Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC788139
Duffy, J.
Defendant Enrique Fuerte Lopez pleaded guilty under a negotiated disposition to two counts of forcible lewd and lascivious acts on a child in violation of Penal Code section 288, subdivision (b)(1) and one count of oral copulation upon a child under the age of 10 years in violation of section 288.7, subdivision (b). He was sentenced to a prison term of 12 years, plus 15 years to life. On appeal, he contends the trial court erred in three respects, all matters occurring after the plea. We affirm but direct modification of the abstract of judgment as to one of those matters.
All further statutory references are to the Penal Code.
We take the facts from the probation report.
I. Factual Background
The underlying facts of the offenses are not relevant to the issues on appeal. Suffice it to say that on at least several occasions in 2007, defendant brought his girlfriend’s seven-year-old daughter with him into public bathrooms after picking her up from daycare. The first time, after pulling down his pants and asking the victim to “help” him, he placed his hand over hers, and moved her hand back and forth until he ejaculated into the toilet. This scenario was repeated. Then, on two occasions, one of which occurred at the victim’s home, defendant told the victim that they were going to play the “ice cream and candy game.” After directing her to close her eyes and open her mouth, he placed his penis in her mouth and told her to “lick it like an ice cream cone.” Defendant then ejaculated into the toilet. On the second of these occasions, the victim told defendant that he was hurting her mouth and asked him to stop but he continued until the act was completed.
The victim later told her babysitter’s friend about what defendant had done to her. The friend called police, who questioned defendant. “At first, he denied culpability, but he eventually admitted he had sexually assaulted the victim on multiple occasions. He stated he had the victim masturbate him approximately five times, and had her orally copulate him on two occasions in the month of November 2007.”
II. Procedural Background
Defendant was charged by felony complaint with two counts of lewd or lascivious acts on a child in violation of section 288, subdivision (b) (counts 1 & 2) and one count of oral copulation on a child under 10 years of age in violation of section 288.7, subdivision (b) (count 3). The complaint also alleged probation ineligibility under section 1203.066, subdivision (a)(1).
After waiving his rights, defendant pleaded guilty as charged in accordance with a negotiated disposition and the court found a factual basis for the plea. Before his plea, defendant was advised by the court among other things that if sentenced to prison, he faced a parole term of up to five years upon release. He was also advised that he would “complete a statement of assets form” as a result of a plea. He was later sentenced to 12 years in prison on counts 1 and 2 (the midterm of six consecutive years on each), plus 15 years to life on count 3, consecutive, with credit for time served. At sentencing, the court advised defendant that the subsequent parole period would be 10 years, notwithstanding the court’s earlier five-year parole period advisement. The court’s minutes from sentencing and the abstract of judgment are consistent with the 10-year advisement. At sentencing, the court further ordered “$200 in attorney fees” with no mention of or reference to defendant’s ability to pay the fees.
Defendant was sentenced on April 25, 2008. His notice of appeal, which appears to have been prepared by defendant himself, is dated June 19, 2008—within 60 days of sentencing. The notice indicates that the appeal is based on the denial of a motion to suppress evidence under section 1538.5 and that it challenges the validity of the plea, both of which require a certificate of probable cause under section 1237.5 and rule 8.304 of the California Rules of Court. The notice does not state that the appeal is based on the sentence or other matters occurring after the plea, which are the only sort of matters defendant actually raises in his brief. But we will construe the notice broadly from the judgment of conviction. Defendant accompanied his notice of appeal with a request for certificate of probable cause also dated June 19, 2008. Despite its date, the notice of appeal was not actually filed in the superior court until July 15, 2008—past the deadline to appeal under rule 8.308(a) of the California Rules of Court. The record does not reveal the reason for this nearly one month delay in filing. But the request for a certificate of probable cause bears a “received” stamp from this court dated June 27, 2008, from which we infer that defendant, an inmate in a custodial institution, timely filed his notice of appeal in superior court—or mailed or delivered the notice and request for certificate of probable cause to custodial officials for mailing—under rules 8.304 and 8.308 of the California Rules of Court. The court later granted defendant’s request for a certificate of probable cause, which is not necessary in any event for the issues defendant actually raises on appeal.
DISCUSSION
I. Defendant is Subject to a Five-Year Parole Period
Defendant contends that due to the nature of his offenses, under section 3000, subdivision (b)(2), he is subject to a five-year parole period upon release and not the 10-year period provided at section 3000, subdivision (b)(3). These sections list specific offences that qualify under each. Although the trial court properly advised defendant of the applicable five-year period before his plea, at sentencing, the court stated that the period was 10 years and, as noted, this term appears both in the court minutes and on the abstract of judgment. Respondent concedes that the correct parole period is five years in this case. Because offenses under section 288, subdivision (b)(1) and 288.7, subdivision (b) are among those covered by section 3000, subdivision (b)(2)—the five year parole period—and not section 3000, subdivision (b)(3), the 10-year period imposed is not authorized. We will accordingly direct the clerk of the superior court on remand to modify the abstract of judgment to reflect a five-year parole period.
II. The Abstract of Judgment Correctly Reflects a Single Restitution Fund Fine Under Section 1202.4, Subdivision (b)
The form of the abstract of judgment in this case reflects the indeterminate portion of defendant’s sentence on one page (form CR-292), which is followed by a mandatory second page containing information about the financial obligations imposed, testing, other orders, the manner of execution of sentence, credit for time served, and the manner and place of remand. The determinate portion of the sentence is reflected on a separate page (form CR-290), which also requires a second page containing the same information about the financial obligations, etc. imposed as part of the sentence for validity. The abstract of judgment here is thus composed of four total pages, of which pages two and four contain the same information regarding financial obligations imposed and other matters apart from the actual prison term.
Defendant contends that as a result, the abstract reflects two separate restitution fund fines of $10,000 imposed under section 1202.4, subdivision (b)—one for count 3 for which he received an indeterminate term and one for counts 1 and 2 for which he received a determinate term. This contention is based solely on the presence of the duplicate information contained on the second pages of each separate form describing the indeterminate and determinate portions of the whole sentence. But we perceive that when the whole abstract is properly viewed and analyzed, it is clear that only a single restitution fund fine of $10,000 under section 1202.4, subdivision (b) has been imposed, particularly when the statute provides for this maximum amount.
Because we view the abstract of judgment as accurately reflecting a single restitution fund fine of $10,000, we reject defendant’s contention that the abstract should be amended to correct an alleged error.
III. The Oral Attorney Fee Order Was Error
The court’s oral pronouncement of sentence included an order that defendant pay $200 in attorney fees, presumably under section 987.8, which provides for reimbursement for the services of a public defender depending on ability to pay. But neither the court’s minutes nor the abstract of judgment reflect imposition of this order.
Defendant contends that, contrary to the requirements of section 987.8, subdivision (e), the court failed to make a finding that he had the present ability to pay attorney fees before directing him to do so. He further contends that even if we were to conclude that there was an implied finding of his ability to pay, there is no substantial evidence in the record to support such a finding. Defendant argues that the attorney fee order should accordingly be “stricken,” but from what he does not say.
Section 987.8, subdivision (b), provides in relevant part: “In any case in which a defendant is provided legal assistance, either through the public defender or private counsel appointed by the court, upon conclusion of the criminal proceedings in the trial court... the court may, after notice and a hearing, make a determination of the present ability of the defendant to pay all or a portion of the cost thereof.... The court may, in its discretion, order the defendant to appear before a county officer designated by the court to make an inquiry into the ability of the defendant to pay all or a portion of the legal assistance provided.” Further, “[i]f the court determines that the defendant has the present ability to pay all or a part of the cost, the court shall set the amount to be reimbursed and order the defendant to pay the sum to the county.” (§ 987.8, subd. (e).)
Under section 987.8, subdivision (g)(2), “ ‘[a]bility to pay’ means the overall capability of the defendant to reimburse the costs, or a portion of the costs, of the legal assistance provided to him or her, and shall include, but not be limited to, all of the following: [¶] (A) The defendant’s present financial position. [¶] (B) The defendant’s reasonably discernable future financial position. In no event shall the court consider a period of more than six months from the date of the hearing for purposes of determining the defendant’s reasonably discernable future financial position.... [¶] (C) The likelihood that the defendant shall be able to obtain employment within a six-month period from the date of the hearing. [¶] (D) Any other factor or factors which may bear upon the defendant’s financial capability to reimburse the county for the costs of the legal assistance provided to the defendant.”
The court’s finding of the defendant’s present ability to pay need not be express, but may be implied through the content and conduct of the hearings. (People v. Phillips (1994) 25 Cal.App.4th 62, 71.) But any finding of ability to pay must be supported by substantial evidence. (People v. Nilsen (1988) 199 Cal.App.3d 344, 347; People v. Kozden (1974) 36 Cal.App.3d 918, 920.)
We read section 987.8, subdivision (b), as expressly requiring a finding—whether express or implied—by the court of the defendant’s ability to pay as a precondition to an order assessing attorney fees. Here, there is nothing in the record addressing the issue of defendant’s ability to pay other than defendant’s report to a probation officer that he had been earning $600 per week prior to his arrest—not exactly a fact that would tend to support a finding of his present ability to pay or his positive earning potential, especially as he will be serving a lengthy prison sentence.
We conclude that the record fails to disclose a finding by the court of defendant’s ability to pay attorney fees. Even if we were to imply such a finding, there is no substantial evidence in the record to support it. Accordingly, the oral attorney fee order was error. This leaves only the question whether the error requires remedial action as the order is not reflected in either the minute order or the abstract of judgment. Because these documents already omit the erroneous order, we agree with respondent that there is no need for us to direct that the order be stricken from the abstract on remand.
DISPOSITION
The judgment is affirmed. The clerk of the superior court is directed on remand to modify the abstract of judgment to reflect a parole period of five years rather than 10 years.
WE CONCUR: Rushing, P. J., McAdams, J.