People v. Hernandez CA6

Filed 9/18/24 P. v. Hernandez CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H051550 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. 210770)

v.

MARINO ANTONIO HERNANDEZ,

Defendant and Appellant.

THE COURT1 Marino Antonio Hernandez2 appeals an order denying his motion for reconsideration to reduce, modify, or vacate the restitution fines the trial court ordered him to pay. For the reasons set forth below, we affirm the order. I. PROCEDURAL BACKGROUND3 In 2007, Hernandez pled guilty to three counts of aggravated sexual assault of a child under the age of 14 (§ 269, counts 1, 2 and 10). The trial court dismissed the remaining counts, as well as special allegations pursuant to sections 12022.3 and

Before Greenwood, P. J., Grover, J., and Danner, J. 1

The abstract of judgment included in the record filed by the trial court identifies 2

appellant as Marino Antonio Hernandez. In the supplemental brief he filed for this appeal, appellant states his name is Marino Hernandez Antonio. He signed the brief Marino Hernandez. We refer to appellant as Marino Antonio Hernandez in this opinion. 3 We omit the facts of the offense as they are not relevant to the analysis and disposition of the appeal.

12022.8, and sentenced Hernandez to an indeterminate term of 45 years to life. It also ordered Hernandez to pay a $10,000 restitution fine under section 1202.4, subdivision (b), payable forthwith pursuant to section 2085.5. The court suspended an additional $10,000 restitution fine pursuant to section 1202.45 unless parole was revoked. In addition to restitution fines, the judgment ordered Hernandez to pay a $60 court security fee and $300 plus a $663 penalty assessment pursuant to section 290.3. The court did not impose an administrative fee under section 1202.4 or 2805.5 for the collection of the restitution fine. In 2022, Hernandez filed a motion seeking to vacate his unpaid restitution fines and fees pursuant to Assembly Bill No. 1869 “in conjunction with” Assembly Bill No. 2496 and section 688.5. He argued that these legislative enactments required the court to vacate the unpaid fines. Alternatively, he asked the court to modify the amounts owed to the “statutory minimum[.]” Hernandez alleged that he had been “an indigent person” from the beginning of his incarceration, and he attached an “Inmate Statement Report” as evidence. He also claimed he had been in a wheelchair for five years and was unable to work or walk. The trial court agreed that section 1465.9, which was added to the Penal Code by Assembly Bill No. 1869 (Stats. 2020, ch. 92, § 62), rendered certain court-imposed costs unenforceable and uncollectible. The court ordered, “the remaining balance of any costs that are currently unenforceable and uncollectible are hereby ordered vacated and stricken.” The court did not specify what portion of the amounts owed by Hernandez, if any, were stricken by the order. Regarding Assembly Bill No. 2496, which added section 688.5 to the Penal Code (Stats. 2018, ch. 264, § 1), the trial court held that Hernandez failed to demonstrate that he had been charged by “[a] city, county, or city and county, including an attorney acting on behalf of a city, county, or city and county” for “the costs of investigation,