People v. Marin CA2/1

Filed 2/27/14 P. v. Marin CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE, B250017

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA209741) v.

JUAN CARLOS MARIN,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Clifford Klein, Judge. Affirmed. Juan Carlos Marin, in pro. per.; Jonathan B. Steiner and Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. ——————————

Appellant Juan Carlos Marin was convicted of murder with an allegation that he personally discharged a firearm. (Pen. Code, §§ 187, subd. (a), 12022.53, subd. (d).) In August 2002, Marin was sentenced to state prison for a term of 50 years to life, and ordered to pay a victim restitution fine of $10,000.00. (Pen. Code, § 1202.4.) In April 2013, Marin, acting pro. per., filed a petition seeking to modify the order, relieving him of the obligation to pay a $10,000 restitution fine. (Pen. Code, § 1202.4.) Marin argued that, in imposing the mandatory restitution fine, the trial court erred in setting the maximum amount of $10,000 based on the erroneous assumption that he would be able to pay the fine from funds earned during his incarceration or, based on his employment history, after his release. He also asserted that, prior to sentencing, he raised the issue of his inability to pay a $10,000 fine out of anticipated prospective earnings with his trial counsel, who told him the argument would not sway the trial court and refused to raise the assertion on his behalf. In its minute order, the trial court observed that, under Penal Code section 1202.4, subdivision (g), an inability to pay does not constitute a “compelling and extraordinary reason to waive the order.” Further, in cases in which a fine greater than the minimum statutory amount is imposed, the defendant bears the burden at the sentencing hearing to demonstrate an inability to pay. If, as was the case here, a defendant fails to do so, it is statutorily presumed the defendant has the ability to pay. Marin’s petition was denied. Marin timely appealed that denial. We appointed counsel to represent Marin on appeal. After examination of the record, Marin’s counsel filed an opening brief raising no issues, and asking this court to independently review the record. On September 13, 2013, we advised Marin he had 30 days within which to personally submit any contentions or issues he wished us to consider. At Marin’s request, we later extended that time to November 10, 2013. Marin filed a supplemental brief on November 14, 2013, in which he alleges ineffective assistance of counsel at trial and on appeal. Marin argues he is an undocumented Mexican national who, purportedly, has extremely limited proficiency in English and a poor work history having earned only