People v. Collen CA3

Filed 12/18/20 P. v. Collen CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Trinity) ----

THE PEOPLE, C088278, C090677

Plaintiff and Respondent, (Super. Ct. No. 18F030)

v.

GREGORY MICHAEL COLLEN,

Defendant and Appellant.

Defendant Gregory Michael Collen pleaded no contest to one count of lewd and lascivious acts upon a child under the age of 14 years and one count of sexual penetration upon a child under the age of 14. Defendant’s sole contention in this consolidated appeal is that the trial court erred in imposing certain assessments and restitution fines without holding an evidentiary hearing to determine his ability to pay them. We will affirm the judgment. PROCEDURAL BACKGROUND Pursuant to a negotiated plea agreement based on charges that he repeatedly molested his girlfriend’s young daughter, defendant pleaded no contest to one count of

1

lewd and lascivious acts upon a child under the age of 14 years (Pen. Code, § 288, subd. (b)(1); count one)1 and one count of sexual penetration upon a child under the age of 14 years (§ 289, subd. (a)(1)(B); count three). In exchange, the remaining counts were dismissed. The trial court sentenced defendant to an aggregate term of 22 years in state prison as follows: the upper term of 12 years on count three, plus a consecutive upper term of 10 years on count one. The trial court also ordered that defendant pay a $10,000 restitution fine pursuant to section 1202.4, subdivision (b), an $80 court operations assessment pursuant to section 1465.8, and a $60 conviction assessment pursuant to Government Code section 70373. Defendant filed a timely notice of appeal. This court granted defendant’s motion to stay the appellate proceedings so that defendant had the opportunity to seek relief in the trial court pursuant to section 1237.2. The trial court subsequently granted defendant’s motion to vacate and stay the restitution fine and the court operations and conviction assessments. On September 9, 2019, the trial court held a hearing on the matter and, citing People v. Jones (2019) 36 Cal.App.5th 1028, found that defendant had the ability to pay $3,168 based on a 22- year prison sentence at $12 in payments per month minimum. Pursuant to this finding, the trial court modified the section 1202.4 restitution fine to $3,000. It ordered a section 1202.45 parole restitution fine in the amount of $3,000 but stayed the fine pending successful completion of parole. The trial court ordered that the $60 conviction assessment and the $80 court operations assessment remain. Defendant filed a new notice of appeal. We consolidated case No. C088278, the original appellate file, with case No. C090677, which contains the present appeal.