People v. Spears CA2/8

Filed 5/28/14 P. v. Spears CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B249145

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. VA120046) v.

KEVIN SPEARS,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of the Los Angeles County. Thomas I. McKnew, Jr. Affirmed as modified and remanded with directions.

William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Margaret E. Maxwell and Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Kevin Spears pleaded no contest to a single charge of first degree residential burglary in violation of Penal Code section 459.1 He was sentenced to the midterm of four years in state prison. This appeal followed. Since the sole issue on appeal is the amount of the restitution fine (§ 1202.4, subd. (b)) and parole revocation fine (§ 1202.45), we set forth the trial court’s statement when it imposed the fines: “I am required to impose a fine. I will impose a fine of $250, which is the bare minimum that the court is required to impose. The victim did receive return of his property. I believe that the defendant has many financial obligations, which although in most cases wouldn’t merit consideration, he does have children and I am concerned about their welfare.” The parties agree that at the time the burglary was committed, which is the governing event (People v. Saelee (1995) 35 Cal.App.4th 27, 30), the minimum restitution fine was $200. At the time of the burglary, the parole revocation fine was required to be in the same amount as the restitution fine. Effective January 1, 2012, the minimum restitution fine was $240. The minimum restitution fine was raised again effective January 1, 2013, to $280. Appellant was sentenced on March 28, 2013. We do not agree with appellant that the restitution fine of $250 imposed on March 28, 2013, was illegal. $250 was within the maximum of $10,000 that was in effect at the time of the burglary. (§ 1202.4, subd. (b)(1).) Although respondent contends the trial court’s reference to a “bare minimum” was pegged to the fact the amount of property taken in the burglary was $250, we think the court’s concern for the financial welfare of appellant’s family supports the conclusion the trial court intended to impose the minimum restitution fine, which was in fact $200. That the court had the actual minimum in mind also follows from its choice of words: “I will impose a fine of $250, which is the bare minimum that the court is required to impose.”