Opinion
A153623
08-26-2019
THE PEOPLE, Plaintiff and Respondent, v. CALVIN PEACE, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. 17SF009100) MEMORANDUM OPINION
We resolve this case by memorandum opinion pursuant to California Standards of Judicial Administration, section 8.1. (See also People v. Garcia (2002) 97 Cal.App.4th 847, 853-855.) --------
Following his conviction for an Estes style robbery (Pen. Code, § 212.5, subd. (c); see People v. Estes (1983) 147 Cal.App.3d 23) based on what began as a shoplifting incident at a Target store, Calvin Peace was sentenced in 2018 to seven years in prison, consisting of the lower term of two years, enhanced by five years for a prior strike conviction (Pen. Code, § 667, subd. (a)(1)). He was ordered to pay $370 in fines and fees, consisting of a $300 restitution fund fine (Pen. Code, § 1202.4), a $40 court operations assessment fee (Pen. Code, § 1465.8), and a $30 criminal conviction assessment fee (Gov. Code, § 70373).
Peace now appeals his sentence, arguing that 1) under Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Senate Bill 1393) the 5-year enhancement imposed on him is no longer mandatory (see Pen. Code, §§ 667, subd. (a) & 1385; Stats. 2018, ch. 1013), Senate Bill 1393 applies retroactively, and therefore the case should be remanded so that the trial court may consider whether it wishes to strike or dismiss the enhancement as a matter of discretion, and 2) the court imposed the $370 in fines and fees on him without considering his claimed indigency in violation of People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), and on remand, no such fines and fees may be imposed unless the court finds that he has the ability to pay them.
The Attorney General concedes that remand is appropriate so that the trial court may consider whether an exercise of discretion under Senate Bill 1393 is appropriate, and, although he points out that Peace failed to object to the imposition of fines and fees on grounds of lack of ability to pay, he takes the position that, since the case must be remanded anyway, it is appropriate for the court to consider the issue of inability to pay in light of Dueñas on remand.
DISPOSITION
The sentence is vacated and the case is remanded for consideration of whether to strike or dismiss the 5-year enhancement charge under Senate Bill 1393 and for a determination of Peace's ability to pay fines and fees.
/s/_________
STREETER, Acting P.J. We concur: /s/_________
TUCHER, J. /s/_________
BROWN, J.