People v. Kramis

Opinion

TURNER, P. J. I. INTRODUCTION

A jury convicted defendant, Joseph Lawrence Kramis, of assaulting a woman, Nicole J., by means of force likely to produce great bodily injury. (Pen. Code,1 former § 245, subd. (a)(1), as amended by Stats. 2004, ch. 494, § 1, p. 4040, now § 245, subd. (a)(4), as amended by Stats. 2011, ch. 183, § 1.) The jury found not true an allegation defendant personally inflicted great bodily injury. (§ 12022.7, subd. (a).) The trial court declared a mistrial as to a second count, willful infliction of corporal injury upon a former cohabitant. (§ 273.5, subd. (a).) Defendant was sentenced to four years in state prison. Defendant contends the trial court erroneously excluded evidence going [349]directly to the victim’s credibility and veracity; it was reversible error to fail to instruct the jury it had to specify in the verdict what act constituted assault with force likely to produce great bodily injury; it was an abuse of discretion to deny defendant probation; and defendant was entitled to additional presentence custody credit. In addition, we asked the parties to brief the effect, if any, of Southern Union Co. v. United States (2012) 567 U.S._, - [183 L.Ed.2d 318, 132 S.Ct. 2344, 2348-2349] on the trial court’s imposition of a $10,000 restitution fine. (Former § 1202.4, subds. (b)(1), (c) & (d), as amended by Stats. 2008, ch. 468, § 1.) We modify the judgment as to defendant’s presentence custody credit. We affirm the judgment in all other respects.

II. THE EVIDENCE*

III. DISCUSSION

A.-D.*

E. Restitution

The trial court imposed a $10,000 restitution fine under former section 1202.4, subdivision (b)(1) as it was in effect on the date of the offense. We asked the parties to brief the question what was the effect, if any, of Southern Union Co. v. United States, supra, 567 U.S. at pages - [132 S.Ct. at pp. 2348-2349] (Southern Union Co.) on the trial court’s imposition of a $10,000 restitution fine. Former 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 assault on Nicole (July 3, 2009), in the case of a felony conviction, the minimum fine was $200, while the maximum fine was $10,000. (People v. Blackburn (1999) 72 Cal.App.4th 1520, 1534 [86 Cal.Rptr.2d 134].)2 It is the fact of the conviction that triggers