People v. Casio CA3

Filed 9/15/20 P. v. Casio CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Lassen) ----

THE PEOPLE, C091384

Plaintiff and Respondent, (Super. Ct. No. CH036804)

v.

VINCENT ROBERT CASIO,

Defendant and Appellant.

After defendant Vincent Robert Casio pleaded guilty to assault with a deadly weapon, the trial court sentenced him to eight years in state prison and imposed a $300 restitution fine. Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), defendant argues the fine should have been stayed based on his indigence. We will modify the judgment to impose two mandatory fees and otherwise affirm.

1

FACTUAL AND PROCEDURAL BACKGROUND The prosecution charged defendant, an inmate serving a sentence of life without the possibility of parole, with attempted murder (Pen. Code, §§ 664, 187),1 assault by a life prisoner (§ 4500), assault with a deadly weapon (§ 245, subd. (a)(1)), and possession of a weapon in custody (§ 4502, subd. (a)). The information also alleged defendant had personally inflicted great bodily injury with respect to the first three counts (§ 12022.7, subd. (a)) and that defendant had received a prior conviction for a serious felony, murder (§ 187). Defendant pleaded guilty to the assault with a deadly weapon count and admitted the prior murder conviction, and the prosecution dismissed the remaining counts and enhancement allegations. The trial court sentenced defendant to eight years in state prison. The court imposed a $300 restitution fine (§ 1202.4, subd. (b)) and a $300 parole revocation restitution fine (§ 1202.45), which it suspended. The court waived applicable court operation fees “in the interest of justice.” At the sentencing hearing, defense counsel objected to the restitution fine, citing Dueñas and People v. Belloso (2019) 42 Cal.App.5th 647, review granted March 11, 2020, S259755. Counsel requested a hearing on defendant’s ability to pay and then made an offer of proof saying defendant had no ability to pay: “My offer of proof is my client has no discretionary funds, he has no prospect of discretionary funds, he has no job. He’s tried to get jobs and he is never going to get out of prison likely and so his prospects for making money in the future are no better than they are right now which is zero.” The prosecution did not offer any evidence of defendant’s ability to pay. The court determined defendant had the ability to pay the restitution fine, saying, “All right, with regards to [the] allegation of indigency, indigency is when an individual