Opinion
D058574
12-05-2011
THE PEOPLE, Plaintiff and Respondent, v. RAFAEL MEDINA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. SCS225625)
APPEAL from a judgment of the Superior Court of San Diego County, Timothy R. Walsh, Judge. Affirmed as modified.
Rafael Medina was convicted of evading an officer with reckless driving, misdemeanor hit and run driving and misdemeanor resisting arrest. He admitted four prison priors and was sentenced to five years in prison and a $1,400 restitution fine.
Medina now appeals, claiming the trial court abused its discretion in ordering the restitution fine. He also claims the trial court improperly calculated his custodial credits in remanding him to state prison. As we explain, we agree the trial court improperly calculated his custodial credits. In all other respects, we affirm the judgment of conviction.
STATEMENT OF FACTS
On December 10, 2008, officers observed Medina speeding in a grey sedan through a residential neighborhood. When they attempted to pull him over, Medina ran a stop sign and a red light and then crashed into a parked car. Following the collision, Medina exited the sedan and fled on foot. Officers chased and subdued Medina, who resisted being handcuffed.
In a bifurcated trial, Medina was convicted of evading an officer with reckless driving under Vehicle Code section 2800.2, subdivision (a); hit and run driving under Vehicle Code section 20002, subdivision (a); and resisting an officer under Penal Codesection 148, subdivision (a)(1). During the penalty phase, Medina admitted four prison priors and submitted a statement of mitigation in response to the probation presentencing report that called for a seven-year custodial sentence and the imposition of a $1,400 restitution fine.
All further statutory references are to the Penal Code unless otherwise specified.
The trial court sentenced Medina to five years in state prison and imposed the $1,400 fine pursuant to section 1202.4, subdivision (b). Medina received credit for 693 days of local jail time and 322 days under section 4019, subdivisions (b)(2) and (c)(2), for a total custodial credit of 1,015 days. Neither Medina nor his trial counsel objected to the sentence.
DISCUSSION
I
Medina argues the trial court abused its discretion in ordering him to pay the $1,400 restitution fine. He claims the trial court unilaterally adopted the recommendation of the probation report concerning the amount of the fine to be imposed, and thus abdicated its responsibility to determine the fine amount.
As a threshold matter, we conclude Medina forfeited his right to pursue this argument on appeal by failing to object to the imposition of the fine or its amount at sentencing. Our Supreme Court has decisively ruled on this issue, holding that "complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal." (People v. Scott (1994) 9 Cal.4th 331, 356; see also People v. Gibson (1994) 27 Cal.App.4th 1466, 1469 ["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."].)
The record shows Medina was on notice of the possibility of a fine by the probation report, which he received prior to sentencing. Medina thus had ample opportunity to argue for a reduction in the amount of his fine at sentencing, and we see no undue burden in requiring him to have objected in that venue. This opportunity afforded Medina adequate due process.
Medina contends his mitigation statement filed prior to sentencing operates to preserve his right to appeal the amount of his restitution fine. We disagree. Contrary to Medina's claim that the statement served to "inform[] the trial court of mitigating factors relevant to all aspects of the sentence, including restitution," his mitigation statement contains no discussion whatsoever regarding the fine or the amount of restitution. To allow such a statement to form the basis for appeal would usurp the trial court's discretion in setting the amount of the fine. (See § 1202.4, subd. (b)(1) [noting the "restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense"].)
Medina alternately claims he received ineffective assistance of counsel based on defense counsel's failure to object to the imposition of the fine or its amount. To succeed on a claim of ineffective assistance, an appellant must show that not only that "counsel's representation fell below an objective standard of reasonableness," but that "the deficient performance prejudiced the defense." (Strickland v. Washington (1984) 466 U.S. 668, 687-688 .)
As a reviewing court, we must "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." (People v. Carter (2003) 30 Cal.4th 1166, 1211.) Because the" ' "record on appeal sheds no light on why counsel acted or failed to act in the manner challenged . . .[,]" the claim on appeal must be rejected.' " (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266; People v. Wilson (1992) 3 Cal.4th 926, 936.)
Medina also shows no reasonable probability that the outcome would have been different had his counsel objected to the amount of the fine. Medina's only argument appears to be that, faced with an objection, the trial court would have reconsidered its decision to impose the fine. However, the very factors Medina points to on appeal— namely, that he has been in and out of prison most of his adult life and qualified for public defender services—were certainly known to the trial court at the time of sentencing. In essence, Medina is simply asking this court to relitigate a matter entrusted to and already decided by the trial court. We decline to do so.
In any event, Medina's argument fails on its merits. Although the trial court did not make an explicit finding supporting the amount of the fine, none was necessary. Section 1202.4, subdivision (d) obviates that need, stating "[e]xpress findings by the court as to the factors bearing on the amount of the fine shall not be required." (Ibid.)
Furthermore, we note that a silent record in such matters is presumed correct. As a principle of appellate review, "[t]he general rule is that a trial court is presumed to have been aware of and followed the applicable law." (People v. Mosley (1997) 53 Cal.App.4th 489, 496.)
This is not to say the trial court may impose a fine without any deliberation. As Medina contends, the "fine must be supported by the record." (People v. Griffin (1987) 193 Cal.App.3d 739, 741). Here, it was. Medina had a long criminal history, including four prison priors. His offense caused property damage to others. He did not demonstrate any inability to pay the fine, which was well within, and at the lower end of, the discretionary range available to the trial court. (See § 1202.4, subd. (b)(1) [the restitution fine shall not be less than $200 and not more than $10,000 if the person is convicted of a felony].) The court acted within its discretion in imposing a $1,400 fine in light of these factors, regardless of whether it explicitly articulated them on the record.
II
Medina also claims his custodial credits were improperly calculated under section 4019, subdivisions (b)(2) and (c)(2). At sentencing, the trial court found Medina had served 693 days of local time, and granted him an additional 322 days credit. This accrual rate was applied subject to former section 4019, subdivisions (b)(2) and (c)(2), which provided that the lower rate controlled sentences for defendants who were required to register as sex offenders or who had committed an enumerated offense in section 1192.7.
The People concede that Medina was neither required to register as a sex offender nor convicted of an offense listed in section 1192.7. Although Medina was adjudicated as a juvenile of first degree burglary, an offense listed in section 1192.7, juvenile adjudications do not qualify as convictions under former section 4019. (People v. Pacheco (2011) 194 Cal.App.4th 343, 346.) Thus, Medina was entitled to a custodial credit of 693 days served, matching his local time.
DISPOSITION
The judgment is modified to allow Medina 693 days' credit for actual days served plus 693 days' conduct credits, for total credit of 1,386 days. The trial court is directed to prepare an amended abstract of judgment and forward the same to the proper correctional authorities. In all other respects the judgment of conviction is affirmed.
BENKE, Acting P. J.
WE CONCUR:
HALLER, J.
IRION, J.