People v. Osuna CA6

Filed 10/29/21 P. v. Osuna CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H047900 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1900058)

v.

ENRIQUE ELEUTERIO OSUNA,

Defendant and Appellant.

I. INTRODUCTION Defendant Enrique Eleuterio Osuna pleaded no contest to 29 counts of second degree burglary (Pen. Code, § 460, subd. (b)), one count of attempted second degree burglary (Pen. Code, §§ 460, subd. (b), 664), 1 and one count of evading an officer with willful disregard for safety (Veh. Code, § 2800.2, subd. (a)). The trial court sentenced defendant to five years four months in prison. The court also ordered, over defendant’s inability-to-pay objection, that he pay various amounts, including a $10 fine (Pen. Code, § 1202.5), a $1,240 court operations assessment (Pen. Code, § 1465.8), a $930 court facilities assessment (Gov. Code, § 70373), and a $129.75 criminal justice administration fee (see Gov. Code, former §§ 29550-29550.2). On appeal, defendant contends that he could not pay the amounts, and

1 All further statutory references are to the Penal Code unless otherwise indicated.

therefore the order violated his constitutional rights to due process and the ban against excessive fines. For reasons that we will explain, we determine that defendant fails to show error in the imposition of the ordered amounts. We will, however, (1) vacate the portion of the $129.75 criminal justice administration fee that remained unpaid as of July 1, 2021, (2) order the abstract of judgment amended to reflect the vacatur, and (3) affirm the judgment as amended. (See Gov. Code, § 6111, subd. (a).) II. BACKGROUND In October 2019, an amended complaint was filed charging defendant with 29 counts of second degree burglary (Pen. Code, § 460, subd. (b); counts 1-25, 27-30), one count of attempted second degree burglary (Pen. Code, §§ 460, subd. (b), 664; count 26), and one count of evading an officer with willful disregard for safety (Veh. Code, § 2800.2, subd. (a); count 31).2 The amended complaint also alleged that defendant had served two prior prison terms (§ 667.5, former subd. (b)). In November 2019, defendant pleaded no contest to all counts and admitted all allegations in the instant case, and he admitted that he violated his probation and postrelease community supervision in two other cases. He entered his pleas and admissions based on the trial court’s indicated sentence of five years four months in prison. The sentencing hearing was held on January 28, 2020. At the outset of the hearing, defense counsel requested that the trial court “stay or waive fines and fees pursuant to [People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas)] and pursuant to [defendant’s] inability to pay.” Counsel contended that defendant was indigent. Counsel “expect[ed] the amount of restitution in this case [to] be very significant,” and that while defendant was in prison or upon his release “he [would] hopefully be able to earn toward paying off