Filed 2/10/16 P. v. Aguilar CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D067505

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD255892)

MARTIN AGUILAR,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Sharon B.

Majors-Lewis, Judge. Affirmed.

         Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Lynne G.

McGinnis and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and

Respondent.
       A jury convicted defendant Martin Aguilar of two counts of assault with a deadly

weapon (Pen. Code, § 245, subd. (a)(1)),1 and found true that Aguilar personally used a

deadly weapon in the commission of the offenses (§ 1192.7, subd. (c)(23)) and

committed the offenses for the benefit of a criminal street gang within the meaning of

section 186.22, subdivision (b).

       The court sentenced Aguilar to an eight-year term in state prison on each count,

and ordered the term on count 2 to be served concurrently with the term imposed on

count 1. The court also imposed various fines, including a $4,800 restitution fine under

section 1202.4, subdivision (b). Aguilar timely appealed. He contends the restitution

fine imposed under section 1202.4, subdivision (b), must be vacated.

                                        ANALYSIS2

       Aguilar argues the sentence, insofar as it required him to pay a $4,800 restitution

fine under section 1202.4, subdivision (b), must be vacated because the court was

unaware of its discretion to order a lesser fine and merely abdicated the decision on the

fine to the probation officer.

       A. Legal Framework

       Section 1202.4, subdivision (b), provides that a restitution fine must be imposed

"[i]n every case where a person is convicted of a crime." The fine must be a minimum of



1      Statutory references are to the Penal Code unless otherwise specified.

2       Because Aguilar makes no challenge on appeal to any of the convictions, and his
appellate challenge is not related to the facts of the offenses that formed the basis for the
jury's guilty verdicts or true findings, it is unnecessary to detail the evidence at trial.
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$300, and not more than $10,000 (§ 1202.4, subd. (b)(1)), and "[i]n setting a felony

restitution fine, the court may determine the amount of the fine as the product of the

minimum fine . . . multiplied by the number of years of imprisonment the defendant is

ordered to serve, multiplied by the number of felony counts of which the defendant is

convicted." (Id., subd. (b)(2).) The restitution fine is mandatory unless the sentencing

court "finds compelling and extraordinary reasons for not doing so and states those

reasons on the record," and the statute specifies that a defendant's inability to pay "shall

not be considered a compelling and extraordinary reason not to impose a restitution fine"

but "may be considered . . . in increasing the amount of the restitution fine in excess of

the minimum fine . . . ." (§ 1202.4, subd. (c).)

       The trial court has wide discretion in deciding the amount of the fine within the

statutory parameters, and "there is no requirement that the court state its reasons for

imposing a particular amount." (People v. Gangemi (1993) 13 Cal.App.4th 1790, 1798.)

We will not disturb its order absent an abuse of discretion. (People v. Sy (2014) 223

Cal.App.4th 44, 63.)

       B. Proceedings Below

       At sentencing, after imposing the prison terms and imposing numerous fees and

victim restitution, the court clerk reminded the court "there's a restitution fine," and the

court stated "I said that already. So this is another one?" and the clerk answered, "Yes."

The court then asked the probation officer, "What is the normal restitution fine? What's

the statutory one?" and the probation officer then explained how the formula under



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section 1202.4, subdivision (b)(2), would produce an amount of $4,800. The court then

approved that amount. Aguilar raised no objection to that determination.

       C. Analysis

       Aguilar argues the order must be vacated because the court was unaware of its

discretion to order an amount less than $4,800 and merely abdicated to the probation

officer the decision as to the amount of the restitution.

       As a preliminary matter, we conclude Aguilar's failure to object below precludes

him from raising the issue on appeal. As the court explained in People v. Gibson (1994)

27 Cal.App.4th 1466, 1469:

          "[T]he need for orderly and efficient administration of the law—i.e.,
          considerations of judicial economy—demand that defendant's failure
          to object in the trial court to imposition of the restitution fine should
          preclude him from contesting the fine on appeal. [Citations.]
          Defendants routinely challenge on appeal restitution fines to which
          they made no objection in the sentencing court. In virtually every
          case, the probation report put the defendant on notice that a
          restitution fine would be imposed. Requiring the defendant to object
          to the fine in the sentencing court if he or she believes it is invalid
          places no undue burden on the defendant and ensures that the
          sentencing court will have an opportunity to correct any mistake that
          might exist, thereby obviating the need for an appeal. Conversely,
          allowing the defendant to belatedly challenge a restitution fine in the
          absence of an objection in the sentencing court results in the undue
          consumption of scarce judicial resources and an unjustifiable
          expenditure of taxpayer monies. It requires, in almost all cases, the
          appointment of counsel for the defendant at taxpayers' expense and
          the expenditure of time and resources by the Attorney General to
          respond to alleged errors which could have been corrected in the trial
          court had an objection been made. Moreover, it adds to the already
          burgeoning caseloads of appellate courts and unnecessarily requires
          the costly depletion of appellate court resources to address purported
          errors which could have been rectified in the trial court had an
          objection been made. This needless consumption of resources and
          taxpayer dollars is unacceptable, particularly since it greatly exceeds

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          the amount of the fine at issue. . . . [¶] We conclude that in the
          interests of fairness to the sentencing court, fairness to the opposing
          party, and the needs for an orderly and efficient administration of
          law and judicial economy, a defendant's failure to object in the trial
          court to the imposition of a restitution fine constitutes a waiver of
          the right to complain thereof on appeal."

       However, even assuming it was not forfeited, Aguilar's claim that the court did not

exercise its discretion when it set the amount is unconvincing. The amount of restitution

ordered by the court was set only after the court sought guidance from the probation

officer on the "the normal restitution fine" or the "statutory one" and, after the probation

officer correctly advised the court of the statutorily approved formula under section

1202.4, subdivision (b)(2) for calculating that fine, the court adopted the fine produced by

that calculus. No further articulation of the reasons for the court's determination as to the

amount of the restitution fine was necessary. (Id., subd. (d) ["Express findings by the

court as to the factors bearing on the amount of the fine shall not be required."].)

       Aguilar appears to argue the court, by seeking advice from the probation officer on

the "the normal restitution fine" or the "statutory one," and ultimately approving the

recommended amount, somehow abdicated its discretion and delegated the decision to

the probation officer. However, the courts have long recognized that a trial judge must

consider all the facts and circumstances of the case, including the probation officer's

report, and our Supreme Court noted in People v. Warner (1978) 20 Cal.3d 678, at page

683, that "[t]he Legislature clearly assigned an important role to [the probation officer]

when it provided that a probation report, including recommendations, is to be prepared in

every felony case in which the defendant is eligible for probation and, further, that the


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court must 'consider' the report, stating for the record that it has done so. [Citation.]

However, having considered them, the court 'may reject in toto the report and

recommendation of the probation officer.' [Citations.] 'The primary function served by

the probation report required by section 1203 is to assist the court in determining an

appropriate disposition after conviction.' [Citation.] In the final analysis that

determination is a matter of judgment for the court, not the probation officer." We

conclude a trial court does not abuse its discretion, but rather fulfills its duties, when it

seeks guidance from the probation officer during sentencing, and the mere fact it

ultimately adopts those recommendations provides no basis for claiming the trial court

thereby abdicated its responsibilities.

                                          DISPOSITION

       The judgment is affirmed.




                                                                              McDONALD, J.

WE CONCUR:


HALLER, Acting P. J.


AARON, J.




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