P. v. Mills

Filed 8/1/06 P. v. Mills CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County, Stephen A. Marcus, Judge. Affirmed and remanded for further proceedings.

California Appellate Project, Jonathan B. Steiner, Executive Director, Ronnie Duberstein, Staff Attorney, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, John R. Gorey and Sharlene A. Honnaka, Deputy Attorneys General, for Plaintiff and Respondent.

BACKGROUND

The District Attorney of Los Angeles County filed a complaint charging defendant and appellant Andy Mills (defendant) with receiving stolen property in violation of Penal Code section 496, subdivision (a)[1] and possession of ammunition in violation of section 12316, subdivision (b)(1). The complaint alleged, as to each offense, that defendant suffered a prior felony conviction within the meaning of section 667.5, subdivision (b).

On March 4, 2005, defendant waived his right to a preliminary hearing and accepted a plea agreement. Pursuant to the plea agreement, defendant entered a plea of nolo contendere to receiving stolen property. The trial court suspended imposition of sentence and granted defendant probation for three years on certain terms and conditions; including the conditions that he serve 180 days in county jail with credit for 74 days (50 days of actual custody credit and 24 days of conduct credit); that he obey all laws; and that he not own, use, or possess any dangerous or deadly weapons, including knives. The trial court dismissed the possession of ammunition charge, and, among other things, imposed a restitution fine of $210 pursuant to section 1202.4, subdivision (b).

On May 6, 2005, Montebello Police Department Detective Steve Sharpe received a radio call concerning a man, suspected of violating section 415, running from 1111 West Washington. A description of the man was given, including the fact that the man was possibly armed with a knife. Detective Sharpe observed defendant running suspiciously near Washington Boulevard. Defendant matched the description of the suspect described in the radio broadcast. Detective Sharpe identified himself to defendant as a police officer and ordered defendant to stop. Defendant fled, and Detective Sharpe chased and ultimately arrested him. Officer Hugo Flores searched defendant and found a folding pocket knife in defendant's pocket.

Thereafter, defendant's probation was revoked and he was found to be in violation of his probation for possessing a deadly or dangerous weapon – a knife, and for failing to obey all laws. On August 11, 2005, the trial court sentenced defendant to the upper term of three years in state prison with credit for 328 days (180 days he served as a condition of probation; 99 additional days of actual custody following defendant's May 6, 2005, arrest; and 49 days of additional conduct credit based on the 99 additional days of actual custody) and ordered that defendant pay a restitution fine of $400, an increase from the $210 restitution fine the trial court imposed when it granted probation.

On appeal, defendant contends that the trial court erred in increasing his restitution fine from $210 to $400. He also contends that under Blakely v. Washington (2004) 542 U.S. 296, the imposition of the upper term sentence for his conviction for receiving stolen property, based on facts neither found by the jury nor admitted by him, violated his federal constitutional rights to a jury trial, proof beyond a reasonable doubt, and due process under the Fifth, Sixth, and Fourteenth Amendments. We hold that the trial court erred in increasing defendant's restitution fine from $210 to $400 and order the abstract of judgment modified to reflect a restitution fine of $210 and a corresponding suspended parole revocation restitution fine of $210 pursuant to section 1202.45. We also hold that defendant's claim that his constitutional rights were violated by the trial court's imposition of the upper term sentence is without merit under People v. Black (2005) 35 Cal.4th 1238.

We requested supplemental briefing from the parties addressing the issue of whether defendant's presentence credits were calculated properly. Because the record does not disclose the dates defendant was in actual custody during the period from and including the date of his arrest on May 6, 2005 to and including the date of his sentencing on August 11, 2005, we remand this case to the trial court to determine defendant's actual custody for that period and to recalculate his presetence credits. The modified abstract of judgment is to include defendant's recalculated credits.

DISCUSSION

I. Defendant's Restitution Fine

Citing People v. Chambers (1998) 65 Cal.App.4th 819, 823 and People v. Arata (2004) 118 Cal.App.4th 195, 202, defendant argues that the trial court imposed an unauthorized sentence when it increased from $210 to $400 the restitution fine it imposed pursuant to section 1202.4[2] when it granted probation. Defendant contends that the restitution fine and the corresponding $400 parole revocation restitution fine imposed pursuant to section 1202.45[3] must be reduced to $210. We agree.

A trial court errs when it increases the amount of a previously imposed restitution fine upon the revocation of probation. (People v. Johnson (2003) 114 Cal.App.4th 284, 306-308; accord People v. Downey (2000) 82 Cal.App.4th 899, 921; see also People v. Arata, supra, 118 Cal.App.4th at pp. 201-202 [â€