People v. Howard CA2/1

Filed 5/19/16 P. v. Howard CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B269510

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA373315) v.

HILTON MONTELL HOWARD,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Jose I. Sandoval, Judge. Affirmed. Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. ——————————

Hilton Montell Howard (Howard) argues that the trial court abused its discretion in denying his petition/motion to vacate a $6,000 restitution fine. We disagree and, accordingly, affirm the trial court’s decision. BACKGROUND I. Howard’s Conviction and Prior Appeal In March 2011, a jury convicted Howard of second degree robbery (Pen. Code, § 2111). The trial court sentenced Howard to 25 years to life as a “third strike” offender (§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)), adding an additional five years for having been previously convicted of a serious felony (§§ 667, subd. (a)(1)), for a total of 30 years to life. In addition, the court ordered Howard to pay a restitution fine of $6,000 (§ 1202.4, subd. (b)).2 Howard subsequently appealed his conviction, but not the restitution fine. In December 2012, we affirmed Howard’s conviction in case No. B234095. II. Howard’s Current Appeal On September 15, 2015, Howard filed a petition for writ of error coram nobis with the trial court, arguing that the trial court abused its discretion because it did not consider Howard’s “ability to pay” the fine. Howard did not argue that it was impossible for him to pay the fine out of his future earnings; instead, he argued only that he was currently