Gentry

Appellant Richard Eugene Gentry appeals from the imposition of a $5,000 restitution fine pursuant to Government Code section 13967, subdivision (a). Appellant contends that it was error to impose the fine because it violated the terms of his plea agreement. Arguing in the alternative, appellant contends that even if the plea bargain was not violated, it was error to impose the restitution fine without a consideration of appellant’s ability to pay. For the reasons stated below, we hold (1) that the imposition of the fine did not violate the terms of the plea agreement, (2) that the appellant waived the ability to pay issue by not raising it in the trial court, and (3) despite the waiver the record supports an implied finding of defendant’s ability to pay.

Factual Background

Appellant entered a negotiated plea of no contest to one count of violating Penal Code section 288.5 (continual sexual abuse of a child under the age of 14 years) and admitted special allegations pursuant to Penal Code section 1203.066, subdivision (a)(8) and (9) (substantial sexual contact with a victim under the age of 11 years and abuse of a position of trust). Appellant’s plea was conditioned on…