People v. Harmon CA4/1

I.

INTRODUCTION

A jury found Ivan Harmon guilty of one count of robbery (Pen. Code, § 211)

(count 1). In a separate case, Harmon pled guilty to assault with a deadly weapon on a

custodial officer (§ 245.3) and second degree burglary (§ 459). The trial court sentenced

Harmon to a stipulated aggregate sentence of five years in prison. The trial court also

imposed a restitution fine in the amount of $1,200 in the robbery case.

On appeal, Harmon contends that the trial court provided an improper response to

a question from the deliberating jury that prevented the jury from considering the lesser

included offense of grand theft. Harmon also contends that the trial court violated his

Sixth Amendment right to a jury trial by imposing a restitution fine based on a fact not

found by the jury. We affirm the judgment.

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. The People's evidence

On January 19, 2011, 15-year-old Isaak W. was walking through a park in Chula

Vista, wearing earbuds as he listened to music on an iPod. Harmon, who was holding a

beer can, walked up to Isaak. When Isaak saw Harmon, he removed one of the earbuds.

Harmon said to Isaak, "Do you know whose…