Filed 8/14/14 P. v. Miranda CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, affi rmed in part, and rema nded with directions. Gina McCoy, under appointment by th e Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Scott A. Ta ryle and Pamela C. Hamanaka, Deputy Attorneys Genera l, for Plaintiff and Respondent.2 I. INTRODUCTION

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

violation of Penal Code section 459. 1 (Super. Ct., L.A. Coun ty, 2013, No. SA083144.) First degree burglary is a serious fe lony. (§ 1192.7, subd. (c)(18); People v. Lara (2012) 54 Cal.4th 896, 906.) Defendant was also found in violati on of his probation for grand theft of an automobile. (S uper. Ct., L.A. County, 2012, No. BA398422.) Defendant was sentenced to four years, eight months in state prison. We appointed counsel to represent defenda nt 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 inde pendently 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 advise d 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 supp lemental briefing on certain sentence-related issues. We modify th e 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 cred it calculations begin on the day of arrest and continue through the day of sentencing. ( People v. Denman (2013) 218 Cal.Ap p.4th 800, 814; People v. Rajanayagam (2012) 211 Cal.App.4th 42, 48.) Th erefore, defendant should have received credit for 199 days in presentence custody. Defendant is not, however, entitled

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

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

1 Further statutory references are to the Penal Code except where otherwise noted.3 943; People v. Chilelli (2014) 225 Cal.App.4th 581, 591; People v. Smith (1989) 211 Cal.App.3d 523, 527.) Second, in case No. SA 083144, 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 th e 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 require ment. (§ 1202.5, subd. (a).) According to a June 29, 2012 pre-conviction pr obation report in case No. BA398422, defendant was not steadily employed. The report also states de fendant had worked with his father off and on as a landscaper. Upon rem ittitur issuance, the trial cour t 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 ha ve 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 in crease in the total sum is minimal and defendant raised no ability to pa y 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 [“th e trial court had no occasion to determine defendant’s ability to pay $36—which is the amount due”].) Third, in case No. BA398422, the tria l court imposed a $ 40 court operations assessment (§ 1465.8 , subd. (a)(1)) but failed to ora lly impose a $30 court facilities assessment (Gov. Code, § 70 373, subd. (a)(1).) The court facilities assessment is4 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. BA3984 22, 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.Ap p.4th 581, 583, fn. 2.)

III. DISPOSITION

In case No. SA083144 the ju dgment is modified to award defendant credit for 199 days in presentence custody, but no additional conduct cred it. 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 su rcharge. The trial court may impose a lesser fine or none at all. The superior court cler k is to amend the abstract of judgment to: reflect the local crime prevention programs fine; identify th e penalties and surcharge imposed; and to award defendant 199 days of presentence cust ody credit but no additiona l conduct credit. In case No. BA398422, the oral pronounc ement of judgment is modified to impose a $30 court facilities assessment pursuan t to Government Code section 70373, subdivision (a)(1). Upon rem ittitur 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 to5 deliver a copy of the amended abstract of ju dgment to the Department of Corrections and

Rehabilitation.

NOT TO BE PUBLISHE D IN THE OFFICIAL REPORTS

TURNER, P.J.

We concur:

MOSK, J.

MINK, J. 

 Retired Judge of the Los Angeles Superi or Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.