People v. Johnson CA5

California Court of Appeal Mar 24, 2014 No. F065377Unpublished

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Holding. The court held that a defendant must petition for a recall of sentence under section 1170.126 to seek Proposition 36 relief, and that a defendant forfeits the right to challenge a presentence report fee on appeal by failing to object at sentencing.

Issues

Whether a defendant is entitled to a remand for resentencing on appeal pursuant to Proposition 36.
Whether a defendant forfeits an appellate challenge to a presentence report fee by failing to object at the sentencing hearing.
Whether trial counsel was ineffective for failing to object to the imposition of a presentence report fee.

Disposition. affirmed and remanded

Quotations verified verbatim against the opinion

“He is not entitled to a remand for resentencing on appeal pursuant to the amendments to sections 667 and 1170.12.”

“His failure to object or challenge the court’s imposition of that fee forfeits his ability to challenge that fee on appeal.”

“Appellant has failed to demonstrate that had trial counsel lodged the objection based on appellant’s inability to pay the fee there was a reasonable probability that but for counsel’s alleged unprofessional error the result of the proceeding would have been different.”

Filed 3/24/14 P. v. Johnson CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent, F065377

v. (Madera Super. Ct. No. MCR033157)

RANDY JOHNSON, JR., OPINION

Defendant and Appellant.

THE COURT APPEAL from a judgment of the Superior Court of Madera County. Joseph A. Soldani, Judge. Donna J. Hopper, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

 Before Levy, Acting P.J., Kane, J., and Poochigian, J.

INTRODUCTION On November 13, 2008, appellant, Randy Johnson, Jr., was charged in an information with battery of a custodial officer (Pen. Code, § 243.1, count 1)1 and battery by gassing a custodial officer (§ 243.9, subd. (a), count 2). The information also alleged a prior prison term enhancement (§ 667.5, subd. (b)) and that appellant had suffered two prior serious felony convictions under the three strikes law (§ 667, subds. (b)-(i)). A bifurcated jury trial commenced on October 4, 2011. The court granted the People’s motion to dismiss count 2. On October 6, 2011, the jury convicted appellant of count 1. Appellant waived his right to trial on the special allegations and admitted them. Appellant filed a motion requesting that the trial court strike one of the prior serious felony allegations. At the sentencing hearing on July 13, 2012, the trial court denied appellant’s request to strike either prior serious felony allegation. The court sentenced appellant to a term of 25 years to life plus a consecutive term of one year for the prior prison term enhancement. The court imposed various fines and fees, including a $750 assessment for the cost of preparing the probation report.2 Appellant seeks resentencing pursuant to Proposition 36 and section 1170.126. Appellant also contends the $750 assessment fee for the cost of the probation report should be stricken because the trial court failed to find that he had the ability to pay the fee. We reject these issues. Appellant further argues there is an error in the abstract of judgment concerning custody credits. The respondent concedes the error. We will remand for the trial court to prepare an amended abstract of judgment.3

People v. Johnson CA5

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THE PEOPLE,

RANDY JOHNSON, JR., OPINION

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