Filed 9/18/14 P. v. Newell CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent,

v. JOHN HOWARD NEWELL, Defendant and Appellant. F066555 (Super. Ct. No. F11905538)



### OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Jane Cardoza, Judge. Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorn ey General, Leanne Le Mon and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-2. John Howard Newell (defendant) stands convicted, following a jury trial, of second degree robbery, during th e commission of which he pe rsonally inflicted great bodily injury. (Pen. Code, 1 §§ 211, 12022.7, subd. (a).) Following a bifurcated court trial, he was found to have suffered a prio r serious felony conviction (§ 667, subd. (a)(1)) that was also a strike (§§ 667, subds. (b)-(i ), 1170.12, subds. (a)-(d)), and to have served three prior prison terms (§ 66 7.5, subd. (b)). His request to dismiss the prior strike conviction was denied, and he was sentenced to a total of 21 years in prison and ordered to pay various fees and fines. On appeal, we hold (1) the trial court di d not erroneously instru ct the jury it could consider the certainty of the identifica tion in evaluating eyewitness identification testimony, and (2) defendant is not entitled to have the restitution fine imposed pursuant to section 1202.4 modified down ward. We affirm the judgment. FACTS I P ROSECUTION E VIDENCE On September 21, 2011, Levi Moscow itz was passing through Fresno when he came in contact with Natasha Embry, who said her name was “Cherry Blossom” and whom he believed to be a prostitute. Embry invited Moscowitz to the Fresno Inn, where she took him to room 609. Someone Embr y identified as her brother (and whose name Moscowitz later learned was Gregory Jones) was fixing a bicycle inside the room. Embry and Jones started to argue, and Jones told Moscowitz to come back in about 15 minutes so they could sort things out. Moscowitz left to have lunch and retu rned in 15 to 20 minutes. Room 609 was empty. An older woman on the top floor aske d what he was doing. When he said he was

1 All statutory references are to th e Penal Code unless otherwise stated.3. looking for “Cherry,” the woman said she should be back soon. Moscowitz waited around 15 to 20 minutes. A woman and two men were sitting on the stairs, talking. 2 One of the men was a heavyset, younger male with orangeish hair, a goatee, and tattoos on his arm. The other was a skinny, younger male. While Moscowitz was waiting, defendant walked upstairs and to the left. He was carrying a toolbox or something in his hands. Moscowitz thought he worked there, because someone addresse d him as “John,” asked him how his morning was going, and mentioned something about re pairing the carpet. Moscowitz did not know where defendant went, but room 609 was to the left on the second floor. 3 The woman whispered something to one of the men on the stairs, and he also went upstairs. 4 He also turned left, although Moscowitz did not see if he we nt into a room. The other man remained on the steps. The woman introduced herself to Moscowitz as “Cherry’s” sister. She told him to go back to room 609. As Moscowitz opened th e door and walked inside, he was attacked by two people who were already in the ro om, waiting behind the door. They pushed Moscowitz to the ground and hit him on the he ad for about three minutes. He did not know if they were using an object or fi sts, but his head was being pounded with something heavy. While this was going on, they took his wallet, keys, and phone from his pockets. They took his debit card and asked if he had any cash. When he said he did not, they asked for the personal identificati on number (PIN) for his debit card so they

2 There was a stairway in the middle of the hotel.
3 Defendant lived in room 405, which was a different direction. Room 609 was not rented to anyone on this date.
4 The Fresno Inn manager identified a phot ograph of this man as Frank Riddle. He lived at the Fresno Inn until he was evicted, and occasionally was seen with defendant. During the summer of 2011, defendant did some repair work for the hotel, for which he received a small rent credit.4. could get cash from an ATM. When he said he did not know it, they looked at his license, and said they knew wh ere he lived and would kill hi m and his family if he called the police. Toward the beginning of the beating, Mo scowitz was able to turn his head enough to get a look at one of his assailants. It was defendant; he was hitting Moscowitz on the head with his hands or something. Mosc owitz did not see which hand defendant was using. Moscowitz was able to see him for about five seconds, even though it was kind of dark in the room because the door was clos ed and the window sh ades were partially closed. 5 Moscowitz “[i]nstantaneously” recogn ized him from having seen him outside minutes earlier. Defendant was the one who asked about the PIN for the debit card. Moscowitz recognized his voi ce from when defendant re plied to the people who addressed him as he went up the stairs. 6 Defendant told Moscow itz to wait in the room for 10 minutes while they left, and said if Moscowitz came outside before that, they would kill him. All told, Moscowitz was in the room with his assailants for around four or five minutes before they left. He went into th e bathroom and saw he was bleeding from his head. He waited around five minutes, then ran outside to the street. As he came outside, he saw his rental car “peel out” of the parking lot. He was unable to see who was inside. Moscowitz flagged down a passing truck, th e driver of which called 911. The call was made at 2:26 p.m., and th e police arrived within five minutes. Moscowitz told the officer he was at the Fresno Inn because he had become lost on his way from Lodi to Bakersfield and had stop ped to ask for directions. He denied being there for drugs or a

5 Moscowitz estimated the window shades were open about a foot. It was the middle of the day, and there was s till light coming into the room.
6 Moscowitz was unable to say whether the second man was the person who had been sitting on the steps and then gone upstairs.5. prostitute, and said that when he asked for directions, he got dragged into the room. Moscowitz lied because he was scared and did not want to get into trouble himself. Moscowitz suffered two gashes in his head that required four staples to close, and three fractured fingers that were broken when he used his hands to try to protect his head. While he was at the hospital, he spoke with Detective Phebus an d admitted he had not been truthful with the first officer about what had happened and why he was at the Fresno Inn. Based on information Jones was seen leaving the area about the time the robbery occurred, Jones was brought to the hospital to see if Moscowitz could identify him. Moscowitz recognized him, but said he was not involved in the robbery. Room 609 was processed for fingerprints and evidence on the day of the robbery. Embry’s fingerprint was found on a Styrof oam cup inside the room. There were bloodstains on the mattress and probable blood sp latter on the wall at the head of the bed. On the bathroom vanity were an empty beve rage can and other items. Jones’s thumbprint and a fingerprint from Ruth Ra nsier were found on the can. 7 Ransier was the woman purporting to be “Cherry’s” sister. An unid entified print was fou nd on a piece of paper on the hotel room dresser. Police recovered the rental vehicle early the next morning. Casey Keenan was in the car. Twelve usable prints were found on CD’s inside the vehicle. Eight of the prints belonged to Keenan. No prints of comparison value were found anywhere else in or on the vehicle. Keenan provided in formation about someone at the Fresno Inn called Little John. Police determined this was defendant, wh o matched the name and age description Moscowitz had given for one of the robbers. That same day, defendant was detained at

7 No fingerprints were recovered from th e door, doorknobs, or light fixtures. Scott West, a supervisor in the Fresno Police Depa rtment’s Crime Scene Investigation Bureau who processed the room, explained that it is fairly rare to get usable fingerprints — fingerprints of comparison quality — on most surfaces.6. the Fresno Inn with Riddle an d Anthony Stelton. Moscow itz subsequently was shown two or three photographic lineups, each of which contained six photographs. He “[i]nstantaneously” recognized defendant in one. Moscowitz recognized him from his mustache and the shape of his face. Shown a photographic lineup containing Riddle’s picture, Moscowitz stated he did not recogniz e anybody, although he looked at Riddle’s photograph for eight or nine seconds. Mosc owitz was also shown photographic lineups containing Keenan’s and Stelt on’s pictures and said he di d not recognize anyone. No matches to defendant’s or Riddle’s pr ints were found in the hotel room or the vehicle. None of the stolen items were fo und in defendant’s possession. However, the global positioning system monitor lawfully a ttached to defendant placed him in or near room 609 around the time of th e robbery. The monitor furthe r showed he re mained in the area of the Fresno Inn comp lex after the robbery. II D EFENSE E VIDENCE One afternoon in September 2011, Marsha ll White was at the Fresno Inn when he saw a man running. The man was “full of blood” and, knowing the bad things that happened at the hotel every day, White belie ved he had been robbed. At the time White saw this man, White was on an upstairs ba lcony, smoking a cigarette. Defendant was with him. Defendant had a job cleaning out the rooms, a nd White was helping. They were at room 240 or 243. 8 Defendant said he was going to see what was going on, so he went in the direction from which the man had run. Jeff Gunn was defendant’s investigator from January 10, 2012, to May 11, 2012. The middle finger or knuckle of defendant’s right hand was “obvio usly” dislocated or possibly broken during that entire period of time. As a result, defendant could not completely clench his fist.

8 According to Phebus, there were no su ch room numbers at the Fresno Inn.7. DISCUSSION I E YEWITNESS I DENTIFICATION I NSTRUCTION Defendant requested that the cour t give CALCRIM No. 315 (Eyewitness Identification). During the ju ry instruction conference, defe nse counsel stated he had no objection to the giving of the instruction. He did not ask that any of the factors listed therein be modified or omitted. The trial court subsequently instructed the jury with the standard instruction, as follows: “You have heard eyewitness testimony identifying the defendant. As with any other witness, you must decide whether an eyewitness gave truthful and accurate testimony. “In evaluating identification tes timony, consider the following questions: Did the witness know or have contact with the defendant before the event. How well could the witness see the perpetrator. What were the circumstances ... affecting the witness’s ability to observe such as lighting, weather conditions, obstructions, distan ce, and duration of observation. How closely was the witness paying a ttention. Was the witness under stress when he or she made the obs ervation. Did the witness give a description and how does that descrip tion compare to the defendant. How much time passed between the event and the tim e when the witness identified the defendant. Was the witn ess asked to pick the perpetrator out of a group. Did the witness ever fa il to identify the defendant. Did the witness ever change his or her mind about the identification. How certain was the witness when he or she made an identification . Are the witness and the defendant of different races. Wa s the witness able to identify other participants in the crime. Was the witness able to identify the defendant in a photographic lineup. Were there a ny other circumstances affecting the witness’s ability to make an accurate identification. “The People have the burden of proving beyond a reasonable doubt that it was the defendant who committed the crime. If the People have not met this burden, you must find the defe ndant not guilty.” (Italics added.) Defendant now contends th e trial court committed prejudi cial error, and violated his right to due process, by including the ita licized factor. Defendant recognizes the United States Supreme Court has included “l evel of certainty” as a factor to be8. considered in evaluating whet her an identification should be suppressed due to unduly suggestive identifica tion procedures. ( Neil v. Biggers (1972) 409 U.S. 188, 199 ( Biggers ); see Manson v. Brathwaite (1977) 432 U.S. 98, 114.) He says, however, more recent authorities and social science research es tablish that certainty of an identification has little, if any, correlation to the accurac y of an identification. (See, e.g., People v. McDonald (1984) 37 Cal.3d 351, 369, ov erruled on another ground in People v. Mendoza (2000) 23 Cal.4th 896, 914; People v. Jimenez (2008) 165 Cal.App.4th 75, 82; State v. Ledbetter (Conn. 2005) 881 A.2d 290, 311; Brodes v. State (Ga. 2005) 6 14 S.E.2d 766, 769-771.) Accordingly, the argument runs, defendant’s jurors sh ould not have been instructed they could consider certainty of identification in assessing accuracy of identification. A defendant in a criminal tr ial “is entitled to an instruction that focuses the jury’s attention on facts relevant to its determin ation of the existence of reasonable doubt regarding identification, by listing, in a ne utral manner, the relevant factors supported by the evidence. [Citation.]” ( People v. Johnson (1992) 3 Cal.4th 1183, 1230; accord, People v. Wright (1988) 45 Cal.3d 1126, 1141 ( Wright ).) The instruction should list only those factors that are applicable to the evidence at trial, and should not take a position as to the impact of the factors listed. ( People v. Johnson , supra , 3 Cal.4th at p. 1230; Wright , supra , 45 Cal.3d at p. 1141.) “[ A]n explanation of the effects of those factors is best left to argument by counsel, cross-ex amination of the eyewitnesses, and expert testimony where appropriate.” ( Wright , supra , at p. 1143, fn. omitted; accord, People v. Fudge (1994) 7 Cal.4t h 1075, 1110.) The California Supreme Court has held that “CALJIC No. 2. 92 or a comparable instruction should be given wh en requested in a case in whic h identification is a crucial issue and there is no substantial corro borative evidence. [Citation.]” ( Wright , supra , 45 Cal.3d at p. 1144.) Although opinions mi ght differ concerning whether the global positioning system monitor ev idence in the present ca se constituted substantial9. corroborative evidence of Mo scowitz’s identification of defendant as one of his assailants, there can be no doub t the accuracy of that identific ation was a crucial issue at trial. Both the prosecutor and defense co unsel discussed it at length during their summations, and the jury requested that Mosc owitz’s testimony be read back to them. Clearly, the trial court did not err by gi ving CALCRIM No. 315 — CALJIC No. 2.92’s counterpart — upon defendant’s request. Mo reover, the trial court had no sua sponte duty to modify the instruction. ( People v. Ward (2005) 36 Cal.4th 186, 213-214; People v. Sullivan (2007) 151 Cal.App.4th 524, 561; cf. People v. Alcala (1992) 4 Cal.4th 742, 802-803.) Accordingly, having failed to reque st excision of the factor whose inclusion he now challenges, defendant cannot be heard to complain. (See People v. Martinez (1987) 191 Cal.App.3d 1372, 1384.) In any event, the California Supreme Cour t recognized, as long ago as 1984, that studies indicate a lack of co rrelation between the degree of certainty or confidence an eyewitness expressed in an identification and the accuracy of that identification. ( People v. McDonald , supra , 37 Cal.3d at p. 369.) Neverthe less, the court approved CALJIC No. 2.92 at a time when that instru ction included a certainty factor. ( Wright , supra , 45 Cal.3d at pp. 1144, 1165-1166, appen.; see People v. Martinez , supra , 191 Cal.App.3d at p. 1383 & fn. 12.) It has maintained its e ndorsement of the instruction even against a claim there was no evid ence to support the certainty factor. ( People v. Johnson , supra , 3 Cal.4th at pp. 1231-1232.) It has also continued to use the factors set out in Biggers , supra , 409 U.S. 188 — which, as previously noted, includes the certainty factor ( id . at p. 199) — in determining the reliability of identification eviden ce against a claim the identification procedure was unduly suggestive. ( People v. Kennedy (2005) 36 Cal.4th 595, 610-611, disapproved on another ground in People v. Williams (2010) 49 Cal.4th 405, 459.) Defendant would have us reject these authorities because “both legal authorities and research on eyewitness identification have changed dramatically since” they were10. decided. We are bound, ho wever, by the decisions of our state Supreme Court. ( Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) 9 Moreover, the United States Supreme Court has adhered to Biggers — including its certainty factor — in describing the analysis to be undertaken in determining whether due process requires suppression of an eyewitness identification tainted by law enforcement arrangement. ( Perry v. New Hampshire (2012) 565 U.S. ___, ___-___ & fn. 5 [1 32 S.Ct. 716, 724-725 & fn. 5].) In our view, excising the certainty fact or from CALCRIM No. 315 — particularly absent a request therefor or evidence on the subject — would effectively endorse those social science or research studies and results that discount or explain the impact of

9 Although the cited decisions deal w ith CALJIC No. 2.92, defendant does not claim there is any meaningful differenc e between that instruction and CALCRIM No. 315. Defendant says none of th e opinions considered or decided whether the certainty factor violated the federal or state Constitutio n. Approval of the instruction implies it does not violate the Constitution. In any event, the California Supreme Court has consistently applied the standard of People v. Watson (1956) 46 Cal.2d 818, 836, which is applicable to state law error, to erro rs involving the eyewitness identification instruction in general ( Wright , supra , 45 Cal.3d at p. 1144) and inclusion of the certainty factor in particular ( People v. Ward, supra, 36 Cal.4th at p. 214). Defendant fails to convince us inclusion of the certaint y factor effects a federal constitutional violation. As listed in CALC RIM No. 315 (and, for that matter CALJIC No. 2.92), the factor is neutra lly phrased so that it applies not only when the eyewitness was certain of the identification, but also when he or she was not certain. Whatever the lack of positive correlation betw een certainty and accuracy, we are aware of nothing that suggests lack of certainty may not indicate lack of accuracy. Moreover, the factor is but one of many the instruction tells jurors to consider, and jurors are expressly told also to consider any other circumstan ces affecting the witness’s ab ility to make an accurate identification. In addition, the instruction makes clear the prosecution has the burden of proving, beyond a reasonable doubt, that the defendant was the person who committed the crime(s). Under these circumstances, incl usion of the factor — even if error — does not “‘so infect[] the entire trial that the resulting conviction viol ates due process.’ [Citations.]” ( Estelle v. McGuire (1991) 502 U.S. 62, 72.)11. certainty of identification on reliability of identification, a nd thus would conflict with the state Supreme Court’s admonition against doing so. As that court stated in Wright , supra , 45 Cal.3d at page 1141: “[A proper in struction on eyewit ness identification] should not take a position as to the impact of each of the psychological factors listed. We disagree with the dissent’s suggestion that CA LJIC No. 2.92 is ‘def icient’ for failing to explain the effects of the enumerated factors. ([ Wright , supra , at] p. 1157 [(dis. opn. of Mosk, J.)].) An instruction that ‘explained’ the influence of the various psychological factors would of necessity adopt the views of certain experts and incorporate the results of certain psychological studies while discoun ting others. It would require the trial judge to endorse, and require the jury to follow, a particular psycho logical theory relating to the reliability of eyewitness identifi cations. Such an instruction would im properly invade the domain of the jury, and confuse the role s of expert witnesses and the judge.” “If the defendant wishes to present to th e jury information on the unreliability of eyewitness identifications under a particular set of circumstances, he must use means other than a jury instruction, such as expert testimony. [Citation.]” ( Wright , supra , 45 Cal.3d at pp. 1153-1154.) Defe ndant here did not do so. He did, however, vigorously challenge the accuracy of Mosc owitz’s identification. The trial court did not err by including the certainty factor as one of many jurors were allowed to consider. 10
II A MOUNT OF R ESTITUTION F INE Defendant committed the present crime on September 21, 2011. At the time, section 1202.4, subdivisions (b) and (c) requi red imposition of a restitution fine in every case in which a person was convicted of a crime, unless the court found “compelling and

10 In light of our analysis, we need not ad dress defendant’s alternative claim that any forfeiture of the issue constituted ineffective assistance of counsel.12. extraordinary reasons for no t doing so,” and stated t hose reasons on the record. Subdivision (b) of the st atute further provided: “(1) The restitution fine shall be se t 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 no t more than ten thousand dollars ($10,000), if the person is convicted of a felony .... “(2) In setting a felony restituti on fine, the court may determine the amount of the fine as the product of two hundred dollars ($200) multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted.” Subdivision (b)(1) of sec tion 1202.4 subsequently was amended to raise the minimum restitution fine to $240, starting Janua ry 1, 2012, and $280, starting January 1, 2013. Subdivision (b)(2) of the statute was amended to permit the trial court to calculate the amount of the fine as the product of the applicable minimum fine times the number of years times the number of felony counts of which the defendant was convicted. (Stats. 2012, ch. 868, § 3.) Defendant was sentenced on January 23 , 2013. The probation officer’s report recommended, and the trial court imposed, a res titution fine pursuant to section 1202.4 in the amount of $5,040. 11 No mention was made of the manner in which the fine was calculated. Defendant now says the fine must be re duced to $4,200, or the matter remanded, because, he surmises, the trial court used th e formula contained in the version of the statute that was not yet in effect when defe ndant committed his crime. Defendant says

11 The probation officer’s report also re commended, and the trial court imposed and stayed, pending revocation of parole, a paro le revocation restitution fine in the same amount pursuant to section 1202.45. Our di scussion of the fine imposed pursuant to section 1202.4 applies equally to the fine imposed pursuant to section 1202.45.13. the court’s error violated the ex post facto clauses of the federal and state Constitutions and his right to due pro cess, and resulted in an unauthorized sentence. “The Constitution forbids the passage of ex post facto laws, a category that includes ‘[e]very law that changes the punishme nt, and inflicts a greater punishment, than the law annexed to the crime, wh en committed.’ [Citation.]” ( Peugh v. United States (2013) 569 U.S. ___, ___-___ [133 S.Ct. 2072, 2077-2078]; accord, Collins v. Youngblood (1990) 497 U.S. 37, 41-42.) “It is well established that the imposition of restitution fines constitutes punishment, and ther efore is subject to the proscriptions of the ex post facto clause and other c onstitutional provisions. [Citations.]” ( People v. Souza (2012) 54 Cal.4th 90, 143; accord, People v. Saelee (1995) 35 Cal.App.4th 27, 30.) The United States Supreme Court recently he ld that an increase in the applicable sentencing range under the federal Sentenci ng Guidelines impli cates ex post facto concerns, even though th e Guidelines are no longer mandatory. ( Peugh v. United States , supra , 569 U.S. at pp. __ _-___, ___-___ [133 S.Ct. at pp. 2079-2080, 2082-2088].) Primarily from this decision, defendant conclu des the change in the discretionary formula set out in section 1202.4, subdivision (b)(2) is also subject to ex post facto considerations. We see a significant difference between a change in the Sentencing Guidelines, which, although discretionary, are the mandato ry starting point for imposition of a federal sentence and “remain a meaningf ul benchmark through the process of appellate review” ( Peugh v. United States , supra , 569 U.S. at p. ___ [133 S.Ct. at p. 2083]), and the type of optional formula contained in section 1202.4, subdivision (b)(2). Ne vertheless, we need not decide whether defendant is correct (see People v. Martinez (2014) 226 Cal.App.4th 1169, 1189, petn. for review pending, petn. file d July 14, 2014): By failing to object to the amount of the restitution fine at sentenci ng, he has forfeited his claim for purposes of appeal. A trial court has broad discretion to de termine the amount of a restitution fine within statutory parameters. (§ 1202.4, subd. (b)(1); People v. Kramis (2012) 20914. Cal.App.4th 346, 350; cf. People v. Griffin (1987) 193 Cal.App.3d 739, 741 [addressing former Gov. Code, § 13967].) “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 di scretionary determination to impose a particular sentence will not be set aside on review. [Citations.]” ( People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.) “[C]laims involving the trial court’s failu re to properly make or articulate its discretionary sentencing choices” are forfeited when, as here, they ar e raised for the first time on appeal. ( People v. Scott (1994) 9 Cal.4th 331, 353; accord, People v. Smith (2001) 24 Cal.4th 849, 852.) Th is is so even when they involve the asserted violation of constitutional rights. ( In re Sheena K. (2007) 40 Cal.4th 875, 880-881.) The California Supreme Court has created a “narrow” exception to the forfeiture rule for unauthorized sentences. ( People v. Smith , supra , 24 Cal.4th at p. 852.) “[A] sentence is generally ‘unauthorized’ wh ere it could not lawfully be imposed under any circumstance in the particular case . Appellate courts are willi ng to intervene in the first instance because such e rror is ‘clear and correctable’ i ndependent of any factual issues presented by the record at sentencing. [Citation.]” ( People v. Scott , supra , 9 Cal.4th at p. 354, italics added.) By contrast “cl aims deemed [forfeited] on appeal involve sentences which, though otherw ise permitted by law, were impos ed in a procedurally or factually flawed manner.” ( Ibid .) Defendant contends the amount of the re stitution fine imposed in the present case was unauthorized, and so his claim of error is reviewable on appeal despite his lack of objection in the trial court. We disagree. The trial court had discretion to impose a restitution fine in an amount up to $10,000, and was not required to employ — or even take into account — the calculation method set out in the statute. Rather, the court was only required to “consider any relevant factors, including, but not limited to, the15. defendant’s inability to pay, the serious ness 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 othe r person suffered any losses as a result of the crime, and the number of vic tims involved in th e crime.” (§ 1202 .4, subd. (d); cf. People v. Griffin , supra , 193 Cal.App.3d at pp. 7 41-742 [in setting amount of restitution fine under former Gov. Code, § 13967, trial court properly considered defendant’s criminal history as set out in pr obation officer’s report]; People v. Wyman (1985) 166 Cal.App.3d 810, 815-816 [in setting amount of restitution fine under former Gov. Code, § 13967, trial court could properly consider evidence at trial and matters contained in probation officer’s report].) Tellingly, defendant does not contend the trial court abused its discretion in setting the amount of the fine absent an ex post facto violation. Because the restitution fine could have properly been imposed in the amount of $5,040 even under the version of section 1202.4 in effect at the time defendant committed the offense, the sentence was not unauthorized. (Cf. People v. Walz (2008) 160 Cal.App.4th 1364, 1368-1370; People v. Blackburn (1999) 72 Cal.App.4th 1520, 1533- 1534.) Determination of the amount of the fi ne to be imposed invol ved consideration of a number of factual matters; hence, it was not one of the “obvious legal errors at sentencing that are correctable without refe rring to factual findings in the record or remanding for further findings” and so are not forfeited by failure to object. ( People v. Smith , supra , 24 Cal.4th at p. 852; see People v. Welch (1993) 5 Cal.4th 228, 235-236.) Defendant was on notice, from the probation officer’s report, that a restitution fine in the amount of $5,040 was recommended by the prob ation officer, and he had the opportunity to object to the amount of that fine or its method of calculation at sentencing. 12 (Cf.

12 In addition to his ex post facto claim, defendant asserts, without discussion, that use of the newer calculation formula violated hi s right to due process. Because defendant merely mentions the claim and does not expa nd on the issue with ar gument or citation to16. People v. Sandoval (1989) 206 Cal.App.3d 1544, 1550.) The trial court was not required to explain its reasons for imposing a fine in that amount, and did not indicate it was using a specific formula. (Cf. In re Julian R. (2009) 47 Cal.4th 487, 498-499.) Under the circumstances, defendant forfeited any challenge to the amount of the fine by failing to object to it at sentencing. (See, e.g., People v. White (1997) 55 Cal.App.4th 914, 916- 917; People v. Douglas (1995) 39 Cal.App.4t h 1385, 1396-1397; People v. Gibson (1994) 27 Cal.App.4th 1466, 1468-1469.) DISPOSITION The judgment is affirmed.

_____________________ DETJEN, J. WE CONCUR:

_____________________ HILL, P.J.

_____________________ LEVY, J.

relevant authority, we decline to address it. (See People v. Hardy (1992) 2 Cal.4th 86, 150.)