Filed 8/27/13 P. v. Coneal CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent,

v. LATHAN ALLEN CONEAL, Defendant and Appellant. H037716 (Santa Clara County Super. Ct. No. CC960238)

A jury convicted defendant Lathan Alle n Coneal of residential burglary (Pen. Code, §§ 459, 460) 1 and found he had committed two prev ious serious or violent felonies (§ 667, subd. (e)(2)). The trial court sentenced defendant to a total of 35 years to life in prison pursuant to Californi a’s “Three Strikes” law, 2 consisting of 25 years to life for committing a third felony, consecutive to two de terminate terms of five years each for his previous serious or violent felonies. (§ 667, subds. (a), (e)(2)(A)(ii).) Defendant challenges his sentence, arguing it constitutes cruel and unusual puni shment in violation of the Eighth Amendment to the United States Constitution and cruel or unusual punishment in violation of ar ticle I, section 17 of the Calif ornia Constitution. He also challenges the imposition of a re stitution fine, a criminal jus tice administration fee, and

1 Unspecified statutory references are to the Penal Code.
2 Section 667, subdivision (e)(2)(A)(ii), st ates, in relevant part: “[I]f a defendant has two or more prior serious and/or violent felony convictions as defined in subdivision (d) that have been pled and pr oved, the term for the current felony conviction shall be an indeterminate term of life im prisonment with a minimum term of [¶] . . . (ii) . . . 25 years.”an order that he pay victim restitution. For the reasons stated here, we will affirm the lower court’s judgment.
I. FACTUAL AND PROCED URAL BACKGROUND In the early morning of November 3, 2009, defendant burglarized a townhouse on Cypress Point Court in San Jose. At the tim e, John Kapelowitz an d Diane Roberge lived in the house and were sleeping in separate bedrooms on the second floor. Roberge awoke when she felt someone bump the side of he r bed. She looked up and saw defendant crouched on the opposite side of her bed with ju st the top of his head visible. Realizing a stranger was in her room, Roberge began scr eaming as loud as she could and defendant put his hands out, motioned, and said “don’t scream.” Defendant th en bent down, picked up something Roberge later confir med was her laptop, and fled. Kapelowitz woke up at the sound of Roberge’s screaming and quickly went to Roberge’s room. After calling the police, Ka pelowitz surveyed th e townhouse to see what was missing. He discovered his laptop co mputer and its case were missing, as well as his Blackberry cellular phone and Roberge’s laptop. He also noticed one black glove that he did not recognize near the stairs on the first floor. Meanwhile, San Jose Police Department Of ficer Steven Valentine was responding
to another call in the area when he heard a blood curdling scre am and went on foot in the direction of the scream. As he walked, Officer Valentine noticed defendant walking briskly from an alley. Defenda nt was the only person in si ght and had a glove on one of
his hands. As defendant attempted to enter anothe r residence, Officer Valentine identified himself as a police officer and told defendan t to stop. At that point, defendant threw several items, including a laptop, into some bushes and ran. Officer Valentine pursued
on foot until defendant climbed ov er a fence and out of view.
Officer Valentine and other officers even tually found defendant in an attic after noticing a missing vent grate on the side of a residence. Police also found one blackglove and a black beanie in the attic where defendant was hiding. When the officers searched defendant, they found a ba ttery for a Blackberry cellular phone. The police ultimately recove red both laptop computers as well as a laptop case, but only the laptop belo nging to Kapelowitz still functi oned. The Blackberry cellular phone was never recovered. Testing reve aled defendant’s DNA on both the glove found at the location of the burglary and the glove found in the attic where he was arrested. After the jury convicted defendant of reside ntial burglary and found the existence of two prior strikes, the trial court sentenced defendant to 35 years to life in prison. The court also ordered defendant to pay a $10,000 res titution fine (§ 1202.4 ), $2,600 in restitution to Roberge for computer repairs and replacem ent, $639 in restituti on to Kapelowitz for his Blackberry phone, a $129.75 criminal justice administration fee (Gov. Code, §§ 29550, 29550.1, 29550.2), as well as other fees not at issue on appeal.
II. DISCUSSION
We will divide our discussion between defendant’s constitutional claims and the claims relating to fi nes and restitution.
A. S ENTENCE OF 35 Y EARS TO L IFE Defendant challenges his sentence unde r both the United States and California
Constitutions.
1. Eighth Amendment Prohibition of Cruel and Unusual Punishment The Eighth Amendment prohibits “cruel a nd unusual punishment s.” (U.S. Const., 8th Amend.) When reviewing non-capital senten ces to determine whether the sentence is cruel and unusual, we ask whether the sentence is “grossly disproporti onate” to the crime. ( Lockyer v. Andrade (2003) 538 U.S. 63, 73.) Federa l courts look to the following
criteria to assist with this determination: “(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on ot her criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.”( Solem v. Helm (1983) 463 U.S. 277, 292.) A se ntence will only be found grossly disproportionate in “ ‘exceedingly rare’ and ‘extreme’ case[s].” ( Lockyer , supra , 538 U.S. at p. 73, quoting Harmelin v. Michigan (1991) 501 U.S. 957, 10 01 (conc. opn. of Kennedy, J.).) The United States Supreme Court has prev iously addressed and rejected an Eighth
Amendment claim related to an individual sent enced to an indeterminate term of 25 years
to life under California’s Three Strikes law in Ewing v. California (2003) 538 U.S. 11 ( Ewing ). There, the jury convicted the defendant of felony grand theft for stealing three golf clubs with a tota l value of $1,197. (Id. at pp. 17-18 (plur. opn. of O’Connor, J.).) Because of previous serious or violent felonies, the trial c ourt applied the Three Strikes
law and sentenced the defendant to 25 years to life in prison. (Id. at p. 20.) In affirming the defendant’s sentence, Ju stice O’Connor’s plurality opi nion discussed recidivist statutes generally and California’s Three Stri kes law specifically, noting that “ ‘[s]tates have a valid interest in deterring and segregating habitual criminals.’ ” (Id. at p. 25, quoting Parke v. Raley (1992) 506 U.S. 20, 27.) Focusing on the first criterion, asse ssing the gravity of the offense and the harshness of the penalty, the Ewing court noted that while the theft of three golf clubs might seem trifling, their value was not insignificant. (Ewing, supra, 538 U.S. at p. 28.)
The Court further observed that harshness ca nnot be determined in the vacuum of the most recent offense, but rather must be vi ewed in the context of a “long history of
recidivism.” (Id. at p. 29.) When viewed in that light, the pl urality found no gross disproportionality. The Court found the senten ce to be justified bot h by the defendant’s recidivism and California’s public safety interest in incapacitating and deterring
recidivists. (Id. at pp. 29-30.) While California’s Three Strikes law resulted in lengthy prison sentences, it reflected “a rational legisla tive judgment, entitled to deference, that
offenders who have committed se rious or violent felonies and who continue to commit felonies must be incapacitated.” (Id. at p. 30.) Because the pl urality found no inferenceof disproportionality, it affirmed the defendant ’s sentence and did not address the other
two criteria. Turning to the seriousness of defendant’s offense here, the jury convicted him of first degree (residential) burglary (§ 460 [burgl ary of “inhabited dwelling house” is of the first degree]). Because non-accomplices we re present in the townhouse when the burglary occurred, the offense was per se “s erious” and “violent.” (§ 1192.7, subd. (c)(1)(18); § 667.5, subd. (c)(21).) The jury also found defendant had two prior felony convictions for residential burglary, both me eting the statutory criteria for serious and
violent felonies. Though defendant stresses no one was ph ysically injured during his most recent burglary, there was a high risk of harm because the townhouse was occupied, with
defendant found inside one victim’s bedroom. While there was no physical injury, the
trial court noted the victims suffered “real and enduring psychological harm” as a result of the intrusion into their home. Regardin g the harshness of defendant’s sentence, we note the sentence reflects not only this burglary but two previous convictions for the same crime. Moreover, the lower court observed that the latest burglary was more serious than the previous ones because ther e was a greater level of pla nning and sophistic ation in its execution. Based on a consistent history of recidivism, the trial court imposed the sentence of 35 years to life because incapacitation appeared to be the only effective method of preventing defendant from re-offending. Just as the plurality recognized in Ewing , supra , 538 U.S. at p. 25, the sentence in this case furthers California’s legitimate interest in deterring and segregating habitual criminals. On these facts, we find no gross disproportionality between defendan t’s conviction and his sentence. Because we find no inference of dispr oportionality, we follow the practice of the plurality in Ewing and do not address the other two criteria.2. Article I, Section 17 Prohibition of Cruel or Unusual Punishment Article I, section 17, prohibits “cruel or unusual punishment.” (Cal. Const., art. I, § 17.) California courts also use a three-fact or test to determine whether punishment “is so disproportionate to the crim e for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” ( In re Lynch (1972) 8 Cal.3d 410, 424.)
To determine defendant’s clai m, we analyze: (1) the na ture of the offense and the offender; (2) defendant’s sent ence compared with the punish ment for different offenses in California; and (3) defendant’s sentence compared with the pun ishment for similar offenses in other jurisdictions. ( People v. Martinez (1999) 71 Cal.App.4th 1502, 1510.)
Our view of the offense and the offende r is similar to our preceding Eighth Amendment analysis and does not favor defendant. The jury convicted defendant of residential burglary, a serious and violent felony, and found he had two prior strike
convictions for the same crime. The fact that a residentia l burglary is deemed per se serious and violent reflects the Legislature’s understanding of the potential for violence inherent in the offense. ( People v. Hughes (2002) 27 Cal.4th 287 , 355 [noting burglary laws recognize danger to personal safety cr eated by risk that intr uder will harm occupants as well as risk that occupants will react violen tly to the invasion].) As we discuss above, despite the absence of physic al injuries, the lower cour t found the victims suffered ongoing psychological harm as a direct result of defendant’s crime. The trial court also considered defendant’s drug use described in the probation officer’s report, but concluded that while drug and alcohol addi ction can be a mitigating factor in some cases, it did not mitigate defendant’s conduct here because of his “repeated failure to take action to deal with his alleged addiction[.]” (See Martinez , supra , 71 Cal.App.4th at p. 1511 [“drug addiction is not necessarily regarded as a mi tigating factor when a criminal defendant has a long-term problem and seems unwilling to pursue treatment”].) From this, we conclude
the nature of defendant and his offense supported his sentence.As to the second factor, comparing defe ndant’s sentence with the punishments for other offenses, defendant compares in isolati on the sentence for his most recent offense to crimes that carry heavier se ntences, such as first degree murder, which carries an indeterminate sentence of 25 years to life. (§ 190, subd. (a).) However, the proper comparison must include “not only his curre nt offenses, but also his recidivism.” ( People v. Cartwright (1995) 39 Cal.App.4th 1123, 1136; see also People v. Sullivan (2007) 151 Cal.App.4th 524, 571.) For example, in Martinez , supra , 71 Cal.App.4th at p. 1512, the defendant had prior strike convictions for a ssault with a deadly weapon, robbery, and attempted robbery. He comp ared his Three Strikes life se ntence for methamphetamine possession and interference with an executive peace officer to that of a first-time offender convicted of voluntary manslaughter, urging that the latter would receive a shorter
sentence. The Martinez court noted that the proper compar ison is to a “recidivist killer” whose punishment would be the same as the defendant’s under California’s Three Strikes law. ( Ibid. ) Similarly here, the proper comparison is to an offender with two strikes who, like defendant, commits an additional seri ous or violent felony. Because that third felony would trigger the same sentence de fendant received for his current burglary conviction, this factor de monstrates proportionality. Defendant focuses particularly on the third Martinez factor, namely that his sentence in California is far greater than what he would receive in other states for the same offense. Defendant argues other states impose indeterminate life sentences only for aggravated felonies, while California allo ws a life sentence for any third felony. 3
Defendant also notes that stat es such as Louisiana and Okla homa have “washout” periods after which prior felonies do not count agains t a defendant for strike purposes. He argues

3 Proposition 36, approved by voters in November 2012 after the filing of defendant’s opening brief, lim its the application of Califor nia’s Three Strikes law to individuals like defendant, whose third strike is serious or violent. (See § 667, subd. (e)(2)(C) [defining lesser penalty when third felony conviction is not serious or violent].)this supports a finding that his sentence was cruel or unusual. However, this court has previously acknowledged this practice in othe r states and nonethele ss affirmed a sentence under the Three Strikes law. ( Martinez , supra , 71 Cal.App.4th at pp. 1514-1517.) Finally, defendant points to other states’ sentencing schemes for habitual offenders and argues they are more lenient for various reasons, including lower maximum sentences, lower mandatory minimums, and earlie r parole eligibility. These same claims were considered and rejected in Martinez after an exhaustive review of the sentencing regimes in other states. ( Martinez , supra , 71 Cal.App.4th at pp. 1512-1516.) The Martinez court noted California is actually more lenient than other states in certain respects. For example, California’s Three Stri kes law allows for the possibility of parole,
while antirecidivism laws in other states such as Louisiana and Mississippi do not. (Id. at p. 1516.) The court also reasoned California’s law is not as draconian as others because section 1385, subdivision (a), empowers tria l courts to strike prior felonies “in furtherance of justice,” as informed by the spirit of the Three Strikes statute. (Martinez,

supra, at p. 1515, citing People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504, 529-530.) While the court recognized Califor nia’s Three Strikes scheme is one of the strictest in the nation, it noted the Legislature need not conform to the laws of other states and has broad authority to set sentences. ( Martinez, supra, at p. 1516; see also Ewing , supra , 538 U.S. at p. 22 [“ ‘cour ts should be relu ctant to review legislatively mandated terms of imprisonment, and . . . successful ch allenges to the proportionality of particular
sentences should be exceed ingly rare.’ ”], quoting Hutto v. Davis (1982) 454 U.S. 370, 374.) We find the reasoning of Martinez persuasive and conclude this third factor does not support defendant’s argument. Because we do not find defendant’s sentence excessive, the mere fact that his sentence might be harsher under California law is unavailing.Based on the foregoing reasons, we fi nd defendant’s sentence was not cruel or
unusual.
B. R ESTITUTION F INE (§ 1202.4, SUBD . ( B )) Defendant challenges the imposition of a $10,000 restitution fine based on a
failure to consider defendant’s ab ility to pay. Defendant relies on Southern Union Co. v.
United States (2012) 567 U.S. __, 132 S.Ct. 2344 ( Southern Union ), to argue that the determination of facts affecting the restituti on fine amount should ha ve been decided by a jury. Alternatively, defendant argues that, to the extent his claims are forfeited, his trial counsel provided inef fective assistance. At the time of defendant’s sentencing, s ection 1202.4, subdivision (b), required the trial court to impose a restituti on fine between $200 and $10,000 4 in every felony case unless “compelling and extraordinary reasons” exist for not doing so . (Former § 1202.4, subd. (b).) While a defendant’s inability to pay can be consid ered when increasing a fine beyond the statutory minimum, it “shall not be considered a compelling and extraordinary reason not to im pose a restitution fine.” (§ 1202.4, subd. (c).) When determining the amount of the fine, the c ourt must consider “any relevant factors, including, but not limited to, th e 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 [tangible or intangible] as a result of the crim e, and the number of victims involved in the crime.” (§ 1202.4, subd. (d ).) The court need not conduct a separate hearing to determine the fine, nor make express findi ngs regarding the factors considered in

4 Section 1202.4, subdivision (b)(1) pres ently calls for the imposition of a felony restitution fine between $280 a nd $10,000 and the minimum w ill increase to $300 as of January 1, 2014. (§ 1202.4, subd. (b)(1).)determining the fine. ( Ibid. ) Indeed, the court may determ ine the amount of the fine by formula. (§ 1202.4, subd. (b)(2).) 5
1. Forfeiture and Southern Union Co. v. United States (2012) 567 U.S. __ We agree with the People that defendant forfeited most claims on this point by failing to object during sentencing. (See People v. Nelson (2011) 51 Cal.4th 198, 227.) We will, however, consider defendant’s claim based on Southern Union because that case was decided after his sentencing hearing.
In Apprendi v. New Jersey (2000) 530 U.S. 466, the Un ited States Supreme Court held that a jury must decide beyond a reasona ble doubt any fact that increases a criminal penalty beyond a statutory maximum. (Id. at p. 490.) In Southern Union , the Court
extended the Apprendi rule to monetary fines. ( Southern Union , supra , 567 U.S. at p. __ [132 S.Ct. at pp. 2352, 2357 ].) Defendant argues the jury should have decided the
amount of the restitution fine because it in creased his sentence. This argument was recently addressed and rejected by the Second District in People v. Kramis (2012) 209 Cal.App.4th 346, 351-352. In Kramis , the court explained that Apprendi and Southern
Union do not apply unless a court imposes a penalty that exceeds a statutory range. (Id. at p. 351.) Because the trial judge imposed a $10,000 fine in Kramis , the court held the fine was within the statutory range, did not implicate Apprendi or Southern Union , and therefore did not need to be decided by a jury. (Id. at pp. 351-352.)
Like the fine in Kramis , the trial court here exer cised discretion within the statutory range and imposed a $10,000 restitution fine. A lthough the fine constitutes the statutory maximum, it does not exceed the maximum and Southern Union therefore does not apply. Defendant’s argument must fail.

5 Section 1202.4, subdivision (b)(2) allows the court to set the fine by multiplying the minimum fine under Section 1202.4, subdiv ision (b)(1), times the number of years of imprisonment, times the number of convicted felony counts. (§ 1202.4, subd. (b)(2).)2. Ineffective Assistance of Counsel Defendant argues his trial counsel provid ed ineffective assistance by failing to object to the amount of the restitution fine based on defendant’s inability to pay. To prevail, defendant must show both that his trial counsel’s performance was deficient and that the deficiency prejudiced defendant. ( People v. Ledesma (1987) 43 Cal.3d 171, 216- 217.) To prove prejudice, defendant must affirmatively show a reasonable probability that, but for his trial counsel’s errors, the result would have been different. (Id. at pp. 217-218.) A reasonable probability is one “ ‘sufficient to undermine confidence in the
outcome.’ ” (Id. at p. 218, quoting Strickland v. Washington (1984) 466 U.S. 668, 693- 694.)
We need not determine whether trial c ounsel’s failure to object was defective because even assuming counsel’s deficient pe rformance, defendant su ffered no prejudice. Had defendant’s counsel preser ved an objection to the amount of the restitution fine, the amount of the fine would be subject to an abuse of discretion standard on appeal. ( Nelson , supra , 51 Cal.4th at p. 227.) In review ing the amount of the restitution fine, many factors in section 1202.4, subdivision (d), support the trial court’s decision. Defendant’s burglary was a serious offense and was but the latest crim e in a long history of recidivism. The pecuniary impact to the victims from the lo ss of the laptop and cellular phone was substantial. And while the victims suffered no physical harm, the court found they suffered psychological harm as a result of the burglary. Based on these facts, it was not an abuse of discretion for the trial judge to impos e a $10,000 restitution fine. Thus, defendant has not met his burden to show ineffe ctive assistance of counsel. C. V ICTIM R ESTITUTION (§ 1202.4, SUBD . ( F )) Defendant challenges the am ount of victim restitution he was ordered to pay to Kapelowitz ($639) and Roberge ($2,600). Defendant first argues Apprendi and Southern
Union require that the amount of victim restitu tion be determined by a jury. He alsoargues the court abused its disc retion in determini ng the amount of res titution. Pursuant to section 1202.4, subdivision (f), the court mu st order full restitution for any economic loss “based on the amount of loss claimed by th e victim or victims or any other showing
to the court.”
Defendant’s Apprendi claim fails because that line of cases applies only to facts affecting the imposition of “punishment.” ( People v. Chappelone (2010) 183 Cal.App.4th 1159, 1184.) In Chappelone , the First District, encountering an identical claim, surveyed United States Supreme Court cases as we ll as California cases and
concluded victim re stitution did not constitute punishme nt because its primary purpose is to provide compensation to victims rath er than to punish defendants. ( Ibid. ) That victim restitution might serve a secondary purpose of deterrence does not convert it into a form of punishment implicating the Sixth Amendment jury right. ( Ibid. , citing People v.
Millard (2009) 175 Cal.App.4th 7, 35-36.) We ag ree with the First District’s reasoning
and therefore find no Sixth Amendment violation. Defendant next argues the trial court a bused its discretion in setting the amount of victim restitution based solely on information fro m the probation report. We disagree. The contents of a probation repo rt constitute “ ‘prima facie evid ence of loss’ ” and, in the absence of any contrary in formation filed by defendant, 6 the trial court was allowed to rely on that report in setting the amount of victim restitution. ( People v. Holmberg (2011) 195 Cal.App.4th 13 10, 1319-1320, quoting People v. Gemelli (2008) 161 Cal.App.4th 1539, 1543.) For this reas on, we find no abuse of discretion.

6 A defendant has the right to a hearing to dispute the determination of the amount of restitution (Pen. Code § 1 202.4, subd.(f)(1).). Although the re cord does not contain an explicit advisement or waiver of such a hear ing, defendant does not allege that he was deprived of that opportunity.D. C RIMINAL J USTICE A DMINISTRATION F EE Defendant’s final argument is that the trial court erred by imposing a criminal justice administration fee without determining defendant’s ability to pay. Disposition of this issue is controlled by the Californi a Supreme Court’s recent decision in People v. McCullough (2013) 56 Cal.4th 589, where the Court he ld a challenge to a criminal justice
administration fee is forfeited if there is no objection in the trial court. (Id. at p. 597.) As we are bound by that decision, and because defendant did not object below, his argument
is forfeited. As for the People’s request that we amend the sentencing minute order and abstract of judgment to conform to the oral order, review of the documents indicates they both reflect the oral order to pay a $129.75 cr iminal justice administration fee. Thus, no amendment is necessary.III. DISPOSITION For the foregoing reasons, the judgment is affirmed.

__________ _______________ ___________ Grover, J.

WE CONCUR:

_____________ _______________ Premo, Acting P.J.

_____________ _______________ Mihara, J.