P. v. Reynoso
Filed 4/17/09 P. v. Reynoso CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, Plaintiff and Respondent, v. ALBERTO REYNOSO, Defendant and Appellant. | B208260 (Los Angeles County Super. Ct. No. NA053928) |
APPEAL from a judgment of the Superior Court of Los Angeles County.
Joan Comparet-Cassani, Judge. Affirmed.
Julie Sullwold-Hernandez, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
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Defendant Alberto Reynoso was charged by an amended information filed on February 4, 2003, with three counts of making criminal threats in violation of Penal Code[1]section 422, one count of grossly negligent discharge of a firearm in violation of section 246.3, two counts of possession of a firearm by a felon in violation of 12021, subdivision (a)(1), and one count of possession of a controlled substance with a firearm in violation of Health and Safety Code section 11370.1, subdivision (a). The information also alleged two prior strikes, four prior prison terms and two prior serious felonies, pursuant to sections 1170.12, subdivision (a) through (d), 667.5, subdivision (b), and 667, subdivision (a)(1), as well as an enhanced prison term based on personal use of a firearm in the commission of a felony pursuant to section 12022.5, subdivision (a).
After advisement of his constitutional rights and the consequences of his plea, defendant pled no contest to one count of making criminal threats, and admitted the section 12022.5, subdivision (a) enhancement as well as two prior prison terms pursuant to section 667.5, subdivision (b) and a prior serious felony conviction, a strike within the meaning of section 1170.12. Appellant was also advised during the taking of the plea that a restitution fine of between $200 and $10,000 would be imposed. Appellant was sentenced to an 18-year prison term. In addition, the court imposed a $3,600 restitution fine pursuant to section 1202.4, subdivision (b), and a $3,600 parole revocation restitution fine pursuant to section 1202.45. The latter fine was stayed, with the stay to become permanent upon the successful completion of parole.
On May 12, 2008, defendant filed a motion in the Superior Court for modification of the restitution order entered pursuant to section 1202.4. The motion was based on defendant's contention that the record was devoid of substantial evidence of his ability to pay the fine, and that he had not been given an opportunity to dispute the determination of the amount of restitution.
The trial court denied the motion for modification. Defendant timely appealed that order. We appointed counsel to represent him on this appeal.
After examination of the record, counsel filed an opening brief which contained an acknowledgment that she had been unable to find any arguable issues. On November 12, 2008, we advised defendant that he had 30 days in which to personally submit any contentions or arguments which he wished this court to consider. By letter dated December 15, 2008, defendant presented the arguments he had proffered in the trial court, contending that the court erred in denying his motion.
After review of the record in this matter, we conclude that the trial court did not err. Defendant was advised of the consequences of his plea, including the imposition of a restitution fine pursuant to section 1202.4, subdivision in an amount between $200 and $10,000. The fine imposed, $3,600, fell within that range. Defendant did not object to the amount of the fine at his sentencing hearing on January 21, 2004, nor did he request a hearing on the matter, or appeal the judgment.
Relying on People v. Scott (1994) 9 Cal.4th 331, 354, defendant argues that he "did not waive his present contentions by failing to raise them at sentencing," because his sentence was "unauthorized." Not so. Section 1202.4, subdivision (b) specifically authorizes imposition of a restitution fine in an amount between $200 to $10,000. If, as defendant asserts, the court erred in imposing a restitution fine of $3,600, that error involved "the trial court's failure to make or articulate its discretionary sentencing choice" (id., at p. 353), but does not render the sentence "unauthorized."
DISPOSITION
The order denying defendants' Motion for Modification of Restitution Fine is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ARMSTRONG, Acting P. J.
We concur:
MOSK, J.
KRIEGLER, J.
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[1]Further statutory references are to this code unless otherwise indicated.
