Opinion
NOT TO BE PUBLISHED
Super. Ct. No. J62662
HULL, J.After entering a negotiated plea of no contest to one count of child molesting (Pen. Code, § 647.6, subd. (a)), the minor was continued a ward of the juvenile court and placed on probation for a maximum period of one year. He was ordered to pay a restitution fine of $25, a fine of $25 to the county general fund, and a penalty of $49.38. The court also directed that fines and penalties imposed in an earlier disposition remain in effect. The minor was given 45 days of custody credits.
The minor appeals contending: (1) the juvenile court erred in imposing restitution fines and penalties without first determining his ability to pay the fines or considering its discretion to waive the penalties; and (2) he is entitled to eight additional days of custody credit for time served in connection with an earlier disposition. The People concede the latter point. We conclude the People’s concession is unwarranted and affirm the disposition order.
Facts and Proceedings
On October 7, 2004, the Mariposa County District Attorney filed a petition under Welfare & Institutions Code section 602 charging the minor with a lewd and lascivious act (Pen. Code, § 288, subd. (a)) and dissuading a witness (Pen. Code, § 136.1, subd. (b)(1)) (the first petition). According to a later report of the probation department, the minor removed a 6-year-old neighbor girl’s clothes and touched her vagina with his hand and penis and then told her not to tell anyone.
On May 23, 2005, a second petition was filed in Mariposa County charging the minor with criminal threats (Pen. Code, § 422) based on threats allegedly made to other students at the minor’s school (the second petition).
On July 13, 2005, the minor admitted the charges in the first petition. The People amended the second petition by dropping the criminal threats charge and adding a charge of using offensive words likely to provoke a violent reaction (Pen. Code, § 415, subd. (3)). The minor admitted the new charge. Because the minor had by then become a resident of San Joaquin County, the juvenile court transferred the matter to that county for disposition.
On November 21, 2005, in San Joaquin County, the minor was adjudged a ward of the court and placed on probation for a maximum period of eight years nine months, with credit for eight days of pre-disposition custody. The minor was released to the custody of his parents. The minor was ordered to pay restitution to the victim of the first petition in an amount to be determined by the probation department. He was also ordered to pay a restitution fine of $100 (Welf. & Inst. Code, § 730.6, subd. (b)(1)) and a fine of $100 to the county general fund. Finally, the court imposed a state penalty of $197.50 pursuant to Penal Code section 1464.
On January 12, 2006, the Fresno County District Attorney filed a petition under Welfare & Institutions Code section 602 charging the minor with a lewd and lascivious act (Pen. Code, § 288, subd. (a)) and two counts of child molestation (Pen. Code, § 647.6, subd. (a)) (the third petition). According to the probation report, the minor’s family had been staying with relatives and, on one occasion, while the minor’s 7-year-old cousin was sitting on his lap, he put his hand inside her pants and rubbed her leg. Previously, the minor had told the cousin it was okay for him to rub her butt over her pants and he did so. The minor had also placed the cousin on his lap where she felt his “private.”
On February 14, 2006, the minor entered a negotiated plea of no contest to one count of child molestation and the other two charges were dismissed. The matter was transferred to San Joaquin County for disposition.
Following a contested disposition hearing, the minor was continued a ward of the court. He was placed on probation for a maximum period of one year, with 45 days of custody credit. The minor was ordered to pay restitution to the victim of the third petition in an amount to be determined by the probation department. He was further ordered to pay a restitution fine of $25 (Welf. & Inst. Code, § 730.6, subd. (b)(2)) and a fine of $25 to the county general fund. The juvenile court imposed a state penalty of $49.38 pursuant to Penal Code section 1464. Finally, the court directed that all orders entered on November 21, 2005, remain in effect.
Discussion
I
Restitution Fine
The minor contends the juvenile court erred in imposing fines and penalties without making a determination of his ability to pay. In particular, the minor challenges the $100 and $25 restitution fines imposed pursuant to Welfare & Institutions Code section 730.6 and the state penalties of $197.50 and $49.38. He argues Welfare & Institutions Code section 730.6 contains an implied requirement that the court make a finding of ability to pay and the court failed to consider whether to exercise its authority to waive all or part of the penalties.
The People contend the minor has forfeited these contentions by failing to object to the fines and penalties at the disposition hearings. We agree.
“[A] reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court.” (In re S.B. (2004) 32 Cal.4th 1287, 1293.) “As a matter of fairness to the trial court, a defendant should not be permitted to assert for the first time on appeal a procedural defect in imposition of a restitution fine, i.e., the trial court’s alleged failure to consider defendant’s ability to pay the fine.” (People v. Gibson (1994) 27 Cal.App.4th 1466, 1468.) Failure to raise the issue in the trial court constitutes a forfeiture of the right to complain on appeal. (Id. at p. 1469.)
The minor contends his claim is not forfeited, because the fines imposed amounted to an unauthorized sentence. An unauthorized sentence may be corrected on appeal despite a failure to raise the issue below. (People v. Smith (2001) 24 Cal.4th 849, 853.)
However, the unauthorized sentence exception to the requirement that a claim must first be raised below is a narrow one. (People v. Scott (1994) 9 Cal.4th 331, 354.) A sentence will be considered unauthorized only where “it could not lawfully be imposed under any circumstance in the particular case.” (Ibid.)
This is not such a case. Assuming the juvenile court was required to make a finding of ability to pay and to consider waiving the penalties, it is undisputed the fines and penalties imposed by the court on November 21, 2005, and May 23, 2006, were within the range of the court’s authority under the applicable statutes.
II
Custody Credits
The minor contends the juvenile court incorrectly calculated custody credits. He argues the court awarded 45 days of credit, but this ignored the time served in custody prior to his November 21, 2005, disposition. At that time, the court noted the minor was entitled to eight days of custody credit. The minor further argues he should be awarded 10 additional days of credit for time served between the May 23, 2006, disposition and a hearing on June 1, 2006. Finally, the minor contends he is entitled to credit for time served in custody awaiting placement by the probation department.
A minor is entitled to credit against his or her maximum period of confinement for time spent in custody prior to the disposition hearing. (In re Eric J. (1979) 25 Cal.3d 522, 533-536.) The minor argues that when a juvenile court elects to aggregate a minor’s period of maximum confinement on multiple petitions, the court must also aggregate predisposition custody credits.
The People concede the matter should be remanded to the juvenile court for both aggregation of custody credits and addition of new credits earned following the disposition hearing. We find the People’s concession premature.
In the third petition, the People gave notice of an intention to move for aggregation of the terms of all previous petitions. Presumably, this would include the first and second petitions, on which the minor was placed on probation for a maximum term of eight years nine months, and awarded eight days of custody credit. However, there is nothing else in the record to suggest the People followed through with this intention prior to the May 23, 2006, disposition.
More importantly, there is nothing in the record to suggest the juvenile court aggregated the maximum periods of confinement from the two dispositions. On the contrary, on May 23, 2006, the court indicated the maximum period of confinement would be one year. The court made no mention of the eight years nine months maximum previously imposed. On June 1, 2006, the juvenile court conducted a hearing in which the People argued it had been their intention to aggregate the two matters, resulting in a maximum confinement of eight years nine months, plus one-third of one year, for a total of nine years one month. The minor objected to changing the maximum confinement from one year, arguing his plea on the third petition had been based on a one-year maximum. The court chose not to change its May 23, 2006, disposition order.
Hence, the court did not aggregate the two dispositions. Therefore, assuming the court was required to aggregate custody credits upon aggregation of maximum confinements from multiple dispositions (see In re Emilio C. (2004) 116 Cal.App.4th 1058, 1067-1068), there was no basis for doing so here.
Disposition
The disposition order is affirmed.
We concur: BLEASE, Acting P.J., ROBIE, J.