People v. Sinohue CA3

Filed 10/18/22 P. v. Sinohue CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Amador) ----

THE PEOPLE, C095464

Plaintiff and Respondent, (Super. Ct. No. 20CR3016101)

v.

EUGENE ANTHONY SINOHUE,

Defendant and Appellant.

Defendant Eugene Anthony Sinohue contends the trial court erred in imposing fees and fines without holding an ability to pay hearing. We affirm the judgment but order the trial court to correct a clerical error. FACTUAL AND PROCEDURAL BACKGROUND On November 5, 2021, pursuant to a negotiated plea agreement, defendant pleaded no contest to conspiring to deliver a cell phone to an inmate in state prison. (Pen. Code,

1

§§ 182, subd. (a)(1), 4576, subd. (a).)1 In the same hearing, the trial court sentenced defendant to three years in state prison and imposed a $30 court facilities fee (Gov. Code, § 70373), a $40 court operations fee (§ 1465.8), a $300 restitution fine (§ 1202.4, subd. (b)), and a stayed $300 parole revocation restitution fine (§ 1202.45). Defense counsel did not object to the imposition of the fees and fines. Defendant did not file a motion for the trial court to correct the fees and fines pursuant to section 1237.2. On December 8, 2021, defendant timely appealed.2 DISCUSSION I Fees and Fines Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157, defendant argues the trial court violated his due process rights by imposing fees and fines without determining his ability to pay. He asserts ineffective assistance of counsel if we find he forfeited this argument. Defendant forfeited his challenge to the fees and fines because the sentencing hearing was held over two years after Dueñas was decided; there was thus authority for requesting an ability to pay hearing at the time of the sentencing hearing, and defendant failed to do so. (Cf. People v. Castellano (2019) 33 Cal.App.5th 485, 489; People v. Trujillo (2015) 60 Cal.4th 850, 859 [constitutional exception to the forfeiture rule did not