Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCE274171, Peter C. Deddeh, Judge.
McINTYRE, J.
Hai Dinh pleaded guilty to assault by means likely to produce great bodily injury (count 1) and assault with a deadly weapon with force likely to produce great bodily injury (count 2). He also admitted the great bodily injury enhancement in count 1, a serious felony prior, and strike priors for assault with a firearm and residential burglary. The People dismissed the remaining counts and allegations. Dinh acknowledged in writing and at the change of plea hearing that his maximum punishment could include a sentence of 58 years to life and a restitution fine of up to $10,000. The trial court struck the residential burglary strike. It sentenced Dinh to 16 years in prison and ordered him to pay a $10,000 restitution fine and a $10,000 parole revocation fine under Penal Code sections 1202.4, subdivision (b) and 1202.45. (Undesignated statutory references are to the Penal Code.)
The sole issue on appeal is whether the court abused its discretion in imposing the maximum fines. We conclude that Dinh forfeited his claim by failing to object at sentencing (People v. Scott (1994) 9 Cal.4th 331, 353 (Scott)), and reject his alternative claim that his trial counsel rendered ineffective assistance by failing to object. Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The charges against Dinh resulted from an altercation between Dinh, his "homies," and guests attending a barbeque at Christina Combs's La Mesa apartment in September 2007. We base our factual summary on the preliminary hearing transcript.
Dinh was Combs's ex-boyfriend. He had moved out of her apartment a month before the incident. Combs and her sister Thuy Bailey invited a few friends to their party, including Bailey's fiancé Robert Nielsen, Raymond Hart, and William Heuslein. Dinh arrived around 9:30 p.m., argued with Combs in Vietnamese, and flicked a lighted cigarette at her. As Dinh was leaving, he told Combs in English that he would be back with his "homies" or "boys."
Dinh returned to the apartment complex about 30 minutes later accompanied by six to eight Asian males. Combs and the partygoers were outside in the yard near the security gate. Dinh, who was taking the lead, demanded to be let inside. Nielsen refused, informing Dinh that Combs did not want him there. Dinh told Nielsen to open the gate or he would "kick [his] fucking ass."
Nielsen apparently stood his ground. Dinh got through the fence in a different part of the complex and ran back to the security gate where he had left his friends. Combs and Bailey were holding the gate shut. Dinh struggled with them, pushing Combs out of the way. He opened the security gate and let his friends into the yard.
Dinh, his brother Son Dinh, and two others approached Nielsen. Dinh shoved Nielsen and a fight began. Dinh and his friends punched Nielsen repeatedly in the face and body, forcing him to the ground. Nielsen stood up and Son Dinh punched him in the face again. As a result of the beating, Nielsen suffered a fractured nose, a blow-out fracture of his right orbital bone, and significant facial trauma. A hemorrhage in his right eye destroyed the optical nerve, rendering him blind. Nielsen has a 1 percent chance of regaining vision in his right eye.
Hart and Heuslein tried to help Nielsen, but were attacked by others in Dinh's entourage. Hart received a three-centimeter laceration above his left eye from a bottle. Heuslein and Combs received less severe injuries. Dinh and his friends left when neighbors ran out and asked what was happening. Bailey chased after Dinh, kicking and hitting him, and asking "Why you do that?" Dinh responded it was because Nielsen refused to open the gate for him. The investigating officer described Combs as visibly shaken and upset, but saw no objective signs of intoxication during the time he spent taking her statement.
The probation report recommended a sentence of 33 years to life and the maximum $10,000 fines under sections 1202.4, subdivision (b) and 1202.45. The probation officer believed the recommendation was "appropriate" and "warranted" because Dinh's "prior record document[ed] on-going violent behavior and gang affiliation" and showed that he was "sophisticated and considered well-entrenched in a criminal type lifestyle that endanger[ed] others in the community."
Dinh filed a statement in mitigation, urging the court to strike his strike offenses, which had occurred 15 years before. He stated that he did not intend to injure Nielsen, who was his friend, and noted that Nielsen was unsure who threw the punch that caused the trauma to his eye. Dinh blamed Combs "who was drunk, both on alcohol and drugs," for escalating the confrontation, and his brother for being "so aggressive." He maintained that the incident "had nothing to do with gang affiliations... or anything else of a criminal nature other than jealousy, immaturity and his embarrassment of how his girlfriend acted towards him...." The statement in mitigation made no mention of the fines at issue here.
At sentencing, the district attorney agreed that striking one strike was the extent of the "forgiveness" the court should extend to Dinh. He argued it was a gang case because Dinh enlisted the aid of Asian males who had a past with "V-Boys." The incident also involved serious violence, demonstrating that Dinh was a threat to the community.
The court concluded that although the case was "serious" and "violent," it was not a "life case," and a determinant sentence would adequately punish Dinh for his conduct. Based on current community support and Dinh's age at the time he committed the prior offenses, the court struck the residential burglary prior. However, the court noted that Dinh's criminal record balanced any mitigating factors applicable to count 1, and sentenced him to the middle term. The court imposed the $10,000 restitution fine and the $10,000 parole revocation fine without further elaboration. Dinh did not object to the fines or any other aspect of his sentence.
DISCUSSION
Dinh offers two arguments in support of the claim he is entitled to reversal of the $10,000 restitution fine and $10,000 parole revocation fine. First, he maintains that his statement in mitigation preserved the issue for appeal, even in the absence of an objection at sentencing. Second, and alternatively, Dinh argues that if an objection was necessary, he was denied effective assistance of counsel. On the merits he contends that the maximum fines were not justified by the factors listed in section 1202.4, subdivision (d). We conclude there is no merit in Dinh's arguments.
I. Forfeiture of the Sentencing Claim on Appeal
Dinh acknowledges the general rule set forth in Scott and its progeny that the failure to object to a trial court's sentencing choice forfeits the issue on appeal. (Scott, supra, 9 Cal.4th at pp. 353-354.) Instead Dinh argues, without citation to authority, that his statement in mitigation preserved the issue for appeal "by informing the court of mitigating factors relevant to all aspect[s] of the sentence, including restitution." Contrary to Dinh's suggestion, his statement in mitigation never mentioned the fines although he was already on notice that the probation report recommended the maximum amount. There is nothing in this record to support Dinh's claim that he preserved his challenge to the fines on appeal.
II. The Alternative Claim of Ineffective Assistance of Counsel
Alternatively, Dinh argues that a reasonably competent attorney should have objected to imposition of the maximum restitution fine on grounds it was not supported by the factors set forth in section 1202.4. To prevail on a claim of ineffective assistance, the defendant must show that "counsel's representation fell below an objective standard of reasonableness" "under prevailing professional norms" and the "deficient performance prejudiced the defense...." (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 693-694 (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 217-218.) Neither is established here.
"A reviewing court will indulge in a presumption that counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy. Defendant thus bears the burden of establishing constitutionally inadequate assistance of counsel. [Citations.] If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation. [Citation.]" (People v. Carter (2003) 30 Cal.4th 1166, 1211.) As we explain below, there was no reasonable ground on which to object in this case, given the serious nature of the charged offenses, Dinh's criminal record, and the applicable standard of review.
To establish prejudice, Dinh must show "that there is a reasonable probability that, but for counsel's [failure to object], the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, supra, 466 U.S. at p. 694.) Again, given the record before us, it is not reasonably probable that the court would have imposed lower restitution and parole revocation fines had defense counsel objected and expressly alerted the court to the statutory factors as argued by Dinh.
"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." (§ 1202.4, subd. b).) "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...." (§ 1202.4, subd, (b)(1).) Where, as here, the fine is in excess of $200 under 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 any 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." (§ 1202.4, subd. (d).) The court may also consider a defendant's criminal history in arriving at the amount of the fine. (People v. Gangemi (1993) 13 Cal.App.4th 1790, 1798-1799; People v. McGhee (1988) 197 Cal.App.3d 710, 716.)
We review a court's decision regarding the amount of a restitution fine for abuse of discretion. (People v. Mearns (2002) 97 Cal.App.4th 493, 499.) Defendant has the burden of showing that the court's sentencing decision was irrational or arbitrary. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) "'In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.' [Citation.] Concomitantly, '[a] decision will not be reversed merely because reasonable people might disagree. "An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge." [Citations.]' [Citation.]" (Id. at pp. 977-978.)
Here, Dinh attempts to minimize the seriousness of his criminal history and the seriousness of the current offenses. The probation report cited Dinh's on-going violent behavior, gang affiliation and "well-entrenched" criminal lifestyle as justification for a life sentence and maximum fines. The statement in mitigation on which he relies gives lip service to accepting responsibility for the brutal attack on Nielsen, but attempts to shift the blame to Combs, his brother, and cultural differences. Dinh threatened Combs and made good on his threat. When Dinh returned to Combs's apartment, he led his "homies" in the physical attack on Nielsen because Nielsen refused to open the security gate. Given the context of the attack, it is of no consequence that Dinh may not have hurled the blow that blinded Nielsen.
The court did not follow the recommendation of the probation department. It exercised its discretion and struck one of the serious felony priors on the ground this was not a "life case." But based on Dinh's criminal history and the seriousness of the present case, the court acted well within its discretion under section 1202.4 in imposing the recommended maximum restitution fine. We assume trial counsel recognized that his client had narrowly escaped a life sentence, and properly concluded there was no other reasonable basis on which to challenge the sentence. Accordingly, Dinh failed to establish incompetence of counsel or that he was prejudiced by counsel's failure to object.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., AARON, J.