Opinion
F078690
09-24-2021
THE PEOPLE, Plaintiff and Respondent, v. MAURICE BAILEY, Defendant and Appellant.
Jennifer A. Mannix, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Stephanie A. Mitchell, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. No. BF170665A Brian M. McNamara, Judge.
Jennifer A. Mannix, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Stephanie A. Mitchell, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
PEÑA, J.
Maurice Bailey (defendant) was found guilty of shooting a man who had previously dated his girlfriend. It is likely the shooting was captured on video by a surveillance camera, but by the time police sought to obtain the footage, it had been erased. Defendant relies on California v. Trombetta (1984) 467 U.S. 479 (Trombetta) and Arizona v. Youngblood (1988) 488 U.S. 51 (Youngblood) to argue the loss of this evidence violated his constitutional right to due process. We reject the claim.
Defendant also contends the trial court erred by imposing certain fines and assessments without determining his ability to pay the amounts imposed. The argument is based on the holdings of People v. Dueñas (2019) 30 Cal.App.5th 1157. We do not reach the merits of this claim, but the matter will be remanded for the limited purpose of allowing defendant to raise the issue with the trial court.
The People have identified error in the imposition of a prior prison term enhancement under a former version of Penal Code section 667.5, subdivision (b). By retroactive application of Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill 136), the enhancement is no longer valid. As part of the limited remand, the sentencing court is directed to strike this enhancement. Subject to further proceedings on remand, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On March 14, 2017, shortly before 4:00 a.m., Bakersfield police officers responded to reports of a shooting at an internet gaming casino. Erskine Carr, Jr. (the victim), was found lying on the ground near the front door to the establishment. Although suffering from a bullet wound, he was able to convey that “Nipp” had shot him and drove off in a “black four-door BMW.” When asked about Nipp's real name, the victim “kind of mumbled in a quiet voice.” The investigating officer thought he heard him say “Marcus Bailey.”
After performing a records search on the name, police concluded the victim had identified Maurice Bailey, i.e., defendant. Defendant was known as “Nipp” and had the nickname tattooed on his arm. He drove a black Mercedes-Benz sedan. In addition, defendant and the victim were both closely associated with a woman named Darneshia Stubbs, who had been gambling in the casino at the time of the shooting.
The victim had previously dated Stubbs and was the father of her child. Stubbs had also been romantically involved with defendant, and there were overlapping periods in her relationships with both men. Stubbs was cohabitating with defendant at the time of the shooting, but she had been living with the victim just a few weeks earlier during a period of separation from defendant.
Defendant was arrested on March 23, 2017, and Stubbs was arrested the following day; both were questioned about the crime. Both denied any involvement. However, when police left them alone in a room equipped with a recording device, they discussed their respective interviews and realized they had given conflicting statements about defendant's alibi. Stubbs told defendant to “stick to the script.” She assured him, “I'm gonna clean it up. Just stick to your story, and I'll clean it up.”
The victim underwent multiple surgeries related to abdominal injuries from the shooting. He survived for approximately nine months before succumbing to heart failure and other medical complications. Following the victim's death, Stubbs and defendant were jointly charged with murder. Stubbs later agreed to testify against defendant as part of a plea deal.
Defendant was tried before a jury on five felony counts: first degree murder (Pen. Code, §§ 187, 189; count 1); conspiracy to commit murder (§§ 182, subd. (a)(1), 187; count 2); attempted murder (§§ 187, 664; count 3); assault with a firearm (§ 245, subd. (a)(2); count 4); and unlawful possession of a firearm (§ 29800, subd. (a)(1); count 5). (All undesignated statutory references are to the Penal Code.) For enhancement purposes, he was alleged to have used a firearm while committing the felonies (§§ 12022.5, subd. (a), 12022.53, subds. (c), (d)); to have inflicted great bodily injury upon the victim (§ 12022.7); and to have served a prior prison term (§ 667.5, former subd. (b)). Defendant pleaded no contest to an additional charge of driving on a suspended license (Veh. Code, § 14601.1; count 6).
Stubbs's trial testimony placed defendant at the casino immediately prior to the shooting. Although she denied witnessing the incident, which had occurred after the victim followed defendant out of the building, Stubbs claimed defendant later admitted to firing the gunshot. She further accused defendant of possessing a firearm and of previously stating his intention to use it against the victim (“[H]e showed [the gun] to me; and he just said that it has Erskine's name written all over it”).
A second witness, Stubbs's mother, testified to having had a conversation with defendant wherein he admitted to shooting the victim. The testimony was consistent with a statement she had made to a 911 dispatcher regarding a domestic dispute between Stubbs and defendant. On the recorded 911 call, which was placed three days after the shooting, the witness referred to defendant as “the dude that shot [Stubbs's] baby daddy.”
A coroner testified the victim died from “‘subacute mitral valve endocarditis … due to or [as] a consequence of'” the abdominal gunshot wound. However, according to the victim's hospital records, an attending physician had concluded the endocarditis resulted from “IV drug abuse.” Further evidence of an intervening cause of death included several documented instances of “poor compliance” with medical advice, e.g., the victim's failure to take prescribed antibiotics.
The jury acquitted defendant of first degree murder, but it hung by a vote of 10 to 2 in favor of convicting him of a lesser included offense and/or attempted murder. A mistrial was declared as to count 3 and the lesser included offenses under count 1. Defendant was also acquitted of conspiracy to commit murder, but he was convicted as charged on counts 4 and 5. The relevant enhancement allegations were found true.
To avoid retrial on the more serious charges, defendant pleaded no contest to added counts of conspiracy to falsely indict another person for a crime (§ 182, subd. (a)(2); counts 7-9) and being an accessory (§ 32; counts 10-12). He was sentenced to an aggregate fixed term of 22 years in prison. The trial court's imposition of fines and assessments is discussed later in the opinion.
DISCUSSION
I. Trombetta/Youngblood Claim
“Due process requires the state preserve evidence in its possession where it is reasonable to expect the evidence would play a significant role in the defense.” (People v. Alexander (2010) 49 Cal.4th 846, 878, italics added.) “The evidence must ‘possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.'” (Ibid., quoting Trombetta, supra, 467 U.S. at p. 489.) If the lost evidence had only potential exculpatory value, there is no due process violation absent a showing of bad faith. (Youngblood, supra, 488 U.S. at pp. 57-58; see People v. Lucas (2014) 60 Cal.4th 153, 221 [“The destruction of evidence with only potential, rather than apparent, exculpatory value is without remedy under Trombetta, but Youngblood provides a limited remedy when the state has acted in bad faith in failing to preserve the evidence”].)
Citing Trombetta and Youngblood, defendant moved in limine for unspecified sanctions based on a failure by police to obtain evidence, namely video footage recorded by security cameras at an adjacent business and across the street from the casino. The trial court found the element of bad faith was missing. Defendant disputes the finding and argues his motion was erroneously denied.
A. Additional Background
Defendant called one witness in connection with the Trombetta/Youngblood motion. That individual, Officer Skidmore, became involved in the case approximately nine days after the shooting. The People called additional witnesses to explain why certain video evidence was never obtained. We summarize the most pertinent testimony from the in limine proceedings.
Sergeant Sherman oversaw the crime scene investigation on the night of the shooting. He testified to having directed various officers “to check the outside of all buildings, looking for video cameras or some sort of video surveillance ….” He personally observed that a surveillance camera was located outside of a marijuana dispensary in the same building as the casino, immediately adjacent to where the victim had been shot. The dispensary was closed, so the sergeant performed a records search for the contact information of its owner/operator. The search yielded no results. Since it was not possible to obtain anything from the dispensary at that time, photographs were taken to supplement the police reports “so that a detective could see there was a camera there and[, ] if they wanted to[, ] go make follow-up with that business.”
Officer Malley testified he was “one of several officers who arrived after the initial group of officers.” Upon learning where the shooting occurred and the direction in which the suspect had fled, he proceeded to a hotel on the opposite side of the street. He was familiar with the area and knew the hotel had a video surveillance system.
The hotel manager showed Officer Malley the “monitoring equipment, ” which displayed video feeds from two surveillance cameras. One camera “look[ed] downward into the alley” south of the hotel. The other camera showed the sidewalk in front of the hotel and “just a small amount of the east shoulder” of the street, but the casino was located “on the west side of the roadway.” According to the testimony, “[t]he internet casino and the crime scene [were] not on the surveillance footage at all.”
Officer Malley testified the hotel manager “wasn't able to pull the video footage up to have [him] watch it, ” i.e., the footage recorded at the time of the shooting. However, based on the camera angles and what he saw on the live feed, the officer concluded it had “no evidentiary value.” In other words, he was confident “[t]here was no suspect or suspect vehicle or shooting depicted in the footage.” He thus made no further efforts to obtain video evidence from the hotel.
Following the initial investigation, the matter was referred to the police department's “Crimes Against Persons” (CAP) division. On March 16, 2017 (two days after the shooting), a CAP sergeant assigned the case to Detective Williams. The detective testified he was working on approximately 20 cases at that time, including multiple homicides. Homicide investigations were given the highest priority, and the victim's injuries were believed to be “non-life-threatening.”
Detective Williams performed no work on the case beyond reviewing the initial offense report and a report by the “Special Enforcement Unit” (SEU) “in regards to attempting to locate [defendant].” He did not recall being aware of “anything in regards to video surveillance” at that time. The SEU took over the investigation one week later, after defendant was arrested during a traffic stop.
Detective Williams explained that the offense reports were made available to him through an electronic records system. Photographs taken by the initial responders were not necessarily uploaded/downloaded at the same time as the reports were transmitted, so images of the camera outside the marijuana dispensary may not have been available to him when he first received the assignment. He testified: “I believe I reviewed the police reports, not the photographs. [¶] … [¶] I don't recall when I reviewed [the reports] for the first time.”
On March 23, 2017, defendant was arrested and taken to the police station for questioning. While defendant was being interrogated, Officer Skidmore went to the hospital to interview the victim. The victim provided recorded statements identifying defendant as the person who had shot him. The next day, Officers Skidmore and James went to the marijuana dispensary. An employee gave them access to the dispensary's video surveillance system.
The victim's statements to police on the night of the shooting were admitted at trial under the excited utterance exception to the hearsay rule. (See Evid. Code, § 1240.) The victim's subsequent identifications of defendant, including the results of two photographic lineups, were excluded as testimonial hearsay.
The employee said the dispensary's surveillance footage was retained for a limited period of time before it was erased. He then showed the officers that the available footage did not go as far back as the night of the shooting. Officer Skidmore could not recall “the specific timeline, ” but he testified they had “just missed [the] deadline [for] obtaining that video.” He believed at least part of the incident would have been captured on video by the dispensary's surveillance system.
Subsequent trial testimony by Officer James explained the retention period was only seven days. The shooting had occurred 10 days earlier.
As pertaining to video evidence from the hotel, defendant's Trombetta/Youngblood motion was summarily denied. The trial court said it would “adopt” what the prosecutor had stated during oral argument, which was essentially that Officer Malley viewed the live surveillance feed and “determined that the camera angles were not relevant.” The ruling implied Officer Malley's testimony was found to be credible.
Regarding video evidence from the dispensary, the officers' actions on the night of the shooting were said to have been “explained to the Court satisfactorily.” The unobtained footage was impliedly found to have had potential exculpatory value. However, the trial court also found the police did not act in bad faith or with any wrongful intentions.
B. Analysis
The due process principles underlying Trombetta and Youngblood “are primarily intended to deter the police from purposefully denying an accused the benefit of evidence that is in their possession and known to be exculpatory.” (People v. Webb (1993) 6 Cal.4th 494, 519.) In Trombetta, police had obtained but failed to preserve “breath samples” provided by motorists accused of driving while intoxicated. (Trombetta, supra, 467 U.S. at p. 481.) In Youngblood, police had obtained but failed to preserve semen samples from a victim's body and clothing. (Youngblood, supra, 488 U.S. at p. 52.)
“Generally, due process does not require the police to collect particular items of evidence.” (People v. Montes (2014) 58 Cal.4th 809, 837.) California courts have thus distinguished between a failure by state actors to preserve evidence in their possession and the failure to obtain evidence that later becomes unavailable. (See, e.g., People v. Alvarez (2014) 229 Cal.App.4th 761, 764 [upholding sanctions for failure to preserve video recorded by police-controlled surveillance cameras]); People v. Harris (1985) 165 Cal.App.3d 324, 329 [“To date there is no authority for the proposition that sanctions should be imposed for a failure to gather evidence as opposed to a failure to preserve evidence”].) The California Supreme Court has “suggested that cases may arise in which the failure to collect evidence could justify sanctions against the prosecution at trial, ” but it has never decided such a case. (Montes, supra, at p. 838.)
In Miller v. Vasquez (9th Cir. 1989) 868 F.2d 1116 (Miller), the United States Court of Appeals for the Ninth Circuit concluded Trombetta and Youngblood “did not impose a duty to obtain evidence” and do not govern claims based on the loss of evidence that was never in the state's possession. (Miller, supra, at pp. 1119-1120.) However, pursuant to Youngblood's underlying rationale, Miller held “that a bad faith failure to collect potentially exculpatory evidence would violate the due process clause.” (Miller, at p. 1120.)
In People v. Velasco (2011) 194 Cal.App.4th 1258, the Sixth Appellate District described the Miller holding as a logical extension of Youngblood to “cases in which police see that evidence is likely to be exculpatory but avoid collecting it because of that perception.” (Velasco, supra, at p. 1265.) “If police officers saw exculpatory evidence but deliberately ignored it and left it in place so that it would not hamper a later prosecution, failing not only to preserve it but even to obtain it, that could violate a criminal defendant's due process rights.” (Ibid.) The quoted statements are dicta, but the California Supreme Court employed similar reasoning in a pre-Youngblood case, In re Michael L. (1985) 39 Cal.3d 81.)
The Michael L. case involved a robbery that was “recorded on videotape by an automatic store surveillance camera.” (In re Michael L., supra, 39 Cal.3d at p. 84.) The issue was “whether testimony identifying appellant as the perpetrator of the robbery in question should have been excluded at trial because police failed to seize from a private party the now erased videotape that enabled the witnesses to make their identifications.” (Id. at p. 83.) The high court concluded the facts did not warrant the imposition of sanctions. One reason was because, “although the officers may have been negligent in failing to obtain the tape, the record demonstrate[d] that the officers did not act in bad faith or with any intent to deprive defendant of this evidence.” (Id. at p. 87.)
It is unnecessary to decide whether defendant has stated a prima facie due process claim based on the failure to obtain evidence. Even if we assumed its cognizability, the claim would fail because of the trial court's findings on the element of bad faith. “[The] inquiry whether evidence was destroyed in good faith or bad faith is essentially factual: therefore, the proper standard of review is substantial evidence.” (People v. Memro (1995) 11 Cal.4th 786, 831.) Under this standard, the evidence is construed in the light most favorable to the trial court's findings. (People v. Roybal (1998) 19 Cal.4th 481, 510.) “If the circumstances reasonably justify the findings …, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.” (People v. Jennings (2010) 50 Cal.4th 616, 639.)
“The presence or absence of bad faith by the police for purposes of the Due Process Clause must necessarily turn on the police's knowledge of the exculpatory value of the evidence at the time it was lost or destroyed.” (Youngblood, supra, 488 U.S. at p. 57, fn. *; accord, People v. Beeler (1995) 9 Cal.4th 953, 1000 [quoting ibid.].) The Trombetta opinion speaks of “a conscious effort to suppress exculpatory evidence.” (Trombetta, supra, 467 U.S. at p. 488.) In Youngblood, the determinative factor was the appellant's inability to show “that the police knew the semen samples would have exculpated him when they failed to perform certain tests or to refrigerate the [victim's] clothing.” (Youngblood, at p. 57, fn. *, see id. at p. 58.) Defendant argues it is enough to demonstrate “reckless disregard for the value of the evidence, ” but the California Supreme Court has indicated that bad faith “‘requires more than mere negligence or recklessness.'” (People v. Flores (2020) 9 Cal.5th 371, 397, quoting U.S. v. Flyer (9th Cir. 2011) 633 F.3d 911, 916.)
Defendant's claim regarding the hotel's surveillance footage requires little discussion. Officer Malley testified to acting with the intent to obtain relevant video evidence. He then explained why he concluded the footage recorded at the time of the shooting had “no evidentiary value.” If his testimony was truthful, it plainly demonstrated the absence of bad faith. The trial court found the witness credible and accepted his testimony as true. “[I]t is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] … [W]e must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder.” (People v. Jones (1990) 51 Cal.3d 294, 314.)
To establish bad faith in relation to the video from the marijuana dispensary, defendant needed to show an intentional and wrongfully motivated delay by police in seeking to obtain the evidence. (See Youngblood, supra, 488 U.S. at p. 57; People v. Velasco, supra, 194 Cal.App.4th at p. 1265.) However, defendant concedes the initial crime scene investigators “assumed someone else would obtain and preserve the videos.” Those officers cannot be said to have acted in bad faith if they did not intend or expect the evidence to become unavailable. Furthermore, nothing in the record suggests they had any reason to believe the video would exonerate defendant or otherwise be useful to his defense.
The victim was found with an apparent gunshot wound to his left buttock, suggesting he was shot from behind and not in an act of self-defense. As previously discussed, the police believed defendant was the man the victim identified on the night of the shooting. Defendant was arrested nine days later and denied any involvement, but that same evening Officer Skidmore obtained a recorded statement from the victim confirming defendant was, in fact, the perpetrator.
The police department assigned the case to a veteran detective two days after the shooting. The investigation was taken over by officers from another division one week later, and within 24 hours those officers attempted to obtain video footage from the dispensary. The detective's testimony suggested he was not aware of the dispensary's cameras upon his initial review of the case. In any event, his lack of investigation was attributed to being busy with higher priority assignments.
Viewed in the light most favorable to the ruling, the actions by police “can at worst be described as negligent.” (Youngblood, supra, 488 U.S. at p. 58.) It is settled that “negligence does not establish constitutional bad faith.” (People v. Flores, supra, 9 Cal.5th at p. 397.) Therefore, defendant's claim is without merit.
II. Sentencing Issues
A. Dueñas Claim
In January 2019, the trial court sentenced defendant to prison and imposed several fines and assessments. He was ordered to pay a $300 restitution fine, i.e., the minimum amount required by section 1202.4, subdivision (b)(1). Pursuant to section 1202.45, a separate fine of $300 was imposed but suspended pending successful completion of parole. There were court operations assessments totaling $360 (see § 1465.8), and court facilities assessments totaling $270 (see Gov. Code, § 70373).
Despite making no objections at sentencing, defendant alleges error with regard to the fines and assessments. He relies on the now familiar Dueñas opinion, which holds “that due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant's present ability to pay before it imposes court facilities and court operations assessments under … section 1465.8 and Government Code section 70373.” (People v. Dueñas, supra, 30 Cal.App.5th at p. 1164.) Dueñas further holds that “although … section 1202.4 bars consideration of a defendant's ability to pay unless the judge is considering increasing the fee over the statutory minimum, the execution of any restitution fine imposed under this statute must be stayed unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine.” (Ibid.)
The People dispute the claim on the merits. They also argue forfeiture, noting Dueñas was published two days prior to defendant's sentencing hearing. Defendant alternatively claims ineffective assistance of counsel based on his trial attorney's failure to raise the issue below.
The California Supreme Court will eventually decide whether trial courts must consider a defendant's ability to pay before imposing or executing fines, fees, and assessments, and if so, which party has the burden of proof. (See People v. Kopp (2019) 38 Cal.App.5th 47, 94-98, review granted Nov. 13, 2019, S257844.) In the meantime, the Courts of Appeal face the recurring issue of whether, “and under what circumstances, the forfeiture doctrine applies to a claim brought pursuant to the decision in Dueñas.” (People v. Montes (2021) 59 Cal.App.5th 1107, 1115 (Montes).) Our district's Montes opinion discussed the split of authority on this subject in detail. (Id. at pp. 1115-1121.)
“[A] reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court.” (In re S.B. (2004) 32 Cal.4th 1287, 1293.) However, “[r]eviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence.” (People v. Welch (1993) 5 Cal.4th 228, 237.) Appellate panels in this district have concluded “Dueñas easily qualifies as a change in the law not likely to have been foreseen-exactly the sort of development it would be unreasonable to expect defense counsel to have on a list of objections to be made in the hope that the law might change someday.” (People v. Son (2020) 49 Cal.App.5th 565, 597; accord, Montes, supra, 59 Cal.App.5th at pp. 1119-1122.)
There is no statutory basis for objecting to the assessments required by section 1465.8 and Government Code section 70373. (See People v. Kim (2011) 193 Cal.App.4th 836, 842 [“Neither statute provides for considering a defendant's ability to pay”].) Under section 1202.4, a defendant's inability to pay “may be considered only in increasing the amount of the restitution fine in excess of the minimum fine [of $300].” (Id., subd. (c).) For those reasons, our district has not viewed as forfeited claims of an inability to pay such fines and assessments if the sentencing predated Dueñas. (E.g., Montes, supra, 59 Cal.App.5th at p. 1121; cf. People v. Lowery (2020) 43 Cal.App.5th 1046, 1053 [finding forfeiture where restitution fines “were far above the minimum of $300”].)
The majority opinion in Montes holds that when “a defendant advances a claim premised on a significant and unforeseeable development in the law that occurred after sentencing and during the pendency of the appeal; there was no statutory right to object to the restitution fine and court assessments at issue; and the record is wholly undeveloped on the issue, a limited remand is appropriate to allow the parties to address the issue in the trial court in the first instance.” (Montes, supra, 59 Cal.App.5th at p. 1122.) Defendant's case presents a slightly different fact pattern. The Dueñas opinion was issued on January 8, 2019, and defendant was sentenced on the morning of January 10, 2019. The notice of appeal was filed one day later.
Most appellate opinions are not final until at least 30 days after they are filed (see Cal. Rules of Court, rules 8.264(b)(1), 8.366(b)(1)), but a published decision “may be cited or relied on as soon as it is certified for publication or ordered published” (id., rule 8.1115(d)). Although defendant could have cited Dueñas at the time of sentencing, only one full day had passed since the opinion was issued. There is no indication the parties or the trial court were aware of the new case. Given the unusual circumstances, we will exercise our discretion to consider defendant's Dueñas claim but decline to resolve it on the merits. (See Montes, supra, 59 Cal.App.5th at p. 1117 [“courts of review have the discretion to consider an issue notwithstanding the failure to object”].)
Here, as in Montes, “there was no statutory right to object to the restitution fine and court assessments at issue.” (Montes, supra, 59 Cal.App.5th at p. 1122.) There is also “the absence of a developed record” concerning defendant's claimed inability to pay the amounts imposed. (Id. at p. 1121.) For those reasons, we will “allow defendant to raise the issue in the trial court on remand, where he will bear the burden of both demonstrating a harm of constitutional magnitude and making a record regarding his alleged inability to pay the restitution fine and court assessments.” (Ibid.) “[W]e express no view as to whether defendant may be able to state a viable claim that ultimately withstands constitutional scrutiny on review.” (Ibid.)
Citing the probation report, defendant argues he is a high school dropout with no employment history and was previously living on monthly “SSI” payments of $845. However, the probation report also notes this information is “unverified.” The People argue any error is harmless because defendant's ability to pay is inferable from the fact he was driving a 1999 Mercedes-Benz sedan and possessed two mobile phones at the time of his arrest. The People further contend defendant is “able to work and earn wages over a lengthy prison sentence of 22 years.” Similar arguments were rejected in Montes despite the appellant's employment history and prior monthly income of $2,000. (Montes, supra, 59 Cal.App.5th at p. 1123.) The prearrest earnings did not necessarily prove an ability to pay at the time of sentencing, and the prospect of future prison wages was deemed speculative: “Not all inmates are able to work due to their own limitations or to prison restrictions, and ‘not all inmates [who work] are eligible for paid positions, which are considered a privilege and are subject to various restrictions and requirements.'” (Ibid.)
B. Senate Bill 136
Defendant's sentence includes a prior prison term enhancement imposed pursuant to former subdivision (b) of section 667.5. The underlying conviction was for a violation of section 496d. However, effective January 1, 2020, the enhancement applies only to prison terms served for a sexually violent offense within the meaning of Welfare and Institutions Code section 6600, subdivision (b). (Stats. 2019, ch. 590, § 1.)
Under the current law, the conviction upon which the prior prison term allegation was based does not qualify for the enhancement. It has uniformly been held, including in cases from this district, that Senate Bill 136 applies retroactively to nonfinal judgments. (E.g., People v. Winn (2020) 44 Cal.App.5th 859, 872; People v. Jennings (2019) 42 Cal.App.5th 664, 681-682; People v. Lopez (2019) 42 Cal.App.5th 337, 341-342.) Because defendant's appeal was pending when Senate Bill 136 was enacted, the enhancement should be stricken from the judgment. On remand, the sentencing court is directed to strike this enhancement.
DISPOSITION
The matter is remanded for the limited purpose of (1) striking the enhancement allegation found true under section 667.5, former subdivision (b), thereby reducing defendant's current prison sentence by one year, and (2) allowing defendant to raise the issue of his ability to pay statutorily mandated fines and assessments. The judgment is otherwise affirmed. Upon completion of the proceedings on remand, the superior court shall prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation.
I CONCUR: MEEHAN, J.
Detjen, Acting P. J., Concurrence and Dissent.
I agree with the majority that defendant Maurice Bailey's claim under Arizona v. Youngblood (1988) 488 U.S. 51 and California v. Trombetta (1984) 467 U.S. 479 is without merit. (Maj. opn. ante, at p. 12.)
As to the issue raised by defendant under People v. Dueñas (2019) 30 Cal.App.5th 1157, and regardless of the issue of forfeiture, I respectfully disagree with the majority's limited remand. I would reject defendant's position on this issue for the reasons stated in People v. Aviles (2019) 39 Cal.App.5th 1055.
I also respectfully disagree that the matter be remanded to effectuate the striking of the one-year enhancement imposed under Penal Code former section 667.5, subdivision (b). The judgment should be modified to strike that enhancement, but otherwise affirmed.