People v. Martinez CA4/3

Filed 12/28/20 P. v. Martinez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, G057456

v. (Super. Ct. No. 15CF2794)

ANTHONY RAYMOND MARTINEZ, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Maria D. Hernandez, Judge. Affirmed as modified. Cynthia M. Jones, 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, Assistant Attorney General, Eric A. Swenson and Michael D. Butera, Deputy Attorneys General, for Plaintiff and Respondent. * * *

Based on a conviction for five counts of sex crimes against a minor, the trial court sentenced appellant Anthony Raymond Martinez to serve 15 years to life in prison and ordered him to pay assessment fees, a restitution fine, and a sex offender fine. Martinez contends the court imposed the fees and restitution fine in violation of his constitutional rights under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) and also abused its statutory discretion on the sex offender fine. We conclude Martinez forfeited his challenge to the court’s imposition of fines and fees. Even if not forfeited, any conceivable error was harmless. We will modify the judgment to reflect the correct statutory amount for the sex offender fine. As modified, we affirm the judgment. I

FACTS AND PROCEDURAL HISTORY In October 2018, a jury convicted Martinez of one count of oral copulation with a child 10 years or younger (Pen. Code, § 288.7, subd. (b); count 1; all further statutory references are to this code unless otherwise indicated) and four counts of lewd acts on a child under 14 years of age (§ 288, subd. (a); counts 2 through 5). On March 8, 2019, the trial court imposed an aggregate sentence of 15 years to life in prison. The court denied Martinez’s request to stay or strike the imposition of fees and fines and 1 ordered Martinez to pay assessment fees totaling $350 (§ 1465.8; Gov. Code, § 70373), a restitution fine of $300 (§ 1202.4), and a sex offender fine in the amount of $200. (§ 290.3.) II DISCUSSION Martinez contends the trial court erred in concluding it lacked the discretion to strike the sex offender fine imposed under section 290.3. He also asserts the court operations and criminal assessment fees violated his right to due process because he 1 The total fees are comprised of a $40 court operation assessment fee and a $30 criminal conviction assessment fee for each count.