People v. McGhee

Opinion

Defendant was convicted by jury of sale of methamphetamine in violation of Health and Safety Code section 11379. He was sentenced to the state prison for the upper term of four years. In addition, the trial court imposed a restitution fine of $10,000, the maximum fine provided for under Government Code section 13967. Defendant challenges both his conviction and the imposition of the maximum restitution fine. We affirm.

The Facts

Howard Eggert, a California Highway Patrol traffic officer, was assigned to the Kings County Narcotics Task Force in Hanford as a special investí

The defense evidence further showed that on December 31 about 4 p.m., the time of the drug sale, defendant was in Sacramento. Tana Smith said she, defendant and her one-year-old daughter started out early on December 31 on their way to Disneyland, but on the way she changed her mind and asked defendant if they could go visit her father in Sacramento instead, to which defendant agreed. Ms. Smith stated that she and defendant, along with her little daughter, stayed in Sacramento in her father’s house for three days. Defendant’s girlfriend, Barbara Alvidrez, stated that defendant, who spent the night with her on December 30, was up early on December 31 and borrowed her car. She said defendant did not come back with the car for three days.

On rebuttal, Officer Eggert stated that even after listening to the testimony of defendant’s alibi witnesses, there was no doubt in his mind that the person he met on December 23 and who sold him drugs on December 31 was defendant.

Officer Harold Spuhler, a correctional officer with the Kings County Sheriff’s Department, stated that on July 1, 1986, during a break following the testimony of 10-year-old Melanie McGhee, he commented to defendant as they were walking along that Melanie was a cute girl. Defendant’s response was, “Yes, she’s a cute little girl, but she got her story all mixed up.”

Discussion

Did the trial court improperly impose a $10,000 fine for a $60 sale of contraband?

Defendant acknowledges that in People v. Romero (1985) 167 Cal.App.3d 1148 , 1156 [ 213 Cal.Rptr. 774 ], this court held that a trial court is not required to state reasons for imposing a restitution fine pursuant to Government Code section 13967 and Penal Code section 1202.4, but argues that the $10,000 fine was not warranted under the circumstances of this case and that the instant fine was not actually a fine but a “built-in parole violation.” This court rejected the “built-in parole violation” argument in People v. Long (1985) 164 Cal.App.3d 820 , wherein we held: “[T]here is nothing in the laws as discussed herein to suggest that the parole board, at

“Assuming that after his release from prison defendant lacks the financial ability to pay the [fine], defendant will suffer no further incarceration based on this inability to pay. The only detriment defendant will suffer is a possible execution against whatever nonexempt assets he may have to satisfy his delinquent indebtedness to the state. In this respect, defendant does not differ from numerous persons so indebted. Therefore, there is no constitutional infirmity in the imposition by the trial court of a . . . restitution fine on defendant.” (Id. at p. 828.)

Defendant contends that the $10,000 restitution fine was excessive because, among other things, the trial court did not consider his lack of assets and his extremely limited employment potential. Assuming defendant’s assertion of lack of assets and limited employment potential to be true, such matters are not germane to the issue. Penal Code section 1202.4 itself provides that “the defendant’s present ability to pay” is irrelevant absent “compelling and extraordinary reasons.” Although not raised by defendant, this court has held that the foregoing provisions do not violate due process. (People v. Long, supra, 164 Cal.App.3d 820 , 824-827 [ 210 Cal.Rptr. 745 ].) Defendant’s reliance on cases ordering payment of restitution as a condition of probation is misplaced.

Although conceding that some may consider a sale of drugs in any amount to be a serious offense, defendant argues that “in the relative scheme of the criminal justice system, it pales by comparison with other prohibited conduct [such as] murder, rape, sodomy, forced oral copulation, robbery, burglary, [and] assault with a deadly weapon.” Since defendant’s conduct, “when compared with other forms of prohibited criminal conduct, appears rather insignificant,” he argues that the trial court abused its discretion in imposing the maximum possible restitution fine of $10,000.

Government Code section 13967, subdivision (a), provides in pertinent part; “[I]f the person is convicted of one or more felony offenses, the court shall impose a separate and additional restitution fine of not less than one hundred dollars ($100) and not more than ten thousand dollars ($10,000). In setting the amount of the fine for felony convictions, the court shall consider any relevant factors including, but not limited to, the seriousness and gravity of the offense and the circumstances of its commission, any economic gain derived by the defendant as a result of the crime, and the extent to which others suffered losses as a result of the crime.”

“While Government Code section 13967 does not specifically identify the defendant’s criminal history as a factor to be considered, it does provide that the court shall consider any relevant factors, including, but not limited to, those factors listed. A defendant’s history of criminality is a well-recognized factor to be considered in determining what sentence is to be imposed. (Cal. Rules of Court, rule 421(b)(2).) This court can see no reason in logic why consideration of the defendant’s criminal record would constitute an abuse of discretion in the context of imposing a restitution fine, but not in imposing a prison sentence. This is especially true in the context of a Penal Code section 666 violation wherein the seriousness of the offense charged is the fact that the defendant is a recidivist. The trial court did not abuse its discretion in imposing the $2,000 restitution fine.” (People v. Griffin, supra, 193 Cal.App.3d at pp. 741-742, fn. omitted.)

In the instant case, defendant was sentenced to prison for the aggravated term of four years, the maximum term provided by law. This sentence was clearly supported, and defendant does not contend to the contrary, by the trial court’s finding that the present offense was committed while defendant was on probation for the similar offense of sale of marijuana in violation of Health and Safety Code section 11379, a felony, of which he was convicted on May 29, 1984. The probation report stated that offense involved sales of both marijuana and cocaine and this statement was not contradicted or challenged by defendant at the sentencing hearing. Furthermore, from defendant’s statement to Officer Eggert at their meeting on December 31, 1985, it could reasonably be inferred that the instant sale was not an isolated event. When Officer Eggert advised defendant that he wanted to buy a gram of crank, defendant stated he had sold out all his stock but would go to Fresno to get some more. We also note that the probation