Opinion
A159286
07-14-2020
THE PEOPLE, Plaintiff and Respondent, v. MICEL TOMISLAV MARDESICH, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Mendocino County Super. Ct. Nos. SCUK-CRCR-15-83409-2, SCUK-CRCR-19-32806-1)
The trial court revoked Michel Tomislav Mardesich's probation and sentenced him to four years in state prison, which included a one-year enhancement for a prior prison term pursuant to Penal Code section 667.5, subdivision (b). We strike from Mardesich's sentence the prior prison enhancement and remand for resentencing.
Undesignated statutory references are to the Penal Code. The court also sentenced Mardesich to eight months in case number ending in 19-32806-1, bringing his total prison sentence, in both cases, to four years and eight months. Mardesich raises no claims with respect to case number ending in 19-32806-1 and we mention it only where necessary.
FACTUAL AND PROCEDURAL BACKGROUND
Law enforcement officers found Mardesich growing 105 marijuana plants and possessing marijuana while armed with a pistol. He pled no contest to possession of a firearm by a felon (count 1, § 29800, subd. (a)(1)) and cultivation of marijuana (count 3, Health & Saf. Code, § 11358). Mardesich admitted being armed with a firearm (§ 12022, subd. (a)(1)) and having served a prior prison term (§ 667.5, subd. (b)).
A.
Pursuant to the plea agreement, the court imposed a prison sentence of five years and eight months, comprised of three years on count 1, eight months on count 3, one year for the arming enhancement, and one year for the prior prison term. It imposed various fines and fees, including a restitution fine. The court suspended execution of the sentence and placed Mardesich on probation.
B.
In 2019, Mardesich admitted violating probation. He also pled no contest to cultivating marijuana in case number ending in 19-32806-1. The court revoked Mardesich's probation and "execute[d] the sentence previously imposed [but] with a modification." Rather than executing the original sentence of five years and eight months, the court imposed a four-year sentence, comprised of three years on count 1 and one year for the prior prison term. It imposed a concurrent term of 180 days on count 3, which had been redesignated a misdemeanor after the passage of Proposition 64. The court struck the arming enhancement.
Defense counsel asked the court to consider reducing the proposed restitution fine based on Mardesich's "inability to pay." The court declined and imposed various fines and fees, including a $1,600 restitution fine.
DISCUSSION
Mardesich contends—and the Attorney General agrees—the prior prison term enhancement must be stricken pursuant to Senate Bill No. 136 (2019-2020 Reg. Sess.). (People v. McKenzie (2020) 9 Cal.5th 40, 43 [on appeal from judgment revoking probation and imposing sentence, defendant may take advantage of ameliorative statutory amendments].) We strike the section 667.5 enhancement and remand for resentencing. (People v. Jennings (2019) 42 Cal.App.5th 664, 682; People v. Buycks (2018) 5 Cal.5th 857, 893.)
Relying on People v. Matthews (2020) 47 Cal.App.5th 857 (Matthews), Mardesich seems to contend resentencing is unnecessary. There, the trial court sentenced defendant, pursuant to a plea agreement, to 10 years in state prison, which included several enhancements under section 667.5. (Matthews, at pp. 861-862.) Defendant appealed, urging the court to strike the section 667.5, subdivision (b) enhancements. The Matthews court agreed and struck them. (Matthews, at p. 864.)
It rejected the Attorney General's request for a remand for the trial court to "exercise its discretion to reconsider" the sentence "to impose a newly constituted term as close to 10 years as possible." (Matthews, supra, 47 Cal.App.5th at p. 866.) Matthews held a trial court lacks the power to alter a sentence imposed pursuant to a plea agreement "except to eliminate enhancements affected by Senate Bill No. 136." (Id. at p. 866.) Matthews explained: "the trial court cannot, in striking the enhancements invalidated by Senate Bill No. 136 (2019-2020 Reg. Sess.), reconsider other aspects of the sentences [the defendant] and the People specifically agreed to under the plea agreements." (Id. at p. 869.)
Here, the court did not sentence Mardesich pursuant to the plea agreement, which called for a prison term of five years and eight months. Instead, the court "modifi[ed]" the stipulated sentence by striking the arming enhancement and imposing a concurrent term on count 3. The court sentenced Mardesich to four years in state prison. Because this appeal is not from a stipulated sentence, Matthews is distinguishable; remand for resentencing is appropriate.
Next, Mardesich argues he is entitled to an ability-to-pay hearing on "the fines and assessments." Our remand for resentencing obviates the need to consider this claim because Mardesich may raise his objections concerning any perceived inability to pay the "fines and assessments" at the resentencing hearing, should he choose to do so. (See People v. Buycks, supra, 5 Cal.5th at p. 893.)
Were we not remanding for resentencing, we would deem this argument forfeited. With the exception of scattered references to the restitution fine, Mardesich does not identify the "fines and assessments" he challenges, nor cite the statutes authorizing their imposition. It is not our job to search the record or to make arguments for Mardesich, and it is not enough for an appellant to cite People v. Dueñas (2019) 30 Cal.App.5th 1157 and hope this court will remand. --------
DISPOSITION
The order revoking probation is affirmed. Mardesich's section 667.5, subdivision (b) enhancement is stricken and the matter is remanded for resentencing. Upon resentencing, the abstract of judgment should reflect the correct spelling of Mardesich's first name, "Micel."
/s/_________
Jones, P. J. WE CONCUR: /s/_________
Needham, J. /s/_________
Burns, J.