Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. CM030856, CM032589, CM032649
NICHOLSON, J.
In case No. CM032589, defendant Jemaury Deandre Cal pleaded no contest to first degree burglary (Pen. Code, § 459; further statutory references are to this code), with an enhancement for committing the offenses while someone was present in the residence (§ 667.5, subd. (c)(21)). In case No. CM032649, defendant pleaded no contest to receiving stolen property. (§ 496, subd. (a).) In addition, defendant was found to be in violation of his probation in case No. CM030856, a misdemeanor theft offense. Probation was denied and defendant was sentenced to serve a term in state prison of four years eight months. Defendant was ordered to pay various fines and fees, including a $10 fine plus assessment penalties pursuant to section 1202.5.
Defendant appeals, claiming the trial court erred by imposing a fine under section 1202.5 without determining whether he had the ability to pay it. As defendant did not object at the time the fine was imposed, we conclude the issue has been forfeited.
As the facts underlying the offenses are not relevant to the issue raised by defendant, we have dispensed with a recitation of them.
Defendant complains that the trial court erroneously imposed a fine pursuant to section 1202.5 without determining his ability to pay, as required by the statute. (§ 1202.5, subd. (a).) We conclude that defendant’s failure to object to the imposition of the fine in the trial court precludes him from raising this argument on appeal.
The probation report in defendant’s matter contained a recommendation that he be ordered to pay a “theft fine” of $10 plus assessments pursuant to section 1202.5. Yet, at defendant’s sentencing hearing, he did not object to the imposition of this fine. This court has held that a defendant’s failure to object to a fine under section 1202.5 at the time it is imposed based on the ability to pay forfeits the issue for purposes of appeal. (People v. Crittle (2007) 154 Cal.App.4th 368, 371.)
Defendant maintains that, nonetheless, the issue may be considered on appeal because his assertion is that any implied finding he had the ability to pay the fine was not supported by the evidence. Defendant relies on People v. Pacheco (2010) 187 Cal.App.4th 1392, in which the Court of Appeal, Sixth District, held that the issue of ability to pay with regard to an order for payment of attorneys fees could be raised for the first time on appeal if “based on the insufficiency of the evidence to support the order or judgment.” (Id. at p. 1397.)
However, in People v. Crittle, supra, in addition to deeming forfeited the defendant’s claim that the trial court failed to make an ability-to-pay determination, we concluded that the defendant also forfeited his contention that “nothing in the record show[ed] he had the ability to pay, ” a sufficiency of the evidence claim. (People v. Crittle, supra, 154 Cal.App.4th at p. 371.) We cited People v. Gibson (1994) 27 Cal.App.4th 1466, 1468, in which this court concluded that a defendant had forfeited the issue of his ability to pay a restitution fine when he failed to raise any objection on this basis at the time the fine was imposed. In so holding, we noted: “[B]ecause the appropriateness of a restitution fine is fact-specific, as a matter of fairness to the People, a defendant should not be permitted to contest for the first time on appeal the sufficiency of the record to support his ability to pay the fine. [Citations.] A challenge to the sufficiency of evidence to support the imposition of a restitution fine to which defendant did not object is not akin to a challenge to the sufficiency of evidence to support a conviction, to which defendant necessarily objected by entering a plea of not guilty and contesting the issue at trial.” (Id. at pp. 1468-1469.)
As we noted in People v. Gibson, supra, 27 Cal.App.4th 1466: “The rule that contentions not raised in the trial court will not be considered on appeal is founded on considerations of fairness to the court and opposing party, and on the practical need for an orderly and efficient administration of the law. [Citations.]” (Id. at p. 1468.) The reasoning in Gibson remains persuasive. Accordingly, we conclude that defendant has forfeited this issue.
The recent amendments to sections 2933 and 4019 do not operate to modify defendant’s entitlement to additional presentence custody credit as he was committed for a serious and violent felony. (§§ 667.5, subd. (c)(21); 1192.7, subd. (c)(18); 4019, former subds. (b)(2) & (c)(2) [as amended by Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50]; 2933, subd. (e)(3) [as amended by Stats. 2010, ch. 426, § 1, eff. Sept. 28, 2010].)
DISPOSITION
The judgment is affirmed.
We concur: BLEASE, Acting P. J. HOCH, J.