People v. Grant CA2/5

Filed 8/27/20 P. v. Grant CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

THE PEOPLE, B303037

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. MA063572) v.

MICHAEL DAVID GRANT,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Shannon Knight, Judge. Dismissed.

Karyn H. Bucur, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, David E. Madeo and Nancy Loo Ladner, Deputy Attorneys General for Plaintiff and Respondent. __________________________

INTRODUCTION Defendant appeals the trial court’s denial of his motion to modify his sentence some five years after its imposition. His motion was directed to the court’s $5,000 restitution fine and $140 in assessments. Defendant contends that the trial court’s imposition of the fine and assessments without holding an ability-to-pay hearing violated his constitutional right to due process under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). Because the trial court lacked jurisdiction to grant the relief requested in defendant’s motion, we dismiss the appeal. FACTS AND PROCEDURAL BACKGROUND In 2014, defendant was convicted of two counts of second degree robbery. In 2015, the trial court sentenced defendant to 13 years in prison and ordered him to pay $140 in court assessments, a $5,000 restitution fine pursuant to Penal Code section 1202.4, subdivision (b), and a $5,000 parole restitution fine.1 The parole restitution fine was stayed. In August 2015, shortly after he filed his Notice of Appeal of the underlying conviction, defendant asked the trial court to reduce the restitution fine, which at $5,000 was within the $200 to $10,000 statutory range. On August 14, 2015 the trial court denied the request. The court ruled: “imposition of the victim restitution fine, ranging between $200 and $10,000 is mandatory, was lawfully imposed, and cannot be waived absent compelling and extraordinary circumstances. The court finds defendant has not established a prima facie showing for modification. Inability to pay does not alone, amount to compelling and extraordinary