Opinion
F080777
06-08-2022
THE PEOPLE, Plaintiff and Respondent, v. TYQUAN MAURICE JONES, Defendant and Appellant.
Donn Ginoza, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Christopher J. Rench, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. No. BF172693B Charles R. Brehmer, Judge.
Donn Ginoza, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Christopher J. Rench, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SMITH, J.
INTRODUCTION
A jury convicted appellant Tyquan Maurice Jones and his codefendants, Trichelle K. Burton and Glen Edward Maynor, of conspiracy to commit robbery (Pen. Code, §§ 182, subd. (a)(1), 212.5, subd. (c)), carjacking (§ 215 subd. (a)), assault (§ 243, subd. (a)), attempted kidnapping to commit robbery (§§ 664, 209, subd. (b)), and attempted robbery (§§ 664, 212.5, subd. (c)). The trial court sentenced Jones to an aggregate prison term of eight years eight months.
All further undefined statutory citations are to the Penal Code unless otherwise indicated.
Jones raises the following claims on appeal: (1) there is insufficient evidence to support his conviction for attempted kidnapping to commit robbery; (2) his conviction for attempted robbery must be reversed because attempted robbery is a necessarily included offense of attempted kidnapping to commit robbery; (3) he is entitled to an opportunity to request a hearing on his ability to pay court-imposed fines and fees; and (4) the trial court imposed an unauthorized sentence on Jones's conviction for conspiracy to commit robbery.
At our request, the parties submitted briefing as to whether Assembly Bill No. 518 (2021-2022 Reg. Sess.) (Assembly Bill No. 518), which became effective on January 1, 2022, retroactively applies to Jones's case and requires resentencing. The parties agree that Assembly Bill No. 518 retroactively applies to Jones's judgment of conviction, which is not yet final, and that resentencing is required. We agree as well. We affirm the judgment of conviction and remand the matter back to the trial court for a full resentencing.
PROCEDURAL HISTORY
On August 8, 2019, the Kern County District Attorney's Office filed an amended information charging Jones and his two codefendants, Glen Edward Maynor and Trichelle K. Burton, with six crimes involving three victims. As to victim K.A., Jones and his codefendants were charged with conspiracy to commit robbery (§§ 182, subd. (a)(1), 212.5, subd. (c); count 1). As to victim J.S., they were charged with carjacking (§ 215, subd. (a); count 2) and assault by means likely to cause great bodily injury (§ 245, subd. (a)(4); count 3). And finally, with respect to victim O.E., they were charged with conspiracy to commit kidnapping for robbery (§§ 182, subd. (a)(1), 209, subd. (b); count 4), attempted kidnapping for robbery (§§ 664, 209, subd. (b); count 5), and attempted robbery (§§ 664, 212.5, subd. (c); count 6).
On September 9, 2019, the jury found Jones and his codefendants guilty on counts 1, 2, 5, and 6 and found him not guilty of count 4. On count 3, it found Jones and his codefendants guilty of the lesser included offense of simple assault.
On December 17, 2019, the trial court sentenced Jones to an aggregate prison term of eight years eight months. He was sentenced to the midterm of seven years on count 5, and a consecutive term of one year eight months on count 2. The court imposed stayed terms of seven years on count 1, two years on count 6, and 120 days on count 3. The court also imposed a restitution fine, a matching stayed parole revocation fine, and various other assessments.
On February 13, 2020, Jones filed a timely notice of appeal.
STATEMENT OF FACTS
June 6, 2018-Conspiracy to Commit Robbery (Count 1)
On June 6, 2018, K.A. drove to Fresno to pick up "Melody," whom he had known for a couple of years. K.A. also knew Melody as Trichelle.
K.A. had allowed Melody to use his ATM card on prior occasions, and Melody had K.A.'s personal identification number (PIN) to the card, which was her date of birth.
At approximately 9:30 p.m., K.A. arrived at an apartment complex, as Melody had directed him. After five or 10 minutes, two men approached K.A. and asked him for a cigarette. K.A. replied that he did not have one and the men began to walk away. They came back a few minutes later.
The men jumped K.A., hitting him repeatedly and tasing him. K.A. yelled out, "I don't have no money …. What are you trying to do?" K.A. dropped his wallet and phone on the ground and the men stopped hitting him. They picked up the wallet and phone and fled. A few hours after the robbery, money was withdrawn from K.A.'s bank account.
Fresno Police Officer James Hannah responded to the incident. K.A. told Hannah that he was supposed to meet his girlfriend, Trichelle Burton, at the apartment complex where he had been attacked.
June 13, 2018 - Carjacking (Count 2) and Assault (Count 3)
On June 13, 2018, J.S. went to a Motel 6 in Fresno to meet "Leah," a woman he had met on an online dating website. Leah had contacted J.S. seeking a friend with benefits relationship. Over the course of several hours, they exchanged messages. They arranged to meet at Leah's motel room for dinner and a movie.
At approximately 9:45 p.m., J.S. arrived at Leah's room. He immediately told her he was not interested because she looked too young. The television was on and the volume was blaring. J.S. felt uneasy. He got up to turn down the volume on the television.
A man came out of the bathroom and knocked J.S. over the bed. As J.S. got up, another man emerged from the bathroom and begun to attack him. J.S. yelled for help. The two men ripped off his clothes and tased J.S. repeatedly.
J.S. made it to the door as Leah yelled," 'get him, don't let him get away.'" The men continued to beat J.S. One of the men held J.S. in a chokehold while the other punched him in the face and tasered him. J.S.'s assailants eventually drug J.S., naked, underneath a sink in the room and held a knife to his throat.
Leah took J.S.'s phone, ATM, and car keys, and told him," 'It's either your car or your life.'" Leah instructed one of the men to hold J.S. down and keep the knife to his throat.
With the knife still pressed against his throat, J.S. gave Leah the PIN to his ATM card. Leah left for approximately five minutes while the two men continued to detain J.S. When Leah returned, the group left. They told J.S. that if he left, their cousin, who was next door, would tell them and they would return. J.S. remained in the room for another minute, grabbed a towel, and ran into the front office of the motel.
J.S.'s vehicle had been taken. Later, J.S. observed that money had been withdrawn from his bank account.
Several days after the incident, J.S. identified Burton as "Leah," and Jones and Maynor as the two men who had attacked him, in a photographic lineup. At trial, J.S. identified Burton, Jones, and Maynor as the group that had attacked him.
June 15, 2018-Attempted Kidnapping to Commit Robbery (Count 5) & Attempted Robbery (Count 6)
On June 15, 2018, at approximately 2:00 p.m., O.E. was leaving work for the day when she observed a white car parked next to her car in the parking lot of her place of employment. O.E. was carrying her purse over her shoulder and she had her cell phone in her hand.
Suddenly, a man emerged from the back seat of the white car and began hitting her with a closed fist. O.E. began screaming and fell to the ground. Half of her body was against the white car, and the other half was on the ground.
As the man attempted to lift O.E., he told her to "get in the car." O.E. could see two other people inside the white car, a male who was seated in the driver's seat, and a female, seated in the front passenger's seat.
The male and female emerged from the white car. The female told O.E.'s assailant to "get her in the car."
Several bystanders began to approach and the man attempting to lift O.E. jumped off of her. The bystanders asked the group what was going on. The female told the bystanders O.E. "was trying to beat her up."
O.E. walked over to the witnesses. O.E.'s assailant and his companions fled in the white car, which was subsequently identified as the car stolen from J.S. Neither O.E.'s purse nor her phone were taken during the attack.
Police Questioning
On June 18, 2018, Fresno Police Detective Mikal Clement questioned Burton. Burton admitted that when she contacted K.A., she had planned to jump him and take his ATM card, and that she had withdrawn $200 from his bank account. As to the robbery of J.S., Burton admitted taking J.S.'s white Camry and using a taser on him. Burton also admitted to withdrawing money from J.S.'s bank account using his ATM card.
When Clement questioned Maynor, Maynor admitted that he had "rushed" K.A. when K.A.'s back was turned. Maynor also admitted to taking J.S.'s wallet during the Motel 6 robbery.
ANALYSIS
I. Evidence Supporting Attempted Kidnapping for Robbery Conviction
Jones contends there is insufficient evidence to support his conviction for attempted kidnapping for robbery. We conclude the record contains substantial evidence to support his conviction.
A. Relevant Legal Principles
On appeal, the court must view the evidence in the light most favorable to the judgment below, indulging in all presumptions and every logical inference the trier of fact could draw from the evidence. (People v. Carter (2005) 36 Cal.4th 1114, 1156; People v. Maury (2003) 30 Cal.4th 342, 396.) The test is whether substantial evidence supports the jury's conclusion (People v. Johnson (1980) 26 Cal.3d 557, 576-578), not whether the reviewing court would reach the same conclusion. (People v. Crittenden (1994) 9 Cal.4th 83, 139.)
Reversal is not warranted "unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].'" (People v. Bolin (1998) 18 Cal.4th 297, 331.)" 'The uncorroborated testimony of a single witness is sufficient to sustain a conviction, unless the testimony is physically impossible or inherently improbable.'" (People v. Panah (2005) 35 Cal.4th 395, 489; People v. Scott (1978) 21 Cal.3d 284, 296.)
If the verdict is supported by substantial evidence, the appellate court must accord due deference to the trier of fact and not substitute their evaluations of a witness's credibility for that of the fact finder. (People v. Koontz (2002) 27 Cal.4th 1041, 1078.) Because an appellate court must "give due deference to the trier of fact and not retry the case ourselves," an appellant challenging the sufficiency of the evidence "bears an enormous burden." (People v. Sanchez (2003) 113 Cal.App.4th 325, 330.)
Here, Jones and his codefendants were convicted of attempting kidnapping to commit robbery. Kidnapping to commit robbery requires proof that the movement of the victim "is beyond that merely incidental to the commission of, and increases the risk of harm to the victim over and above that necessarily present in," the underlying robbery. (§ 209, subd. (b)(2).)
A conviction for attempted kidnapping to commit robbery requires proof "the defendant had the specific intent required for kidnapping to commit robbery and that the movement, if completed as the defendant intended, would have been more than merely incidental to the underlying crime of robbery and would have … increased the risk of harm over and above that necessarily present in the robbery." (People v. Mullins (1992) 6 Cal.App.4th 1216, 1221 (Mullins), italics added; People v. Robertson (2012) 208 Cal.App.4th 965, 979 ["section 209, subdivision (b)(2) does not require the People to prove that this movement substantially increased the risk of harm"].)
For a completed kidnapping, the victim's movement must be substantial. (People v. Cole (1985) 165 Cal.App.3d 41, 50.) However, for attempted kidnapping, the distance the victim was moved "is immaterial." (Ibid.) "[A]sportation simply is not an element of the offense." (Ibid.) A conviction for attempted kidnapping to commit robbery is therefore proper where the defendant's "intent was to move [the victim] much farther and that [the defendant] was prevented from doing so only by [the victim's] successful escape." (Mullins, supra, 6 Cal.App.4th at pp. 1220-1221.)
B. Analysis
Here, the record supports the conclusion that Jones and his accomplices intended to move O.E. a distance beyond that merely incidental to the intended robbery. (§ 209, subd. (b)(2).) O.E. testified that her purse and her cell phone-which were in plain view-were not taken during the attack and that Maynor told her to "get in the car." Burton also instructed Maynor to "get [O.E.] into the car," before bystanders interceded.
Had Jones and his accomplices merely intended to take O.E.'s purse and cell phone, they could have done so without forcing O.E. into the backseat of their vehicle. Any movement of O.E. into the vehicle was therefore unnecessary to accomplish the robbery. Consequently, the intended movement of O.E. into the vehicle, or further, was not incidental to the intended robbery. (People v. James (2007) 148 Cal.App.4th 446, 455, fn. 6 ["movement unnecessary to a robbery is not incidental to it at all"].)
Further, the group's intended movement of O.E., if accomplished, would have increased the risk of harm to her above that necessarily attendant to the intended robbery. (§ 209, subd. (b)(2).) People v. Jones (1999) 75 Cal.App.4th 616 (Jones) is instructive.
In Jones, the victim, who had just stepped out of her car in a school parking lot, was seized by the defendant and forcibly moved 25 to 40 feet back to her car, where he made her open the door and get back in. The victim said," '[p]lease don't hurt me, just take everything.'" The defendant replied,"' "I plan on it." '" (Jones, supra, 75 Cal.App.4th at p. 622.)
As the defendant entered the car to rob the victim, she escaped. (Jones, supra, 75 Cal.App.4th at p. 622.) The appellate court affirmed the defendant's conviction for kidnapping to commit robbery. The court explained: "The critical factor which substantially increased the risk of harm to [the victim] occurred when he forced her to move the 40 feet in order to then push her into her car. Although the car alarm was sounding, once he pushed her into the car, she was no longer in public view as when she was in plain sight with [the defendant] holding his hand over her mouth-a situation which would have aroused concern immediately in any onlookers." (Id. at pp. 629-630.)
Here, had Maynor successfully forced O.E. into the car, as intended, O.E. would have been obfuscated from public view, at least partially. Once inside the vehicle, it would have been three against one, which not only would have reduced O.E.'s chance of escape, it would have enhanced the opportunity for Maynor, Jones, and Burton to have committed additional crimes against O.E., increasing the risk of physical or emotional harm to her. (People v. Leavel (2012) 203 Cal.App.4th 823, 834, citing People v. Power (2008) 159 Cal.App.4th 126, 139 [increased risk of harm includes physical or "mental, emotional, or psychological harm"]; accord, People v. Nguyen (2000) 22 Cal.4th 872, 874.)
This seemingly insubstantial distance would likely have satisfied the asportation requirement to support a conviction for a completed kidnapping to commit robbery. We therefore have no doubt that the evidence adduced at trial supports Jones's conviction for attempted kidnapping for robbery. Had Maynor moved O.E. as he and his accomplices had intended, the movement "would have … increased the risk of harm over and above that necessarily present in the robbery." (Mullins, supra, 6 Cal.App.4th at p. 1221.)
The record did not foreclose the jury from further concluding that Jones and his accomplices intended to move O.E. further than to the backseat of their vehicle. From the evidence adduced at trial, including the robberies of K.A. and J.S., the jury could reasonably conclude the group intended to obtain O.E.'s ATM card and PIN to withdraw money from her bank account. However, unlike the attacks on K.A. and J.S., the attack on O.E. occurred in broad daylight with bystanders approaching. It is therefore reasonable to conclude that Jones and his accomplices sought to get O.E. inside their vehicle to transport O.E. to another more secluded location to accomplish their objective.
Jones asserts that because there was no asportation of the victim at all, the jury could only speculate as to whether he intended to rob O.E. in the backseat of his vehicle, or to drive her away to another location. This is a distinction is without a difference. At a minimum, Jones and his accomplices intended to move O.E. into the backseat of their vehicle. This movement alone would likely have satisfied the asportation element required for a completed kidnapping to commit robbery. Assuming otherwise however, the jury could also reasonably conclude, without speculating, that Jones and his accomplices intended to drive O.E. to another location. Jones's assertion to the contrary is unpersuasive.
Jones directs this court to Mullins, supra, 6 Cal.App.4th 1216 to support his assertion that there is insufficient evidence showing he intended to move O.E. in a manner that was more than merely incidental to the intended robbery, and which would have "substantially" increased the risk of harm to O.E. Jones's reliance upon Mullins does not assist him.
In Mullins, the victim was moved a distance of 150 feet, while inside of a moving vehicle traveling through a parking lot, before she escaped. (Mullins, supra, 6 Cal.App.4th at p. 1218.) The trial court concluded this movement did not constitute a "substantial distance," and found the defendant guilty of the lesser included offense of attempted kidnapping. (Id. at pp. 1221-1222.) On appeal, the court affirmed the defendant's conviction for attempted kidnapping.
The appellate court stated it might have come to a different conclusion if it had been the fact finder, suggesting the movement of the victim, although short, might have been enough to constitute a completed kidnapping rather than an attempted kidnapping. (Mullins, supra, 6 Cal.App.4th at p. 1220.) However, the court acknowledged it was bound by the trial court's finding of fact. (Ibid.)
Nothing within Mullins suggests that the intended movement of the victim here was insufficient to support Jones's conviction for attempted kidnapping to commit robbery. Jones directs us to the following two-part test articulated in Mullins: "To convict, the fact finder must find beyond a reasonable doubt that the defendant had the specific intent required for kidnapping to commit robbery and that the movement, if completed as the defendant intended, would have been more than merely incidental to the underlying crime of robbery and would have substantially increased the risk of harm over and above that necessarily present in the robbery." (Mullins, supra, 6 Cal.App.4th at p. 1221, italics added.)
Mullins was decided in 1992, before the Legislature amended section 209 to eliminate the requirement that the prosecution prove that movement of the victim "substantially" increased the risk of harm to the victim. (See People v. Robertson, supra, 208 Cal.App.4th at p. 978.) For an attempted aggravated kidnapping, the relevant inquiry is whether the intended movement of the victim is more than that which is merely incidental to the intended crime, and whether it would have increased the risk of harm to the victim above that inherent in the intended crime itself. (§ 209, subd. (b)(2).) As discussed, the record amply supports the conclusion that Jones and his accomplices intended to move O.E. in a manner that was more than incidental to the planned robbery and that such movement would have increased the risk of harm to O.E.
II. Attempted Robbery Conviction
A. Background
Jones was convicted of attempted kidnapping to commit robbery (§§ 664/209, subd. (b), count 5), and attempted robbery (§§ 664/212.5, subd. (c), count 6). He contends that his conviction for attempted kidnapping in count 6 is a necessarily included offense of his conviction for attempted kidnapping for robbery in count 5, and that count 6 must therefore be vacated. His argument is meritless.
B. Analysis
A defendant "cannot be convicted of both an offense and a lesser offense necessarily included within that offense, based upon his or her commission of the identical act." (People v. Sanchez (2001) 24 Cal.4th 983, 987; People v. Pearson (1986) 42 Cal.3d 351, 355 ["[M]ultiple convictions may not be based on necessarily included offenses."], overruled on other grounds by People v. Vidana (2016) 1 Cal.5th 632, 650-651.) "An offense is necessarily included within another if 'the statutory elements of the greater offense ... include all the elements of the lesser offense....'" (People v. Lewis (2008) 43 Cal.4th 415, 518, overruled on other grounds in People v. Black (2014) 58 Cal.4th 912, 919, 920.)
Robbery (§ 211) is defined as "the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." An attempted robbery consists of two elements: (1) specific intent to rob; and (2) a direct, unequivocal, but ineffectual overt act towards the commission of the intended robbery. (People v. Dillon (1983) 34 Cal.3d 441, 454-455; People v. Vizcarra (1980) 110 Cal.App.3d 858, 861.)
Kidnapping for robbery (§ 209, subd. (b)(1)) consists of six elements: (1) the defendant intended to commit robbery; (2) acting with that intent, the defendant detained another person by using force or instilling a reasonable fear; (3) using that force or fear, the defendant moved or made the other person move a substantial distance; (4) the other person was moved or made to move a distance beyond that merely incidental to the commission of the robbery; (5) the defendant intended to commit robbery when the movement began; and (6) the other person did not consent to the movement. (CALCRIM No. 1203.)
An attempted kidnapping for robbery (§§ 664, 209, subd. (b)(1)) requires proof of two elements in addition to the six elements the prosecution must prove to establish kidnapping for robbery: (7) the defendant intended to commit kidnapping for robbery; and (8) a direct, unequivocal, but ineffectual overt act towards the commission of the intended kidnapping for robbery. (CALCRIM No. 460.)
Our Supreme Court has held that for purposes of the rule barring conviction on necessarily included lesser offenses, robbery is not a lesser included offense of kidnapping for robbery because kidnapping for robbery does not require a completed robbery. (People v. Lewis, supra, 43 Cal.4th at pp. 518-519; People v. Davis (2005) 36 Cal.4th 510, 565.) Applying the elements test, and consistent with our Supreme Court's holding, we conclude attempted robbery is not a lesser offense necessarily included in the crime of attempted kidnapping for robbery.
Attempted robbery is not a lesser offense necessarily included in attempted kidnapping for robbery because one of the elements of attempted robbery-a direct, unequivocal, but ineffectual overt act towards the commission of the intended robbery (People v. Dillon, supra, 34 Cal.3d at pp. 455-456)-is not one of the elements of attempted kidnapping for robbery. (See People v. Montoya (2004) 33 Cal.4th 1031, 1034.) A perpetrator could possess the specific intent to commit a kidnapping for robbery and to commit robbery; take a direct but ineffectual step towards committing the kidnapping for robbery; but without taking a direct but ineffectual step towards committing the robbery. Therefore, under the elements test, the elements of attempted robbery are not necessarily included in the elements of the crime of kidnapping for robbery. (Ibid. ["if a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former"].)
Jones contends the facts of the instant case are illustrative of the fact that in committing an attempted kidnapping for robbery, he also committed an attempted robbery. However, in determining whether one offense is necessarily included within another, we "do not consider the underlying facts of the case or the language of the accusatory pleading." (People v. Sanders (2012) 55 Cal.4th 731, 739.) The inquiry is whether a person could have theoretically committed the greater offense without committing the lesser offense. As discussed, we conclude it is possible.
III. The Trial Court's Imposition of an Unauthorized Sentence
At the sentencing hearing, the trial court selected "the midterm of 7 years" on count 1, Jones's conviction for conspiracy to commit robbery. The term was stayed pursuant to section 654. The minute order for the sentencing hearing indicates the trial court "imposed the lower term of 7 year(s)." The middle term for conspiracy to commit second degree robbery is three years, not seven years (see §§ 182, subd. (a), 213, subd. (a)(2)), and the upper term is five years (ibid.). The term imposed by the trial court is therefore unauthorized. (People v. Anderson (2020) 9 Cal.5th 946, 962.)
From the record, it appears that the trial court intended to impose the middle term of three years on count 1. This was the recommendation of the probation officer. The Attorney General suggests that we modify the judgment accordingly. Although we have the authority to correct an unauthorized sentence on appeal (People v. Anderson, supra, 9 Cal.5th at p. 962), we need not do so here. As discussed in part IV, post, we conclude that Jones is entitled to a full resentencing based upon the enactment of new legislation.
IV. Assembly Bill No. 518
During the pendency of this appeal, the Governor signed Assembly Bill No. 518 into law. Effective January 1, 2022, Assembly Bill No. 518 amended section 654 to authorize trial courts to punish an "act or omission that is punishable in different ways by different provisions of law .... under either of such provisions." (Stats. 2021, ch. 441, § 1.) Previously, when the trial court sentenced Jones, section 654 required the court to punish an act that was punishable in different ways by different laws only "under the provision that provides for the longest potential term of imprisonment." (Former § 654, subd. (a).)
We requested supplemental briefing from the parties regarding whether the newly enacted amendment to section 654 has any bearing upon Jones's case, and if so, whether Jones is entitled to resentencing. The Attorney General concedes that Assembly Bill No. 518 retroactively applies to Jones's case, which has not yet reached finality, and that resentencing is required. We agree as well.
Under In re Estrada (1965) 63 Cal.2d 740, "[w]hen the Legislature has amended a statute to reduce the punishment for a particular criminal offense, we will assume, absent evidence to the contrary, that the Legislature intended the amended statute to apply to all defendants whose judgments are not yet final on the statute's operative date." (People v. Brown (2012) 54 Cal.4th 314, 323, fn. omitted.) This presumption has been applied to amendments providing trial courts discretion to impose lesser punishment at sentencing and amendments reducing the possible punishment for classes of persons. (See, e.g., People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303-304 [Proposition 57, the Public Safety and Rehabilitation Act of 2016 (enacted Nov. 8, 2016]; People v. Garcia (2018) 28 Cal.App.5th 961, 971-972 [Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1013, §§ 1-2)]; People v. Valenzuela (2018) 23 Cal.App.5th 83, 87-88 [Senate Bill No. 620 (2017-2018 Reg. Sess.) (Stats. 2017, ch. 682, §§ 1-2)].)
Nothing in Assembly Bill No. 518 suggests that the Legislature intended for the changes made to section 654 to apply prospectively only. We therefore accept the People's concession that Assembly Bill No. 518 retroactively applies to all nonfinal judgments, including Jones's nonfinal judgment of conviction.
" 'Defendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that "informed discretion" than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record.' [Citation.] In such circumstances, [our Supreme Court has] held that the appropriate remedy is to remand for resentencing unless the record 'clearly indicate[s]' that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion.'" (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.)
Upon the instant record, there is no clear indication regarding what sentencing decisions the trial court would have made if it had possessed the sentencing discretion vested by Assembly Bill No. 518. We therefore agree with the parties that remand is appropriate so the trial court may fully resentence Jones anew, incorporating the new legislative changes.
V. Ability to Pay Hearing
At sentencing, the trial court imposed certain fines, fees, and assessments, including: a restitution fine of $300 (§ 1202.4); a stayed $300 parole revocation fine (§ 1202.45); $160 in court security fees (§ 1465.8); and a $120 conviction assessment (Gov. Code, § 70373). Jones contends the trial court erred by imposing these fines and fees without first determining whether he had the ability to pay them. In light of our conclusion that resentencing is required, we do not address the merits of Jones's claim that he is entitled to an ability to pay hearing as the issue is moot.
DISPOSITION
The sentence is vacated and the case is remanded back to the trial court for resentencing in light of Assembly Bill No. 518. The judgment of conviction is otherwise affirmed.
WE CONCUR: DETJEN, Acting P. J. SNAUFFER, J.