(Super. Ct. No. CRF10460)
The opinion of the court was delivered by: Hull , Acting P. J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
After defendant Gary Clinton Eads pleaded no contest to forcible rape and assault with intent to commit rape (Pen. Code, §§ 220, 261, subd. (a)(2); section references that follow are to the Penal Code), the trial court sentenced him to 12 years in state prison. The court also imposed a restitution fine of $2,400 (§ 1202.4, subd. (b)) and a suspended restitution fine in the same amount, to be imposed if parole were revoked (§ 1202.45). The court found defendant had the ability to pay the fine "based upon Social Security Disability benefits that he will receive." Defendant did not object to the amount of the fine or to the court's reasoning.
Defendant appeals, contending: (1) the restitution fine was unlawfully imposed as to any amount over the $200 statutory minimum because the court's reason for finding defendant could pay was legally incorrect; (2) since the amount of the fine was unauthorized, his failure to object did not forfeit the issue; and (3) if his failure to object forfeited the issue, he received ineffective assistance of counsel.
We affirm the judgment. However, we must remand the matter to the trial court for a correction of the abstract of judgment.
Defendant's contentions do not require us to discuss his offenses in detail. The factual basis for his plea, derived from the evidence offered at the preliminary hearing, was as follows: On September 18, 2010, defendant had non-consensual sexual intercourse by means of force and violence with a person not his spouse. The victim had attempted to escape by jumping out of a window, but he caught her, carried her into the house, and forced her onto his bed, then committed the rape.
According to the probation report, defendant, who was 56 years old, had been unemployed and receiving Social Security Disability benefits since 2002, currently $908 per month; he was legally blind due to retinal deterioration. He also claimed to suffer from thyroid cancer, high blood pressure, and alcoholism.
The probation report recommended a restitution fine and a suspended restitution fine in the amounts the trial court imposed.
Defendant contends the restitution fine and the suspended restitution fine must be reduced to the statutory minimum of $200 because the trial court could not lawfully consider defendant's disability benefits in assessing his ability to pay and the record does not show that he had any other assets with which to do so. We conclude the claim is ...