People v. Arredondo CA5

California Court of Appeal Oct 11, 2013 No. F065165Unpublished

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Holding. The court held that the imposition of a restitution fine within a statutory range does not violate the Sixth Amendment right to a jury trial under Apprendi or Southern Union Co., as the trial court is exercising judicial discretion rather than finding facts that increase the penalty beyond the statutory maximum.

Issues

Whether a restitution fine exceeding the statutory minimum violates the Sixth Amendment right to a jury trial under Apprendi and Southern Union Co.
Whether a defendant's ability to pay must be found by a jury before a court can impose a restitution fine above the statutory minimum.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Apprendi and Southern Union Co. do not apply when, as here, the trial court exercises its discretion within a statutory range.”

“Nothing in Southern Union Co. alters that holding.”

Filed 10/11/13 P. v. Arredondo CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

THE PEOPLE, F065165 Plaintiff and Respondent, (Super. Ct. No. VCF255912A) v.

JAVIER JUNIOR ARREDONDO, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Tulare County. Valeriano Saucedo, Judge. Peter Dodd, 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, Stephen G. Herndon and Peter W. Thompson, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P.J., Gomes, J. and Kane, J.

Appellant, Javier Junior Arredondo, pled no contest to assault with a deadly weapon (count 2/Pen. Code, § 245, subd. (a)(1))1 and admitted a personal use of a firearm enhancement (§ 12022.5, subd. (a)), a great bodily injury enhancement (§ 12022.7, subd. (a)), and a gang enhancement (§ 186, subd. (b)(1)(C)). On June 15, 2012, the court sentenced Arredondo to an aggregate term of 20 years: the mid-term of three years on his assault conviction; a four-year arming enhancement; a three-year great bodily injury enhancement; and a 10-year gang enhancement. The court also imposed a $2,000 restitution fine (§ 1202.4, subd. (b)) and a corresponding $2,000 parole revocation fine (§ 1202.45). On appeal, Arredondo contends 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. United States (2012) 567 U.S. ___ [132 S.Ct. 2344] (Southern Union Co.).2 We affirm. DISCUSSION Arredondo committed the instant offenses on July 25, 2011. 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)3 provided

People v. Arredondo CA5

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