People v. Willard CA1/3

Filed 1/31/14 P. v. Willard CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, A137561 v. LONDON WILLARD, (Alameda County Super. Ct. No. H51760) Defendant and Appellant.

Defendant London Willard was convicted by a jury of grand theft. His sole claim on appeal is that his restitution fine should be reduced from $720 to $600. We affirm. PROCEDURAL BACKGROUND Because the only issue raised on appeal concerns the calculation of the restitution fine, it is unnecessary to summarize the facts supporting Willard’s conviction. Willard was charged with first degree robbery (Pen. Code, § 211)1 in an information filed on March 12, 2012. As set forth in the information, Willard committed the robbery in August 2011. Following a jury trial, Willard was convicted of the lesser included offense of grand theft (§ 487, subd. (c)). The trial court sentenced Willard to serve three years in state prison, composed of the middle term of two years for grand theft plus a consecutive one-year term for having served a prior prison term within the meaning of section 667.5, subdivision (b).

1 All further statutory references are to the Penal Code.

1

The trial court ordered Willard to pay a restitution fine of $720 pursuant to section 1202.4. The court also ordered Willard to pay a parole revocation fine of $720 pursuant to section 1202.45, which was suspended pending successful completion of parole. Willard filed a timely notice of appeal following sentencing. DISCUSSION Willard’s sole claim of error on appeal is that the trial court erred in imposing a restitution fine of $720. He claims the fine should be reduced to $600, which represents the applicable minimum fine of $200 multiplied by three—the number of years of imprisonment he was ordered to serve. According to Willard, the trial court mistakenly calculated his restitution fine based upon a minimum fine of $240, even though the increased minimum fine did not go into effect until after the date he committed the crime of which he was convicted. At the time of Willard’s offense in August 2011, section 1202.4, subdivision (b)(1) provided in relevant part as follows: “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 that two hundred dollars ($200), and not more than ten thousand dollars ($10,000), if the person is convicted of a felony . . . .” (Former § 1202.4, subd. (b)(1), as amended by Stats. 2009, ch. 454, § 1.) At the time of Willard’s offense, subdivision (b)(2) of section 1202.4 provided the following, optional formula for calculating the restitution fine: “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.” (Former § 1202.4, subd. (b)(2), as amended by Stats. 2009, ch. 454, § 1.) Thus, subdivision (b)(1) of section 1202.4 sets the minimum and maximum restitution fine, while subdivision (b)(2) of that same section establishes a formula the court may choose to use in setting the restitution fine. At the time Willard was sentenced in 2012, section 1202.4, subdivision (b)(1) provided that the applicable minimum restitution fine was $240. (Former section 1202.4, subd. (b)(1), as amended by Stats. 2011, ch. 358, § 1.) As set forth in subdivision (b)(2)