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Court of Appeal, Sixth District, California.

The PEOPLE, Plaintiff and Respondent, v. Juan Rojas MENDOZA, Defendant and Appellant.

No. H011358.

Decided: June 28, 1994

William P. Daley, Under Appointment by the Sixth Dist. Appellate Program, San Diego, for appellant. Daniel E. Lungren, Atty. Gen. of the State of Cal., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Sr. Asst. Atty. Gen., Ronald E. Niver, Supervising Deputy Atty. Gen., Catherine A. Rivlin, Deputy Atty. Gen., for respondent.

In this appeal, defendant Juan Mendoza contends the court failed to consider his ability to pay before ordering him to pay a restitution fine mandated by Government Code section 13967, subdivision (a), and Penal Code section 1202.4, subdivision (a).   We conclude that the trial court properly imposed the fine and affirm the judgment.


Defendant was charged by information with six counts of violating Health and Safety Code section 11352, subdivision (a), after he sold cocaine and heroin to undercover police officers on three occasions in December 1992.   On March 31, 1993, defendant entered a negotiated guilty plea to three of the counts, in exchange for a sentence of six years in prison.   At sentencing the trial court imposed the six-year prison term, dismissed the remaining counts, and ordered defendant to pay a $200 restitution fine.   Only the restitution fine is challenged in this appeal.


Government Code section 13967, subdivision (a) (hereafter “section 13967(a)”) directs the sentencing court to impose a restitution fine whenever a person is convicted of a felony.   The fine must be “not less than two hundred dollars ($200), subject to the defendant's ability to pay, and not more than ten thousand dollars ($10,000).”  (Emphasis added.)   This section underscores the mandatory nature of the fine by stating:  “Except as provided in Section 1202.4 of the Penal Code and subdivision (c) of this section, under no circumstances shall the court fail to impose the separate and additional restitution fine required by this section.”

Penal Code section 1202.4, subdivision (a), provides:  “In any case in which a defendant is convicted of a felony, the court shall order the defendant to pay a restitution fine as provided in subdivision (a) of Section 13967 of the Government Code.   Such restitution fine shall be in addition to any other penalty or fine imposed and shall be ordered regardless of the defendant's present ability to pay.   However, if the court finds that there are compelling and extraordinary reasons, the court may waive imposition of the fine.   When such waiver is granted, the court shall state on the record all reasons supporting the waiver.”  (Emphasis added.)

In this case the probation officer recommended a restitution fine of “not more than $10,000” pursuant to section 13967(a).   The trial court followed the probation officer's recommendation, setting the amount at $200.   Defendant contends that this order was improper because the court failed to first consider whether he was able to pay the fine.   The People respond that (1) defendant waived any error by failing to object to the fine, and (2) the record supports an implied finding of defendant's ability to pay.   We agree with the People's second argument.

 Inherent in defendant's position is the assumption that section 13967(a) requires an express finding of ability to pay before the fine may be imposed.   The statute, however, does not so provide;  it states only that ability to pay is a condition of the fine, whether the amount is $200 or $10,000.   This court will not read into the language of this section a term that does not reflect the clear intent of the Legislature.   Accordingly, we will construe section 13967(a) to require a finding, express or implied, that a defendant is able to pay before imposing a restitution fine in any amount.  (Cf. People v. Frye (1994) 21 Cal.App.4th 1483, 1485, 27 Cal.Rptr.2d 52 [refusing to impose “by judicial fiat” express finding requirement in section 13967(a) ].)

“It is a basic presumption indulged in by reviewing courts that the trial court is presumed to have known and applied the correct statutory and case law in the exercise of its official duties.”  (People v. Mack (1986) 178 Cal.App.3d 1026, 1032, 224 Cal.Rptr. 208.)   Applying this general principle, we construe the court's order to include an implied finding that defendant was able to pay the $200 fine imposed, as required by section 13967(a).   Accordingly, the only relevant question before us is whether substantial evidence supports this finding.

 The People's waiver argument is misdirected.   This case does not present a “statutory procedural complaint,” as the People characterize it, but a substantive challenge to the trial court's exercise of its statutory duty.   A defendant is not required to object in the trial court in order to contest the sufficiency of evidence on appeal.  (People v. Ramos (1980) 106 Cal.App.3d 591, 598 fn. 1, 165 Cal.Rptr. 179.)

In contrast, the decisions on which the People rely in asserting waiver were based on procedural oversights that could have been corrected had they been timely brought to the attention of the court.  (See, e.g., People v. Walker (1991) 54 Cal.3d 1013, 1023, 1 Cal.Rptr.2d 902, 819 P.2d 861 [failure to advise that a guilty plea would result in restitution fine];  People v. Melton (1990) 218 Cal.App.3d 1406, 1408, 267 Cal.Rptr. 640 [same];  People v. Neal (1993) 19 Cal.App.4th 1114, 1119, 24 Cal.Rptr.2d 129 [failure to state reasons for imposing consecutive sentences];  People v. Blankenship (1989) 213 Cal.App.3d 992, 998, 262 Cal.Rptr. 141 [failure to identify factual basis of restitution order].)  People v. Welch (1993) 5 Cal.4th 228, 19 Cal.Rptr.2d 520, 851 P.2d 802 is also inapposite, since the Supreme Court expressly limited its holding in that case to complaints that probation conditions were unreasonable.   Finally, the People's reliance on People v. McMahan (1992) 3 Cal.App.4th 740, 4 Cal.Rptr.2d 708 is misplaced because the statute involved in that case, Penal Code section 290.3, places the burden on the defendant to raise the issue of ability to pay.1

 We therefore reject the suggestion that a defendant waives the right to challenge on appeal the findings of ability to pay restitution fines based upon his or her silence in the lower court.   Where either express or implied findings have been made by the trial court, the appellate court may properly consider the defendant's assertion that those findings were not supported by the evidence in the record.  (Cf. People v. Castro (1994) 24 Cal.App.4th 1661, 1671, 30 Cal.Rptr.2d 188.)

Sufficiency of Implied Findings

 Defendant argues that he is “clearly” without ability to pay the $200 fine because he has no income or assets, and his prison commitment will “by definition” render him unable to pay within the six months following the hearing.2  We disagree.

Like the Third District, this court interprets the ability-to-pay provisions of section 13967(a) and Penal Code section 1202.4 to encompass not only present assets but also the person's future financial prospects, including earning capacity.  (People v. Frye, supra, 21 Cal.App.4th at p. 1487, 27 Cal.Rptr.2d 52;  see also People v. Castro, supra, 24 Cal.App.4th at pp. 1672–1673, 30 Cal.Rptr.2d 188;  cf. People v. Staley (1992) 10 Cal.App.4th 782, 785–786, 12 Cal.Rptr.2d 816.) 3  This approach properly reconciles the apparent inconsistency between the section 13967(a) requirement that the court condition the fine upon the defendant's “ability to pay” and the language of Penal Code section 1202.4, which mandates imposition of the fine whether or not the defendant has the present ability to pay.

 Although the defendant in this case has experienced health problems, there is simply no evidence that he is physically or mentally unable to support himself with legitimate employment.   The probation officer's report indicates that defendant has worked as a construction worker both in California and in Mexico.   His job with the California company lasted only two months, ending with his arrest for an unspecified offense.   He admittedly has not worked “in a long time.”  “[T]he court was entitled to infer [from this information] that defendant's poor employment history was not due to functional causes but was the product of defendant's choice of lifestyle.”  (People v. Staley, supra, 10 Cal.App.4th at p. 786, 12 Cal.Rptr.2d 816.)   No evidence to the contrary is present in the probation report, preliminary hearing transcript, or any other documents available for review.

We must conclude, therefore, that the record supports the trial court's implied finding that defendant is capable of earning $200 to pay a fine.   No reason for either striking the fine or remanding to the trial court is apparent in this case.


The judgment is affirmed.


1.   Penal Code section 290.3 prescribes a fine for the commission of certain sex offenses, “unless the court determines that the defendant does not have the ability to pay the fine.”

2.   Defendant's argument is premised on the faulty assumption that this court will adopt the definition of “ability to pay” used in reimbursement of court costs under Government Code section 27755, which confines the determination of a person's financial prospects to six months from the date of the hearing or evaluation.   Defendant's hope is that this procedural limitation will enable him to avoid payment of the fine altogether, since he will be in prison during that six-month period.   We cannot condone this attempt to circumvent the clear mandate of section 13967(a) and Penal Code section 1202.4 by the interjection of inapplicable statutory provisions.

3.   If a person is sentenced to prison where he or she is expected to earn wages, the Department of Corrections will deduct a “reasonable amount” of those wages as a credit against the restitution fine.   (Pen.Code, § 2085.5.)   Nevertheless, on this record there is no basis for assuming defendant will be housed in a facility that would permit him to earn wages.   We therefore decline to include prison income in our assessment of defendant's earning capacity.  (But see People v. Castro, supra, 24 Cal.App.4th at pp. 1672–1673, 30 Cal.Rptr.2d 188 [presuming that a defendant committed to state prison has the ability to pay a restitution fine from prison wages];  People v. Frye, supra, 21 Cal.App.4th at p. 1487, 27 Cal.Rptr.2d 52.)

MIHARA, Associate Justice.

PREMO, Acting P.J., and WUNDERLICH, J., concur.