People v. Robinson CA1/4

Filed 2/17/21 P. v. Robinson CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, A159799 v. (Contra Costa County MICHAEL RAY ROBINSON, Super. Ct. No. 5-172175-2) Defendant and Appellant.

I. Defendant Michael Ray Robinson pled no contest to one felony count of assault on a peace officer with a semiautomatic firearm (Pen. Code, § 245, subd. (d)(2))1 and one felony count of assault with a firearm (§ 245, subd. (a)(2)); admitted a strike prior; and was sentenced to 16 years in state prison. At sentencing, the trial court ordered appellant to pay a $4,800 restitution fine (§ 1202.4); a $40 court operations assessment (§ 1465.8); and a $30 conviction assessment (Gov. Code, § 70373). A parole revocation fine (§ 1202.45) of $4,800 was imposed and stayed. There was no objection at sentencing to the imposition of these fines and assessments.

1 Further undesignated statutory references are to the Penal Code.

1

Robinson timely filed a notice of appeal from his judgment of conviction on January 14, 2019. In that appeal, which is currently pending before this court in a separate docket (No. A156273), the sole issue raised is whether, under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), the court erred by imposing fines and fees without considering Robinson’s ability to pay. On June 25, 2019, Robinson filed a motion in the trial court pursuant to section 1237.2 arguing that the court should vacate or stay the fines and fees imposed on him at sentencing pursuant to Dueñas. At a November 6, 2019 hearing on this motion, the trial court observed that the imposition of fines upon appellant without an ability-to-pay hearing was not harmless because, since Robinson is disabled (he has a prosthetic leg), “the amount of fines and fees assessments exceed the amount that [he] could likely earn over the course of his prison sentence.” The court nonetheless denied the motion without prejudice, holding that it lacked jurisdiction under section 1170, subdivision (d) to recall the sentence. This appeal followed. II. Section 1237.2 is an exception to the rule that “the filing of a notice of appeal ordinarily divests the trial court of jurisdiction over the case.” (People v. Torres (2020) 44 Cal.App.5th 1081, 1086.) The statute provides: “An appeal may not be taken by the defendant from a judgment of conviction on the ground of an error in the imposition or calculation of fines, penalty assessments, surcharges, fees, or costs unless the defendant first presents the claim in the trial court at the time of sentencing, or if the error is not discovered until after sentencing, the defendant first makes a motion for correction in the trial court, which may be made informally in writing. The trial court retains jurisdiction after a notice of appeal has been filed to correct