People v. Newell CA3

Filed 4/9/21 P. v. Newell CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Lassen) ----

THE PEOPLE, C091863

Plaintiff and Respondent, (Super. Ct. Nos. CH036101 & CH036774) v.

CHRISTOPHER LEE NEWELL,

Defendant and Appellant.

Defendant Christopher Lee Newell appeals the trial court’s judgment sentencing him to an aggregate prison term of 14 years arising from three separate criminal cases. Relying upon People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), defendant argues the trial court violated his right to due process under both the federal and state constitutions. He reasons there is no evidence in the record supporting the trial court’s determination that he would be able to pay the two $300 restitution fines (Pen. Code, § 1202.4, subd. (b))1 imposed, and thus, these fines are unconstitutional under Dueñas. We disagree with Dueñas and will affirm the judgment.

1 Undesignated statutory references are to the Penal Code.

1

FACTUAL AND PROCEDURAL HISTORY On July 9, 2018, the People filed a complaint in case No. CH036101 (the 2018 Case) charging defendant with attempted premeditated murder (§§ 664/187, subd. (a); count I); assault by a life prisoner (§ 4500; count II); assault by means of force likely to produce great bodily injury while confined in state prison (§ 4501, subd. (b); count III); and custodial possession of a weapon (§ 4502, subd. (a); count IV). As to counts I, II, and III, it was also alleged that defendant inflicted great bodily injury (§ 12022.7, subd. (a)) causing the offense to be a serious felony (§ 1192.7, subd. (c)(8)). It was further alleged that defendant had suffered two prior strikes (§ 667, subd. (b)-(i)) as to count I, and one prior strike (§ 667, subd. (b)-(i)) as to counts II, III, and IV. On February 25, 2019, the People filed a complaint in case No. CH036774 (the 2019 Case) charging defendant with attempted premeditated murder (§§ 664/187, subd.(a); count I); assault by a state prisoner (§ 4501, subd. (a); count II); and custodial possession of a weapon (§ 4502, subd. (a); count III). As to counts I and II, it was also alleged that defendant inflicted great bodily injury (§ 12022.7, subd. (a)) causing the offense to be a serious felony (§ 1192.7, subd. (c)(8)). It was further alleged defendant had suffered a prior strike (§ 667, subd. (b)-(i)) as to counts I through III. Defendant resolved both the 2018 and 2019 Cases through a plea agreement on August 15, 2019. In the 2018 Case, defendant pleaded guilty to an added charge of assault with a deadly weapon (§ 245, subd. (a)(1)) and admitted the great bodily injury and prior strike enhancements. In the 2019 Case, defendant pleaded guilty to an added charge of assault with a deadly weapon (§ 245, subd. (a)(1)) and admitted a prior strike enhancement. The parties agreed defendant would serve 11 years for the 2018 Case plus two years consecutive for the 2019 Case, and the remaining charges and enhancements were dismissed in each action. Defendant was sentenced in the 2018 Case, the 2019 Case, and a third unrelated case that required resentencing on February 28, 2020. The court set the assault with a