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The People v. Kyle Avery

October 26, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
KYLE AVERY, DEFENDANT AND APPELLANT.



(Super. Ct. Nos. 04F10820, 06F04071)

The opinion of the court was delivered by: Robie , Acting P. J.

P. v. Avery

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 a combined disposition of two pending criminal matters*fn1 defendant Kyle Avery pled no contest to two counts of possessing a weapon in prison and admitted a prior strike conviction. Sentenced to a combined, aggregate prison term of 10 years, defendant appeals.

On appeal, defendant contends the trial court failed to exercise its discretion when the court imposed the minimum restitution fines under Penal Code*fn2 section 1202.4. We disagree and affirm the judgment of the court.

BACKGROUND*fn3

During entry of his plea, defendant stated his objection to imposition of the mandatory restitution fines under section 1202.4. The trial court noted its standard practice was to impose a $200 restitution fine if the plea was taken before the preliminary hearing, and $400 if the plea was taken after the preliminary hearing. The court nevertheless indicated a willingness "to impose a $200 fine, which is the mandatory minimum. I can't go any less than that." Defendant assented.

Immediately following entry of his plea, defendant waived a referral to the probation department for a sentencing report. Defendant said there was no legal cause why judgment and sentence should not be pronounced at that time, then noted his objection to the court's imposition of the "mandatory minimum $200 fine." The trial court asked if defendant wanted to make any further statement, defendant did not, and the matter was submitted.

The trial court then sentenced defendant according to the terms of his plea agreement. The trial court also imposed a $200 restitution fine in both cases, along with matching $200 parole revocation fines. The court further ordered defendant to pay the court facility fee and the court security fee. The court then waived the remaining fines and fees based on defendant's inability to pay. Defendant appeals.

DISCUSSION

Defendant's only claim on appeal is that the trial court failed to understand it had the discretion not to impose section 1202.4 restitution fines if the court found compelling and extraordinary reasons for doing ...


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