People v. Miranda CA4/3

Filed 9/30/20 P. v. Miranda CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G057852

v. (Super. Ct. No. 19HF0056)

ABRAHAM NERI MIRANDA, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Lance Jensen, Judge. Affirmed in part and remanded for resentencing. Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Steve Oetting and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION Appellant Abraham Miranda has identified two issues in this appeal. The first is the striking of his one-year sentence enhancement under the newly-enacted amendment to Penal Code section 667.5, subdivision (b). The Attorney General agrees. The second issue arises from People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). Miranda asserts that his due process rights were violated because he had no hearing on his ability to pay before fines, fees, and assessments were imposed upon him. The Attorney General disagrees. We agree with the Attorney General on both issues. The one-year enhancement is stricken, and the case is returned to the trial court for resentencing. Having found no due process violation in the matter of fees, we affirm the remainder of the judgment. FACTS Miranda was charged with felony assault and criminal threats after he and his brother both got into an altercation with other people at a construction site. A jury convicted him of misdemeanor assault (as a lesser included offense) and criminal threats. He also had a prior felony conviction for which he had served a prison term. Miranda was sentenced in June 2019 to two years in prison, the middle 1 term, on the criminal threats count and a one-year enhancement for the prison prior. He was also assessed a $40 court operations fee, a $30 conviction fee, and a $300 restitution fine. A $300 parole revocation fine was suspended unless parole was revoked. Miranda’s counsel “note[d]” her “objection to any fines and fees pursuant to the Dueñas case” and submitted, without asking for a hearing. Miranda was not charged the fee ($2,762.17) for his probation report.