People v. Cains CA2/2

Filed 1/20/15 P. v. Cains CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE, B257087

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA110927) v.

RONALD E. CAINS,

Defendant and Appellant.

THE COURT* Defendant Ronald E. Cains appeals from the denial of his petition for modification of sentence. Defendant requested the court to reduce the $10,000 restitution fine imposed under Penal Code section 1202.4, subdivision (b). On April 7, 2014, the court denied the motion on the following grounds: (1) the defendant had previously made the same request, which was denied on February 3, 2012, and (2) there was no legal justification for reducing the restitution fine. There was no hearing. We appointed counsel to represent defendant on this appeal. After examination of the record, counsel filed an “Opening Brief” containing an acknowledgment that he had been unable to find any arguable issues. On September 16, 2014, we advised defendant that he had 30 days within which to personally submit any contentions or issues that he

* BOREN, P.J. ASHMANN-GERST, J. CHAVEZ, J.

wished us to consider. Although defendant did not file a supplemental brief after the notice, he did file a declaration on June 3, 2014, in response to the current denial of his request. He asserts he did not realize he had already requested the modification and had been denied by the same court. He also complains that his attorney failed to move at sentencing for a hearing to show whether defendant had the ability to pay the restitution fine under section 1202.4. He points out he was granted in forma pauperis status and appointed counsel at trial. The record in the instant case contains no information regarding defendant’s original sentencing hearing. Our unpublished opinion in case No. B1092711 shows that defendant was convicted of second degree robbery (Pen. Code, § 211),2 kidnapping for robbery (§ 209, subd. (b)), kidnapping for ransom (§ 209, subd. (a)), attempted first degree robbery (§§ 664, 211), first degree robbery (§ 211), and first degree murder (§ 187, subd. (a)). Defendant is serving a sentence for life without the possibility of parole. The record does not contain defendant’s current request to reduce his fine, and the superior court clerk certifies that it cannot be found. Since there is no transcript of the sentencing hearing, there is no record of any findings or remarks by the trial court regarding defendant’s ability to pay. In any event, the statute does not require an express finding. (People v. Urbano (2005) 128 Cal.App.4th 396, 405.) There is no information as to whether defendant objected to the amount of the fine or whether the probation report recommended the maximum amount, in which case a failure to object would constitute a waiver of the issue. (People v. Menius (1994) 25 Cal.App.4th 1290, 1299; accord, People v. Douglas (1995) 39 Cal.App.4th 1385, 1396.) We note that defendant did not appeal the amount of the restitution fine.