Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SF099232A
SCOTLAND, P. J.
While driving under the influence of alcohol, defendant Alex Michael Gomez made an illegal left turn from the right lane at an intersection prior to the light turning green. He then told a patrol officer his driver’s license had been suspended, and he falsely gave his name as Alex Martinez Gomez. Defendant’s speech was thick and slurred, his eyes were red and watery, and there was a strong smell of alcohol from his car. After he failed field sobriety tests, he was arrested. A breath test revealed that his blood-alcohol level was between.21 and.22 percent.
Defendant pled guilty to the misdemeanor of driving without a license (Veh. Code, § 14601.1, subd. (a)) and admitted he had two prior convictions for driving under the influence of alcohol (DUI). (Veh. Code, § 23546.) A jury found him guilty of DUI (Veh. Code, § 23152, subd. (a); count 1) and of driving with a blood-alcohol level of.08 percent or above (Veh. Code, § 23152, subd. (b); count 2), both felonies due to his prior convictions.
Probation was denied, and defendant was sentenced to a term of three years in state prison for count 2. A term of two years was imposed for count 1, but stayed pursuant to Penal Code section 654. A term of 180 days in county jail was imposed for the misdemeanor, to be served concurrently with the prison sentence. Defendant was ordered to pay fees and fines, including a $2,433 restitution fine (Pen. Code, § 1202.4, subd. (b)) and another $2,433 restitution fine, stayed unless parole is revoked. (Pen. Code, § 1202.45.)
On appeal, defendant claims that the amount of the restitution fines was excessive and, thus, an abuse of discretion, and that his trial attorney was ineffective for failing to so object. We shall affirm the judgment.
DISCUSSION
In challenging the $2,433 restitution fines, defendant contends “the trial court abused its discretion when it imposed the fines without giving [defendant] notice of its intentions so that he could prepare a meaningful presentation relating to the issue of the amount of the fees the court should impose.”
Penal Code section 1202.4, subdivision (b) provides that, “[i]n 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.” (Further section references are to the Penal Code.) Where defendant is convicted of a felony, the fine shall be set at between $200 and $10,000, commensurate with the seriousness of the offense. (§ 1202.4, subd. (b)(1).)
Subdivision (2) of section 1202.4, subdivision (b) contains an optional formula: “In setting a felony restitution fine, the court may determine the amount of the fine as the product of two hundred dollars ($200) 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.”
When a trial court imposes a restitution fine and sentences the person to state prison, it “shall... assess an additional parole revocation restitution fine in the same amount as [the restitution fine],” which “shall be suspended unless the person’s parole is revoked.” (§ 1202.45.)
We review the restitution orders for abuse of discretion. (People v. Thygesen (1999) 69 Cal.App.4th 988, 992; People v. Ortiz (1997) 53 Cal.App.4th 791, 800.) When there is a factual and rational basis for the amount of restitution ordered by the trial court, no abuse of discretion will be found. (People v. Baker (2005) 126 Cal.App.4th 463, 467.) The standard of proof at a restitution hearing is by a preponderance of the evidence, and we will uphold the order if it is supported by any substantial evidence, contradicted or uncontradicted. (Id. at pp. 468-469.)
Defendant begins by faulting the probation report for not recommending a specific amount of fine to be imposed. California Rules of Court, rule 4.411.5(a)(11) requires the probation department to include a “statement of mandatory and recommended restitution, restitution fines, other fines, and costs to be assessed against the defendant....” Here, the probation report recommended that defendant be ordered to pay (1) “a Restitution Fine pursuant to Section 1202.4 of the Penal Code, in a manner to be determined by the Court...” and (2) “a Parole Restitution Fine pursuant to Section 1202.45... in the same amount... suspended unless the defendant’s parole is revoked.” Contrary to defendant’s claim, the rule does not require the report to recommend a specific amount for the fine. That is a matter for the trial court’s discretion, within the range established by statute.
Nor was there any requirement for the trial court to forewarn defendant as to the amount of the restitution fines that the court intended to impose. Section 1202.4, subdivisions (b) and (c) put defendant on notice that, unless the court found “compelling and extraordinary reasons for not doing so,” it had to impose restitution fines, “set at the discretion of the court and commensurate with the seriousness of the offense,” in an amount “not... less than two hundred dollars ($200), and not more than ten thousand dollars ($10,000)” (§ 1204.4, subd. (b)(1)).
The main thrust of defendant’s challenge is that (1) the trial court did not “explain its basis for the amounts imposed,” and (2) “the amounts set appear to bear no relationship to the offenses or the statutes.”
Defendant points out that under the formula set forth in section 1202.4, subdivision (b)(2) [“the court may determine the amount of the fine as the product of two hundred dollars ($200) 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”], the fine would have been $700, i.e., $200 multiplied by three (the years of defendant’s prison term for the felony) plus the $100 minimum fine for defendant’s misdemeanor.
However, while a trial court “may” apply the above formula (§ 1202.4, subd. (b)(2)), it is not required to do so. And there is no statute or decisional authority requiring the court to explain the basis for the amount imposed.
Here, we presume (Evid. Code, § 664) that the trial court considered “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).)
“A defendant’s inability to pay shall not be considered a compelling and extraordinary reason [for not ordering him to pay a restitution fine]. Inability to pay may be considered only in increasing the amount of the restitution fine in excess of the [statutory] minimum.” (§ 1202.4, subd. (c).)
The trial court did just that. It considered the probation report, the respective motions in aggravation and mitigation filed by the parties, and oral argument from counsel at the sentencing hearing. The court also heard the testimony at trial, including that of the arresting officers and defendant himself.
All of this revealed that defendant was on probation at the time of his arrest for DUI and was driving although his license had been suspended due to a prior DUI. Indeed, he had previously been convicted for DUI “four times in twenty years, with two of those convictions occurring in the last ten years.” One of the prior offenses had “involved an accident.” Despite evidence that his blood-alcohol level was between.21 and.22 percent after he was arrested for his fifth DUI, defendant expressed no remorse and continued to deny having consumed any alcoholic beverages. Noting defendant had “not reformed his drinking and driving conduct, even though he has had many opportunities to do so,” the court found that defendant was a “danger to the community[.]”
Taken together, the seriousness and gravity of defendant’s crime, particularly in light of his history of alcohol abuse and DUI, are sufficient to support the restitution orders; and the fines of $2,433, which were less than a fourth of the maximum fines that could have been imposed, did not exceed the bounds of reason. (People v. Maheshwari (2003) 107 Cal.App.4th 1406, 1409.) It is immaterial that we cannot tell how the court came up with the figure $2,433, rather than $2,500 or some other such figure. Selection of the amount of a fine is not a science. Because the amount is within the statutory range and is justified by the seriousness and gravity of defendant’s crime, it is not arbitrary or capricious in terms of an abuse of discretion. (See ibid.)
Lastly, we reject defendant’s claim that his trial attorney “rendered ineffective assistance when he failed to challenge the amount imposed or request an explanation of the amount from the trial [court].” It is not reasonably probable that defendant would have obtained a more favorable result had his trial attorney done so. (People v. Holt (1997) 15 Cal.4th 619, 703.)
DISPOSITION
The judgment is affirmed.
We concur: HULL, J. ROBIE, J.