Filed 4/26/16 P. v. Ball 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                     (Sacramento)
                                                            ----



THE PEOPLE,                                                                                  C078566

                   Plaintiff and Respondent,                                     (Super. Ct. No. 12F04620)

         v.

JOHNATHAN SHAWN BALL,

                   Defendant and Appellant.



         Following a jury trial, defendant Johnathan Shawn Ball was convicted of ten
counts of lewd and lascivious acts upon a minor under the age of 14. (Pen. Code, § 288,
subd. (a).)1 The trial court sentenced defendant to an indeterminate term of 14 years to
life pursuant to section 288, subdivision (i), plus a consecutive determinate term of 53
years. The trial court also imposed a $10,000 restitution fine.
         On appeal, defendant contends the trial court erred in imposing the indeterminate
term because, though the jury found true the allegation that defendant inflicted great




1   Undesignated statutory references are to the Penal Code.

                                                             1
bodily injury upon the victim within the meaning of section 12022.7, the jury was not
instructed on the question whether defendant inflicted bodily harm within the meaning of
section 288, subdivision (i). Defendant correctly observes that the two statutes contain
different definitions of bodily harm, and section 288, subdivision (i)(2) specifically
provides that, “The penalty provided in this subdivision shall only apply if the fact that
the defendant personally inflicted bodily harm upon the victim is pled and proved.” The
People concede the trial court’s error and we accept the concession. Accordingly, we
vacate the indeterminate sentence and remand for resentencing without application of
section 288, subdivision (i). We reject defendant’s contentions that the trial court erred in
imposing a five-year enhancement pursuant to section 667, subdivision (a)(1), and a
$10,000 restitution fine.
                                   I. BACKGROUND
       Defendant sexually abused his stepdaughter, Melissa J., over a period of five
years, beginning when she was seven years old. Over time, defendant’s sexual abuse
escalated from inappropriate touching to repeated rapes, which eventually caused Melissa
J. to become pregnant at the age of thirteen. The abuse ended when Melissa J. confided
in Jennifer, an adult relative. Jennifer took Melissa J. to the hospital, where a pregnancy
test was administered. Jennifer then took Melissa J. to the police station, where Melissa
J. made a pretext call to defendant. During the call, Melissa J. told defendant that she
was pregnant, and defendant responded, “Okay. I love you.” Later in the call, Melissa J.
told defendant, “You can’t tell mom, you’ll get in trouble,” and defendant responded,
“Oh yeah. Oh hell.”
       Melissa J. terminated the pregnancy at ten weeks. DNA testing confirmed
defendant’s paternity.
       Defendant was charged by complaint and later by information with twelve counts
of lewd and lascivious conduct upon a minor under the age of 14. (§ 288, subd. (a).) The
complaint alleged that each of the charged crimes was a serious felony within the

                                              2
meaning of section 1192.7, subdivision (c). The complaint also alleged that defendant
had a prior serious felony conviction within the meaning of section 667, subdivision (a).
       The prosecution filed a first amended complaint (later deemed an information)
approximately one year later. With respect to count four, the first amended complaint
alleged that defendant inflicted great bodily injury upon Melissa J. within the meaning of
section 12022.7, subdivision (a). The first amended complaint did not allege that
defendant personally inflicted bodily harm upon Melissa J. within the meaning of section
288, subdivision (i). As before, the first amended complaint alleged that each of the
charged crimes was a serious felony within the meaning of section 1192.7, subdivision
(c), and that defendant had a prior serious felony conviction within the meaning of
section 667, subdivision (a).
       The prosecution filed a second amended information approximately one and one
half years later. Once again, the second amended information alleged that defendant
inflicted great bodily injury upon Melissa J. within the meaning of section 12022.7 with
respect to count four, and that each of the charged crimes was a serious felony within the
meaning of section 1192.7, subdivision (c). The second amended information also
alleged that defendant “was on February 19, 2010, in the Superior Court of the State of
California, for the County of Sacramento, convicted of the crime of First Degree
Burglary in violation of Section 459 of the Penal Code, a serious felony, within the
meaning of Section 1192.7[, subdivision ](c) of the Penal Code, and that by reason
thereof, that he comes within the provisions of Section 667[, subdivisions ](b)-(i) and
Section 1170.12 of the Penal Code.” The second amended information did not allege a
prior serious felony enhancement under section 667, subdivision (a)(1).
       In November 2014, the case was tried before a jury. Prior to the start of trial, the
trial court made a record of the parties’ settlement negotiations, stating: “I understand up
to this point the D.A.’s office has offered 40 years, a 40-year sentence. And that involves



                                             3
multiple counts of [section] 288[, subdivision ](a). And all 12 counts are [section]
288[, subdivision ](a), which is six or eight triad.
       “And there is one strike charged that is—apparently, the defendant is on probation
for a first degree residential burglary that occurred in [2010], and so that would account
[sic] as not only a strike, but also would count as a five-year prior.
       “So using that math of doubling up the term, it is a possibility according to [the
prosecutor] that—that the defendant could receive a maximum of 80 years in prison on
this case if he were to be convicted of all counts and [the] prior [was] found to be true.
       “And that the D.A.’s Office in light of that has offered a 40-year term. That is a
determinate term.”
       The trial court then noted that defendant had made a counteroffer of 16 years in
state prison, which the prosecutor planned to discuss with her supervisor.
       Later, the trial court engaged the parties in another discussion of settlement. The
following colloquy took place:
       “THE COURT: Okay. And I take it [defense counsel], your client was not
interested [in the prosecution’s offer], just as he was not interested initially in the 40
years, he didn’t rethink that and is not interested in 40 years today?
       “[DEFENSE COUNSEL]: That’s correct, your Honor. [¶] And I think part of the
calculus also included a determination that the maximum exposure was somewhere
around 80 years.
       “THE COURT: Right.
       “[DEFENSE COUNSEL]: And I think that may have been factored into the initial
offer from the District Attorney’s Office. I think we had a quick cursory math calculation
in chambers and it came somewhere around 68 years.
       “THE COURT: Right. [¶] I—I believe based on the fact that there is a [sic]one
strike, that would serve as a strike, and also a five year prior, and also there is [section]
12022.7[, subdivision ](a), which carries three years. [¶] I think that using an upper term

                                               4
calculation for one of the counts anyway, the maximum that the defendant could receive
would be 68 years if he was convicted of all counts and the strike and five-year prior—
prior were also found to be true. That’s—that was my math on the subject. [¶] I think
[the prosecutor] agrees that that is the maximum exposure and—and I believe you—you
do as well.
       Defense counsel then made a counteroffer of twenty years, which was evidently
rejected.
       Following the close of evidence, the jury was instructed with CALCRIM No. 3160
as follows: “If you find the defendant guilty of the crime charged in Count Four you
must then decide whether the People have proved the additional allegation that the
defendant personally inflicted great bodily injury on Melissa [J.] during the commission
of that crime. [¶] Great bodily injury means significant or substantial physical injury. It
is an [injury] that is greater than minor or moderate harm. [¶] Committing the crime of
lewd and lascivious act with a child under the age of 14 is not by itself the infliction of
great bodily injury. [¶] Pregnancy without medical complications that results from
unlawful but non-forcible sexual conduct with a minor can support a finding of great
bodily injury. [¶] However, it is up to the jury to decide whether the facts in this case
support a finding that the defendant personally inflicted great bodily injury on Melissa
[J.] [¶] The fact that Melissa [J.] had an abortion cannot by itself support a finding that
the defendant personally inflicted great bodily injury. [¶] The People have the burden of
proving each allegation beyond a reasonable doubt. If the People have not met this
burden, you must find that the allegation has not been proved.”
       The jury was not instructed on section 288, subdivision (i)(3), which defines
“bodily harm” as “any substantial physical injury resulting from the use of force that is
more than the force necessary to commit the offense.”
       The jury found defendant guilty of ten of 12 counts, including count four. The
jury also found true the allegation that defendant inflicted great bodily injury on Melissa

                                              5
J. within the meaning of section 12022.7 in connection with count four. The matter was
referred to the probation department for a presentence report.
       The probation department recommended that defendant be committed to state
prison for 14 years to life, reasoning that “[t]he indeterminate term is mandated by Penal
Code section 288[, subdivision ](i)(l). A term is not being recommended for the
12022.7[, subdivision ](a) Penal Code allegation itself as it was used to enhance this
count to an indeterminate term.”
       On January 23, 2015, the parties appeared for sentencing. At the sentencing
hearing, the trial court found true allegations that defendant had a prior serious felony
conviction within the meaning of the three strikes law. (§§ 667, subds. (b)-(i), 1170.12.)
Turning to the probation report, the trial court remarked: “The only thing in the
probation report that I found surprising, and that’s simply because I—I haven’t really
reviewed this, the sentencing on this in a while, and that is that they are recommending a
life sentence because there is a 12022.7[, subdivision ](a) allegation, that is a personal
infliction of great bodily injury that was found true. And it attached to Count 4, which
was a violation of Penal Code section 288[, subdivision ](a).
       “And according to the Penal Code that elevates that from a more traditional
determinate sentencing to the indeterminate sentence of seven to life on Count 4, which
would then be doubled because of the strike prior to 14 years to life just on Count 4.
       “And I don’t know if we had discussed that. I don’t remember discussing that
ahead of time, whether we were trying to figure out what his maximum sentence was, and
so I’m just referencing that from that point of view.”
       At defense counsel’s request, the trial court then continued the sentencing hearing
to give defendant more time in which to review the probation report.
       During the continued sentencing hearing, defense counsel objected to the
probation department’s recommendation, noting that section 288, subdivision (i) was
neither alleged in the complaint nor contemplated by the parties during settlement

                                              6
negotiations. Among other things, defense counsel noted that the parties had previously
discussed settlement on the record, and no mention was made of the possibility that
defendant might receive an indeterminate term in connection with count four. Had
defendant been aware of the possibility, defense counsel continued, he might have
accepted the prosecution’s offer of forty years in state prison.
        The trial court responded: “Well, I guess the fact that there is a Penal Code
Section that—[section[ 288[, subdivision ](i) that says that if you are convicted of
inflicting great bodily injury and that’s pled and proven, that you can receive a life
sentence for that is notice insofar as everyone is supposed to be [aware of it]. At least as
his lawyer you should have been aware of that.
        “And I recognize that we did not discuss that here in court. And I don’t think that
I ever stated what my opinion was on his—his maximum. . . . I asked the lawyers for—
for you to have discussion of that.
        “And so it is in the Penal Code. And I can’t say that I had looked it up myself
before trial on that issue. But it is sure enough listed, [section] 288[, subdivision ](i)(1)
and (2) lists that that is a—the sentence for—for a [section] 288[, subdivision ](a) when
[great bodily injury] has been personally inflicted.
        “The jury did find that to be true. And I—and I know there was [] basically the
discussion was such that the defendant was looking at such a great amount of time that
essentially it was—would be a life sentence if he did plead to the 40 years that the People
were offering. Since these are violent felonies it would have to be done at 85 percent
time.
        “And so I’ll just leave that where it is. I let the record speak for itself as to what
was communicated to the defendant. I don’t know what your personal communications
were with him and so—but I know on the record that he was willing to plead to 20 years
and—and the People were not willing to offer that.”



                                                7
       The trial court then sentenced defendant to (1) a total determinate term of 53 years
for counts 1, 3, 5, 6, 7, 9, 10, 11, and 12, and (2) a consecutive indeterminate term of 14
years to life for count four. The determinate term was calculated as follows: 16 years
(the upper term, doubled) as to count 1, plus consecutive terms of four years each (one-
third the mid-term, doubled) as to counts 3, 5, 6, 7, 9, 10, 11, and 12, plus five years for
the prior serious felony. The indeterminate term was calculated as seven years to life (§§
288, subd. (i), 3046), doubled for the prior strike conviction. The trial court also imposed
a $10,000 restitution fine, stating “I’m imposing a $10,000 fine in this case because the
defendant is going to be in prison effectively for the remainder of his life. He appears to
be able-bodied enough to work in prison and he can work that fine off with prison
earnings.”
       Defendant filed a timely notice of appeal.
                                     II. DISCUSSION

A.     Indeterminate Term Pursuant to Section 288, Subdivision (i)
       On appeal, defendant contends the trial court erred in imposing a 14-years-to-life
sentence on count four pursuant to section 288, subdivision (i). The People concede the
error and we accept the concession.
       Section 288, subdivision (i) provides: “(1) Any person convicted of a violation of
subdivision (a) shall be imprisoned in the state prison for life with the possibility of
parole if the defendant personally inflicted bodily harm upon the victim. [¶] (2) The
penalty provided in this subdivision shall only apply if the fact that the defendant
personally inflicted bodily harm upon the victim is pled and proved. [¶] (3) As used in
this subdivision, ‘bodily harm’ means any substantial physical injury resulting from the
use of force that is more than the force necessary to commit the offense.” (§ 288, subd.
(i)(1)-(3).)




                                              8
       Defendant correctly observes that bodily harm within the meaning of section 288,
subdivision (i) was neither pled nor proven. Although the jury found true the allegation
that defendant inflicted great bodily injury on Melissa J. within the meaning of section
12022.7, the jury had no occasion to consider whether defendant personally inflicted
great bodily harm on Melissa J. within the meaning of section 288, subdivision (i). As
defendant also observes, these harms are not coextensive. While section 12022.7,
subdivision (f) defines “great bodily injury” as “a significant or substantial physical
injury,” section 288, subdivision (i)(3) defines “bodily harm” as “any substantial physical
injury resulting from the use of force that is more than the force necessary to commit the
offense.” Thus, the jury’s determination that defendant inflicted great bodily injury on
Melissa J. within the meaning of section 12022.7 was not equivalent to a determination
that defendant inflicted bodily harm within the meaning of section 288, subdivision (i)(3).
       Under the Sixth Amendment, “other than the fact of a prior conviction, any fact
that increases the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.” (Apprendi v. New Jersey
(2000) 530 U.S. 466, 490; People v. Mosley (2015) 60 Cal.4th 1044, 1056.) Here,
section 288, subdivision (i) exposed defendant to a greater penalty than otherwise would
have been authorized by section 12022.7, and was therefore required to have been tried
by a jury and proven beyond a reasonable doubt. (People v. Anderson (2009) 47 Cal.4th
92, 107-108.) Accordingly, we will vacate the indeterminate sentence imposed for count
four and remand for resentencing without application of section 288, subdivision (i).

B.     Five-Year Enhancement Pursuant to Section 667, Subdivision (a)(1)
       Next, defendant argues the trial court erred in imposing the section 667,
subdivision (a)(1) enhancement because no such enhancement was charged in the second
amended information. Specifically, defendant contends the trial court erred in imposing
the enhancement as a matter of due process because the second amended information



                                              9
“did not put [defendant] on notice that he would be subject to a five-year serious felony
enhancement under section 667, subdivision (a).” We are not persuaded.
       As pertinent here, section 667, subdivision (a)(1) provides that “any person
convicted of a serious felony who previously has been convicted of a serious felony in
this state . . . shall receive, in addition to the sentence imposed by the court for the present
offense, a five-year enhancement for each such prior conviction on charges brought and
tried separately.” Under the statute, “when the defendant is convicted of a current serious
felony . . . and has been previously convicted of a serious felony, the trial court must
impose a five-year enhancement for each such prior conviction that was brought and tried
separately. The terms of the present offense and each section 667[, subdivision ](a)[(1)]
enhancement must run consecutively.” (People v. Dotson (1997) 16 Cal.4th 547, 553.)
“The trial court has no discretion and the sentence is mandatory.” (People v. Purata
(1996) 42 Cal.App.4th 489, 498.)
       Here, the prosecution specifically referenced section 667, subdivision (a)(1) in the
complaint and first amended complaint, but omitted any reference to the statute in the
operative pleading. We conclude the omission was immaterial. The second amended
information specifically referenced the statutory section and subdivisions corresponding
to the Three Strikes law, specifically, section 667, subdivisions (b) through (i). Although
the second amended information failed to reference section 667, subdivision (a)(1), “the
imposition of the five-year enhancement for the prior serious felony conviction [is] part
and parcel of the Three Strikes statutory scheme.” (People v. Dominguez (1995) 38
Cal.App.4th 410, 425.) Furthermore, “it is clear that a valid accusatory pleading need not
specify by number the statute under which the accused is being charged” (People v.
Thomas (1987) 43 Cal.3d 818, 826); it is sufficient that the pleading identify the factual
basis for imposition of the enhanced penalty. (People v. Flynn (1995) 31 Cal.App.4th
1387, 1392-1395; People v. Shoaff (1993) 16 Cal.App.4th 1112, 1117-1118.)



                                              10
       As noted, the second amended information alleges that “defendant . . . was on
February 19, 2010, in the Superior Court of the State of California, for the County of
Sacramento, convicted of the crime of First Degree Burglary in violation of Section 459
of the Penal Code, a serious felony, within the meaning of Section 1192.7[, subdivision ]
(c) of the Penal Code, and that by reason thereof, that he comes within the provisions of
Section 667[, subdivision ](b)-(i) and Section 1170.12 of the Penal Code.” Thus, the
second amended information adequately alleges the factual basis for a finding that
defendant had a prior serious felony conviction. (§ 969; People v. Flynn, supra, 31
Cal.App.4th at pp. 1392-1395; People v. Shoaff, supra, 16 Cal.App.4th at pp. 1117-
1118.) Although it would be better practice for the district attorney to allege the specific
statutes by which she seeks to enhance a defendant’s sentence, we conclude the second
amended information provided sufficient notice of the potential five-year enhancement
by stating the facts supporting it.
       People v. Mancebo (2002) 27 Cal.4th 735 (Mancebo), on which defendant relies,
does not compel a contrary conclusion. In Mancebo, the information charged the
defendant with various sex crimes against multiple victims and alleged firearm use and
kidnapping to support an enhancement under section 667.61. (Mancebo, supra, at
p. 740.) At the sentencing hearing, the trial court sua sponte substituted a multiple-victim
circumstance for the firearm-use allegation to support the enhancement under section
667.61 and to free up the firearm-use allegation for use to support other enhancements,
even though the multiple-victim circumstance had not been alleged by either statute
number or descriptive facts. (Ibid.) Our Supreme Court affirmed the judgment of the
court of appeal reversing the sentence, holding that the trial court erred when it used an
unpled multiple-victim circumstance to support an enhanced sentence under section
667.61. (Id. at pp. 739, 742-745, 754.) “Mancebo thus stands for the limited proposition
that a defendant is entitled to notice of the specific facts that will be used to support an
enhanced sentence. Facts alleged and proved only as part of the substantive crime

                                              11
charged cannot later be used to support a sentencing enhancement.” (People v. Tardy
(2003) 112 Cal.App.4th 783, 789, italics added.) Here, in contrast to Mancebo,
defendant’s sentence was enhanced on the basis of facts that were specifically and
separately pleaded and proved for the purpose of enhancement. We therefore conclude
that Mancebo is distinguishable, and reject defendant’s claim of error.
       We likewise reject defendant’s claim that he received ineffective assistance
because his trial counsel failed to object to the enhancement. To prevail on a claim of
ineffective assistance of counsel, a defendant must show (1) his counsel’s performance
was below an objective standard of reasonableness under prevailing professional norms,
and (2) the deficient performance prejudiced the defendant. (Strickland v. Washington
(1984) 466 U.S. 668, 687-688; People v. Ledesma (1987) 43 Cal.3d 171, 216-217.) To
show prejudice, the defendant must show a reasonable probability he would have
received a more favorable result had his counsel’s performance not been deficient.
(Strickland, supra, 466 U.S. at p. 693-694; Ledesma, supra, 43 Cal.3d at pp. 217-218.)
       Even assuming arguendo that trial counsel’s performance was deficient, defendant
cannot show prejudice. We reiterate that the five-year enhancement pursuant to section
667, subdivision (a)(1) was mandatory. (People v. Dotson, supra, 16 Cal.4th at p. 553;
People v. Purata, supra, 42 Cal.App.4th at p. 498.) Under the circumstances, even a
timely objection would have been unavailing. We therefore reject defendant’s contention
that trial counsel was ineffective for failing to object to the enhancement.

C.     Restitution Fine
       Finally, defendant contends the trial court abused its discretion when it imposed
the maximum restitution fine of $10,000. Specifically, defendant contends the trial court
“imposed the fine based on an incorrect understanding of the facts relating to [his] ability
to pay a $10,000 fine from prison earnings.” We are not persuaded.




                                             12
       Preliminarily, we agree with the People that defendant forfeited his challenge to
the restitution fine by failing to object at the sentencing hearing. (People v. Nelson
(2011) 51 Cal.4th 198, 227; People v. Gamache (2010) 48 Cal.4th 347, 409.) Even
assuming for the sake of argument that defendant had not forfeited this issue, he has not
established an abuse of discretion.
       Section 1202.4, subdivision (b) requires the trial court to impose a restitution fine
“[i]n every case where a person is convicted of a crime,” in the absence of compelling or
extraordinary reasons for not imposing the fine. Where, as here, a defendant is convicted
of a felony on or after January 1, 2014, the fine shall be set between $300 and $10,000,
commensurate with the seriousness of the offense. (§ 1202.4, subd. (b)(1).)
       In setting the fine above the minimum, “the court shall consider any relevant
factors, including, but not limited to, the defendant’s inability to pay, the seriousness and
gravity of the offense, and the circumstances of its commission, any economic gain
derived by the defendant as a result of the crime, the extent to which any other person
suffered any losses as a result of the crime, and the number of victims involved in the
crime.” (§ 1202.4, subd. (d).) “Consideration of a defendant’s inability to pay may
include his or her future earning capacity. A defendant shall bear the burden of
demonstrating his or her inability to pay.” (Ibid.) “The statute thus impliedly presumes a
defendant has the ability to pay and expressly places the burden on a defendant to prove
lack of ability.” (People v. Romero (1996) 43 Cal.App.4th 440, 449.)
       At the sentencing hearing, the trial court stated, “I’m imposing a $10,000 fine in
this case because the defendant is going to be in prison effectively for the remainder of
his life. He appears to be able-bodied enough to work in prison and he can work that fine
off with prison earnings.” Defendant offered no evidence concerning his inability to pay.
“Where as here, a defendant adduces no evidence of inability to pay, the trial court
should presume ability to pay, as the trial court correctly did here. Since here defendant’s
ability to pay was supplied by the implied presumption, the record need not contain

                                             13
evidence of defendant’s ability to pay.” (People v. Romero, supra, 43 Cal.App.4th at p.
449.)
        On appeal, defendant argues that he has no realistic chance of paying the
restitution fine from his future prison earnings. Defendant observes that the current rates
of pay for work performed by prison inmates range from $12 per month to $56 per
month, and are subject to a statutory maximum of one-half the minimum wage.
(§§ 2700, 2801, subd. (b), 2811; Dept of Corrections and Rehabilitation, Operations
Manual, § 51120.6, p. 359.) Section 2085.5, subdivision (a) directs the Director of
Corrections and Rehabilitation to deduct 20 to 50 percent from the prisoner’s wages for
credit against the prisoner’s restitution fine. Under current regulations, the amount
deducted by the director for that purpose is 50 percent, but only 40 percent is transferred
and credited toward the restitution fine. (Cal. Code Regs., tit. 15, § 3097(f).) Thus,
defendant contends, even assuming he earns the highest rate of $56 per month, the
amount deducted for credit against his restitution fine will be only $22.40 per month. At
that rate, it would take defendant, who was fifty years old at the time of sentencing, more
than 37 years to repay the fine.
        We perceive nothing in the record to support defendant’s contention that the trial
court misunderstood the difficulties he might face in repaying the restitution fine. To the
contrary, the evidence supports the trial court’s implied finding of defendant’s ability to
pay, based solely on his potential prison earnings over the course of a lengthy sentence.
In the absence of any evidence indicating that defendant is unable to work (and defendant
has offered none), we decline to speculate as to whether defendant will be able to work
long enough to repay the fine.
        Furthermore, though ability to pay is one of the factors a trial court should
consider in imposing a restitution fine above the statutory minimum, it is not the only
factor. (People v. DeFrance (2008) 167 Cal.App.4th 486, 504-505.) The trial court must
also consider “the seriousness and gravity of the offense and the circumstances of its

                                              14
commission.” (§ 1202.4, subd. (d).) Here, there is no question that defendant’s crimes
were serious and grave. Defendant sexually abused and raped his stepdaughter over a
period of years, eventually impregnating her, and putting her in the position of
undergoing an abortion as a preteen. On this record, we perceive no abuse of discretion
in the trial court’s imposition of the maximum fine, notwithstanding the challenges
defendant may face in paying it.
                                   III. DISPOSITION
       The indeterminate sentence as to count four is vacated and the matter is remanded
to the trial court for resentencing in accordance with this opinion. The clerk of the
superior court is then directed to prepare an amended abstract of judgment and to forward
a certified copy of the amended abstract of judgment to the Department of Corrections
and Rehabilitation. In all other respects, the judgment is affirmed.



                                                          /S/

                                                  RENNER, J.



We concur:



/S/

ROBIE, Acting P. J.



/S/

BUTZ, J.




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