Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 05NF2222, Thomas James Borris and Lance Jensen, Judges.
Diana M. Teran, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
O’LEARY, J.
We appointed counsel to represent Rodriguez on appeal. Counsel filed a brief that set forth the facts of the case. Counsel did not argue against her client, but advised the court no issues were found to argue on his behalf. We have examined the record and found no arguable issue. (People v. Wende (1979) 25 Cal.3d 436.) Rodriguez was given 30 days to file a written argument on his own behalf. That period has passed, and we have received no communication from him. Rodriguez’s appellate counsel refers this court to the following item in the record that might arguably support the appeal: the trial court’s denial of his motion to vacate the imposition of a state restitution fund fine. Finding no error, we affirm the judgment.
FACTS
A felony complaint charged Rodriguez with conspiracy to commit an assault with a firearm (Pen. Code, § 182, subd. (a)(1)) (count 1); possession of a firearm by a felon (§ 12021, subd. (a)(1)) (count 2); gang member carrying a loaded firearm in public (§ 12031, subd. (a)(1), (2)(C)) (count 3); and street terrorism (§ 186.22, subd. (a)) (count 4). The complaint alleged Rodriguez committed these crimes for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)); personally used a firearm (§ 12022.5, subd. (a)); and had suffered three prior felony convictions (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code, unless otherwise indicated.
Count 1 was later amended to charge an assault with a firearm (§ 245, subd. (a)(2)). Rodriguez pled guilty to this amended charge and admitted he personally used a firearm. Before pleading guilty, Rodriguez completed a waiver of rights form. The “[p]roposed disposition” section of the waiver form stated, in pertinent part: “I understand the court will: . . . [¶] . . . [¶] (e) Order me to pay the mandatory state restitution fine between $200 and $10,000 [§ 1202.4].” When questioned by the prosecutor regarding the form, Rodriguez acknowledged he had gone over the form with his attorney and had placed his “initials on the left-hand side of the form.”
The trial court found there had been a knowing, intelligent understanding and waiver of all constitutional rights and a knowing, and intelligent understanding of all the consequences of and the possible penalties and punishments associated with the plea. The court sentenced Rodriguez to a total term of 13 years in state prison. The court ordered Rodriguez to pay a restitution fund fine of $200 pursuant to section 1202.4, a $20 security fee pursuant to section 1465.8, and a $200 parole revocation fine pursuant to section 1202.45. The court ordered the parole revocation fine suspended unless parole was revoked.
Some 26 months after Rodriguez entered his plea and was sentenced, he filed a “Motion of Waiver of Restitution or Fine” in the trial court. In his motion, Rodriguez argued the court should waive the restitution fine because he was indigent and unable to pay the fine. The court denied Rodriguez’s motion on the following grounds: (1) “state restitution[s] . . . are mandatory absent compelling and extraordinary reasons[,]” and a defendant’s inability to pay is not an extraordinary reason; and (2) “[t]he court has no jurisdiction to modify [the] sentence” absent statutory authority of other legal grounds.
DISCUSSION
“Because waivers of appellate rights are ordinarily found in the context of a plea bargain, the scope of the waiver is approached like a question of contract interpretation—to what did the parties expressly or by reasonable implication agree? [Citations.]” (In re Uriah R. (1999) 70 Cal.App.4th 1152, 1157.)Here, Rodriguez acknowledged he had gone over the form with his attorney. The trial court indicated in open court it was crossing out the restitution provision and said, “I’ll order you to pay a mandatory state restitution fine of $200.” Rodriguez made no comment as to the state restitution fine. On this record, it is clear Rodriguez understood he would be subject to a state restitution fine and agreed to its imposition as part of his plea agreement.
In his motion to the trial court, Rodriguez indicated he was unable to pay the fine due to his “state of indigence[.]” As the trial court properly stated, the court can not waive the minimum $200 fine absent a finding compelling and extraordinary reasons exist not to impose the fine, and inability to pay is not a valid reason. Section 1202.4, subdivision (c), states: “A defendant’s inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution fine. Inability to pay may be considered only in increasing the amount of the restitution fine in excess of the two hundred-dollar ($200) or one hundred-dollar ($100) minimum.” We conclude the state restitution fine was properly imposed and Rodriguez’s subsequent motion to waive the fine was properly denied. We found no other viable issues in the case regarding his plea agreement or sentencing.
DISPOSITION
The judgment is affirmed.
WE CONCUR: SILLS, P. J., RYLAARSDAM, J.