Filed 2/21/14 P. v. Ramirez CA2/1

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

EDGAR RAMIREZ,

Defendant and Appellant.

 B243291

 (Los Angeles County

 Super. Ct. No. BA382225)

APPEAL from a judgment of the Superior Court of Los Angeles County. Stephen 

A. Marcus, Judge. Affirmed.

Nancy J. King, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Lance E. Winters, Senior Assistant Attorney General, Stephanie A. Miyoshi and 

Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________________
2

Defendant Edgar Ramirez appeals from the judgment entered following a jury trial 

in which he was convicted of attempted murder, committing a lewd act on a child under 

the age of 15, possession of obscene matter depicting a minor, and two counts of 

continuous sexual abuse of a minor under the age of 14.

Defendant contends his sentence of life without possibility of parole (LWOP) for 

one of the continuous abuse counts violated the ex post facto prohibitions of the state and 

federal Constitutions because the abuse began before the effective date of Penal Code 

section 667.61, subdivision (j)(1),

1 which increased the maximum possible sentence from 

25 years to life to LWOP. We do not agree. A new or amended statute may be applied in 

the context of continuous sexual abuse of a child if the abuse continues on or after the 

effective date of the statute. The undisputed evidence in this case established beyond a 

reasonable doubt that defendant continued to have sexual intercourse with his 13-year-old 

daughter after the effective date of section 667.61, subdivision (j)(1).

Defendant also contends that application of section 667.61, subdivision (j)(1) 

violated both his due process right to notice and statutory pleading requirements. 

Although the information did not mention subdivision (j)(1) of section 667.61, we 

conclude that its allegation that defendant was subject to the harsher sentencing scheme 

set forth in section 667.61 along with all facts upon which application of section 667.61, 

subdivision (j)(1) depended satisfied both due process and statutory pleading 

requirements.

Defendant further contends the restitution fine imposed upon him violated his right 

to a jury trial under Southern Union Co. v. United States (2012) 567 U.S. __ [132 S.Ct. 

2344] (Southern Union). We disagree. Defendant’s felony convictions triggered the trial 

court’s statutory duty to impose a restitution fine in the range of $200 to $10,000. The 

trial court did not make any factual findings that increased the potential fine beyond what 

the jury’s verdict allowed. Southern Union is inapplicable.

 

1 Undesignated statutory references pertain to the Penal Code.
3

BACKGROUND

The charges in this case arose from about seven years of sexual abuse by defendant 

of his daughter J.R. and about one year of sexual abuse of his younger daughter K.R. 

Defendant’s conduct toward J.R. formed the basis for his convictions of attempted 

murder (count 1), one of the counts of continuous sexual abuse (count 2), and committing 

a lewd act on a child under the age of 15 (count 5). Defendant raises no issues regarding 

these counts or the sentence on these counts. Accordingly, we merely summarize the 

evidence regarding defendant’s abuse of K.R.

1. Continuous sexual abuse of K.R.

K.R. was born in January of 1997. She began living with defendant, J.R., and her

brother when she was seven. By February of 2010, both K.R.’s brother and J.R. had

moved away, leaving 13-year-old K.R. alone with her father. Around March of 2010, 

defendant began touching K.R.’s breasts when she was asleep. A few days later, 

defendant began having sexual intercourse with K.R. “[a]lmost every day.” Defendant 

also orally copulated K.R. and forced her to orally copulate him more than three times, 

but K.R. could not remember how frequently that had happened.

K.R. feared defendant because she had seen him hit J.R. Defendant told K.R. she 

could be his wife and his daughter. He made her wear J.R.’s lingerie and took 

photographs of her “private parts.”

In July of 2010, K.R. had an abortion at a Planned Parenthood clinic. She did not 

tell the clinic staff that defendant had impregnated her, but instead made up a story about 

having a boyfriend her own age. The doctor told her not to have sex for three weeks after 

her abortion. Although she relayed this information to defendant, he resumed having sex 

with her a “couple of days later.”

By December of 2010, defendant had again impregnated K.R. and she returned to 

Planned Parenthood for another abortion. The physician who performed the second 

abortion testified that K.R. was approximately six weeks pregnant. After the abortion, he 

implanted an intrauterine device to prevent additional pregnancies.
4

K.R. testified that she did not have sex with anyone other than defendant during 

the time she lived with him.

Defendant was arrested on or before March 16, 2011, after J.R. reported his 

conduct toward her to the police.

2. Verdict and sentencing

The jury convicted defendant of attempted murder (count 1, pertaining to J.R.’s 

fetus), continuous sexual abuse of a minor under the age of 14 (count 2, pertaining to 

J.R.), continuous sexual abuse of a minor under the age of 14 (count 3, pertaining to 

K.R.), possession of obscene matter depicting a minor (count 4), and committing a lewd 

act on a child under the age of 15 (count 5, pertaining to J.R.). With respect to both 

continuous sexual abuse convictions (counts 2 and 3) and the lewd act conviction (count

5), the jury found true a section 12022.7, subdivision (a) allegation that defendant 

personally inflicted great bodily injury. The jury also found true, with respect to both 

continuous sexual abuse convictions (counts 2 and 3), allegations that defendant 

committed an offense specified in section 667.61, subdivision (c) against more than one 

victim (§ 667.61, subd. (e)(4)) and that in the commission of the offenses, defendant 

personally inflicted great bodily injury on J.R. and K.R. (§ 667.61, subd. (d)(6)).

The prosecutor acknowledged in her sentencing memorandum that section 667.61 

was inapplicable to continuous sexual abuse of a minor under 14 when defendant 

committed that offense against J.R. Accordingly, the trial court struck the jury’s section 

667.61 findings with respect to count 2.

The trial court sentenced defendant to LWOP for the continual sexual abuse of 

K.R. (count 3), pursuant to section 667.61, subdivision (j)(1), plus a consecutive 

aggregate determinate term of 24 years consisting of terms of 19 years for the continual 

sexual abuse of J.R. with great bodily injury enhancement (count 2), 2 years 4 months for 

attempted murder (count 1), 1 year for possession of obscene matter depicting a minor 

(count 4), and 1 year 8 months for committing a lewd act on a child under the age of 15 

with great bodily injury enhancement (count 5).
5

DISCUSSION

1. Defendant’s LWOP term did not violate constitutional ex post facto 

prohibitions.

Section 667.61, also known as the “One Strike” law, “sets forth an alternative, 

harsher sentencing scheme” for certain sexual offenses, including a violation of section 

288.5, committed under specific circumstances set forth in subdivisions (d) and (e) of the 

statute. (People v. Mancebo (2002) 27 Cal.4th 735, 738 (Mancebo).) Defendant 

challenges the LWOP sentence imposed for count 3 pursuant to section 667.61, 

subdivision (j)(1). That sentence was premised upon his infliction of great bodily injury 

on K.R. in the commission of the violation of section 288.5, a factor listed in section 

667.61, subdivision (d)(6).

2

The information alleged that count 3, the continuous sexual abuse of a minor under 

14 charge pertaining to K.R., was committed “[o]n or between January 14, 2010 and 

January 13, 2011.” At the beginning of this time period, section 667.61 did not authorize 

an LWOP term, only terms of 15 years to life or 25 years to life.

The Legislature amended section 667.61 in 2010 by adding subdivision (j)(1), 

which provides, in pertinent part, as follows: “Any person who is convicted of an offense 

specified in subdivision (c), with the exception of a violation of subdivision (a) of Section 

288, upon a victim who is a child under 14 years of age under one or more of the 

circumstances specified in subdivision (d) or under two or more of the circumstances 

specified in subdivision (e), shall be punished by imprisonment in the state prison for life 

without the possibility of parole.” The amendment became effective on September 9, 

2010—part way through the period alleged in count 3.

 

2 Section 667.61, subdivision (d)(6) provides, “The defendant personally inflicted 

great bodily injury on the victim or another person in the commission of the present 

offense in violation of Section 12022.53, 12022.7, or 12022.8.” As previously noted, the 

jury found a section 12022.7, subdivision (a) allegation true with respect to count 3.
6

Defendant contends the trial court’s application of section 667.61, subdivision 

(j)(1) to him violated constitutional prohibitions on ex post facto laws because 

subdivision (j)(1) “did not apply during the first nine months of the one-year time frame 

alleged for count 3” and the jury “likely based its verdict, at least in part, on an act or acts 

committed before this section became effective.”

a. Ex post facto principles

The ex post facto clause of the federal Constitution prohibits legislation that 

(1) punishes as a crime an act that was innocent when it was committed; (2) makes more 

burdensome the punishment for a crime, after its commission; or (3) deprives a defendant 

of any defense available according to law at the time when the charged crime was 

committed. (Collins v. Youngblood (1990) 497 U.S. 37, 42 [110 S.Ct. 2715].)

California’s ex post facto clause is interpreted in the same manner as the federal 

clause. (People v. Grant (1999) 20 Cal.4th 150, 158 (Grant).) “[T]he primary purpose of 

the ex post facto clauses in the federal and state Constitutions is to ensure ‘that legislative 

Acts give fair warning of their effect . . . .’” (Id. at p. 162.) “The critical question is 

whether the law changes the legal consequences of acts completed before its effective 

date.” (Weaver v. Graham (1981) 450 U.S. 24, 31 [101 S.Ct. 960].) 

There can be no dispute that an LWOP term is more burdensome than a term of 25 

years to life (the greatest possible imprisonment under section 667.61 prior to its 2010 

amendment) because the latter leaves open the possibility of parole. The critical issue in 

the present case is instead whether the offense of continuous sexual abuse of K.R. may be 

deemed to have been completed before September 9, 2010. If the offense was completed 

by that date, the LWOP term provided in the amendment to section 667.61 cannot 

constitutionally be applied to defendant.

b. The application of ex post fact principles to section 288.5

“Section 288.5 punishes a continuous course of conduct, not each of its three or 

more constituent acts. [Citations.] A continuous course of conduct offense cannot 

logically be ‘completed’ until the last requisite act is performed. Where an offense is of a 
7

continuing nature, and the conduct continues after the enactment of a statute, that statute 

may be applied without violating the ex post facto prohibition.” (People v. Palacios

(1997) 56 Cal.App.4th 252, 257 (Palacios).)

In Palacios, the court concluded that application of section 2933.1, which reduced

the conduct credits a defendant could earn while serving a sentence for violation of 

section 288.5, did not violate constitutional ex post facto prohibitions where the conduct 

underlying the defendant’s conviction began before, and ended after, the effective date of 

section 2933.1. (Palacios, supra, 56 Cal.App.4th at pp. 256–258.)

Similarly, in Grant, supra, 20 Cal.4th at pages 159–162, the California Supreme 

court concluded that section 288.5 could constitutionally be applied to sexual abuse that 

began before, but continued after, the date section 288.5 went into effect. The court 

explained, “[S]ection 288.5 gave ‘fair warning’ to those engaged in the sexual abuse of a 

child before the statute’s enactment that they would be punished under the new law if 

they continued the sexual abuse after section 288.5 took effect. Those who engaged in 

child molestation before the effective date of section 288.5, but not thereafter, are not 

subject to prosecution for continuing sexual abuse. But those who, like defendant, chose 

to continue such conduct after the effective date of section 288.5 were on notice that they 

would be subject to prosecution under that section.” (Grant, at p. 162.)

Thus, when the continuous sexual abuse begins before, but continues after, the 

effective date of a new statute or amendment to a statute, the new provision may be 

applied without violating constitutional prohibitions on ex post facto laws.

c. Defendant’s LWOP sentence did not violate constitutional prohibitions on ex 

post facto laws.

The trial court did not violate the ex post facto clauses by applying section 667.61, 

subdivision (j)(1) to defendant. Although his continuous sexual abuse of K.R. began 

prior to September 9, 2010, the undisputed evidence demonstrated beyond a reasonable 

doubt that the sexual abuse continued after that date. K.R. testified that defendant had 

sex with her almost every day after J.R. moved away. K.R. did not have sex with anyone 
8

else. According to the physician who performed an abortion on K.R. on December 8, 

2010, K.R. was about six weeks pregnant, which means defendant impregnated her 

around the last week of October, more than one month after the effective date of section 

667.61, subdivision (j)(1). As stated in Grant, supra, 20 Cal.4th at page 162, the 

enactment of section 667.61, subdivision (j)(1) placed defendant on notice that if he 

continued to sexually abuse K.R. after September 8, 2010, he was subject to an LWOP 

sentence.

Citing People v. Hiscox (2006) 136 Cal.App.4th 253 (Hiscox) and People v. Riskin

(2006) 143 Cal.App.4th 234 (Riskin), defendant argues that this court cannot determine 

whether the jury based its verdict on acts that occurred before or after the effective date of 

section 667.61, subdivision (j)(1).

Neither Hiscox nor Riskin involved a continuous course of conduct offense. Both 

instead involved sentencing under section 667.61 for violations of section 288, 

subdivisions (a) and (b) (lewd act on an child under the age of 14) that were alleged to 

have occurred during a date range that straddled the effective date of section 667.61. 

(Hiscox, supra, 136 Cal.App.4th at pp. 257–258; Riskin, supra, 143 Cal.App.4th at 

p. 237.) 

In Hiscox, the “evidence did not reliably connect” the 11 section 288 charges to 

any dates other than the four-year time frame alleged in the information, and the jury was 

neither asked to make findings about the dates of the offenses nor instructed that 

“findings under section 667.61 were restricted to offenses committed on or after” its 

effective date. (136 Cal.App.4th at pp. 258, 261.) The appellate court concluded that 

sentencing Hiscox under section 667.61 violated the ex post facto clauses because the 

prosecutor failed to establish “that any particular offense was committed when section 

667.61 was in effect.” (136 Cal.App.4th at p. 262.) The court explained, “Since the jury 

was not asked to make findings on the time frame within which the offenses were 

committed, the verdicts cannot be deemed sufficient to establish the date of the offenses 

unless the evidence leaves no reasonable doubt that the underlying charges pertained to 
9

events occurring on or after November 30, 1994. (Chapman v. California (1967) 386 

U.S. 18, 24 [17 L.Ed.2d 705, 87 S.Ct. 824].) It would be inappropriate for us to review 

the record and select among acts that occurred before and after that date, or to infer that 

certain acts probably occurred after that date.” (136 Cal.App.4th at p. 261.)

The court in Riskin relied upon Hiscox and similarly concluded that the prosecutor 

had not proved beyond a reasonable doubt that the defendant committed the section 288 

offense on or after the effective date of section 667.61. (Riskin, supra, 143 Cal.App.3d at 

p. 245.) The court noted that the victim’s testimony was inconsistent about the timing of 

the “various acts—one of which acts, without specifying which, the jury found to be the 

count III forcible lewd act.” (Ibid.)

Although the jury here did not make a finding that defendant’s continuous sexual 

abuse of K.R. continued on or after September 9, 2010, the uncontradicted evidence 

established, beyond a reasonable doubt, that it did. K.R. testified that defendant had sex 

with her almost every day, and the evidence regarding her December 8, 2010 abortion 

necessarily established that defendant impregnated her in late October of 2010, after 

section 667.61, subdivision (j)(1) became effective. Thus, based upon the evidence and 

the charge, defendant’s case is distinguishable from Hiscox and Riskin.

Accordingly, we conclude that application of section 667.61, subdivision (j)(1) to 

defendant did not violate the ex post facto clauses of the federal or state Constitutions.

2. Defendant’s LWOP sentence did not violate his due process right to notice or 

statutory pleading requirements contained in section 667.61.

Defendant further contends that his sentence under section 667.61, subdivision 

(j)(1) violated his due process right to notice because the information did not mention

subdivision (j)(1) or LWOP and in court the prosecutor stated that his maximum exposure 

was 50 years to life (calculated as 25 years to life for each of the continuous sexual abuse 

charges) plus 14 years for the other counts. He argues that the “first mention” of 667.61, 

subdivision (j)(1) was in the prosecutor’s sentencing memorandum filed six days before 
10

the sentencing hearing. Defendant also argues the failure to plead section 667.61, 

subdivision (j)(1) violated the pleading requirement set forth in section 667.61 itself.

a. Statutory pleading requirements

Section 667.61 applies “only if the existence of any circumstance specified in 

subdivision (d) or (e) is alleged in the accusatory pleading pursuant to this section, and is 

either admitted by the defendant in open court or found to be true by the trier of fact.” 

(§ 667.61, subd. (o), formerly subd. (j).)

“[A] valid accusatory pleading need not specify by number the statute under which 

the accused is being charged.” (People v. Thomas (1987) 43 Cal.3d 818, 826; § 952.) In 

addition, “No accusatory pleading is insufficient, nor can the trial, judgment, or other 

proceeding thereon be affected by reason of any defect or imperfection in matter of form 

which does not prejudice a substantial right of the defendant upon the merits.” (§ 960.)

b. Statutory pleading requirements were satisfied

As previously noted, effective September 9, 2010, section 667.61, subdivision 

(j)(1) states, in pertinent part, “Any person who is convicted of an offense specified in 

subdivision (c), with the exception of a violation of subdivision (a) of Section 288, upon a 

victim who is a child under 14 years of age under one or more of the circumstances 

specified in subdivision (d) . . . shall be punished by imprisonment in the state prison for 

life without the possibility of parole.”

Count 3 in the information alleged defendant committed the offense of continuous 

sexual abuse in violation of section 288.5 and that victim K.R. was “a child under the age 

of 14 years . . . .” The information also included the following allegation: “It is further 

alleged, within the meaning of Penal Code section 667.61 (a) and (d), . . . as to count(s) 2 

and 3 that the following circumstances apply: The defendant personally inflicted great 

bodily injury on the victim in the commission of the present offense, in violation of Penal 

Code section 12022.53, 12022.7 or 12022.8.”

Thus, the information clearly alleged the “existence of any circumstance specified 

in subdivision (d)” (“defendant personally inflicted great bodily injury on the victim”), 
11

along with the other factors triggering application of section 667.61, subdivision (j)(1), 

that is, defendant committed a violation of section 288.5, an offense specified in 

subdivision (c)(9), against a child under the age of 14. The California Supreme Court has 

held that “the specific numerical subdivision of a qualifying One Strike circumstance”

under section 667.61, need not be pleaded to satisfy the statutory pleading requirements, 

as long as “an information afford[s] a One Strike defendant fair notice of the qualifying 

statutory circumstance or circumstances that are being pled, proved, and invoked in 

support of One Strike sentencing.” (Mancebo, supra, 27 Cal.4th at pp. 753–754.) The 

Information in this case met that standard by pleading every factor necessary to the 

application of section 667.61, subdivision (j)(1), even though it did not refer to that 

particular subdivision.

Thus, all statutory pleading requirements were satisfied.

c. Constitutional notice requirements

“Both the Sixth Amendment of the federal Constitution and the due process 

guarantees of the state and federal Constitutions require that a criminal defendant receive 

notice of the charges adequate to give a meaningful opportunity to defend against them.” 

(People v. Seaton (2001) 26 Cal.4th 598, 640.) This notice requirement extends to 

“allegations that will be invoked to increase the punishment for his or her crimes.” 

(People v. Houston (2012) 54 Cal.4th 1186, 1227.) “[A] defendant has a cognizable due 

process right to fair notice of the specific sentence enhancement allegations that will be 

invoked to increase punishment for his crimes.” (Mancebo, supra, 27 Cal.4th at p. 747

[information alleging use of a gun supported One Strike sentencing; trial court substituted 

a different factual basis that had not been pleaded for One Strike term and separate gunuse enhancements].)

d. Constitutional notice requirements were satisfied

As noted, the information alleged every fact necessary to the application of the

mandatory LWOP sentence specified in section 667.61, subdivision (j)(1). Ideally the 

prosecutor would have mentioned the applicability of section 667.61, subdivision (j)(1) 
12

somewhere in the information or before trial, but her failure to do so did not deprive 

defendant of fair notice of “the specific sentence enhancement allegations” that were used

to increase punishment for his crimes. The information clearly informed defendant that, 

if the jury convicted him of the continuous sexual abuse of K.R. and found the section 

667.61, subdivision (d) great bodily injury allegation true, he would be sentenced under 

the harsher sentencing scheme provided by section 667.61. The information fully

informed him of the factual basis for application of section 667.61, subdivision (j)(1), that 

is, infliction of great bodily injury in the commission of a violation of section 288.5 

against a child under the age of 14. The applicability of section 667.61, subdivision (j)(1)

to count 3 would have been obvious from a mere perusal of the section 667.61. Notably, 

section 667.61, subdivision (a), which was cited in the information, expressly refers to 

subdivision (j).

Defendant has not cited any authority for the proposition that due process required 

citation of the precise subdivision under which he was ultimately sentenced, but instead 

relies upon People v. Arias (2010) 182 Cal.App.4th 1009, in which the defendant was 

convicted of two counts of “first degree attempted murder” and sentenced to consecutive 

terms of life in prison pursuant to section 664, subdivision (a), notwithstanding the failure 

of the prosecutor to charge defendant with willful, deliberate, and premeditated attempted 

murder. (Arias, at pp. 1011–1012, 1016–1017.) The appellate court concluded the 

sentences were unauthorized and imposed in violation of both the pleading requirement 

set forth in section 664, subdivision (a), and due process. (Arias, at pp. 1016–1017.) It 

noted, “[N]either the information nor any pleading gave defendant notice that he was 

potentially subject to the enhanced punishment provision for attempted murder under 

section 664, subdivision (a).” (Arias, at p. 1019.)

Here, however, the information alleged all of the factual predicates for the 

sentence imposed and alleged that defendant was subject to sentencing under section 

667.61 on the basis of those facts. It thus provided defendant with sufficient notice of the 

legal and factual bases for the sentence imposed.
13

The present case is more similar to People v. Neal (1984) 159 Cal.App.3d 69

(Neal), in which the information charged the defendant with several sex crimes and a 

deadly weapon enhancement under section 12022, subdivision (b). The jury convicted 

the defendant and found the section 12022, subdivision (b) enhancement true. Instead of 

imposing a one-year section 12022, subdivision (b) enhancement, the trial court imposed 

a three-year enhancement under section 12022.3, a more specific statute applying only to 

violent sex crimes. (Neal, at pp. 71–72.) The appellate court concluded this did not 

violate due process. It stated, “The purpose of the due process notice requirement is to 

afford an accused ‘“‘a reasonable opportunity to prepare and present his defense and not 

to be taken by surprise by evidence offered at his trial.’”’ [Citations.] Here the 

information fully informed appellant that he was charged with using a deadly weapon, ‘to 

wit, broken glass,’ in the commission of the sex offenses. He therefore could not be 

surprised by proof of such use, nor can he say that the preparation of his defense to meet 

the facts would have been different if the information had alleged use under the 

provisions of section 12022.3, rather than section 12022, subdivision (b).” (Neal, at 

pp. 72–73.)

As in Neal, the information in this case fully informed defendant that he was 

charged with committing continuous sexual abuse of a child under the age of 14, an 

offense within the scope of section 667.61, including subdivision (j)(1) of that section, 

and inflicting great bodily injury in the commission of that offense. The information 

further informed defendant that the prosecution sought sentencing under section 667.61.

Defendant could not be surprised when he was sentenced under section 667.61, 

subdivision (j)(1) for the commission of continuous sexual abuse of a child under the age 

of 14, with infliction of great bodily injury in the commission of that offense. Defendant 

had full notice of every fact upon which this sentence was based, as well as the 

prosecutor’s intent that he be sentenced harshly under section 667.61, and he has not 

suggested any way in which the preparation of his defense to meet these facts would have 

been different if the information had also cited subdivision (j)(1) of section 667.61.
14

The prosecutor’s misstatement at the outset of trial regarding defendant’s

sentencing exposure did not negate the sufficiency of notice to defendant. The pleadings 

placed defendant on notice that the prosecutor sought sentencing under section 667.61, 

and subdivision (j)(1) of that statute provided the mandatory penalty of LWOP for a 

violation of section 288.5 with a finding of great bodily injury. The prosecutor’s 

misstatement did not estop her from seeking that mandatory penalty or in any way alter 

the trial court’s obligation to impose it.

Accordingly, we conclude defendant’s due process right to notice was not violated.

3. The restitution fine did not violate defendant’s right to a jury trial.

The trial court imposed a $10,000 restitution fine pursuant to section 1202.4, 

subdivision (b), which provides, “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.”

Defendant contends that the trial court’s imposition of a restitution fine in excess 

of the statutory minimum ($200 at the time of defendant’s arrest) violates his Sixth 

Amendment right to a jury trial as interpreted by Apprendi v. New Jersey (2000) 530 U.S. 

466 [120 S.Ct. 2348] (Apprendi) and Southern Union, supra, 567 U.S. __ [132 S.Ct. 

2344].

a. Right to a jury trial as interpreted by Apprendi and its progeny

In Apprendi, supra, 530 U.S. 466, the United States Supreme Court held that the 

Sixth Amendment right to a jury trial requires that any fact, other than a prior conviction, 

that increases the penalty for a crime beyond the prescribed statutory maximum, be 

submitted to a jury and be proved beyond a reasonable doubt. (Id. at p. 490.)

Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531] clarified that the 

relevant “‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge 

may impose solely on the basis of the facts reflected in the jury verdict or admitted by the 

defendant.” (Id. at p. 303.) The key inquiry is whether the court had the authority to 

impose the particular sentence in question without finding any additional facts or only 
15

upon making some additional factual finding. (Id. at p. 305.) If any additional finding of 

fact is required, Apprendi applies. (Blakely, at p. 305.)

Nonetheless, Apprendi does not limit “the authority of a judge to exercise broad 

discretion in imposing a sentence within a statutory range.” (United States v. Booker

(2005) 543 U.S. 220, 233 [125 S.Ct. 738] (maj. opn. of Stevens, J.) (Booker).)

Southern Union, supra, 132 S.Ct. at pages 2348–2349, held that Apprendi applies 

to criminal fines. There, a corporation was convicted of a single count of violating a

federal statute that authorized a fine of $50,000 for each day of violation. The jury was 

not asked to determine the duration of the violation. The trial court imposed a fine of $6 

million based upon the “on or about” date range alleged in the indictment and included in 

the jury’s verdict form. (132 S.Ct. at p. 2349.) The Supreme Court concluded that the 

trial court had violated Apprendi by making “factual findings that increased both the 

‘potential and actual’ fine the court imposed,” thereby “enlarg[ing] the maximum 

punishment . . . beyond what the jury’s verdict or the defendant’s admissions allow[ed].” 

(132 S.Ct. at p. 2352.) Consistent with Booker, however, the court noted that “the routine 

practice of judges’ imposing fines from within a range authorized by jury-found facts” 

“poses no problem under Apprendi because the penalty does not exceed what the jury’s 

verdict permits.” (132 S.Ct. at p. 2352, fn. 5.)

b. Pertinent provisions of section 1202.4

At the time of defendant’s arrest, section 1202.4, subdivision (b)(1) provided, in 

pertinent part, “The restitution fine shall be set at the discretion of the court and 

commensurate with the seriousness of the offense, but shall not be less than two hundred 

dollars ($200), and not more than ten thousand dollars ($10,000), if the person is 

convicted of a felony . . . .”

Section 1202.4, subdivision (b)(2) sets forth a formula trial courts may use to 

calculate the restitution fine within the range permitted by subdivision (b)(1): “In setting 

a felony restitution fine, the court may determine the amount of the fine as the product of 

the minimum fine pursuant to paragraph (1) multiplied by the number of years of 
16

imprisonment the defendant is ordered to serve, multiplied by the number of felony 

counts of which the defendant is convicted.”

Section 1202.4, subdivision (d) provides, “In setting the amount of the fine 

pursuant to subdivision (b) in excess of the minimum fine pursuant to paragraph (1) of 

subdivision (b), the court shall consider 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 losses as a result of the crime, 

and the number of victims involved in the crime. Those losses may include pecuniary 

losses to the victim or his or her dependents as well as intangible losses, such as 

psychological harm caused by the crime. Consideration of a defendant’s inability to pay 

may include his or her future earning capacity. A defendant shall bear the burden of 

demonstrating his or her inability to pay. Express findings by the court as to the factors 

bearing on the amount of the fine shall not be required. A separate hearing for the fine 

shall not be required.”

c. Imposition of a $10,000 restitution fine did not violate defendant’s right to a 

jury trial.

California courts have consistently rejected contentions that Apprendi applies to 

the determination of a section 1202.4, subdivision (b) restitution fine. (People v. Urbano

(2005) 128 Cal.App.4th 396, 405–406 (Urbano); People v. Kramis (2012) 209 

Cal.App.4th 346, 351–352 (Kramis).)

Urbano, supra, 128 Cal.App.4th 396, rejected a contention that a $3,800 

restitution fine calculated pursuant to the formula set forth in section 1202.4, 

subdivision (b) violated the defendant’s right to a jury trial under Apprendi. Citing 

Booker, supra, 543 U.S. 220, the court noted, “[T]he holdings of Blakely and Apprendi do 

not apply when the exercise of judicial discretion stays within a sentencing range 

authorized by statute.” (Urbano, supra, at p. 405) The $3,800 fine was “within the range 

authorized by statute,” and thus did not violate Blakely or Apprendi. (Urbano, at p. 406.)
17

Kramis, supra, 209 Cal.App.4th 346, rejected a contention that a $10,000 

restitution fine violated the defendant’s right to a jury trial under Apprendi and Southern 

Union. The court held that “[n]othing in Southern Union” affected the continuing validity

of Urbano, and Apprendi and Southern Union are inapplicable to the trial court’s exercise 

of discretion within a statutory range, such as imposing a restitution fine in an amount 

between $200 and $10,000. (Kramis, at p. 351.) It stated, “The $10,000 section 1202.4, 

subdivision (b) restitution fine imposed in the present case was within that statutory 

range. The trial court did not make any factual findings that increased the potential fine 

beyond what the jury’s verdict—the fact of the conviction—allowed. Therefore, 

Apprendi and its progeny do not preclude its imposition.” (Kramis, at pp. 351–352.)

Defendant does not address Urbano, but argues that Kramis was wrongly decided 

because the court “did not address the requirements of section 1202.4, subdivision (d), 

which appear to set $200 . . . as the maximum fine absent consideration of additional 

relevant factors—factors which were given no consideration by the court in this case, and 

which also give rise to the application of Apprendi.” Defendant is wrong. Section 

1202.4, subdivision (b)(1) establishes a range with $200 as the minimum fine, and 

$10,000 as the maximum fine. The court’s exercise of discretion in determining the 

amount of the fine within the statutory range falls within Booker, supra, 543 U.S. at page

233 and Southern Union, supra, 132 S.Ct. at page 2352, footnote 5.

Because defendant was convicted of four felonies, the trial court was statutorily 

required to impose a restitution fine of not more than $10,000. “The trial court did not 

make any factual findings that increased the potential fine beyond what the jury’s 

verdict—the fact of the conviction—allowed. Therefore, Apprendi and its progeny do not 

preclude its imposition.” (Kramis, supra, 209 Cal.App.4th at p. 352.)
18

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

MILLER, J. *

We concur:

CHANEY, Acting P. J.

JOHNSON, J.

 

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant 

to article VI, section 6 of the California Constitution.