Where the trial court exercises its discretion to set the amount of the restitution fine within the statutory range of Penal Code section 1202.4, there is no right to a jury trial. Following appellant’s conviction at jury trial for assault, the court sentenced him to four years in state prison and ordered him to pay a $10,000 restitution fine pursuant to former section 1202.4, subd. (b)(1). Subdivision (b)(1) required imposition of a fine within the range of $200 to $10,000 in every case where a person is convicted of a felony, unless the court finds compelling and extraordinary reasons for not doing so. Under the statute, ability to pay is not a compelling and extraordinary reason to excuse imposition of the fine but it may be considered in setting the amount of the fine above $200. The statute also instructs the court to consider a number of other factors in setting the amount of the fine. The Court of Appeal asked the parties to brief the effect of Southern Union Co. v. United States (2012) 567 U.S. ___, which held that Apprendi v. New Jersey (2000) 530 U.S. 466 applies to the imposition of criminal fines, on the trial court’s imposition of the $10,000 restitution fine. In Southern Union Co., the district court’s factual finding as to the number of days the defendant violated a statute, which was tied to the amount of a fine, violated the defendant’s right to a jury trial because the finding increased the maximum punishment. Here, the court found no such jury trial right because the court exercised its discretion to set the amount of the fine within the statutory range and made no factual finding justifying a fine that increased the penalty beyond what the jury’s verdict allowed.