Filed 8/2/13 P. v. Velasquez CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.



           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FIFTH APPELLATE DISTRICT


THE PEOPLE,
                                                                                           F064285
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. BF137599A)
                   v.

DANIEL VELASQUEZ,                                                                        OPINION
         Defendant and Appellant.



                                                   THE COURT
         APPEAL from a judgment of the Superior Court of Kern County. John R.
Brownlee, Judge.
         Allen G. Weinberg, 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, Michael A. Canzoneri and
Barton Bowers, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-

        Before Wiseman, Acting P.J., Detjen, J., and Franson, J.
                                    INTRODUCTION
       On December 2, 2011, a jury found Daniel Velasquez (appellant) guilty of
carjacking (Pen. Code, § 215, subd. (a), count 1)1 and robbery (§§ 211 & 212.5, subd. (c),
count 2). In a bifurcated proceeding, the trial court found true allegations that appellant
had a prior conviction within the meaning of the three strikes law (§§ 667, subds. (c)-(j)
& 1170.12, subds. (a)-(e)) and a prior serious felony enhancement (§ 667, subd. (a)). The
court also found true six prior prison term enhancements (§ 667.5, subd. (b)).
       On January 6, 2012, the trial court sentenced appellant to the midterm of five years
on count 1, doubled the sentence to 10 years pursuant to the three strikes law, and stayed
appellant’s sentence on count 2 pursuant to section 654. The court imposed sentence on
five of the prior prison term enhancements and imposed a term of five years for the prior
serious felony enhancement.2 Appellant’s total prison term is 20 years. The court
granted total custody credits of 204 days, imposed a $200 restitution fine, a $10 crime
prevention fine pursuant to section 1202.5, and other fines and fees.
       Appellant contends that there is an error in the abstract of judgment, a point
respondent concedes. Appellant further contends that the trial court failed to make an
ability to pay finding when it imposed a $10 crime prevention fine pursuant to section
1202.5. We agree with respondent that appellant failed to raise his ability to pay at the
sentencing hearing and has, therefore, forfeited the issue for appellate review.3

1      All further statutory references are to the Penal Code.
2       Because one of the prior prison term enhancements was for the same prior
conviction for which appellant was sentenced for a serious felony enhancement, the court
had to strike the sentence on that prior prison term allegation. (People v. Jones (1993) 5
Cal.4th 1142, 1149-1153.) The abstract of judgment, however, incorrectly indicates that
the trial court stayed this prior prison term enhancement.
3     Because the only issues on appeal concern the abstract of judgment and the
imposition of a fee, we do not recount the underlying facts of appellant’s offense.


                                              2
                              ABSTRACT OF JUDGMENT
       The trial court struck one of appellant’s prior prison term enhancements. This was
the correct procedure to follow as discussed in footnote 2 above. The abstract of
judgment, however, incorrectly sets forth that one prior prison term enhancement was
stayed. This was clearly clerical error that can be corrected at any stage of the
proceedings. (People v. Mitchell (2001) 26 Cal.4th 181, 185; People v. Gonzalez (2012)
210 Cal.App.4th 724, 744.) Accordingly, we will remand the action to have the abstract
of judgment amended.
                                     ABILITY TO PAY
       Appellant further contends that the trial court erred in imposing a $10 crime
prevention fine because it failed to find that he had the ability to pay the fine. We agree,
however, with respondent who argues that appellant failed to object to the fine based on
his ability to pay it at the sentencing hearing and the issue is therefore forfeited.
       The probation officer’s report notified the parties that several fines, fees, and
penalties were being sought as part of appellant’s sentence. Among these was a $10
prevention of crime fee imposed pursuant to section 1202.5. Despite being notified that
the People were seeking this fee prior to the sentencing hearing, appellant lodged no
objection to the trial court’s imposition of this fine, or to any other fine, fee or penalty.
       Generally, the right to appellate review of a trial court’s sentencing discretion,
where a defendant fails to raise the issue to the trial court, is forfeited when raised for the
first time on appeal. (People v. Gonzalez (2003) 31 Cal.4th 745-755; People v. Scott
(1994) 9 Cal.4th 331, 356.) This rule has been applied to challenges to fines or fees
challenged for the first time on appeal, including those asserting insufficiency of the
evidence. (People v. Valtakis (2003) 105 Cal.App.4th 1066, 1069-1076; People v.
Hodges (1999) 70 Cal.App.4th 1348, 1357.)



                                               3
       The trial court is the proper venue to litigate the ability to pay any fine, fee, or
penalty because this is a factual issue. The exception to this requirement is where an
appellate court is presented with a pure legal question involving the proper application of
a fee, fine, or penalty. Appellant’s challenge involves a factual question that he failed to
raise to the trial court. This challenge is therefore forfeited. (People v. McCullough
(2013) 56 Cal.4th 589, 592-599.)
                                       DISPOSITION
       The case is remanded to the trial court to amend the abstract of judgment to show
that one prior prison term enhancement was stricken, not stayed. The court shall forward
the amended abstract of judgment to the appropriate authorities. The judgment is
otherwise affirmed.




                                               4
