People v. Trimeloni CA3

Filed 3/24/14 P. v. Trimeloni CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Shasta)

THE PEOPLE, C071323

Plaintiff and Respondent, (Super. Ct. No. 12F791)

v.

BRIAN LEE TRIMELONI,

Defendant and Appellant.

A jury found defendant Brian Lee Trimeloni guilty of possessing methamphetamine for sale. (Health & Saf. Code, § 11378.) In a bifurcated proceeding, the trial court found true a prior strike (Pen. Code, § 1170.12)1 and two prior prison term allegations (§ 667.5, subd. (b)). The trial court sentenced defendant to an aggregate term of eight years in state prison, consisting of the upper term of three years, doubled for the prior strike, plus an additional one year for each of the two prior prison terms.

1 Further undesignated statutory references are to the Penal Code.

1

Defendant appeals, contending “[t]he $1,920 restitution fine should be reversed because there is insufficient evidence that the trial court found beyond a reasonable doubt that [he] had the ability to pay the fine, which was eight times the statutory minimum.” We shall conclude that defendant forfeited most claims on this point by failing to object below. We shall consider his claim based on Southern Union Co. v. United States (2012) 567 U.S. ___ [183 L.Ed.2d 318] (Southern Union) because that case was decided after his sentencing hearing and conclude that it does not apply “when, as here, the trial court exercises its discretion within a statutory range.” (People v. Kramis (2012) 209 Cal.App.4th 346, 351-352 (Kramis).) Accordingly, we shall affirm the judgment. DISCUSSION2 Defendant challenges the trial court’s imposition of a $1,920 restitution fine based on the trial court’s failure to consider his ability to pay. Defendant relies on Southern Union, to argue that the trial court was required to find beyond a reasonable doubt that he has the ability to pay a restitution fine in excess of the $240 statutory minimum. The probation report recommended a restitution fine in the amount of $1,920 pursuant to section 1202.4. The court explained that the fine was calculated by multiplying $240, the mandatory minimum fine, by eight, the number of years of imprisonment defendant was ordered to serve. Defendant did not object to the imposition of the fine or claim that the statutory minimum fine of $240 was compelled. At the time of defendant’s sentencing, section 1202.4, subdivision (b) required the trial court to impose a restitution fine between $240 and $10,000 in every felony case unless “compelling and extraordinary reasons” exist for not doing so. (§ 1202.4, subd. (b).) While a defendant’s inability to pay can be considered when increasing a fine beyond the statutory minimum, it “shall not be considered a compelling and