Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD206367, David J. Danielsen, Judge.
McINTYRE, J.
James Lucius Phyfiher Jr. pleaded guilty to selling cocaine base and admitted to two prior drug convictions. At sentencing, the trial court imposed the three-year low term for the substantive offense and consecutive three-year terms for each of the two prior drug conviction enhancements, for an aggregate prison term of nine years. The court also ordered Phyfiher to pay an $1,800 restitution fine.
Phyfiher appeals his sentence, contending the trial court abused its discretion by (1) imposing an excessive nine-year sentence and rejecting his request for referral to drug treatment by the California Rehabilitation Center (CRC) without stating a valid reason for the rejection and (2) imposing a restitution fine that was not reasonably related to the offense. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Phyfiher's criminal activity began in 1989 when he engaged in a felony narcotics transaction with an undercover police officer. Since then, he has engaged in a near continuous course of criminal conduct, including ten misdemeanors and five more felonies, including the instant offense. Throughout his criminal history, Phyfiher's probation has been revoked on nine separate occasions. Additionally, he has received four opportunities to seek treatment for his drug addiction at the CRC. Each time, Phyfiher has failed to comply and subsequently been sentenced to prison. Phyfiher's latest arrest occurred after he sold 0.21 grams of cocaine base to an undercover officer in May, 2007. At the time of his arrest, he was still on CRC parole.
Two months after his current arrest, Phyfiher pleaded guilty to selling cocaine base and admitted to two prior convictions for similar conduct. On his change-of-plea form and at the sentencing hearing, Phyfiher stated that he understood the maximum penalty to be an eleven-year prison term and $20,000 in fines. The probation report recommended the maximum prison term of eleven years, but Phyfiher requested recommitment to the CRC. Rejecting Phyfiher's request, the court sentenced him to the lower term of three years in state prison for the new offense and declined to strike either of Phyfiher's prior convictions due to his persistent criminal conduct. Accordingly, the trial court sentenced him to two additional, consecutive three-year terms for the enhancements. The court then ordered him to pay an $1,800 restitution fine pursuant to Penal Code section 1202.4, subdivision (b) and imposed a suspended $1,800 parole revocation restitution fine pursuant to Penal Code section 1202.45. (Although Phyfiher mentions the latter fine in his brief, he does not challenge it on appeal.)
Phyfiher appeals, raising sentencing errors.
DISCUSSION
Standard of Review
As Phyfiher acknowledges, the trial court is accorded broad discretion in determining the appropriate sentence to be imposed. "'The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] 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.]" (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978, quoting People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.)
Imposition of Nine-year Prison Term and Denial of Recommitment to CRC
Despite his acknowledgment that he might be sentenced to a maximum prison term of eleven years, Phyfiher contends that the trial court abused its discretion by imposing a nine-year sentence. He argues that, despite his lengthy and persistent criminal history, the totality of the circumstances makes his sentence unduly harsh. He cites to no authority for his contention, but simply points to the non-violent nature of his criminal history as support for his argument, reasoning that his prior convictions indicate nothing more than a long-term addiction and small time dealing to support that addiction. Contrary to Phyfiher's contention, the probation report indicated the existence of no applicable mitigating factors. The trial court, on the other hand, did note the small amount of controlled substance involved in the current narcotics transaction, Phyfiher's acceptance of responsibility before trial, and his previous military service and period of gainful employment.
Based on those factors, the trial court imposed the low term for the substantive offense. In its consideration of the prior drug conviction enhancements, the trial court indicated that the primary aggravating factor was Phyfiher's lengthy criminal history, which included six felonies, ten misdemeanors, and numerous probation revocations. When given opportunities to seek treatment for his drug addiction, Phyfiher performed poorly; he even committed the current felony while still on parole. Looking at the entirety of Phyfiher's criminal record, the trial court declined to strike either of the three-year sentence enhancements, describing his criminality as "persistent since 1989." The trial court's statements establish that it considered all the information presented to it, gave considerable thought to its options, and acted well within its discretion in sentencing Phyfiher to a nine-year state prison term, which was less than the maximum sentence Phyfiher acknowledged when he entered his plea.
Phyfiher also challenges the trial court's denial of his request for referral to drug treatment by the CRC. However, he concedes that a prison sentence in excess of six years disqualifies a defendant for CRC commitment. (See Welf. & Inst. Code, § 3052, subd. (a)(2).) Because the imposition of a nine-year prison sentence was not an abuse of discretion, Phyfiher was statutorily ineligible for CRC and his challenge in this regard fails.
Restitution Fine
Phyfiher's final contention is that the $1,800 restitution fine was not reasonably related to the substantive offense. He concedes that the court is not required to state reasons for imposing a particular fine (see Pen. Code, § 1202.4, subd. (d); People v. Romero (1985) 167 Cal.App.3d 1148, 1156), but nevertheless argues that the trial court must consider and state on the record relevant factors that would justify imposition of the restitution fine. (All further statutory references are to the Penal Code.) His argument is without merit.
"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), italics added.) The allowable range for the fine is $200 to $10,000 for felony convictions, with the fine to be imposed in a particular case being subject to the trial court's discretion. (§ 1202.4, subd. (b)(1); People v. Knox (2004) 123 Cal.App.4th 1453, 1460.) The trial court may use a formula provided in the statute to calculate the amount of the fine. (§ 1202.4, subd. (b)(2).) The calculation involves multiplying $200 by the number of years of imprisonment and then by the number of counts of which the defendant is convicted. (Ibid.)
Here, the trial court stated the reasons for imposing the nine-year prison term. Then, implicitly following the statutory formula provided in section 1202.4, subdivision (b)(2), the court imposed an $1,800 restitution fine. In accordance with the statutory formula, the trial court properly calculated the restitution fine and did not abuse its discretion.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McDONALD, Acting P. J., O'ROURKE, J.