People v. Johnson CA6

Filed 2/23/15 P. v. Johnson CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H040760 (Monterey County Super. Ct. Plaintiff and Respondent, No. SS130506A, SS131256A)

v.

THEODORE JOHNSON, JR.,

Defendant and Appellant.

I. INTRODUCTION Defendant Theodore Johnson, Jr., pleaded no contest to the felony of injuring a cohabitant (Pen. Code, § 273.5, subd. (a))1 in March 2013 and was placed on formal probation. After a second incident of domestic violence involving the same victim in June 2013, defendant pleaded no contest to one felony count of making criminal threats (§ 422) and one felony count of injuring a cohabitant, the second conviction occurring within seven years of the first conviction (§ 273.5, subd. (f)(1)), and three misdemeanors. In February 2014, the trial court revoked probation in the first case, denied probation in the second case, and in both cases sentenced defendant to a total of five years in prison. Defendant’s sole objection on appeal is to the $2,400 restitution fine in the second case that the trial court stated it “set pursuant to the formula” in section 1202.4, subdivision (b)(2). That subdivision states, “In setting a felony restitution fine, the court

1 Unspecified section references are to the Penal Code.

may determine the amount of the fine as the product of the minimum fine pursuant to paragraph (1) 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.” (Italics added.) The result of the statutory formula depends on the minimum fine specified in section 1202.4, subdivision (b)(1). The minimum restitution fine had been $200 since 19922 until Assembly Bill No. 898, enacted in 2011 (Stats. 2011, ch. 358, § 1), scheduled three prospective annual increases. The legislation amended section 1202.4, subdivision (b)(1) to provide that the restitution fine for a felony conviction “shall not be less than two hundred forty dollars ($240) starting on January 1, 2012, two hundred eighty dollars ($280) starting on January 1, 2013, and three hundred dollars ($300) starting on January 1, 2014 … ,” retaining the same $10,000 upper limit. The $2,400 imposed here appears to have resulted from multiplying $300 times two felony counts times four years. On appeal defendant argues that the $300 minimum should have been $280 for offenses committed in 2013, and the Attorney General concedes this error. We will accept the concession and will affirm the judgment after modifying it to reflect the formula-derived fine appropriate to defendant’s convictions in the second case. II. TRIAL COURT PROCEEDINGS A. FIRST CASE (SS130506A) In March 2013 defendant waived a preliminary hearing and entered a no contest plea to injuring a cohabitant. (Count 1; § 273.5, subd. (a).) Defendant agreed to felony probation and dismissal of three other charges. The court advised defendant at the time of his plea that the minimum restitution fine would be $280.