California Court of Appeal May 14, 2021 No. E073447Unpublished
Filed 5/14/21 P. v. Morones CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE,
Plaintiff and Respondent, E073447
v. (Super.Ct.No. RIF1805394)
JOSEPH ARTHUR MORONES, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Larrie R. Brainard, Judge.
(Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art.
VI, § 6 of the Cal. Const.) Affirmed in part, vacated in part, and remanded with
directions.
Forest M. Wilkerson, 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, Allison V.
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Acosta and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and
Respondent.
INTRODUCTION
A jury found defendant and appellant Joseph Arthur Morones guilty of two counts
fee was $1,095, the booking fee was $514.58, and the presentence incarceration fee was
$1,500. When defense counsel requested the court to waive all of the fees and fines
imposed due to defendant’s indigence, it was reasonable for the court to waive these
larger fees, impose the mandatory fees, and order the restitution fine in excess of the
$300 minimum amount to remain for the reasons previously discussed. We see no abuse
of discretion.
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D. Defendant Has Failed to Establish Ineffective Assistance of Counsel (IAC)
Defendant argues that his counsel rendered IAC by failing to request that the court
follow the statutory guidance provided in section 1202.4, subdivision (b)(2), which
provides that “[i]n setting a felony restitution fine, the court may determine the amount of
the fine as the product of the minimum fine pursuant to paragraph (1) multiplied by the
number of years of imprisonment the defendant is ordered to serve, multiplied by the
number of felony counts of which the defendant is convicted.” He claims that under this
formula, the restitution fine would have been approximately $700. Defendant also
contends his counsel was ineffective for failing to “correctly cite Dueñas” and for failing
to correct the court when it “improperly limited the fees and fines that could be stricken.”
He claims that, but for his counsel’s errors, it is reasonably probable the court would have
lowered and/or stricken the remaining fees and fine.
In order to establish a claim of IAC, a defendant must demonstrate that
“(1) counsel’s performance was deficient in that it fell below an objective standard of
reasonableness under prevailing professional norms, and (2) counsel’s deficient
representation prejudiced the defendant, i.e., there is a ‘reasonable probability’ that, but
for counsel’s failings, defendant would have obtained a more favorable result.” (People
v. Dennis (1998) 17 Cal.4th 468, 540.)
Defendant’s claim pursuant to Dueñas is without merit, invalidating his IAC claim
on this issue. (See § II.A., ante.) Similarly, his claim that his counsel failed to correct
the court when it improperly limited the fees and fine that could be stricken has no merit.
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(See § II.C., ante.) As to defendant’s claim that his counsel was ineffective for failing to
request that the court follow the statutory guidance provided in section 1202.4,
subdivision (b)(2), we cannot say that the failure to do so rendered counsel’s performance
deficient. The use of the formula provided in section 1202.4, subdivision (b)(2), is
permissive, not mandatory. (§ 1202.4, subd. (b)(2) [“[i]n setting a felony restitution fine,
the court may determine the amount of the fine” using the formula].) Thus, the court was
not required to use the formula to calculate the restitution fine.
We conclude that defendant has failed to establish that, but for his counsel’s
errors, it is reasonably probable the court would have lowered or stricken the challenged
fees and fine.
III. The Abstract of Judgment Should Be Corrected
Respondent points out that the court ordered defendant to pay $60 for the criminal
conviction assessment (Gov. Code, § 70373, $30 per count), and $80 for the court
operations fee (Pen. Code, § 1465.8, $40 per count). However, the abstract of judgment
reflects a $30 criminal conviction assessment and a $40 court operations fee. This
appears to be a clerical error. Generally, a clerical error is one inadvertently made.
(People v. Schultz (1965) 238 Cal.App.2d 804, 808.) “[I]f the minutes or abstract of
judgment fails to reflect the judgment pronounced by the court, the error is clerical and
the record can be corrected at any time to make it reflect the true facts.” (People v. Little
(1993) 19 Cal.App.4th 449, 452; see People v. Mitchell (2001) 26 Cal.4th 181, 185.) We
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therefore order the superior court clerk to correct the abstract of judgment to reflect the
imposition of a $60 criminal conviction assessment and an $80 court operations fee.
DISPOSITION
The matter is remanded to the superior court with directions to strike the one-year
prior prison term enhancement (former § 667.5, subd. (b)), pursuant to Senate Bill
No. 136 and resentence defendant. The clerk of the superior court is directed to correct
the abstract of judgment to reflect the court’s imposition of a $60 criminal conviction
assessment and an $80 court operations fee. After resentencing, the clerk is directed to
forward a certified copy of the amended abstract of the judgment to the Department of
Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS Acting P. J.
We concur:
RAPHAEL J.
MENETREZ J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the defendant's prior prison term enhancement must be stricken pursuant to Senate Bill No. 136, requiring a remand for resentencing, while affirming the trial court's imposition of various fees and fines.
Issues
Whether the prior prison term enhancement must be stricken under Senate Bill No. 136.
Whether the trial court violated due process by imposing fees and fines without an ability-to-pay hearing.
Whether the imposed fees and fines violate the excessive fines clause of the federal and state Constitutions.
Whether the trial court abused its discretion or counsel provided ineffective assistance regarding the imposition of fees and fines.
Disposition. Affirmed in part, vacated in part, and remanded with directions.
Quotations verified verbatim against the opinion
“The People concede, and we agree, that Senate Bill No. 136 applies. Therefore, we remand the matter for the court to resentence defendant.”
“We conclude the court properly imposed these fees and fine.”
“The matter is remanded to the superior court with directions to strike the one-year prior prison term enhancement (former § 667.5, subd. (b)), pursuant to Senate Bill No. 136 and resentence defendant.”