P. v. Audelo
Filed 6/18/07 P. v. Audelo CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, Plaintiff and Respondent, v. ANDREA AUDELO, Defendant and Appellant. | B192766 (Los Angeles County Super. Ct. No. KA074712) |
APPEAL from a judgment of the Superior Court of Los Angeles County,
Mark Grant Nelson, Judge. Affirmed as modified.
Randi Covin, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters and Tasha G. Timbadia, Deputy Attorneys General, for Plaintiff and Respondent.
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After Andrea Audelo was arrested for entering a bank with the intention of cashing a forged check, she pleaded no contest to committing second degree commercial burglary (Pen. Code, 459)[1]and admitted having suffered a prior serious or violent felony conviction with the meaning of the Three Strikes law ( 667, subds. (b)-(i); 1170.12, subds. (a)-(d)). Audelo was sentenced to a state prison term of 32 months (the lower term of 16 months doubled for a second-strike offender under the Three Strikes law) in accordance with the plea agreement.[2]Audelo received presentence custody credit of 32 days (22 actual days and 10 days of conduct credit). The court imposed a $400 restitution fine ( 1202.4, subd. (b)), a $20 security surcharge ( 1465.8, subd. (a)(1)), and a $10 theft fine ( 1202.5). A $400 parole revocation fine ( 1202.45) was imposed and suspended. The remaining special allegation was dismissed on the Peoples motion.
On appeal Audelo challenges the imposition of the fine pursuant to section 1202.5.[3] She argues the trial court violated the statute by failing to determine her ability to pay before levying the fine.[4]Under section 1202.5 in any case in which a defendant is convicted of a theft-related offense, the court shall order the defendant to pay a fine of ten dollars ($10) in addition to any other penalty or fine imposed. The so-called theft fine is mandatory, provided the trial court determines the defendant has the ability to pay the fine: If the court determines that the defendant has the ability to pay all or part of the fine, the court shall set the amount to be reimbursed and order the defendant to pay that sum to the county in the manner in which the court believes reasonable and compatible with the defendants financial ability. ( 1202.5, subd. (a).) In determining the defendants ability to pay the theft fine the trial court shall take into account the amount of any other fine imposed upon the defendant and any amount the defendant has been ordered to pay in restitution. ( 1202.5, subd. (a).)
In resolving these factual issues, no express finding of a defendants ability or inability to pay is required. ( 1202.5, subd. (a); see People v. Martinez (1998) 65 Cal.App.4th 1511, 1516 [no express finding required for ability to pay mandatory drug program fee under Health and Safety Code section 11372.7, a substantially similar statute to section 1202.5].) Absent a showing to the contrary, we presume on the silent record the trial court was aware of and followed the applicable law. (See Martinez, supra, 65 Cal.App.4th at p. 1517 and cases cited therein; People v. Clark (1992) 7 Cal.App.4th 1041, 1050 [Appellate court presumed on silent record the defendant was found to have ability to pay drug program fee.].)
Because a trial court must determine the defendants ability to pay a theft fine ( 1202.5) but is not required to state its finding on the record, we conclude the trial court found Audelo had the ability to pay the theft fine in this case.
DISPOSITION
The May 22, 2006, minute order and abstract of judgment are ordered to conform to the trial courts oral pronouncement of judgment to reflect an award of 62 days of presentence custody credit (42 actual and 20 days of conduct credit). As modified the judgment is affirmed. The trial court is directed to forward a corrected abstract of judgment to the Department of Corrections.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WOODS, J.
We concur:
PERLUSS, P. J.
ZELON, J.
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[1] Statutory references are to the Penal Code, unless otherwise indicated.
[2] Audelo timely filed a notice of appeal challenging the validity of the plea and requested a certificate of probable cause. Her certificate of probable cause was denied. We granted Audelos request to file an amended notice of appeal based on grounds arising after the entry of the plea and not affecting the pleas validity.
[3] Audelo also contends and the People acknowledge that she should have been awarded presentence custody credit of 62 days (42 actual and 20 days of conduct credit). However, the reporters transcript of the sentencing hearing shows the trial court awarded Audelo 62 days of presentence custody credit. The minute order of the May 22, 2006, sentencing hearing and the abstract of judgment each indicating an award of 32 days of presentence custody credit are presumed to be clerical errors and should be corrected to conform to the trial courts oral pronouncement of judgment. (See People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2; People v. Mitchell (2001) 26 Cal.4th 181, 185; People v. Mesa (1975) 14 Cal.3d 466, 471.)
[4] Audelo is not contending the trial courts failure to consider her ability to make payment constitutes a deprivation of due process. Nor does Audelo maintain she lacked the ability to pay the section 1202.5 fine and related penalties and assessments.
