Opinion
H025475.
10-24-2003
THE PEOPLE, Plaintiff and Respondent, v. MAXIMINO TORREZ PEREZ, Defendant and Appellant.
Defendant Maximino Torrez Perez entered guilty pleas in two separate cases, pursuant to negotiated plea agreements. He was sentenced together on both cases to a total prison term of five years and four months. Restitution and parole revocation fines of $200 were imposed in each case pursuant to Penal Code sections 1202.4, subdivision (b), and 1202.45. On appeal, defendant contends that only a single restitution fine should have been imposed because he was jointly sentenced. We disagree and affirm the judgment.
Case No. CC115850
On July 6, 2001, defendant was found by police to be in possession of several items which his ex-girlfriend had reported had been stolen from her apartment in a break-in.
By information filed November 16, 2001, defendant was charged in count 1 with first degree burglary (§§459/460, subd. (a)), and in count 2 with possession of stolen property (& sect; 496, subd. (a)). A prior burglary conviction was alleged as both a "strike" prior (§§ 667, subds. (b)-(i), 1170.12) and as a prior serious felony (§ 667.5 subd. (a)).
On January 7, 2002, defendant entered a guilty plea to count 2, possession of stolen property (§ 496), and he admitted the "strike" prior, in exchange for which he was promised a minimum prison sentence of four years and a maximum sentence of six years, with an agreement that the burglary charge would be dismissed at the time of sentencing.
Case Number CC247489
On March 28, 2002, defendant took five pairs of pants from a J.C. Penny store.
A felony complaint was filed May 3, 2002, charging defendant with petty theft with a prior (§ 666). A section 12022.1 enhancement alleged that defendant was on bail at the time of the offense, and a prior conviction within the meaning of sections 667, subdivisions (b) through (i), and 1170.12, was alleged as well.
On October 16, 2002, defendant entered a guilty plea to the violation of section 666 and admitted the prior "strike" in exchange for a sentence of 16 months and dismissal of the section 12022.1 enhancement.
Joint Sentencing
On November 5, 2002, defendant was sentenced pursuant to his plea bargains to a total prison term of five years four months, consisting of a doubled middle term of four years on the stolen property charge in case No. CC115850, and a doubled one-third middle term consecutive sentence of 16 months on the petty theft with a prior conviction in case No. CC247489. As to each case, the court imposed a restitution fine of $200 pursuant to section 1202.4, subdivision (b), and imposed and suspended parole revocation fines of $200 in each case pursuant to section 1202.45.
ARGUMENT
The Trial Court Properly Imposed a Restitution Fine in Each Case
Defendant argues that the trial court erred by imposing separate restitution fines under sections 1202.4, subdivision (b), and 1202.45 in each case because he was jointly sentenced. Section 1202.4, subdivision (b), requires a court to impose a restitution fine in "every case where a person is convicted of a crime." (Italics added.) Defendant contends that his two cases should be treated as one case for purposes of restitution fines, under the authority of People v. McNeely (1994) 28 Cal.App.4th 739 (McNeely) and People v. Ferris (2000) 82 Cal.App.4th 1272 (Ferris). These cases are distinguishable.
In McNeely, the defendant pleaded guilty to numerous burglary offenses charged in two separate cases with separate case numbers. At sentencing for both cases, the trial court imposed an aggregate term that included all counts and ordered McNeely to pay $93,000 in restitution to the victims pursuant to the 1989 version of Government Code section 13967, subdivision (c). At the time, that statute provided that restitution had to be ordered in the amount of the loss, not to exceed $10,000. On appeal, the People conceded that the $93,000 fine violated Government Code section 13967, but argued that two restitution fines could be imposed under that section since McNeely had been sentenced on two cases at the sentencing hearing. The court of appeal rejected this argument, noting that Government Code section 13967 "did not give the court authority to order restitution up to $10,000 for each victim or on each count. Nor did it allow a restitution order exceeding $10,000 where, as here, a defendant is sentenced in one hearing on two or more cases." (McNeely, supra, 28 Cal.App.4th at p. 743.)
The court in McNeely found that Government Code section 13967 contained an ambiguity by not specifying whether the court could impose restitution in each case where defendant was sentenced on more than one case at a single hearing. The ambiguity was resolved in favor of the defendant. However, any ambiguity contained in former Government Code section 13967 has no bearing on our case, which involves different statutes. McNeely is distinguishable in that sections 1202.4, subdivision (b) and 1202.45 now provide specific authority for issuing a restitution order "in every case" in which the defendant has been convicted.
In Ferris, supra, 82 Cal.App.4th 1272, the prosecutor moved to join for trial two separately filed cases charging Ferris with different offenses committed at different times. The trial court granted the motion but the informations were not formally consolidated and the cases retained separate case numbers in the jury verdicts. Separate probation reports were prepared as well. In a single sentencing hearing, the court sentenced Ferris on all charges and ordered him to pay two restitution fines, one for each case. On appeal the court reversed, concluding that the phrase "every case" in sections 1202.4, subdivision (b), and 1202.45, "includes a jointly tried case although it involves charges in separately filed informations." (Ferris, supra, 82 Cal.App.4th at p. 1277.) The court found in Ferris that the charges were "effectively joined" in one case although they technically retained separate case numbers. (Ibid.)
Unlike Ferris, the two cases before us were never joined or consolidated, but rather remained separate cases throughout the proceedings. Although both cases were included at one sentencing hearing, a trial court, as the McNeely court recognized, "can separately sentence a defendant on different cases at a single hearing." (McNeely, supra, 28 Cal.App.4th at p. 743.) The fact that there was a common hearing for sentencing does not mean that the two cases were "effectively joined." (Ferris, supra, 82 Cal.App.4th at p. 1277.) Calendaring and hearing more than one case for a defendant at the same time does not result in " `de facto consolidation." (See, People v. Gonzalez (1990) 220 Cal.App.3d 134, 143.) "Obvious considerations of judicial efficiency call[] for that type of processing the multiple cases of a single defendant." (See, People v. Smith (1992) 7 Cal.App.4th 1184, 1192.)
Here, defendant was convicted of crimes in two cases arising from incidents occurring in different years, eight months apart. The cases were charged separately under case numbers that differed significantly. The offenses committed in each case were unrelated and pertained to different victims in different locations. Pleas were entered in each case on different dates before different judges. Defendants guilt in case No. CC115850 had already been determined, through his guilty plea, before charges were filed in case No. CC247489. The two cases were processed separately up until sentencing, including separate minute orders filed in each case. At sentencing defendant was sentenced separately on each case under its respective number. Thus the trial court and the parties treated the two cases as separate cases for all purposes, including sentencing. We conclude that the trial court did not err in imposing separate restitution fines pursuant to sections 1202.4, subdivision (b) and 1202.45 in each case.
DISPOSITION
The judgment is affirmed.
WE CONCUR: WUNDERLICH, J. MIHARA, J. --------------- Notes: All further unspecified statutory references are to the Penal Code.