Opinion
F078793
06-04-2020
THE PEOPLE, Plaintiff and Respondent, v. JERRY JAYVON WHITEHEAD, Defendant and Appellant.
J. Edward Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Michael Dolida, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F18902213)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. James A. Kelley, Judge. J. Edward Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Michael Dolida, Deputy Attorneys General, for Plaintiff and Respondent.
Before Franson, Acting P.J., Meehan, J. and DeSantos, J.
-ooOoo-
INTRODUCTION
Appellant/defendant Jerry Jayvon Whitehead pleaded no contest to multiple felony offenses and was sentenced to state prison. On appeal, defendant argues the matter must be remanded for the trial court to determine whether to exercise its discretion to dismiss the five-year term imposed for the prior serious felony conviction enhancement, based on the amendments to Penal Code section 667, subdivision (a) enacted by Senate Bill No. 1393 (2017-2018 Reg. Sess.; Sen. Bill 1393). Defendant further argues the court improperly imposed a restitution fine and other fees without determining his ability to pay those amounts in violation of his constitutional right to due process, based on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).
All further statutory citations are to the Penal Code unless otherwise indicated.
We agree the matter must be remanded so that the trial court may determine whether or not to dismiss his prior serious felony conviction enhancement. In light of our conclusion in this regard, we need not reach defendant's Dueñas claim, as he may request relief from the trial court in the first instance on remand. (People v. Castellano (2019) 33 Cal. App.5th 485, 489-490.)
FACTS
Given defendant's plea, the factual summary is from the probation report.
On March 28, 2018, Phillip Gray and Tyeskia Randall were sitting in Gray's parked 2012 Hyundai Sonata. They were confronted by two men who pointed firearms at them. The victims later identified the suspects as defendant and his accomplice, Clarence Allen. The victims reported that one man had a semi-automatic firearm, possibly a .40-caliber Glock, and the other man had a long gun with a silencer. The men ordered the victims to get out of the car and leave everything inside. Randall hesitated and defendant threatened to shoot her in the face. The victims got out and left their belongings inside the car. Defendant and Allen got in and drove away in Gray's car.
On March 29, 2018, police responded to a dispatch about a car blocking a residential driveway. When the officers arrived, they found Allen and two other people sitting in Gray's stolen Hyundai. The victims' personal possessions were still in the car.
Also, on March 29, 2018, officers took defendant into custody after he entered a store and tried to hide a gun among the merchandise, as shown on the store's video surveillance camera. The officers recovered the firearm, which was a Bersa .38-caliber handgun.
Gray and Randall separately viewed photographic lineups and identified defendant and Allen as the men who committed the carjacking.
PROCEDURAL BACKGROUND
On August 2, 2018, a first amended information was filed in the Superior Court of Fresno County in case No. F18902213, that charged defendant and codefendant Allen with multiple felonies based on the carjacking. Defendant was charged with count 3, carjacking (§ 215, subd. (a)); count 4, second degree robbery (§ 211); count 6, assault with a firearm on Randall (§ 245, subd. (a)(2)); and count 7, criminal threats to Randall (§ 422); with firearm enhancements alleged as to counts 3 and 4 (§ 12022.53, subd. (b) and counts 6 and 7 (§ 12022.5, subd. (a)).
It was further alleged defendant had one prior strike conviction (§ 667, subds. (b)-(i)), one prior serious felony conviction (§ 667, subd. (a)), and one prior prison term enhancement (§ 667.5, subd. (b)), all based on his conviction for carjacking (§ 215) in 2013.
Codefendant Allen was separately charged with count 1, carjacking; count 2, second degree robbery; and count 5, assault with a firearm; with firearm enhancements (§ 12022.53, subd. (b), § 12022.5, subd. (a)), and one prior prison term enhancement.
On April 3, 2018, a complaint was filed against defendant in case No. F18902215, that charged him with five felony firearm offenses committed on March 29, 2018, when he was taken into custody after hiding his gun in the store: count 1, possession of a firearm by a person with a prior violent conviction (§ 29900, subd. (a)); count 2, possession of a firearm by a felon (§ 29800, subd. (a)); count 3, carrying a loaded firearm in public (§ 25850, subd. (a)); count 4, carrying a concealed firearm (§ 25400, subd. (a)(2)); and count 5, possession of ammunition by a prohibited person (§ 30305, subd. (a)(1)); with one prior strike conviction and one prior prison term enhancement. Defendant's Plea
On August 2, 2018, the court convened the joint jury trial for defendant and codefendant Allen in the carjacking case.
On August 3, 2018, defendant withdrew his not guilty pleas, and entered into a negotiated disposition to plead no contest to the charges in both the carjacking and firearm cases, for an indicated aggregate sentence of 26 years four months.
First, defendant pled no contest to the four counts alleged against him in the carjacking case, and admitted the firearm enhancements and the prior conviction allegations, for an indicated sentence of 25 years in prison.
Codefendant Allen was convicted after a jury trial of all counts alleged against him in the carjacking case, the firearm enhancements were found true, and he admitted the prior prison term enhancement.
Defendant also pled no contest to the five felony firearm offenses committed on March 29, 2018, and admitted the prior conviction allegations, for an indicated sentence of one year four months in prison. Sentencing Hearing
On November 30, 2018, the court sentenced defendant to an aggregate term of 26 years four months in both cases.
In the carjacking case, defendant was sentenced to 25 years in prison as follows: count 3, carjacking, the midterm of five years, doubled to 10 years as the second strike term; a consecutive term of 10 years for the section 12022.53, subdivision (b) firearm enhancement; and a consecutive term of five years for the prior serious felony enhancement. The court stayed the terms imposed for the other counts and allegations pursuant to section 654, and ordered the prior prison term enhancement stricken.
The court recognized it had discretion whether to impose the section 12022.53, subdivision (b) firearm enhancement in the carjacking case, but it had "weighed the facts and the defendant's history, [and] declined to exercise that discretion" because "I don't believe that this is a case where it's appropriate to strike the [section] 12022.53 enhancement."
In the firearm case, the court imposed a consecutive term of eight months (one-third the midterm) doubled to 16 months as the second strike term for count 1, possession of a firearm by a person with a prior violent conviction, and stayed the terms imposed for the other counts pursuant to section 654.
In each case, the court imposed a $300 restitution fine (§ 1202.4, subd. (b)) and suspended the $300 parole revocation fine (§ 1202.45). The court stated that for both cases, it was imposing the court security fee of $40 per conviction (nine counts), for a total of $360 (§ 1465.8); and the criminal conviction assessment fee of $30 per conviction, for a total of $270 (Gov. Code, § 70373). The court ordered victim restitution in an amount to be determined (§ 1202.4, subd. (f)). Defendant did not object to the court's imposition of the restitution fine and fee orders.
On February 6, 2019, defendant filed a notice of appeal only in the carjacking case (No. F18902213).
DISCUSSION
I. The Prior Serious Felony Conviction Enhancement
Defendant admitted that he had a prior serious felony conviction, and the court imposed a consecutive term of five years for the section 667, subdivision (a) enhancement. At the time of the sentencing hearing, the court was statutorily required to impose the section 667, subdivision (a) enhancement and did not have any authority to strike or dismiss it. (§ 667, former subd. (a)(1); § 1385, former subd. (b).)
Effective January 1, 2019, sections 667 and 1385 were amended by Sen. Bill 1393 to remove the prohibitions on striking or dismissing a prior serious felony enhancement. (See Stats. 2018, ch. 1013, §§ 1-2.) The amended statutes apply retroactively to all cases that are not yet final. (People v. Garcia (2018) 28 Cal.App.5th 961, 971-973; People v. Zamora (2019) 35 Cal.App.5th 200, 208.)
Defendant contends, and the People concede, that the amendments enacted by Sen. Bill 1393 are retroactive and this case should be remanded for the court to decide whether to exercise its discretion to dismiss the prior serious felony enhancement.
We agree that remand is required. While the court declined to exercise its discretion to dismiss the section 12022.53, subdivision (b) firearm enhancement, it recognized that it had discretion to do so and explained why it decided not to strike that enhancement. At that time, however, it did not have any discretion to strike the prior serious felony enhancement, and its findings about the firearm enhancement are not dispositive as to whether it might have dismissed the prior serious felony enhancement. II. The Restitution Fine and Fees
Defendant contends the court improperly ordered him to pay a restitution fine and other fees without determining whether he had the ability to pay those amounts in violation of his constitutional right to due process, based on Dueñas, supra, 30 Cal.App.5th 1157, and he has not forfeited appellate review of these arguments.
Defendant has only filed an appeal in the carjacking case (No. F18902213), and limits his Dueñas arguments to the $300 restitution fine, the court security fee of $160 (§ 1465.8) and the criminal conviction assessment fee of $120 (Gov. Code, § 70373), imposed for his four convictions in that case. Defendant requests this court to reverse these orders and remand the matter for a hearing on his ability to pay.
In Dueñas, the court held the assessments under section 1465.8 and Government Code section 70373 may be "imposed only on those with the means to pay them" (Dueñas, supra, 30 Cal.App.5th at pp. 1168-1169), and "that although the trial court is required by ... section 1202.4 to impose a restitution fine, the court must stay the execution of the fine until and unless the People demonstrate that the defendant has the ability to pay" (id. at p. 1172; accord, People v. Castellano, supra, 33 Cal.App.5th at pp. 489-490 [following Dueñas but clarifying that "a defendant must in the first instance contest in the trial court his or her ability to pay the fines, fees and assessments to be imposed and at a hearing present evidence of his or her inability to pay the amounts contemplated by the trial court"]; contra, People v. Allen (2019) 41 Cal.App.5th 312, 325-330 [rejecting the defendant's Dueñas-based due process claim and her equal protection claim]; People v. Hicks (2019) 40 Cal.App.5th 320, 326-329, review granted Nov. 26, 2019, S258946 [rejecting Dueñas's due process analysis]; People v. Aviles (2019) 39 Cal.App.5th 1055, 1061 [disagreeing with Dueñas's due process analysis and concluding constitutional challenges to fines, fees and assessments should be made under the Eighth Amendment's excessive fines clause]).
We conclude it is unnecessary to reach defendant's Dueñas arguments given remand of this matter under Sen. Bill 1393. As the People agree, to the extent that defendant believes Dueñas entitles him to any relief, he may, if he so chooses, request such relief in the trial court in the first instance. (People v. Castellano, supra, 33 Cal.App.5th at pp. 489-491.)
DISPOSITION
The matter is remanded to the trial court to determine whether to exercise its discretion under section 667, subdivision (a), and section 1385, subdivision (b), as amended by Sen. Bill 1393 and, if appropriate following exercise of that discretion, to resentence defendant accordingly. The judgment is otherwise affirmed.