Opinion
F062272 Super. Ct. No. F09101048
12-21-2011
THE PEOPLE, Plaintiff and Respondent, v. JOSE MORALES LEON, Defendant and Appellant.
Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT
Before Wiseman, Acting P.J., Cornell, J. and Detjen, J.
APPEAL from a judgment of the Superior Court of Fresno County. Armando Rodriguez, Judge.
Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
STATEMENT OF THE CASE
On December 21, 2009, appellant, Jose Morales Leon, was charged in a criminal complaint with one felony count of possession of weapon while confined in a penal institution (Pen. Code, § 4502, subd. (a), count one). The information further alleged two prior serious felony convictions within the meaning of the three strikes law (§§ 667, subds. (c)-(j) & 1170.12, subds. (a)-(e)) and a prior prison term enhancement (§ 667.5, subd. (b)). Appellant's motion to relieve his counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 was denied.
Unless otherwise indicated, all statutory references are to the Penal Code.
The remaining allegations in the complaint were alleged as to appellant's codefendant.
On August 23, 2010, appellant waived his constitutional rights and admitted count one and one prior serious felony allegation. Appellant executed a felony advisement, waiver of rights, and plea form acknowledging that a consequence of his plea was that he would be ordered to pay a restitution fine of a minimum amount of $200 and up to $10,000. In accordance with the terms of the plea agreement, appellant received a sentence of three years, doubled to six years pursuant to the three strikes law, to be served consecutively to the sentence of 29 years to life he was serving when he committed the instant offense.
Because the trial court did not accept an earlier plea agreement, appellant was permitted to withdraw his first change of plea.
The court imposed a restitution fine pursuant to section 1202.4 of $10,000.Appellant's counsel objected to the amount of the fine as being "very high." While counsel acknowledged that appellant was serving a very long sentence, counsel was not sure how appellant would be able to pay that amount of restitution.
The court clerk inaccurately entered the amount of the fine in the minutes and the abstract of judgment as $12,000. The court also imposed and stayed a fine of $10,000 pursuant to section 1202.45.
On appeal, appellant contends the trial court abused its discretion in imposing a $10,000 restitution fine and that the clerk's entry of a $12,000 fine was made in error. Respondent replies that the court did not abuse its discretion in setting the amount of the fine but concedes error in the entry of the amount of the fine.
Because the only issue on appeal concerns the amount of the restitution fine imposed on appellant, we do not review the underlying facts of his offense.
DISCUSSION
Appellant argues there is no indication that the court, or the probation department, considered his ability to pay the fine. Appellant points out that there was no violence or monetary gain on his part and no damages. We reject these contentions.
The amount of the restitution fine is "at the discretion of the court and commensurate with the seriousness of the offense ...." and requires no statement of formal reasons on the record. (§ 1202.4, subd. (b)(1); People v. Romero (1985) 167 Cal.App.3d 1148, 1156.) Subdivision (d) of section 1202.4 provides that the court may consider the defendant's inability to pay the fine, but the court is not required to make express findings as to the factors bearing on the amount of the fine.
A court need only make express findings concerning a restitution fine if it elects to omit the fine. (§ 1202.4, subd. (b); People v. Menius (1994) 25 Cal.App.4th 1290, 1298.) A finding of ability or inability to pay a restitution fine is not required. (People v. Martinez (1998) 65 Cal.App.4th 1511, 1516; People v. Staley (1992) 10 Cal.App.4th 782, 785.)
In light of the provisions of section 1202.4, the failure of the trial court to state how it calculated the $10,000 fine it imposed does not constitute error. We note that, although appellant's counsel objected to the amount of the fine and questioned how appellant would pay the entire amount, counsel did not explain how appellant would be unable to pay the fine. Counsel did not point out, for example, that appellant was not eligible to earn prison wages.
Unless there are compelling and extraordinary reasons, the defendant's lack of assets and limited employment potential are not germane to his or her ability to pay the fine. (People v. McGhee (1988) 197 Cal.App.3d 710, 715; see § 1202.4, subd. (c).) In the absence of a showing to the contrary, the court is entitled to presume the defendant will pay the restitution fine out of future earnings. (§ 1202.4, subd. (d); People v. Frye (1994) 21 Cal.App.4th 1483, 1486-1487.)
Appellant did not make any showing of his inability to pay a fine of $10,000 from future earnings. Appellant was incarcerated for very serious felonies and his current offense was also serious. The trial court did not err in failing to make an explicit finding regarding appellant's ability to pay the restitution fine imposed.
The entry in the clerk's minutes and the abstract of judgment that appellant was to pay a $12,000 restitution fine pursuant to section 1202.4 was contrary to the trial court's oral pronouncement at the hearing and exceeds the statutory maximum for such a fine. This appears to be a simple clerical error. Courts have inherent power to correct clerical errors at any time. (People v. Mitchell (2001) 26 Cal.4th 181, 185; In re Candelario (1970) 3 Cal.3d 702, 705; People v. Mgebrov (2008) 166 Cal.App.4th 579, 594-595.) We remand the case for the trial court to correct the clerk's minutes and to amend the abstract of judgment to reflect the correct amount of the restitution fine.
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DISPOSITION
The case is remanded to the trial court for it to amend clerical errors in the clerk's minutes and abstract of judgment to reflect that appellant's section 1202.4 restitution fine is $10,000. The court shall forward amended copies of these documents to the appropriate authorities. The judgment is affirmed.