Filed 2/21/14 P. v. Ramirez CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                    SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                         B243291

         Plaintiff and Respondent,                                  (Los Angeles County
                                                                    Super. Ct. No. BA382225)
         v.

EDGAR RAMIREZ,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County. Stephen
A. Marcus, Judge. Affirmed.
         Nancy J. King, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Stephanie A. Miyoshi and
Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.
                                 _________________________________
       Defendant Edgar Ramirez appeals from the judgment entered following a jury trial
in which he was convicted of attempted murder, committing a lewd act on a child under
the age of 15, possession of obscene matter depicting a minor, and two counts of
continuous sexual abuse of a minor under the age of 14.
       Defendant contends his sentence of life without possibility of parole (LWOP) for
one of the continuous abuse counts violated the ex post facto prohibitions of the state and
federal Constitutions because the abuse began before the effective date of Penal Code
section 667.61, subdivision (j)(1),1 which increased the maximum possible sentence from
25 years to life to LWOP. We do not agree. A new or amended statute may be applied in
the context of continuous sexual abuse of a child if the abuse continues on or after the
effective date of the statute. The undisputed evidence in this case established beyond a
reasonable doubt that defendant continued to have sexual intercourse with his 13-year-old
daughter after the effective date of section 667.61, subdivision (j)(1).
       Defendant also contends that application of section 667.61, subdivision (j)(1)
violated both his due process right to notice and statutory pleading requirements.
Although the information did not mention subdivision (j)(1) of section 667.61, we
conclude that its allegation that defendant was subject to the harsher sentencing scheme
set forth in section 667.61 along with all facts upon which application of section 667.61,
subdivision (j)(1) depended satisfied both due process and statutory pleading
requirements.
       Defendant further contends the restitution fine imposed upon him violated his right
to a jury trial under Southern Union Co. v. United States (2012) 567 U.S. __ [132 S.Ct.
2344] (Southern Union). We disagree. Defendant’s felony convictions triggered the trial
court’s statutory duty to impose a restitution fine in the range of $200 to $10,000. The
trial court did not make any factual findings that increased the potential fine beyond what
the jury’s verdict allowed. Southern Union is inapplicable.

       1   Undesignated statutory references pertain to the Penal Code.


                                              2
                                      BACKGROUND
       The charges in this case arose from about seven years of sexual abuse by defendant
of his daughter J.R. and about one year of sexual abuse of his younger daughter K.R.
Defendant’s conduct toward J.R. formed the basis for his convictions of attempted
murder (count 1), one of the counts of continuous sexual abuse (count 2), and committing
a lewd act on a child under the age of 15 (count 5). Defendant raises no issues regarding
these counts or the sentence on these counts. Accordingly, we merely summarize the
evidence regarding defendant’s abuse of K.R.
1.     Continuous sexual abuse of K.R.
       K.R. was born in January of 1997. She began living with defendant, J.R., and her
brother when she was seven. By February of 2010, both K.R.’s brother and J.R. had
moved away, leaving 13-year-old K.R. alone with her father. Around March of 2010,
defendant began touching K.R.’s breasts when she was asleep. A few days later,
defendant began having sexual intercourse with K.R. “[a]lmost every day.” Defendant
also orally copulated K.R. and forced her to orally copulate him more than three times,
but K.R. could not remember how frequently that had happened.
       K.R. feared defendant because she had seen him hit J.R. Defendant told K.R. she
could be his wife and his daughter. He made her wear J.R.’s lingerie and took
photographs of her “private parts.”
       In July of 2010, K.R. had an abortion at a Planned Parenthood clinic. She did not
tell the clinic staff that defendant had impregnated her, but instead made up a story about
having a boyfriend her own age. The doctor told her not to have sex for three weeks after
her abortion. Although she relayed this information to defendant, he resumed having sex
with her a “couple of days later.”
       By December of 2010, defendant had again impregnated K.R. and she returned to
Planned Parenthood for another abortion. The physician who performed the second
abortion testified that K.R. was approximately six weeks pregnant. After the abortion, he
implanted an intrauterine device to prevent additional pregnancies.


                                             3
       K.R. testified that she did not have sex with anyone other than defendant during
the time she lived with him.
       Defendant was arrested on or before March 16, 2011, after J.R. reported his
conduct toward her to the police.
2.     Verdict and sentencing
       The jury convicted defendant of attempted murder (count 1, pertaining to J.R.’s
fetus), continuous sexual abuse of a minor under the age of 14 (count 2, pertaining to
J.R.), continuous sexual abuse of a minor under the age of 14 (count 3, pertaining to
K.R.), possession of obscene matter depicting a minor (count 4), and committing a lewd
act on a child under the age of 15 (count 5, pertaining to J.R.). With respect to both
continuous sexual abuse convictions (counts 2 and 3) and the lewd act conviction (count
5), the jury found true a section 12022.7, subdivision (a) allegation that defendant
personally inflicted great bodily injury. The jury also found true, with respect to both
continuous sexual abuse convictions (counts 2 and 3), allegations that defendant
committed an offense specified in section 667.61, subdivision (c) against more than one
victim (§ 667.61, subd. (e)(4)) and that in the commission of the offenses, defendant
personally inflicted great bodily injury on J.R. and K.R. (§ 667.61, subd. (d)(6)).
       The prosecutor acknowledged in her sentencing memorandum that section 667.61
was inapplicable to continuous sexual abuse of a minor under 14 when defendant
committed that offense against J.R. Accordingly, the trial court struck the jury’s section
667.61 findings with respect to count 2.
       The trial court sentenced defendant to LWOP for the continual sexual abuse of
K.R. (count 3), pursuant to section 667.61, subdivision (j)(1), plus a consecutive
aggregate determinate term of 24 years consisting of terms of 19 years for the continual
sexual abuse of J.R. with great bodily injury enhancement (count 2), 2 years 4 months for
attempted murder (count 1), 1 year for possession of obscene matter depicting a minor
(count 4), and 1 year 8 months for committing a lewd act on a child under the age of 15
with great bodily injury enhancement (count 5).


                                             4
                                      DISCUSSION
1.     Defendant’s LWOP term did not violate constitutional ex post facto
prohibitions.
       Section 667.61, also known as the “One Strike” law, “sets forth an alternative,
harsher sentencing scheme” for certain sexual offenses, including a violation of section
288.5, committed under specific circumstances set forth in subdivisions (d) and (e) of the
statute. (People v. Mancebo (2002) 27 Cal.4th 735, 738 (Mancebo).) Defendant
challenges the LWOP sentence imposed for count 3 pursuant to section 667.61,
subdivision (j)(1). That sentence was premised upon his infliction of great bodily injury
on K.R. in the commission of the violation of section 288.5, a factor listed in section
667.61, subdivision (d)(6).2
       The information alleged that count 3, the continuous sexual abuse of a minor under
14 charge pertaining to K.R., was committed “[o]n or between January 14, 2010 and
January 13, 2011.” At the beginning of this time period, section 667.61 did not authorize
an LWOP term, only terms of 15 years to life or 25 years to life.
       The Legislature amended section 667.61 in 2010 by adding subdivision (j)(1),
which provides, in pertinent part, as follows: “Any person who is convicted of an offense
specified in subdivision (c), with the exception of a violation of subdivision (a) of Section
288, upon a victim who is a child under 14 years of age under one or more of the
circumstances specified in subdivision (d) or under two or more of the circumstances
specified in subdivision (e), shall be punished by imprisonment in the state prison for life
without the possibility of parole.” The amendment became effective on September 9,
2010—part way through the period alleged in count 3.



       2 Section 667.61, subdivision (d)(6) provides, “The defendant personally inflicted
great bodily injury on the victim or another person in the commission of the present
offense in violation of Section 12022.53, 12022.7, or 12022.8.” As previously noted, the
jury found a section 12022.7, subdivision (a) allegation true with respect to count 3.


                                             5
       Defendant contends the trial court’s application of section 667.61, subdivision
(j)(1) to him violated constitutional prohibitions on ex post facto laws because
subdivision (j)(1) “did not apply during the first nine months of the one-year time frame
alleged for count 3” and the jury “likely based its verdict, at least in part, on an act or acts
committed before this section became effective.”
a.     Ex post facto principles
       The ex post facto clause of the federal Constitution prohibits legislation that
(1) punishes as a crime an act that was innocent when it was committed; (2) makes more
burdensome the punishment for a crime, after its commission; or (3) deprives a defendant
of any defense available according to law at the time when the charged crime was
committed. (Collins v. Youngblood (1990) 497 U.S. 37, 42 [110 S.Ct. 2715].)
       California’s ex post facto clause is interpreted in the same manner as the federal
clause. (People v. Grant (1999) 20 Cal.4th 150, 158 (Grant).) “[T]he primary purpose of
the ex post facto clauses in the federal and state Constitutions is to ensure ‘that legislative
Acts give fair warning of their effect . . . .’” (Id. at p. 162.) “The critical question is
whether the law changes the legal consequences of acts completed before its effective
date.” (Weaver v. Graham (1981) 450 U.S. 24, 31 [101 S.Ct. 960].)
       There can be no dispute that an LWOP term is more burdensome than a term of 25
years to life (the greatest possible imprisonment under section 667.61 prior to its 2010
amendment) because the latter leaves open the possibility of parole. The critical issue in
the present case is instead whether the offense of continuous sexual abuse of K.R. may be
deemed to have been completed before September 9, 2010. If the offense was completed
by that date, the LWOP term provided in the amendment to section 667.61 cannot
constitutionally be applied to defendant.
b.     The application of ex post fact principles to section 288.5
       “Section 288.5 punishes a continuous course of conduct, not each of its three or
more constituent acts. [Citations.] A continuous course of conduct offense cannot
logically be ‘completed’ until the last requisite act is performed. Where an offense is of a


                                               6
continuing nature, and the conduct continues after the enactment of a statute, that statute
may be applied without violating the ex post facto prohibition.” (People v. Palacios
(1997) 56 Cal.App.4th 252, 257 (Palacios).)
       In Palacios, the court concluded that application of section 2933.1, which reduced
the conduct credits a defendant could earn while serving a sentence for violation of
section 288.5, did not violate constitutional ex post facto prohibitions where the conduct
underlying the defendant’s conviction began before, and ended after, the effective date of
section 2933.1. (Palacios, supra, 56 Cal.App.4th at pp. 256–258.)
       Similarly, in Grant, supra, 20 Cal.4th at pages 159–162, the California Supreme
court concluded that section 288.5 could constitutionally be applied to sexual abuse that
began before, but continued after, the date section 288.5 went into effect. The court
explained, “[S]ection 288.5 gave ‘fair warning’ to those engaged in the sexual abuse of a
child before the statute’s enactment that they would be punished under the new law if
they continued the sexual abuse after section 288.5 took effect. Those who engaged in
child molestation before the effective date of section 288.5, but not thereafter, are not
subject to prosecution for continuing sexual abuse. But those who, like defendant, chose
to continue such conduct after the effective date of section 288.5 were on notice that they
would be subject to prosecution under that section.” (Grant, at p. 162.)
       Thus, when the continuous sexual abuse begins before, but continues after, the
effective date of a new statute or amendment to a statute, the new provision may be
applied without violating constitutional prohibitions on ex post facto laws.
c.     Defendant’s LWOP sentence did not violate constitutional prohibitions on ex
post facto laws.
       The trial court did not violate the ex post facto clauses by applying section 667.61,
subdivision (j)(1) to defendant. Although his continuous sexual abuse of K.R. began
prior to September 9, 2010, the undisputed evidence demonstrated beyond a reasonable
doubt that the sexual abuse continued after that date. K.R. testified that defendant had
sex with her almost every day after J.R. moved away. K.R. did not have sex with anyone


                                              7
else. According to the physician who performed an abortion on K.R. on December 8,
2010, K.R. was about six weeks pregnant, which means defendant impregnated her
around the last week of October, more than one month after the effective date of section
667.61, subdivision (j)(1). As stated in Grant, supra, 20 Cal.4th at page 162, the
enactment of section 667.61, subdivision (j)(1) placed defendant on notice that if he
continued to sexually abuse K.R. after September 8, 2010, he was subject to an LWOP
sentence.
       Citing People v. Hiscox (2006) 136 Cal.App.4th 253 (Hiscox) and People v. Riskin
(2006) 143 Cal.App.4th 234 (Riskin), defendant argues that this court cannot determine
whether the jury based its verdict on acts that occurred before or after the effective date of
section 667.61, subdivision (j)(1).
       Neither Hiscox nor Riskin involved a continuous course of conduct offense. Both
instead involved sentencing under section 667.61 for violations of section 288,
subdivisions (a) and (b) (lewd act on an child under the age of 14) that were alleged to
have occurred during a date range that straddled the effective date of section 667.61.
(Hiscox, supra, 136 Cal.App.4th at pp. 257–258; Riskin, supra, 143 Cal.App.4th at
p. 237.)
       In Hiscox, the “evidence did not reliably connect” the 11 section 288 charges to
any dates other than the four-year time frame alleged in the information, and the jury was
neither asked to make findings about the dates of the offenses nor instructed that
“findings under section 667.61 were restricted to offenses committed on or after” its
effective date. (136 Cal.App.4th at pp. 258, 261.) The appellate court concluded that
sentencing Hiscox under section 667.61 violated the ex post facto clauses because the
prosecutor failed to establish “that any particular offense was committed when section
667.61 was in effect.” (136 Cal.App.4th at p. 262.) The court explained, “Since the jury
was not asked to make findings on the time frame within which the offenses were
committed, the verdicts cannot be deemed sufficient to establish the date of the offenses
unless the evidence leaves no reasonable doubt that the underlying charges pertained to


                                              8
events occurring on or after November 30, 1994. (Chapman v. California (1967) 386
U.S. 18, 24 [17 L.Ed.2d 705, 87 S.Ct. 824].) It would be inappropriate for us to review
the record and select among acts that occurred before and after that date, or to infer that
certain acts probably occurred after that date.” (136 Cal.App.4th at p. 261.)
       The court in Riskin relied upon Hiscox and similarly concluded that the prosecutor
had not proved beyond a reasonable doubt that the defendant committed the section 288
offense on or after the effective date of section 667.61. (Riskin, supra, 143 Cal.App.3d at
p. 245.) The court noted that the victim’s testimony was inconsistent about the timing of
the “various acts—one of which acts, without specifying which, the jury found to be the
count III forcible lewd act.” (Ibid.)
       Although the jury here did not make a finding that defendant’s continuous sexual
abuse of K.R. continued on or after September 9, 2010, the uncontradicted evidence
established, beyond a reasonable doubt, that it did. K.R. testified that defendant had sex
with her almost every day, and the evidence regarding her December 8, 2010 abortion
necessarily established that defendant impregnated her in late October of 2010, after
section 667.61, subdivision (j)(1) became effective. Thus, based upon the evidence and
the charge, defendant’s case is distinguishable from Hiscox and Riskin.
       Accordingly, we conclude that application of section 667.61, subdivision (j)(1) to
defendant did not violate the ex post facto clauses of the federal or state Constitutions.
2.     Defendant’s LWOP sentence did not violate his due process right to notice or
statutory pleading requirements contained in section 667.61.
       Defendant further contends that his sentence under section 667.61, subdivision
(j)(1) violated his due process right to notice because the information did not mention
subdivision (j)(1) or LWOP and in court the prosecutor stated that his maximum exposure
was 50 years to life (calculated as 25 years to life for each of the continuous sexual abuse
charges) plus 14 years for the other counts. He argues that the “first mention” of 667.61,
subdivision (j)(1) was in the prosecutor’s sentencing memorandum filed six days before




                                              9
the sentencing hearing. Defendant also argues the failure to plead section 667.61,
subdivision (j)(1) violated the pleading requirement set forth in section 667.61 itself.
a.     Statutory pleading requirements
       Section 667.61 applies “only if the existence of any circumstance specified in
subdivision (d) or (e) is alleged in the accusatory pleading pursuant to this section, and is
either admitted by the defendant in open court or found to be true by the trier of fact.”
(§ 667.61, subd. (o), formerly subd. (j).)
       “[A] valid accusatory pleading need not specify by number the statute under which
the accused is being charged.” (People v. Thomas (1987) 43 Cal.3d 818, 826; § 952.) In
addition, “No accusatory pleading is insufficient, nor can the trial, judgment, or other
proceeding thereon be affected by reason of any defect or imperfection in matter of form
which does not prejudice a substantial right of the defendant upon the merits.” (§ 960.)
b.     Statutory pleading requirements were satisfied
       As previously noted, effective September 9, 2010, section 667.61, subdivision
(j)(1) states, in pertinent part, “Any person who is convicted of an offense specified in
subdivision (c), with the exception of a violation of subdivision (a) of Section 288, upon a
victim who is a child under 14 years of age under one or more of the circumstances
specified in subdivision (d) . . . shall be punished by imprisonment in the state prison for
life without the possibility of parole.”
       Count 3 in the information alleged defendant committed the offense of continuous
sexual abuse in violation of section 288.5 and that victim K.R. was “a child under the age
of 14 years . . . .” The information also included the following allegation: “It is further
alleged, within the meaning of Penal Code section 667.61 (a) and (d), . . . as to count(s) 2
and 3 that the following circumstances apply: The defendant personally inflicted great
bodily injury on the victim in the commission of the present offense, in violation of Penal
Code section 12022.53, 12022.7 or 12022.8.”
       Thus, the information clearly alleged the “existence of any circumstance specified
in subdivision (d)” (“defendant personally inflicted great bodily injury on the victim”),


                                             10
along with the other factors triggering application of section 667.61, subdivision (j)(1),
that is, defendant committed a violation of section 288.5, an offense specified in
subdivision (c)(9), against a child under the age of 14. The California Supreme Court has
held that “the specific numerical subdivision of a qualifying One Strike circumstance”
under section 667.61, need not be pleaded to satisfy the statutory pleading requirements,
as long as “an information afford[s] a One Strike defendant fair notice of the qualifying
statutory circumstance or circumstances that are being pled, proved, and invoked in
support of One Strike sentencing.” (Mancebo, supra, 27 Cal.4th at pp. 753–754.) The
Information in this case met that standard by pleading every factor necessary to the
application of section 667.61, subdivision (j)(1), even though it did not refer to that
particular subdivision.
       Thus, all statutory pleading requirements were satisfied.
c.     Constitutional notice requirements
       “Both the Sixth Amendment of the federal Constitution and the due process
guarantees of the state and federal Constitutions require that a criminal defendant receive
notice of the charges adequate to give a meaningful opportunity to defend against them.”
(People v. Seaton (2001) 26 Cal.4th 598, 640.) This notice requirement extends to
“allegations that will be invoked to increase the punishment for his or her crimes.”
(People v. Houston (2012) 54 Cal.4th 1186, 1227.) “[A] defendant has a cognizable due
process right to fair notice of the specific sentence enhancement allegations that will be
invoked to increase punishment for his crimes.” (Mancebo, supra, 27 Cal.4th at p. 747
[information alleging use of a gun supported One Strike sentencing; trial court substituted
a different factual basis that had not been pleaded for One Strike term and separate gun-
use enhancements].)
d.     Constitutional notice requirements were satisfied
       As noted, the information alleged every fact necessary to the application of the
mandatory LWOP sentence specified in section 667.61, subdivision (j)(1). Ideally the
prosecutor would have mentioned the applicability of section 667.61, subdivision (j)(1)


                                             11
somewhere in the information or before trial, but her failure to do so did not deprive
defendant of fair notice of “the specific sentence enhancement allegations” that were used
to increase punishment for his crimes. The information clearly informed defendant that,
if the jury convicted him of the continuous sexual abuse of K.R. and found the section
667.61, subdivision (d) great bodily injury allegation true, he would be sentenced under
the harsher sentencing scheme provided by section 667.61. The information fully
informed him of the factual basis for application of section 667.61, subdivision (j)(1), that
is, infliction of great bodily injury in the commission of a violation of section 288.5
against a child under the age of 14. The applicability of section 667.61, subdivision (j)(1)
to count 3 would have been obvious from a mere perusal of the section 667.61. Notably,
section 667.61, subdivision (a), which was cited in the information, expressly refers to
subdivision (j).
       Defendant has not cited any authority for the proposition that due process required
citation of the precise subdivision under which he was ultimately sentenced, but instead
relies upon People v. Arias (2010) 182 Cal.App.4th 1009, in which the defendant was
convicted of two counts of “first degree attempted murder” and sentenced to consecutive
terms of life in prison pursuant to section 664, subdivision (a), notwithstanding the failure
of the prosecutor to charge defendant with willful, deliberate, and premeditated attempted
murder. (Arias, at pp. 1011–1012, 1016–1017.) The appellate court concluded the
sentences were unauthorized and imposed in violation of both the pleading requirement
set forth in section 664, subdivision (a), and due process. (Arias, at pp. 1016–1017.) It
noted, “[N]either the information nor any pleading gave defendant notice that he was
potentially subject to the enhanced punishment provision for attempted murder under
section 664, subdivision (a).” (Arias, at p. 1019.)
       Here, however, the information alleged all of the factual predicates for the
sentence imposed and alleged that defendant was subject to sentencing under section
667.61 on the basis of those facts. It thus provided defendant with sufficient notice of the
legal and factual bases for the sentence imposed.


                                             12
       The present case is more similar to People v. Neal (1984) 159 Cal.App.3d 69
(Neal), in which the information charged the defendant with several sex crimes and a
deadly weapon enhancement under section 12022, subdivision (b). The jury convicted
the defendant and found the section 12022, subdivision (b) enhancement true. Instead of
imposing a one-year section 12022, subdivision (b) enhancement, the trial court imposed
a three-year enhancement under section 12022.3, a more specific statute applying only to
violent sex crimes. (Neal, at pp. 71–72.) The appellate court concluded this did not
violate due process. It stated, “The purpose of the due process notice requirement is to
afford an accused ‘“‘a reasonable opportunity to prepare and present his defense and not
to be taken by surprise by evidence offered at his trial.’”’ [Citations.] Here the
information fully informed appellant that he was charged with using a deadly weapon, ‘to
wit, broken glass,’ in the commission of the sex offenses. He therefore could not be
surprised by proof of such use, nor can he say that the preparation of his defense to meet
the facts would have been different if the information had alleged use under the
provisions of section 12022.3, rather than section 12022, subdivision (b).” (Neal, at
pp. 72–73.)
       As in Neal, the information in this case fully informed defendant that he was
charged with committing continuous sexual abuse of a child under the age of 14, an
offense within the scope of section 667.61, including subdivision (j)(1) of that section,
and inflicting great bodily injury in the commission of that offense. The information
further informed defendant that the prosecution sought sentencing under section 667.61.
Defendant could not be surprised when he was sentenced under section 667.61,
subdivision (j)(1) for the commission of continuous sexual abuse of a child under the age
of 14, with infliction of great bodily injury in the commission of that offense. Defendant
had full notice of every fact upon which this sentence was based, as well as the
prosecutor’s intent that he be sentenced harshly under section 667.61, and he has not
suggested any way in which the preparation of his defense to meet these facts would have
been different if the information had also cited subdivision (j)(1) of section 667.61.


                                             13
          The prosecutor’s misstatement at the outset of trial regarding defendant’s
sentencing exposure did not negate the sufficiency of notice to defendant. The pleadings
placed defendant on notice that the prosecutor sought sentencing under section 667.61,
and subdivision (j)(1) of that statute provided the mandatory penalty of LWOP for a
violation of section 288.5 with a finding of great bodily injury. The prosecutor’s
misstatement did not estop her from seeking that mandatory penalty or in any way alter
the trial court’s obligation to impose it.
          Accordingly, we conclude defendant’s due process right to notice was not violated.
3.        The restitution fine did not violate defendant’s right to a jury trial.
          The trial court imposed a $10,000 restitution fine pursuant to section 1202.4,
subdivision (b), which provides, “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.”
          Defendant contends that the trial court’s imposition of a restitution fine in excess
of the statutory minimum ($200 at the time of defendant’s arrest) violates his Sixth
Amendment right to a jury trial as interpreted by Apprendi v. New Jersey (2000) 530 U.S.
466 [120 S.Ct. 2348] (Apprendi) and Southern Union, supra, 567 U.S. __ [132 S.Ct.
2344].
     a.   Right to a jury trial as interpreted by Apprendi and its progeny
          In Apprendi, supra, 530 U.S. 466, the United States Supreme Court held that the
Sixth Amendment right to a jury trial requires that any fact, other than a prior conviction,
that increases the penalty for a crime beyond the prescribed statutory maximum, be
submitted to a jury and be proved beyond a reasonable doubt. (Id. at p. 490.)
          Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531] clarified that the
relevant “‘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.” (Id. at p. 303.) The key inquiry is whether the court had the authority to
impose the particular sentence in question without finding any additional facts or only


                                                14
upon making some additional factual finding. (Id. at p. 305.) If any additional finding of
fact is required, Apprendi applies. (Blakely, at p. 305.)
       Nonetheless, Apprendi does not limit “the authority of a judge to exercise broad
discretion in imposing a sentence within a statutory range.” (United States v. Booker
(2005) 543 U.S. 220, 233 [125 S.Ct. 738] (maj. opn. of Stevens, J.) (Booker).)
       Southern Union, supra, 132 S.Ct. at pages 2348–2349, held that Apprendi applies
to criminal fines. There, a corporation was convicted of a single count of violating a
federal statute that authorized a fine of $50,000 for each day of violation. The jury was
not asked to determine the duration of the violation. The trial court imposed a fine of $6
million based upon the “on or about” date range alleged in the indictment and included in
the jury’s verdict form. (132 S.Ct. at p. 2349.) The Supreme Court concluded that the
trial court had violated Apprendi by making “factual findings that increased both the
‘potential and actual’ fine the court imposed,” thereby “enlarg[ing] the maximum
punishment . . . beyond what the jury’s verdict or the defendant’s admissions allow[ed].”
(132 S.Ct. at p. 2352.) Consistent with Booker, however, the court noted that “the routine
practice of judges’ imposing fines from within a range authorized by jury-found facts”
“poses no problem under Apprendi because the penalty does not exceed what the jury’s
verdict permits.” (132 S.Ct. at p. 2352, fn. 5.)
  b.   Pertinent provisions of section 1202.4
       At the time of defendant’s arrest, section 1202.4, subdivision (b)(1) provided, in
pertinent part, “The restitution fine shall be set at the discretion of the court and
commensurate with the seriousness of the offense, but shall not be less than two hundred
dollars ($200), and not more than ten thousand dollars ($10,000), if the person is
convicted of a felony . . . .”
       Section 1202.4, subdivision (b)(2) sets forth a formula trial courts may use to
calculate the restitution fine within the range permitted by subdivision (b)(1): “In setting
a felony restitution fine, 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 years of


                                              15
imprisonment the defendant is ordered to serve, multiplied by the number of felony
counts of which the defendant is convicted.”
       Section 1202.4, subdivision (d) provides, “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.”
c.     Imposition of a $10,000 restitution fine did not violate defendant’s right to a
jury trial.
       California courts have consistently rejected contentions that Apprendi applies to
the determination of a section 1202.4, subdivision (b) restitution fine. (People v. Urbano
(2005) 128 Cal.App.4th 396, 405–406 (Urbano); People v. Kramis (2012) 209
Cal.App.4th 346, 351–352 (Kramis).)
       Urbano, supra, 128 Cal.App.4th 396, rejected a contention that a $3,800
restitution fine calculated pursuant to the formula set forth in section 1202.4,
subdivision (b) violated the defendant’s right to a jury trial under Apprendi. Citing
Booker, supra, 543 U.S. 220, the court noted, “[T]he holdings of Blakely and Apprendi do
not apply when the exercise of judicial discretion stays within a sentencing range
authorized by statute.” (Urbano, supra, at p. 405) The $3,800 fine was “within the range
authorized by statute,” and thus did not violate Blakely or Apprendi. (Urbano, at p. 406.)


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       Kramis, supra, 209 Cal.App.4th 346, rejected a contention that a $10,000
restitution fine violated the defendant’s right to a jury trial under Apprendi and Southern
Union. The court held that “[n]othing in Southern Union” affected the continuing validity
of Urbano, and Apprendi and Southern Union are inapplicable to the trial court’s exercise
of discretion within a statutory range, such as imposing a restitution fine in an amount
between $200 and $10,000. (Kramis, at p. 351.) It stated, “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.” (Kramis, at pp. 351–352.)
       Defendant does not address Urbano, but argues that Kramis was wrongly decided
because the court “did not address the requirements of section 1202.4, subdivision (d),
which appear to set $200 . . . as the maximum fine absent consideration of additional
relevant factors—factors which were given no consideration by the court in this case, and
which also give rise to the application of Apprendi.” Defendant is wrong. Section
1202.4, subdivision (b)(1) establishes a range with $200 as the minimum fine, and
$10,000 as the maximum fine. The court’s exercise of discretion in determining the
amount of the fine within the statutory range falls within Booker, supra, 543 U.S. at page
233 and Southern Union, supra, 132 S.Ct. at page 2352, footnote 5.
       Because defendant was convicted of four felonies, the trial court was statutorily
required to impose a restitution fine of not more than $10,000. “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.” (Kramis, supra, 209 Cal.App.4th at p. 352.)




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                                    DISPOSITION
      The judgment is affirmed.
      NOT TO BE PUBLISHED.


                                                MILLER, J. *
We concur:


      CHANEY, Acting P. J.


      JOHNSON, J.




      *   Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.



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