People v. Martinez CA3

Filed 10/14/15 P. v. Martinez CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Siskiyou) ----

THE PEOPLE, C078825

Plaintiff and Respondent, (Super. Ct. No. MCYKCRF140000487) v.

JASON WILLIAM MARTINEZ,

Defendant and Appellant.

Defendant Jason William Martinez successfully moved to reduce his felony conviction to a misdemeanor under Penal Code section 1170.18.1 However, the trial court denied his request to modify the amounts of fines and fees previously imposed.

1 Undesignated statutory references are to the Penal Code.

1

Defendant contends the trial court erred in doing so. He also contends the court erred by failing to strike an erroneously imposed restitution fine. The Attorney General agrees with defendant’s first contention, but contends the second contention is untimely, forfeited, and/or moot. Agreeing with defendant as to both contentions, we shall remand with directions that the trial court modify the fines and fees. We shall also vacate the erroneously imposed restitution fine. FACTUAL AND PROCEDURAL BACKGROUND In January 2011, in Riverside County, defendant pleaded guilty to possession of methamphetamine, a felony (Health & Saf. Code, § 11377, subd. (a)), in return for the dismissal of a misdemeanor count and a grant of three years’ probation under Proposition 36 (Gen. Elec. (Nov. 6, 2012)). The trial court imposed various fines and fees, including a $200 restitution fine and a $200 suspended probation revocation restitution fine. (§§ 1202.4, 1202.44.) In January 2014 defendant admitted violating the terms of his probation; the trial court revoked his probation and sentenced him to two years of mandatory supervision. The court imposed fines and fees which included a $300 restitution fine and a $300 mandatory supervision restitution fine. (§§ 1202.4, subd. (b), 1202.44.) The sentencing minute order does not indicate that the court struck the previously imposed $200 fines under these provisions. The record does not include a reporter’s transcript of this proceeding. In April 2014 defendant’s case was ordered transferred to Siskiyou County. In December 2014 defendant moved in Siskiyou County Superior Court to recall his sentence and resentence his offense as a misdemeanor. (§ 1170.18, subd. (a).) At the first hearing on the motion, defense counsel also requested that the trial court reduce the assorted fines and fees to the appropriate amounts for a misdemeanor offense.