Filed 5/13/16 P. v. Young CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                         (Yuba)
                                                            ----



THE PEOPLE,                                                                                  C078870

                   Plaintiff and Respondent,                                      (Super. Ct. No. CRF1511)

         v.

JASON GRANT YOUNG,

                   Defendant and Appellant.




         Defendant Jason Grant Young pleaded no contest to oral copulation of his
daughter, A.Y., a child less than 10 years old. The trial court sentenced him to prison for
a term of 15 years to life and ordered that defendant would have no visitation with his
children S.Y. and A.Y. Among other things, the trial court also ordered defendant to pay
a $10,000 restitution fine pursuant to Penal Code section 1202.4.1




1   Undesignated statutory references are to the Penal Code.

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       On appeal, defendant contends the trial court erred in ordering no visitation with
S.Y., who was not a named victim, and erroneously listed his wife’s birthday on the no-
visitation order instead of A.Y.’s. Defendant further contends the trial court incorrectly
ordered him to pay a $60 DNA surcharge, which he contends should only be a
$30 surcharge, and the trial court abused its discretion in ordering him to pay a $10,000
restitution fine.
       We conclude the trial court did not abuse its discretion in ordering defendant to
pay a $10,000 restitution fine. We accept the People’s concession that the no-visitation
order must be corrected to eliminate S.Y. and correct A.Y.’s birth date, and the DNA
surcharge must be reduced to $30. We also accept defendant’s concession that the trial
court should have imposed a $120 DNA penalty under Government Code
section 76104.7. We will amend the judgment accordingly and affirm the judgment as
amended.
                                       BACKGROUND
       On January 6, 2015, the People charged defendant with four counts of sexually
abusing his daughter, A.Y., who was then five years old. Defendant pleaded no contest
to oral copulation of a child under 10 years old. (§ 288.7, subd. (b).) In exchange for
defendant’s plea, the People agreed they would move to dismiss the remaining charges
and stipulate to a term of 15 years to life in state prison.
       On January 14, 2015, the trial court accepted defendant’s plea. The trial court
later sentenced defendant in accordance with his plea and dismissed the remaining
charges. The court also followed the recommendation of the probation department and
ordered defendant to pay a $10,000 restitution fine, despite defendant’s request that the
court set the fine “as low as possible.” The court explained that “[g]iven the gravity of
the offense, I believe . . . it’s appropriate.”
       The court also ordered defendant to pay, among other fines and fees, a $300 base
fine under Penal Code section 290.3, to which the court appended a $60 DNA surcharge

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pursuant to Government Code section 76104.6. And the court issued an order prohibiting
defendant from visiting with either of his children: “A.Y., (D.O.B. [a date in 1987]) and
S.Y. (D.O.B. [a date in 2013]) . . . .”
                                          DISCUSSION
A.     $10,000 Restitution Fine
       Defendant claims the trial court abused its discretion in ordering him to pay a
$10,000 restitution fine. In support of his claim, defendant argues that he has no ability
to pay the fine and the fine itself “harms the victim by draining assets from the victim’s
own family.” We are not persuaded.
       In determining whether a defendant has the ability to pay a restitution fine, “the
court is not limited to considering a defendant’s present ability but may consider a
defendant’s ability to pay in the future.” (People v. Frye (1994) 21 Cal.App.4th 1483,
1487.) The determination under this statute “does not necessarily require existing
employment or cash on hand.” (People v. Staley (1992) 10 Cal.App.4th 782, 785.) In
fact, 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).) Prison
wages may be considered in determining ability to pay restitution fines, and the statute
presumes that “a defendant has the ability to pay the fine.” (People v. DeFrance (2008)
167 Cal.App.4th 486, 505 (DeFrance).)
       The trial court did not make an express finding that defendant had the ability to
pay a $10,000 restitution fine. However, an implied finding of ability to pay is supported
by the record. (See People v. Gentry (1994) 28 Cal.App.4th 1374, 1376-1378 [implied
finding of ability to pay restitution fine].) First, the trial court properly considered the
seriousness of defendant’s crime when setting the restitution fine. (§ 1202.4, subd. (d);
see also De France, supra, 167 Cal.App.4th at p. 505.)



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       In addition, defendant can earn wages while he is in prison as he was only
29 years old at the time of sentencing and will be 44 years old when he is eligible for
parole. Defendant has a general educational development certificate and expressed an
interest in furthering his education. Defendant was employed at the time of his arrest and
was not receiving any financial assistance, and he expressed an interest in obtaining job
skills while in prison in order to increase his employment opportunities upon his release.
We thus conclude the record supports an implied finding that defendant has the ability to
pay the $10,000 fine over his lifetime.
       Defendant alternately claims that collecting a $10,000 fine from him “harms the
victim in this case by draining assets from her own family.” We can think of no reasoned
argument to support a claim that defendant should be relieved of having to pay the
maximum restitution fine because he chose his daughter to be his victim.
       In sum, the trial court did not abuse its discretion in ordering defendant to pay a
$10,000 restitution fine.
B.     No-Visitation Order
       Defendant contends the no-visitation order must be narrowed to apply only to
A.Y., the victim. The People concede the issue. Section 1202.05, subdivision (a) states
in relevant part: “Whenever a person is sentenced to the state prison on or after
January 1, 1993, for violating Section . . . 288 . . . , and the victim of one or more of those
offenses is a child under the age of 18 years, the court shall prohibit all visitation between
the defendant and the child victim.” Defendant’s child S.Y. was not a victim in this case.
Accordingly, the no-visitation order should not include S.Y. We therefore accept the
People’s concession and strike S.Y.’s name from the no-visitation order. (See People v.
Turner (2002) 96 Cal.App.4th 1409, 1413-1415 (Turner) [an unauthorized sentence may
be corrected by an appellate court even in the absence of an objection or argument
below].)



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       Defendant also contends that the trial court wrote his wife’s date of birth on the
no-visitation order instead of A.Y.’s. The victim was only four years old when she was
sexually abused by defendant, not 26 years old. Accordingly, the listed date of birth
appears to be a clerical error. The People concede the error and agree the order should be
corrected. We shall direct the trial court to correct the order accordingly.
C.     DNA Surcharge/Penalty
       Defendant also claims the DNA surcharge imposed by the trial court under
Government Code section 76104.6 was “twice as high as is legally authorized.” The
People concede the error.
       Government Code section 76104.6 imposes a penalty of $1 for every $10 (or a
fraction thereof) in fines, penalties, and forfeitures as a DNA assessment. (Gov. Code,
§ 76104.6, subd. (a).) Under this formula, the trial court should have imposed a DNA
surcharge of $30, not $60, under Government Code section 76104.6. We shall amend the
judgment accordingly. (Turner, supra, 96 Cal.App.4th at pp. 1413-1415.)
       The People note, however, that the trial court also failed to impose the mandatory
40 percent state-only DNA penalty under Government Code section 76104.7. (See
People v. Hamed (2013) 221 Cal.App.4th 928, 940-941 & fn. 8 [effective June 27, 2012,
Pen. Code, § 290.3 base fine subject to state-only DNA penalty under Gov. Code,
§ 76104.7 in the amount of 40 percent].) Accordingly, here the court should have
imposed a $120 state-only DNA penalty. Defendant concedes the error. We will amend
the judgment accordingly. (Turner, supra, 96 Cal.App.4th at pp. 1413-1415.)
                                      DISPOSITION
       The judgment is modified as follows: (1) S.Y. is stricken from the no-visitation
order, (2) the Government Code section 76104.6 surcharge is reduced from $60 to $30,
and (3) a $120 Government Code section 76104.7 state-only DNA penalty is added. As
modified, the judgment is affirmed. The trial court is directed to prepare an amended
abstract of judgment and to correct A.Y.’s date of birth in the no-visitation order. The

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court is further directed to deliver a certified copy of the amended abstract and corrected
no-visitation order to the Department of Corrections and Rehabilitation.



                                                            RAYE              , P. J.



We concur:



      BLEASE                , J.



      NICHOLSON             , J.




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