People v. Hernandez CA3

Filed 12/10/21 P. v. Hernandez CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C093191

Plaintiff and Respondent, (Super. Ct. No. CH037540)

v.

JOSE GUILLERMO HERNANDEZ,

Defendant and Appellant.

Already serving a sentence for a different offense, defendant Jose Guillermo Hernandez entered a negotiated plea in this matter and was convicted of assault with a deadly weapon while inflicting great bodily injury. Defendant now claims the trial court erred by refusing to conduct an evidentiary hearing on his ability to pay the imposed restitution fine. We disagree. We have, however, discovered mandatory fees that must be imposed. As modified, we affirm the judgment.

1

FACTS AND HISTORY OF THE PROCEEDINGS Defendant pleaded guilty to assault with a deadly weapon while confined in a penal institution (Pen. Code, § 4501, subd. (a); unspecified statutory section citations that follow are to the Penal Code), and admitted he personally inflicted great bodily injury on the victim (§ 12022.7, subd. (a)). Defendant also admitted he suffered a prior strike conviction (§ 667, subds. (b)-(i)). Defendant was sentenced to a prison term of seven years. The trial court also imposed a $300 restitution fine under section 1202.4. At sentencing, defendant objected to the imposition of the fine, arguing he did not have the ability to pay the fine. The trial court asked whether defendant wished to have a hearing, with the understanding it would be his burden to prove his inability to pay. Defendant did not agree it was his burden but provided an offer of proof that he has no income, no ability to receive an income, and was still in debt from outstanding fines from his previous conviction. The People accepted the offer of proof. The trial court found that the $300 restitution fine was mandatory. The court noted that it was without sufficient information as to defendant’s ability to pay but also noted no information was presented to contradict the possibility that he would be able to earn an income in prison or receive outside funds. Given the sentence, the court found, defendant would have sufficient time in which to gain employment in prison. The trial court sentenced defendant to the lower term, doubled to four years due to the prior strike, and an additional three years for the bodily injury enhancement. The court also imposed the $300 fine under section 1202.4. Defendant appealed.