Filed 10/11/13 P. v. Arredondo CA5

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F065165
         Plaintiff and Respondent,
                                                                            (Super. Ct. No. VCF255912A)
                   v.

JAVIER JUNIOR ARREDONDO,                                                                 OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Tulare County. Valeriano
Saucedo, Judge.
         Peter Dodd, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Peter
W. Thompson, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-




*        Before Levy, Acting P.J., Gomes, J. and Kane, J.
       Appellant, Javier Junior Arredondo, pled no contest to assault with a deadly
weapon (count 2/Pen. Code, § 245, subd. (a)(1))1 and admitted a personal use of a
firearm enhancement (§ 12022.5, subd. (a)), a great bodily injury enhancement
(§ 12022.7, subd. (a)), and a gang enhancement (§ 186, subd. (b)(1)(C)).
       On June 15, 2012, the court sentenced Arredondo to an aggregate term of 20
years: the mid-term of three years on his assault conviction; a four-year arming
enhancement; a three-year great bodily injury enhancement; and a 10-year gang
enhancement. The court also imposed a $2,000 restitution fine (§ 1202.4, subd. (b)) and
a corresponding $2,000 parole revocation fine (§ 1202.45).
       On appeal, Arredondo contends the restitution fine, because it exceeded the
statutory minimum and was based on facts found by the sentencing court, rather than by a
jury, violated his federal constitutional right to trial by jury under principles set forth in
Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and Southern Union Co. v.
United States (2012) 567 U.S. ___ [132 S.Ct. 2344] (Southern Union Co.).2 We affirm.
                                        DISCUSSION
       Arredondo committed the instant offenses on July 25, 2011. At that time, as now,
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.‖ At the time of the instant offenses, section 1202.4, subdivision (b)(1)3 provided


1      All further statutory references are to the Penal Code.
2       Arredondo also contends we should address the merits of his argument even if we
conclude this issue was forfeited by defense counsel‘s failure to object to the restitution
fine in the trial court because the failure to object denied him the effective assistance of
counsel. This issue is moot because we address Arredondo‘s contention on the merits.
3      All citations to section 1202.4 are to the version of that section in effect when
Arredondo committed his offense in July 2011 (See Stats. 2011, ch. 45, § 1, eff. July 1,
2011).


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that the minimum fine was $200, while the maximum fine was $10,000. Within that
range, then as now, the fine was to be ―set at the discretion of the court and
commensurate with the seriousness of the offense‖ (ibid.), and the court, in setting the
amount of the fine, was required to ―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 any losses as a result of
the crime, and the number of victims involved in the crime.‖ (§ 1202.4, subd. (d)).
       In Apprendi, the United States Supreme Court held that 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.
(Apprendi, supra, 530 U.S. at p. 490.) In Southern Union Co., the court held that this
rule applied equally to imposition of criminal fines. As the court explained in People v.
Kramis (2012) 209 Cal.App.4th 346 (Kramis): ―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. (Southern Union Co., supra,
567 U.S. at p. ___, ….)‖ (Id. at p. 351, italics omitted.)
       Arredondo‘s reliance on Apprendi and Southern Union Co. is misplaced. In
Kramis, the court, in addressing an argument virtually identical to the one Arredondo
raises here, held: ―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
history] suggests that it is impermissible for judges to exercise discretion—taking into


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consideration various factors relating both to the offense and offender—in imposing a
judgment within the range prescribed by statute.‘ (Apprendi, supra, 530 U.S. at p. 481;
accord, People v. Urbano [(2005)] 128 Cal.App.4th [396,] 405-406.) As the Court of
Appeal for the Fifth Appellate District noted in Urbano, ‗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.‖ ([Apprendi, supra, 530 U.S.] at p. 494, fn. 19.)‘ (People
v. Urbano, supra, 128 Cal.App.4th at pp. 405-406.) Nothing in Southern Union Co.
alters that holding.‖ (Kramis, supra, 209 Cal.App.4th at p. 351, italics omitted.)
       Arredondo appears to contend that because section 1202.4, subdivision (c)4
requires the court to determine a defendant‘s ability to pay any amount in excess of the
minimum fine, under Apprendi and Southern Union Co., Arredondo‘s ability to pay was a
fact that he was required to admit or a jury was required to find true before the court
could impose a fine greater than the minimum fine. But Arredondo has not shown that,
in making this determination, the trial judge is doing anything more than exercising
discretion—taking into consideration this and other factors noted in section 1202.4,
subdivision (d) relating both to the offense and the offender—in imposing a judgment
within the range prescribed by statute. (Kramis, supra, 209 Cal.App.4th at pp. 350–352.)
We agree with the reasoning and result in Kramis.


4       Section 1202.4, subdivision (c), in pertinent part, provides: ―The court shall
impose the restitution fine unless it finds compelling and extraordinary reasons for not
doing so, and states those reasons on the record. A defendant‘s inability to pay shall not
be considered a compelling and extraordinary reason not to impose a restitution fine.
Inability to pay may be considered only in increasing the amount of the restitution fine in
excess of [the minimum fine pursuant to paragraph (1) of subdivision (b)].‖


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                            DISPOSITION
The judgment is affirmed.




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