People v. Stephens CA5

Filed 11/16/21 P. v. Stephens CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, F080473 Plaintiff and Respondent, (Super. Ct. No. DF014555A) v.

MARCUS STEPHENS, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. William D. Palmer, Judge. (Retired Judge of the Kern County Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Erin J. Radekin, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jamie A. Scheidegger, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P. J., Poochigian, J. and Detjen, J.

Defendant Marcus Stephens pled no contest to felony possession of marijuana in a state prison in violation of Penal Code section 4573.6. 1 The trial court sentenced him to a two-year term of incarceration and imposed various fines and fees, including a restitution fine (§ 1202.4, subd. (b)), a court operations fee (§ 1465.8), and a court facilities assessment (Gov. Code, § 70373). On appeal, defendant contends that (1) his conviction should be vacated because possession of less than 28.5 grams of marijuana in prison was decriminalized by the Control, Regulate and Tax Adult Use of Marijuana Act (Proposition 64) and (2) the trial court erred in ordering him to pay fines and fees without conducting a hearing on his ability to pay those amounts as set forth in People v. Dueñas (2019) 30 Cal.App.5th 1157. We affirm. PROCEDURAL SUMMARY On August 6, 2019, the Kern County District Attorney filed a complaint charging defendant with felony possession of marijuana in a correctional facility (§ 4573.6; count 1). The complaint further alleged that defendant had suffered a prior strike conviction (§§ 667, subds. (c)–(j) & 1170.12, subds. (a)–(e)) and had served a prior prison term (§ 667.5, subd. (b)). On October 24, 2019, pursuant to a plea agreement, defendant pled no contest to count 1. In exchange, the trial court dismissed the prior strike and prior prison term allegations on the prosecutor’s motion and indicated a two-year concurrent term on count 1. On December 3, 2019, the court imposed the stipulated sentence. As part of the sentence, the court ordered defendant to pay a $40 court operations fee (§ 1465.8), a $30 court facilities assessment (Gov. Code, § 70373), a $300 restitution fine (§ 1202.4, subd. (b)), and a suspended $300 parole revocation restitution fine (§ 1202.45). On December 13, 2019, defendant filed a notice of appeal.