Opinion
B298568
08-11-2020
THE PEOPLE, Plaintiff and Respondent, v. JAY PHILLIP WEAVER, Defendant and Appellant.
Carlos Ramirez, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and Stephanie C. Santoro, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. VA149992) APPEAL from a judgment of the Superior Court of Los Angeles County. Michael A. Cowell, Judge. Affirmed as modified. Carlos Ramirez, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and Stephanie C. Santoro, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury found defendant Jay Weaver guilty of one count of robbery. At the sentencing hearing, the trial court imposed a one-year prior prison term enhancement under Penal Code section 667.5, subdivision (b). It also imposed various fines and assessments. On appeal, Weaver urges us to strike the enhancement pursuant to Senate Bill No. 136 (2019-2020 Reg. Sess.) (SB 136). He also contends the trial court improperly imposed the fines and assessments without first determining he had the ability to pay them. We strike the section 667.5, subdivision (b) enhancement and affirm the judgment in all other respects.
All further undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
A jury convicted Weaver of second degree robbery (§ 211) and found true an allegation that he personally used a firearm in the commission of the crime (§ 12022.53, subd. (b)). Weaver subsequently admitted suffering a prior conviction that qualified as a prior prison term for purposes of section 667.5, subdivision (b).
The trial court sentenced Weaver to an aggregate term of six years in prison, consisting of the high term of five years for the robbery plus a one-year prior prison term enhancement (§ 667.5, subd. (b)). The court struck the 10-year enhancement for the firearm allegation, noting the evidence at trial was not sufficient to justify its imposition. The court imposed a $300 restitution fine (§ 1202.4), $300 parole revocation fine (§ 1202.45), $40 court operations assessment (§ 1465.8), and $30 criminal conviction assessment (Gov. Code, § 70373). Weaver timely appealed.
DISCUSSION
I. The Section 667.5 , subdivision (b), Sentence Enhancement Must be Stricken
Weaver contends, and the Attorney General concedes, the one-year sentence enhancement imposed under section 667.5, subdivision (b), must be stricken. We agree.
Prior to January 1, 2020, a one-year sentence enhancement under section 667.5, subdivision (b), was mandatory " 'for each prior separate prison term or county jail term imposed under subdivision (h) of Section 1170 or when sentence is not suspended for any felony.' " (People v. Buycks (2018) 5 Cal.5th 857, 889.) The only exception was for defendants who remained free for five years of both prison custody and the commission of a new offense resulting in a felony conviction. (Ibid.) In October 2019, the Legislature passed SB 136, which amended section 667.5, subdivision (b), to eliminate the prior prison term enhancement except in cases involving sexually violent offenses. SB 136 became effective on January 1, 2020. (Cal. Const., art. IV, § 8, subd. (c)(2).)
Because Weaver's conviction is not yet final, and his prior conviction is not for a sexually violent offense, SB 136 applies retroactively to his sentence. (See People v. Jennings (2019) 42 Cal.App.5th 664, 682 [SB 136 applies retroactively to all cases not yet final as of its effective date]; In re Estrada (1965) 63 Cal.2d 740, 748 [for a non-final conviction, "where the amendatory statute mitigates punishment and there is no savings clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed"]; People v. Vieira (2005) 35 Cal.4th 264, 306 [" 'for the purpose of determining retroactive application of an amendment to a criminal statute, a judgment is not final until the time for petitioning for a writ of certiorari in the United States Supreme Court has passed' "].) As a result, the one-year enhancement imposed under section 667.5, subdivision (b), must be stricken.
The parties agree, as do we, that we need not remand the matter for resentencing. The trial court imposed the upper term of five years on the robbery count, which was the maximum possible sentence. Although it struck the firearm enhancement, the court's stated reasons for doing so indicate it would not impose the enhancement on remand. Specifically, the court said the witness gave only a minimal description of the gun and "given the brevity of the contact . . . and the fact that no weapon was subsequently found anywhere, I'm disinclined to impose [10] years upon the assumption that it was, in fact, a gun." Given these circumstances, we have no doubt that on remand the court would again strike the enhancement and impose the maximum sentence on the robbery conviction. Accordingly, there is no need to remand the matter for the court to exercise its sentencing discretion for a second time. (See People v. Buycks, supra, 5 Cal.5th at p. 896, fn. 15 [no need to remand for resentencing where trial court imposed maximum possible sentence regardless of whether an enhancement was stricken]; People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 [no need to remand where trial court's comments at sentencing showed remand would serve no purpose].)
II. Weaver Forfeited His Challenge to the Fines and Assessments
Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), Weaver contends the trial court's imposition of the fines and assessments without first determining he had the ability to pay them violated his constitutional rights. He concedes, however, he did not raise this issue in the trial court. For the reasons set out in People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1155, we find the issue forfeited. (See also People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1031-1033 [finding forfeiture where defendant failed to object to fines and fees under §§ 1202.4, 1465.8 & 290.3, and Gov. Code, §§ 70373 & 29550.1, based on inability to pay]; People v. Bipialaka (2019) 34 Cal.App.5th 455, 464 [citing Frandsen to find Dueñas issue forfeited for failure to object in trial court].)
Weaver contends his failure to object did not forfeit the issue because Dueñas was not foreseeable, the law was against him at the time of his sentencing, and any objection would have been futile. The problem with each of these arguments is that Dueñas was decided and certified for publication five months before Weaver's sentencing hearing. Therefore, no foresight was required, the law was not against him, and an objection would not have been futile. (See Cal. Rules of Court, rule 8.1115(d) ["A published California opinion may be cited or relied on as soon as it is certified for publication or ordered published."].)
We also reject Weaver's brief contention that his claim is not forfeited because it involves a legal challenge, rather than a challenge to the court's exercise of discretion. Regardless of his framing, Weaver essentially agues the court exercised its otherwise lawful authority in an erroneous manner under the particular facts of his case; such a claim encompasses factual matters and is subject to forfeiture. (People v. McCullough (2013) 56 Cal.4th 589, 597; see People v. Welch (1993) 5 Cal.4th 228, 236.) Weaver, moreover, "may not 'transform . . . a factual claim into a legal one by asserting the record's deficiency as a legal error.' [Citation.]" (People v. McCullough, supra, at p. 597.)
DISPOSITION
The one-year sentencing enhancement imposed under section 667.5, subdivision (b), is stricken. We affirm the judgment in all other respects.
The trial court shall issue an amended abstract of judgment consistent with this opinion and forward it to the Department of Corrections and Rehabilitation.
BIGELOW, P. J. WE CONCUR:
GRIMES, J.
WILEY, J.