People v. Johnson CA6

Filed 1/25/21 P. v. Johnson CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H047505 (Monterey County Plaintiff and Respondent, Super. Ct. No. SS052400A)

v.

RODRICK JOHNSON,

Defendant and Appellant.

Appellant Rodrick Johnson filed a postjudgment motion in the trial court challenging the imposition of restitution fines and a court operations assessment in his criminal case without holding a hearing on his ability to pay them. The court denied the motion, and Johnson appealed. His appellate counsel filed an opening brief under People v. Serrano (2012) 211 Cal.App.4th 496 (Serrano) raising no issues on appeal. For the reasons explained below, we conclude that Johnson’s appeal is taken from a nonappealable order and thus dismiss his appeal. I. FACTS AND PROCEDURAL BACKGROUND In 2007, Johnson pleaded no contest to two counts of robbery and one count of kidnapping (Pen. Code, §§ 207, 211).1 He was sentenced to serve 40 years in prison.

1 Unspecified statutory references are to the Penal Code.

Regarding the fines and fees, the trial court imposed a $10,000 restitution fine (§ 1202.4, subd. (b)), a suspended $10,000 parole revocation restitution fine (§ 1202.45), and a $60 court operations assessment (§ 1465.8). The trial court also ordered victim restitution in the amount of $301,359 (§ 1202.4, subd. (f)). Johnson did not appeal from the judgment of conviction.2 Over 12 years after he was sentenced, on September 25, 2019, Johnson filed an ex parte motion requesting that the trial court vacate the court operations assessment and restitution fines3 pursuant to section 1237.2 and People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) (motion).4 He further argued that he had not forfeited his due process argument under Dueñas.

2 In December 2018, a panel of this court issued an unpublished opinion dismissing an appeal by Johnson of a trial court order denying his postjudgment motion to correct, reduce, or modify his sentence by striking the term imposed for a firearm enhancement he received at sentencing. Johnson argued that the recent passage of Senate Bill No. 620 entitled him to such relief. This court rejected that contention and also concluded that his supplemental brief, which requested habeas relief, failed to raise an arguable issue on appeal. (See People v. Johnson (Dec. 21, 2018, H045741) 2018 WL 6716996, at