P. v. McCarroll CA5

Filed 5/24/13 P. v. McCarroll CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent, F064953

v. (Super. Ct. No. 1422700)

TRACY SCOTT MCCARROLL, OPINION

Defendant and Appellant.

THE COURT APPEAL from a judgment of the Superior Court of Stanislaus County. Ricardo Cordova, Judge. James M. Kehoe, 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, Eric L. Christoffersen and Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

 Before Wiseman, Acting P.J., Cornell, J., and Gomes, J.

A jury convicted appellant, Tracy Scott McCarroll, of battery on a cohabitant (Pen. Code, § 273.5, subd. (a)),1 evading a police officer (Veh. Code, § 2800.2, subd. (a)), driving in the direction opposite to lawful traffic during willful flight (Veh. Code, § 2800.4), possession of marijuana for purposes of sale (Health & Saf. Code, § 11359), and false imprisonment (§§ 236, 237, subd. (a)). The court imposed a prison term of five years and ordered that appellant pay various fines and fees, including a restitution fine of $1,200 under former section 1202.4, subdivision (b). On appeal, appellant argues that 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. U.S. (2012) ___ U.S. ____ [132 S.Ct. 2344, 2357] (Southern Union Co.). We affirm. DISCUSSION Appellant committed the instant offenses in 2010. 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) provided that the minimum fine was $200, while the maximum fine was $10,000. (Former § 1202.4, subd. (b)(1)).2 Within that range, then as now, the fine was “to be set at the discretion of the