P. v. Merklin CA3

Filed 3/27/13 P. v. Merklin CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Butte) ----

THE PEOPLE, C070465

Plaintiff and Respondent, (Super. Ct. No. CM033692)

v.

TIMOTHY ISAIAH MERKLIN,

Defendant and Appellant.

Defendant Timothy Isaiah Merklin pleaded no contest to infliction of corporal injury on a spouse (Pen. Code, § 273.5, subd. (a))1 and admitted he inflicted great bodily injury (§ 12022.7, subd. (e)). In exchange for his plea, the People moved to dismiss a misdemeanor charge of false imprisonment. (§ 236.) The trial court sentenced defendant to state prison for a term of seven years, in accordance with the plea agreement. It ordered defendant to pay various fines, fees, and penalty assessments, including $736 for the presentence investigation probation report and $286 for the supplemental report, for a total of $1022. Defendant appeals.

1 Further undesignated statutory references are to the Penal Code.

1

Defendant contends: (1) the order to pay $1022 for the probation reports must be stricken, and (2) the abstract of judgment must be corrected to reflect the presentence credits awarded by the court. As we explain, defendant’s first contention is forfeited and his second is moot. Accordingly, we shall affirm. DISCUSSION2 I Order to Pay Cost of Reports The trial court ordered defendant to pay a total of $1022 pursuant to section 1203.1b.3 Defendant did not object to the order to pay at the time of sentencing. Defendant now contends that the trial court erred in imposing these fees because it failed to make a finding as to defendant’s ability to pay and no evidence in the record supported such finding in any event. The People respond that defendant has forfeited this claim by his failure to object to the order in the trial court. We agree. In People v. Gibson (1994) 27 Cal.App.4th 1466, 1468 (Gibson), we held that a defendant forfeited the issue of his ability to pay a restitution fine when he failed to raise any objection on this basis at the time the fine was imposed. In People v. Crittle (2007) 154 Cal.App.4th 368, 371 (Crittle), we followed Gibson and further concluded that the defendant also forfeited his contention that “nothing in the record show[ed] he had the