People v. Cervantes CA5

Filed 9/28/20 P. v. Cervantes CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F079204 Plaintiff and Respondent, (Kern Super. Ct. No. SF019469A) v.

ANGEL AURELIO CERVANTES, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. Steven Shayer, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and George M. Hendrickson, Deputy Attorneys General, Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P.J., Poochigian, J. and Detjen, J.

INTRODUCTION Appellant/defendant Angel Aurelio Cervantes pleaded no contest to second degree robbery and was sentenced to two years. On appeal, he contends the court improperly imposed a restitution fine and other fees without determining his ability to pay in violation of his constitutional right to due process under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). We affirm. FACTS1 “On February 11, 2019, an officer was dispatched to a residence regarding a carjacking involving a male and female suspect. The officer observed a female subject, later identified as [codefendant] Lorraine Rivera … matching a description previously provided. She was accompanied by [defendant] Angel Cervantes…. “The officer advised Rivera that she matched the description of a suspect involved in a carjacking. Rivera spontaneously stated she went with a friend ‘George Lopez’ to steal a vehicle and her friend left in the vehicle without her. She stated the victim, [later identified as J.B.], fell to the ground during the incident. She assisted the victim in getting up and told her to contact law enforcement. She admitted having knowledge that her friend planned on stealing the vehicle; however, she denied any wrong doing because she did not leave with the vehicle. A records check of Rivera revealed she had an active warrant…. “[Defendant] Cervantes told the officer that he did not know Rivera had attempted to steal a vehicle. He stated he saw Rivera walking down the street and he began to walk with her because they are friends. A records check revealed [defendant] had an active warrant …. A search of [defendant’s] backpack revealed a hat and jackets matching the description of the male subject involved in the carjacking.