Filed 4/3/14 P. v. Dearmond 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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 THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----




THE PEOPLE,

                   Plaintiff and Respondent,                                                 C072409

         v.                                                                      (Super. Ct. No. 12F02438)

MICHAEL THOMAS DEARMOND,

                   Defendant and Appellant.

         A jury found defendant Michael Thomas Dearmond guilty of second degree
robbery (Pen. Code,1 §§ 211, 212.5, subd. (c)) and second degree burglary (§§ 459,
460, subd. (b)).2 The trial court found defendant had a prior serious felony conviction
(§§ 667, 1170.12) and had served a prior prison term (§ 667.5, subd. (b)).




1        Undesignated statutory references are to the Penal Code.
2      The jury deadlocked on another count of second degree burglary, a mistrial was
declared, and the count was dismissed.

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       Defendant was sentenced to prison for 16 years and was ordered to pay a $3,200
restitution fine pursuant to section 1202.4, subdivision (b), and a $3,200 restitution fine
suspended unless parole is revoked pursuant to section 1202.45.
       On appeal, defendant contends imposition of a restitution fine in excess of the
$240 statutory minimum violated his rights to a jury trial and due process. We reject
defendant’s contention and affirm the judgment.
                                           FACTS
       The facts of defendant’s offenses are not necessary to decide defendant’s
challenge to the restitution fine.
       At sentencing, the trial court ordered defendant to pay a restitution fine in the
amount of $3,200 pursuant to section 1202.4 as recommended in the probation report. As
the parties recognize, the court did not make any specific findings regarding this fine nor
did it state for the record its reasons for imposing the fine in that amount.
                                       DISCUSSION
       Defendant contends the trial court’s imposition of a restitution fine greater than
$240 pursuant to section 1202.4, subdivision (b)(1), violated his rights to a jury trial and
to due process under the Sixth and Fourteenth Amendments. We are not persuaded.
       In 2012, when the crimes were committed and defendant was sentenced, section
1202.4, subdivision (b), provided: “In every case where a person is convicted of a crime,
the court shall impose a separate and additional restitution fine, unless it finds compelling
and extraordinary reasons for not doing so and states those reasons on the record.”
In the case of a felony conviction, the minimum restitution fine was $240 as of January 1,
2012, and the maximum fine was $10,000. (§ 1202.4, subd. (b)(1); Stats. 2011, ch. 358,
§ 1.) The fine was to “be set at the discretion of the court and commensurate with the
seriousness of the offense.” (Ibid.) The court “may determine the amount of the fine as
the product of the minimum fine pursuant to paragraph (1) multiplied by the number of



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years of imprisonment the defendant is ordered to serve, multiplied by the number of
felony counts of which the defendant is convicted.”3 (§ 1202.4, subd. (b)(2).)
       Section 1202.4, subdivision (d), provided: “In setting the amount of the fine
pursuant to subdivision (b) in excess of the minimum fine pursuant to paragraph (1) of
subdivision (b), the court shall consider any relevant factors, including, but not limited to,
the defendant’s inability to pay, 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, the extent to which any other person suffered losses as a result of the crime,
and the number of victims involved in the crime. Those losses may include pecuniary
losses to the victim or his or her dependents as well as intangible losses, such as
psychological harm caused by the crime. Consideration of a defendant’s inability to pay
may include his or her future earning capacity. A defendant shall bear the burden of
demonstrating his or her inability to pay. Express findings by the court as to the factors
bearing on the amount of the fine shall not be required. A separate hearing for the fine
shall not be required.” (Stats. 2011, ch. 45, § 1.)
       Defendant contends that under Southern Union Co. v. United States (2012) 567
U.S. ___ [183 L.Ed.2d 318] (Southern Union Co.), the trial court’s imposition of the
restitution fine in the amount of $3,200 violated his constitutional rights to a jury trial and
due process. He reasons that because a fine imposed upon a felony is punishment, the
Six Amendment “requires that every fact that increases a defendant’s sentence beyond
the maximum must be proven to a jury beyond a reasonable doubt.” He also argues that
because his conviction alone does no more than make him eligible for the minimum fine,




3      It is possible the probation officer calculated defendant’s $3,200 restitution fine by
multiplying the minimum fine required prior to 2012 ($200) by the number of years of
imprisonment he was ordered to serve (16).

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the trial court cannot impose a fine greater than $240 without making additional
findings.
       As defendant acknowledges, his contention was rejected in People v. Kramis
(2012) 209 Cal.App.4th 346 (Kramis). Kramis explained: “In Apprendi v. New Jersey
(2000) 530 U.S. 466, 490 [147 L. Ed. 2d 435] (Apprendi), the United States Supreme
Court held, ‘Other than the fact of a prior conviction, any fact that increases the penalty
for a crime beyond the prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.’ As the United States Supreme Court explained in
Blakely v. Washington (2004) 542 U.S. 296, 303 [159 L. Ed. 2d 403], ‘[T]he “statutory
maximum” for Apprendi purposes is the maximum sentence a judge may impose solely
on the basis of the facts reflected in the jury verdict or admitted by the defendant.’
(Some italics omitted.) Stated differently, ‘[T]he relevant “statutory maximum” is not the
maximum sentence a judge may impose after finding additional facts, but the maximum
he [or she] may impose without any additional findings.’ [Citation.] Therefore, in
sentencing a defendant, a judgment may not ‘inflict[] punishment that the jury’s verdict
alone does not allow.’ [Citation.] In Southern Union Co., the United States Supreme
Court held Apprendi applies to the imposition of criminal fines. [Citation.] The statutory
fine imposed in Southern Union Co. was $50,000 for each day of violation. In other
words, the amount of the fine was tied to the number of days the statute was violated. In
Southern Union Co., the trial court, not the jury, made a specific finding as to the number
of days of violation. The United States Supreme Court held the district court’s factual
finding as to the number of days the defendant committed the crime violated Apprendi.
[Citation.]
       “Southern Union Co. does not impact the restitution fine imposed in the present
case. Apprendi and Southern Union Co. do not apply when, as here, the trial court
exercises its discretion within a statutory range. [Citations.] As the United States
Supreme Court held in Apprendi, ‘[N]othing in [the common law and constitutional

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history] suggests that it is impermissible for judges to exercise discretion -— taking into
consideration various factors relating both to the offense and offender -— in imposing a
judgment within the range prescribed by statute.’ [Citations.] As the Court of Appeal for
the Fifth Appellate District noted in [People v. Urbano (2005) 128 Cal.App.4th 396],
‘Apprendi distinguishes a “sentencing factor” -— a “circumstance, which may be either
aggravating or mitigating in character, that supports a specific sentence within the range
authorized by the jury’s finding that the defendant is guilty of a particular offense” -—
from a “sentence enhancement” -— “the functional equivalent of an element of a greater
offense than the one covered by the jury’s guilty verdict” constituting “an increase
beyond the maximum authorized statutory sentence.” [Citation.]’ [Citation.] Nothing in
Southern Union Co. alters that holding. Under the applicable version of section 1202.4,
subdivision (b)(1), absent compelling and extraordinary circumstances, the trial court was
required to impose a restitution fine in an amount between $200 and $10,000. The
$10,000 section 1202.4, subdivision (b) restitution fine imposed in the present case was
within that statutory range. The trial court did not make any factual findings that
increased the potential fine beyond what the jury’s verdict -— the fact of the conviction -
— allowed. Therefore, Apprendi and its progeny do not preclude its imposition.
[Citation.]” (Kramis, supra, 209 Cal.App.4th at pp. 350-352.)
       Under the applicable version of section 1202.4, subdivision (b)(1), absent
compelling and extraordinary circumstances, the trial court was required to impose a
restitution fine in an amount between $240 and $10,000. The $3,200 restitution fine
imposed was within the statutory range. Here, as in Kramis, the trial court was exercising
its discretion -— impliedly taking into consideration various factors relating both to the
offense and offender -— in imposing a judgment within the range prescribed by statute.
(Kramis, supra, 209 Cal.App.4th at pp. 350-352.) Accordingly, we reject defendant’s
contention.



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                                 DISPOSITION
     The judgment is affirmed.



                                               HOCH   , J.



We concur:



     BUTZ      , Acting P. J.



  MURRAY      , J.




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