Filed 8/14/14 P. v. Miranda CA2/5 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 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 This opinion has not been certified for publication 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

SECOND APPELLATE DISTRICT 

DIVISION FIVE 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

LUCIANO ABRAHAM MIRANDA, 

 Defendant and Appellant. 

 B250070 

 (Los Angeles County 

 Super. Ct. Nos. BA398422, 

 SA083144) 

 APPEAL from judgments of the Superior Court of Los Angeles County, Marsha 

N. Revel, Judge. Modified in part, affirmed in part, and remanded with directions. 

 Gina McCoy, under appointment by the Court of Appeal, for Defendant and 

Appellant. 

 Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle and Pamela C. 

Hamanaka, Deputy Attorneys General, for Plaintiff and Respondent. 
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I. INTRODUCTION 

 A jury convicted defendant, Luciano Abraham Miranda, of first degree burglary in 

violation of Penal Code section 459.1 (Super. Ct., L.A. County, 2013, No. SA083144.) 

First degree burglary is a serious felony. (§ 1192.7, subd. (c)(18); People v. Lara (2012) 

54 Cal.4th 896, 906.) Defendant was also found in violation of his probation for grand 

theft of an automobile. (Super. Ct., L.A. County, 2012, No. BA398422.) Defendant was 

sentenced to four years, eight months in state prison. 

 We appointed counsel to represent defendant on appeal. After examination of the 

record, appointed appellate counsel filed a brief in which no issues were raised. Instead, 

appointed appellate counsel asked us to independently review the entire record on appeal 

pursuant to People v. Wende (1979) 25 Cal.3d 436, 441-442. (See Smith v. Robbins 

(2000) 528 U.S. 259, 264.) On February 14, 2014, we advised defendant he had 30 days 

within which to submit by brief or letter any contentions or argument he wished us to 

consider. No response has been received. We requested supplemental briefing on certain 

sentence-related issues. We modify the judgment and affirm as modified. 

II. DISCUSSION 

 First, in case No. SA083144, defendant received credit for 198 days in presentence 

custody. However, defendant was arrested on November 7, 2012, and sentenced on May 

24, 2013. Custody credit calculations begin on the day of arrest and continue through the 

day of sentencing. (People v. Denman (2013) 218 Cal.App.4th 800, 814; People v. 

Rajanayagam (2012) 211 Cal.App.4th 42, 48.) Therefore, defendant should have 

received credit for 199 days in presentence custody. Defendant is not, however, entitled 

to additional conduct credit. This is because conduct credits are given in two-day 

increments and no rounding up is permitted. (People v. Dieck (2009) 46 Cal.4th 934, 

 1 Further statutory references are to the Penal Code except where otherwise 

noted. 
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943; People v. Chilelli (2014) 225 Cal.App.4th 581, 591; People v. Smith (1989) 211 

Cal.App.3d 523, 527.) 

 Second, in case No. SA083144, the trial court imposed a $10 local crime 

prevention programs fine. (§ 1202.5, subd. (a).) That fine was subject to $31 in penalties 

and a surcharge, which the trial court failed to orally impose. (People v. Knightbent 

(2010) 186 Cal.App.4th 1105, 1109; People v. Castellanos (2009) 175 Cal.App.4th 1524, 

1527-1530.) The penalties and surcharge are included in the abstract of judgment. 

However, the oral pronouncement of judgment is controlling. (People v. Mesa (1975) 14 

Cal.3d 466, 471-472; People v. Crenshaw (1992) 9 Cal.App.4th 1403, 1416.) Moreover, 

the fine is subject to an ability to pay requirement. (§ 1202.5, subd. (a).) According to a 

June 29, 2012 pre-conviction probation report in case No. BA398422, defendant was not 

steadily employed. The report also states defendant had worked with his father off and 

on as a landscaper. Upon remittitur issuance, the trial court must conduct an ability to 

pay hearing as to the fine together with the penalty assessments and surcharge. (People 

v. Castellanos, supra, 175 Cal.App.4th at p. 1531; see People v. Woods (2010) 191 

Cal.App.4th 269, 273-274 [trial court must have opportunity to exercise discretion and 

impose a lawful sentence]; but see People v. Knightbent, supra, 186 Cal.App.4th at pp. 

1112-1113 [no hearing required where the increase in the total sum is minimal and 

defendant raised no ability to pay objection].) The trial court may impose a lesser fine or 

none at all. (People v. Castellanos, supra, 175 Cal.App.4th at p. 1531.) 

 The Attorney General argues defendant forfeited any claim he was denied an 

ability to pay hearing by failing to object in the trial court. We disagree. The trial court 

orally imposed only a $10 fine. Defendant had no opportunity to object on ability to pay 

grounds to a $10 fine plus $31 in penalties and a surcharge for a total of $41. (See 

People v. Castellanos, supra, 175 Cal.App.4th at p. 1531 [“the trial court had no occasion 

to determine defendant’s ability to pay $36—which is the amount due”].) 

 Third, in case No. BA398422, the trial court imposed a $40 court operations 

assessment (§ 1465.8, subd. (a)(1)) but failed to orally impose a $30 court facilities 

assessment (Gov. Code, § 70373, subd. (a)(1).) The court facilities assessment is 
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mandatory. (People v. Robinson (2012) 209 Cal.App.4th 401, 405; People v. Rodriguez 

(2012) 207 Cal.App.4th 1540, 1543, fn. 2; People v. Woods, supra, 191 Cal.App.4th at p. 

272.) The oral pronouncement of judgment must be modified to impose the $30 

assessment. (People v. Rosales (2014) 222 Cal.App.4th 1254, 1263; People v. Sencion 

(2012) 211 Cal.App.4th 480, 483-485.) Fourth, in case No. BA398422, the abstract of 

judgment must be amended to include both assessments. (People v. Robinson, supra, 209 

Cal.App.4th at pp. 403, 407.) Fifth, in case No. BA398422, the trial court imposed a 

$240 restitution fine (§ 1202.4, subd. (b)) and a $240 parole revocation restitution fine. 

The abstract of judgment must be amended to reflect those fines. (People v. Rosas 

(2010) 191 Cal.App.4th 107, 121; People v. Martinez (2002) 95 Cal.App.4th 581, 583, 

fn. 2.) 

III. DISPOSITION 

 In case No. SA083144 the judgment is modified to award defendant credit for 199 

days in presentence custody, but no additional conduct credit. Upon remittitur issuance, 

the trial court is to hold a hearing as to defendant’s ability to pay a $10 local crime 

prevention programs fine. This includes the ability to pay the $10 fine together with $31 

in applicable penalties and a surcharge. The trial court may impose a lesser fine or none 

at all. The superior court clerk is to amend the abstract of judgment to: reflect the local 

crime prevention programs fine; identify the penalties and surcharge imposed; and to 

award defendant 199 days of presentence custody credit but no additional conduct credit. 

 In case No. BA398422, the oral pronouncement of judgment is modified to impose 

a $30 court facilities assessment pursuant to Government Code section 70373, 

subdivision (a)(1). Upon remittitur issuance, the superior court clerk shall amend the 

abstract of judgment to include: $40 in court operations assessments (Pen. Code, § 

1465.8, subd. (a)(1)); $30 in court facilities assessments (Gov. Code, § 70373, subd. 

(a)(1)); a $240 restitution fine (Pen. Code, § 1202.4, subd. (b)); and a $240 parole 

revocation restitution fine (Pen. Code, § 1202.45). The clerk of the superior court is to 
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deliver a copy of the amended abstract of judgment to the Department of Corrections and 

Rehabilitation. 

 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 

 TURNER, P.J. 

We concur: 

 MOSK, J. 

 MINK, J.

  Retired Judge of the Los Angeles Superior Court, assigned by the Chief Justice 

pursuant to article VI, section 6 of the California Constitution.