The People v. Craig CA3

Filed 8/26/13 P. v. Craig CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C070999

Plaintiff and Respondent, (Super. Ct. No. 07F09047)

v.

KENT CRAIG, JR.,

Defendant and Appellant.

Pursuant to a plea agreement, defendant Kent Craig, Jr., pled to one count of robbery with a gun enhancement. (Pen. Code,1 §§ 211, 12022.5.) At sentencing, the court ordered defendant to pay $1,718 in restitution directly to the victims for their losses from the robbery and $1,542 to the Victims of Violent Crimes Program (VVCP), pursuant to section 1202.4, subdivision (f). On appeal, defendant contends the $1,542 restitution award to the VVCP is punishment and, as such, cannot be imposed on judicially determined facts without

1 Further undesignated statutory references are to the Penal Code.

1

violating the Sixth Amendment, citing the recent United States Supreme Court case of Southern Union Co. v. United States (2012) 567 U.S. ___ [183 L.Ed.2d 318] (Southern Union), and Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi) as well as Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely). We conclude defendant was not entitled to a jury trial prior the imposition of the restitution order, and shall affirm the judgment. BACKGROUND Defendant and an associate2 ordered the three teenage victims to the ground and took their money, jewelry and shoes. Charged with three robbery counts (one for each victim), defendant eventually entered a negotiated plea of no contest to one robbery count and admitted personally using a gun during the robbery, in exchange for a stipulated sentence. The other two robbery counts were dismissed with a Harvey3 waiver for restitution. The probation report stated that the three victims had incurred losses in connection with the robbery of $150, $690, and $878, respectively. It noted that one victim included “moving expenses” in his restitution claim; as to another victim, “[a]n additional amount of $1,542.00 is being requested for the Victim Compensation and Government Claims Board for reimbursement for relocation[.]”4 Defense counsel secured a copy of the