People v. Clemon CA3

California Court of Appeal Nov 24, 2020 No. C090130Unpublished

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Holding. The court dismissed the appeal in the misdemeanor case for lack of jurisdiction and affirmed the felony judgment as modified to correct unauthorized sentencing errors regarding restitution fines and court fees.

Issues

Whether the appellate court has jurisdiction over an appeal from a misdemeanor conviction.
Whether the trial court had authority to strike previously imposed restitution fines and fees upon the revocation of probation.

Disposition. Dismissed in part; affirmed as modified in part.

Quotations verified verbatim against the opinion

“we dismiss the appeal in case No. 19MI008440 (case No. 440) for lack of jurisdiction, and affirm the judgment in case No. 18FE018729 (case No. 729), as modified.”

“the appellate division of the superior court, not this court, had jurisdiction over an appeal in case No. 440.”

“the trial court was not authorized to strike the section 1202.4 restitution fine it imposed when probation was granted”

Filed 11/24/20 P. v. Clemon CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sacramento) ----

THE PEOPLE, C090130

Plaintiff and Respondent, (Super. Ct. No. 18FE018729, 19MI008440) v.

JOHNIE CLEMON,

Defendant and Appellant.

Appointed counsel for defendant Johnie Clemon has filed an opening brief setting forth the facts of the case and asking this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) After reviewing the entire record, we dismiss the appeal in case No. 19MI008440 (case No. 440) for lack of jurisdiction, and affirm the judgment in case No. 18FE018729 (case No. 729), as modified.

FACTUAL AND PROCEDURAL BACKGROUND In case No. 729, a November 2018 complaint charged defendant with false imprisonment (Pen. Code, § 236),1 corporal injury on a spouse (§ 273.5, subd. (a)), second degree robbery (§ 211), misdemeanor domestic battery (§ 243, subd. (e)(1)), and misdemeanor vandalism (§ 594, subd. (a)). It was further alleged that defendant suffered a prior “strike” conviction. (§§ 667, subds. (b)-(i), 1170.12.) In February 2019, pursuant to a negotiated disposition, defendant pleaded no contest to the corporal injury offense, and the trial court imposed a sentence of four years in state prison, but stayed its execution. The remaining charges and allegations were dismissed. The trial court placed defendant on formal probation for five years and imposed: a $300 restitution fine (§ 1202.4), a stayed probation revocation restitution fine of $300 (§ 1202.44), a $40 court security fee (§ 1465.8), and a $30 court facility fee (Gov. Code, § 70373). In June 2019, after a contested hearing, the trial court sustained allegations that defendant violated the terms of his probation by committing several crimes, and revoked probation. In case No. 440, defendant pleaded no contest to three misdemeanor offenses on July 17, 2019. In a hearing held on July 26, 2019, the trial court sentenced defendant in both case Nos. 729 and 440. Regarding case No. 729, the trial court terminated probation, lifted the suspension of the four-year prison term previously imposed, and calculated 374 days of credit. As for costs, the trial court struck the $1,200 restitution fine (§ 1202.4) recommended in the

People v. Clemon CA3

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THE PEOPLE, C090130

JOHNIE CLEMON,

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