P. v. Figueras
Filed 6/21/07 P. v. Figueras CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Sacramento)
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THE PEOPLE, Plaintiff and Respondent, v. RALEIGH FIGUERAS, Defendant and Appellant. | C052278 (Super. Ct. Nos. 04F10724, 04F10738, 05F03415, 05F09329) |
In March 2005, defendant Raleigh Figueras pleaded no contest to one count each of identity theft in two 2004 felony complaints. In April 2005, he pleaded no contest to one count of receiving stolen property in the first 2005 felony complaint. The trial court suspended the imposition of sentence and placed him on probation, ordering the payment of a $200 restitution fine in each case.
In November 2005, the prosecutor filed a second 2005 felony complaint. In December 2005, it also filed a petition alleging that this new offense violated the terms of probation in the three earlier cases.
In January 2006, a jury found the defendant guilty of burglary of a vehicle, receiving stolen property, and possessing burglary tools. After defense counsel submitted the matter on the probation report, the trial court sentenced the defendant to state prison on the first count, stayed sentence on the second, and imposed a concurrent jail term on the third. As is pertinent to this appeal, it also imposed a $10 crime prevention program[] fine. The trial court found that these latest convictions violated the terms of probation for the three earlier cases, so it imposed a consecutive term for each of them, and stated that the defendant should pay a $200 restitution fine in each case as previously ordered. Neither the minutes nor the abstract of judgment, however, indicated that the court had previously imposed these three restitution fines.
On appeal, the defendant contends the trial court erred in failing to make an express determination that he had the ability to pay the $10 fine for crime prevention programs. He also asks that we avoid any possible ambiguity in the abstract of judgment by amending it to indicate expressly that the $200 restitution fines in the earlier three cases were the subject of an earlier court order, in order to prevent any double collection. We shall affirm.
I
Regarding the defendants first argument, Penal Code section 1202.5 provides in pertinent part that the court shall order the defendant to pay a fine of . . . ($10) in addition to any other penalty or fine imposed. 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 . . . in the manner in which the court believes reasonable and compatible with the defendants financial ability. In making a determination of whether a defendant has the ability to pay, the 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.
Nothing in this statute requires an express finding on the record of a defendants ability to pay an additional $10, and we do not discern any compelling basis to impose such a requirement through judicial gloss. We therefore apply the presumption that the trial court properly fulfilled its statutory duty to take into account the defendants ability to pay in light of other fines and restitution. (Cf. People v. Frye (1994) 21 Cal.App.4th 1483, 1485-1486; People v. Staley (1992) 10 Cal.App.4th 782, 785-786 (Staley); Evid. Code, 664.)
To the extent the defendant is suggesting the record does not support a determination of his ability to pay an additional $10, we find the failure to object in the trial court to have forfeited the argument on appeal. Contrary to the perfunctory suggestions in his briefs, the fine was not unauthorized in the absence of an express finding of his ability to pay, nor is there any basis to find that the defendant did not have a meaningful opportunity to object. In any event, as the People point out in their reply brief, the probation report noted the defendant had skills in laying tile for his uncle. Given the relative brevity of the prison sentence in this case (a total of four years), the trial court was entitled to consider his ability to earn $10 in this trade after his release from prison to pay this fine in addition to the remainder of his obligations. (Staley, supra, 10 Cal.App.4th at p. 786.)
II
The People do not object to an amendment of the abstract of judgment to avoid any possibility of a double collection of the restitution fines imposed in the three earlier cases. We shall therefore order the amendment.
Disposition
The judgment is affirmed. The trial court is directed to amend the abstract of judgment to note that the defendant is to pay restitution fines in case Nos. 05F03415, 04F10738, and 04F10724 as previously ordered. The trial court shall forward a certified copy of the abstract as amended to the Department of Corrections and Rehabilitation.
DAVIS, Acting P.J.
We concur:
MORRISON , J.
HULL, J.
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