jackson's contention that trial counsel was ineffective because he did not object to the restitution fine.” | unclear | not reached | agree with court Having rejected the underlying Apprendi claim on the merits, the court properly found it unnecessary to address ineffective assistance; counsel cannot be deficient, nor can prejudice arise, from failing to raise a meritless objection. |
Authorities
- relied: Apprendi v. New Jersey (2000) 530 U.S. 466 — Other than the fact of a prior conviction, any fact that increases the penalty beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt; judges may still exercise discretion within the statutory range.
- relied: Southern Union Co. v. United States (2012) 132 S.Ct. 2344 — The Apprendi rule applies to the imposition of criminal fines.
- relied: People v. Kramis (2012) 209 Cal.App.4th 346 — Apprendi and Southern Union do not apply when the trial court sets a section 1202.4 restitution fine within the statutory range; the fact of conviction triggers and authorizes the fine.
- relied: People v. Urbano (2005) 128 Cal.App.4th 396 — Factors considered in setting a restitution fine within the statutory range are sentencing factors, not sentence enhancements, and do not implicate Apprendi.
- relied: People v. McCullough (2013) 56 Cal.4th 589 — An appellate court retains discretion to reach the merits of a sentencing-fee claim even if it was forfeited by failure to object below.
The appellate opinion: sound — The opinion directly answers the only contested legal argument with the governing high court authority (Apprendi, Southern Union) and the on-point California appellate decisions (Kramis, Urbano), and the statutory text of section 1202.4, subdivision (d) itself defeats the premise that findings are required. The court sensibly sidestepped the forfeiture and ineffective-assistance issues once the merits were resolved.
Opinion
Filed 11/6/13 P. v. Jackson CA4/1 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D062946
Plaintiff and Respondent, v. (Super. Ct. No. SCE320691)
LEON GERARD JACKSON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of 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).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)).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.
1 All further statutory references are to the Penal Code.
2 The court also imposed a $1,000 parole revocation fine. (§ 1202.45.)
2 The probation report recommended a $2,600 restitution fine.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 3 The probation report also recommended a $2,600 parole revocation fine.
3 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 4 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[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.)
4 During the relevant time in Kramis, $200 was the statutory minimum. (Kramis, supra, 209 Cal.App.4th at p. 349.)
5 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.
Cites, in this corpus
- People v. McCullough S192513 · 2013-04-22
- People v. Kramis No. B236892 · 2012-09-13
- People v. Urbano F044381 · 2005-04-11