People v. Gentry

Opinion

STEIN, J.

Appellant Richard Eugene Gentry appeals from the imposition of a $5,000 restitution fine pursuant to Government Code section 13967, subdivision (a). Appellant contends that it was error to impose the fine because it violated the terms of his plea agreement. Arguing in the alternative, appellant contends that even if the plea bargain was not violated, it was

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error to impose the restitution fine without a consideration of appellant’s ability to pay. For the reasons stated below, we hold (1) that the imposition of the fine did not violate the terms of the plea agreement, (2) that the appellant waived the ability to pay issue by not raising it in the trial court, and (3) despite the waiver the record supports an implied finding of defendant’s ability to pay.

Factual Background

Appellant entered a negotiated plea of no contest to one count of violating Penal Code section 288.5 (continual sexual abuse of a child under the age of 14 years) and admitted special allegations pursuant to Penal Code section 1203.066, subdivision (a)(8) and (9) (substantial sexual contact with a victim under the age of 11 years and abuse of a position of trust). Appellant’s plea was conditioned on the dismissal of two other related counts and a sentence not to exceed twelve years.

Appellant signed a form entitled “Waiver of Constitutional Rights and Declaration in Support of Defendant’s Motion to Change Plea,” which contained, inter alia, the following clause: “In addition to other penalties that may be ordered by the court, I may be subjected to fines that may vary in amount from $10.00 to $10,000.00.”

After the plea was entered but before sentencing, a probation report was filed that recommended a $5,000 fine to cover the cost of the victim’s therapy. The trial court sentenced appellant to 12 years in state prison and imposed a $5,000 restitution fine. At sentencing, appellant did not object to the fine.

Discussion

A., B.

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