P. v. Duchesne

Filed 2/16/07  P. v. Duchesne CA6

NOTTO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court,rule 977(a), prohibits courts and parties from citing or relying on opinionsnot certified for publication or ordered published, except as specified by rule977(b).  This opinion has not been certified for publication or orderedpublished for purposes of rule 977.

INTHE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTHAPPELLATE DISTRICT

            The issue in this case is whether, after thedefendant pleaded no contest to certain counts under a plea bargain, the trialcourt abused its discretion in setting the amount of the restitution fund fineunder Penal Code section 1202.4, subdivisions (b), (c) and (d).[1] This section provides, among other things, that in setting the amount of thefine between $200 and $10,000, the trialcourt shall consider any relevant factors, including a defendant'sinability to pay.  (§ 1202.4, subd. (d).)  Defendant contends that the courterred here by refusing to consider his inability to pay in fixing the fine at$4,200.  Based on this record, we conclude that defendant has failed toaffirmatively show that the court erred.  We accordingly affirm the judgment.

STATEMENTOF THE CASE

            I.          FactualBackground[2]

            In 2005, FredGuidici was the property manager for Marlene Elwell, an-out-of-town owner of aresidence located on Verdant Way in San Jose.  On one evening in June of thatyear, Guidici was outside at the property changing the sprinkler and wateringthe front lawn.  Guidici had driven to the property with his mother, hiscousin, and a friend, Craig Uyeda, all of whom were waiting for Guidici in acar parked near the residence.  While Guidici was working, defendant, who wasunknown to Guidici, drove up in a black car with fully tinted windows and gotout of the passenger side.  Defendant said to Guidici, â€