Opinion
C093631 C094606
04-07-2022
THE PEOPLE, Plaintiff and Respondent, v. GREGORY BONTEMPS, Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. No. 08F06199)
HOCH, J.
Appointed counsel for defendant Gregory Bontemps filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) After examining the record and considering defendant's contentions in his supplemental brief, we find no arguable error that would result in a disposition more favorable to defendant and affirm. However, given recent legislative changes regarding the main jail booking and classification fees, we shall order those fees vacated.
BACKGROUND
In July 2008, defendant physically assaulted his wife, hitting her in the face and causing bruising and her nose to bleed. During the assault, he threatened to kill her. He also threw her cellphone at her and told her that she would be dead if she called 911.
In April 2010, a jury found defendant guilty of inflicting a corporal injury on a spouse (Pen. Code, § 273.5, subd. (a); count one), making criminal threats (§ 422; count two), and intimidating a witness (§ 136.1, subd. (b)(1); count three). After declining to strike one or both of his prior serious or violent felony convictions, the court sentenced him to 25 years to life on each count, but stayed the sentences on counts one and three under section 654. The trial court imposed various fees, fines, and assessments, including a $263.85 main jail booking fee, a $28.75 main jail classification fee, and a $702 investigation and presentence report fee. Defendant appealed, and we affirmed his convictions in People v. Bontemps (Mar. 2, 2012, C065072) (nonpub. opn.).
Further undesignated statutory references are to the Penal Code.
In December 2020, defendant filed a section 1170.18 petition to redesignate his felony convictions for spousal abuse and making criminal threats to misdemeanors. The prosecutor opposed the petition, arguing defendant's convictions were not eligible for redesignation and resentencing under section 1170.18. The trial court denied the petition after finding that neither conviction was eligible under section 1170.18. Defendant timely appealed.
Section 1170.18 was originally enacted as part of Proposition 47, The Safe Neighborhoods and Schools Act, which the electorate approved on November 4, 2014. Proposition 47 "reduced the punishment for certain theft- and drug-related offenses, making them punishable as misdemeanors rather than felonies." (People v. Page (2017) 3 Cal.5th 1175, 1179.) Section 1170.18, subdivision (a) provides in relevant part: "A person who, on November 5, 2014, was serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under the act that added this section ('this act') had this act been in effect at the time of the offense may petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing in accordance with Sections 11350, 11357, or 11377 of the Health and Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as those sections have been amended or added by this act."
In June 2021, defendant filed a petition for resentencing under section 1170.91 based on mental health conditions due to military service. (§ 1170.91, subd. (b).) He included a copy of his DD-214, which documented his term of military service beginning on July 7, 1977, and his honorable discharge on March 29, 1978.
Section 1170.91, subdivision (a) provides: "If the court concludes that a defendant convicted of a felony offense is, or was, a member of the United States military who may be suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of his or her military service, the court shall consider the circumstance as a factor in mitigation when imposing a term under subdivision (b) of Section 1170. This consideration does not preclude the court from considering similar trauma, injury, substance abuse, or mental health problems due to other causes, as evidence or factors in mitigation."
On July 15, 2021, the court ruled that defendant was not eligible for relief under section 1170.91 because he was sentenced as a third striker under section 667, subdivisions (b) through (i) and section 1170.12, and not under section 1170, subdivision (b) as section 1170.91, subdivision (a) required. The court further noted that defendant had previously filed the same petition in 2019, which was denied for the same reason. The court dismissed the petition as duplicative. Defendant timely appealed.
DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief setting forth the facts of the case and requesting that this court review the record to determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Defendant was advised of his right to file a supplemental brief within 30 days of the date of filing of the opening brief.
Defendant filed a lengthy supplemental brief, which is difficult to discern. Defendant's first claim references ineffective assistance of counsel, but his supplemental brief does not provide any argument or reasoned analysis to support the claim. While defendant appears to have attached portions of various pleadings and court orders previously filed in the case, he does not explain how the documents support a claim of ineffective assistance of counsel.
"It is the appellant's burden to demonstrate the existence of reversible error." (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 766.) "To demonstrate error, appellant must present meaningful legal analysis supported by citations to authority and citations to facts in the record that support the claim of error. [Citations.] When a point is asserted without argument and authority for the proposition, 'it is deemed to be without foundation and requires no discussion by the reviewing court.'" (In re S.C. (2006) 138 Cal.App.4th 396, 408.) Defendant's conclusory ineffective assistance of counsel claim thus fails.
Defendant's supplemental brief also references a federal lawsuit supposedly involving several judges that have a "history of indifference, incompetence, [and] corruption," and he attaches materials from various Web sites alleging a conspiracy amongst some of those judges while presiding in the Sacramento County Family Law Court. These issues are not only outside the scope of the instant appeal, but also require consideration of matters outside the appellate record that are not appropriately reviewed on appeal. (People v. Szeto (1981) 29 Cal.3d 20, 35.)
Because we presume that a judgment or order of a lower court is correct (Denham v. Superior Court (1970) 2 Cal.3d 557, 564), and defendant has failed to provide argument or reasoned analysis for overcoming this presumption, we conclude the trial court properly denied defendant's motions under section 1170.18 and section 1170.91, respectively.
We do note, however, that the trial court imposed a $263.85 main jail booking fee and a $28.75 main jail classification fee at sentencing. These fees are no longer valid based on the Legislature's passage of Assembly Bill No. 1869 (2019-2020 Reg. Sess.). Among other things, Assembly Bill No. 1869 repealed Government Code section 29550.2, which authorized the main jail booking and classification fees. (Stats. 2020, ch. 92, § 25, eff. Jul. 1, 2021.) It also enacted Government Code section 6111, which provides: "On and after July 1, 2021, the unpaid balance of any court-imposed costs pursuant to Section 27712, subdivision (c) or (f) of Section 29550, and Sections 29550.1, 29550.2, and 29550.3, as those sections read on June 30, 2021, is unenforceable and uncollectible and any portion of a judgment imposing those costs shall be vacated." (Gov. Code, § 6111, subd. (a).) We shall vacate the main jail booking and classification fees.
The trial court also imposed a $702 investigation and presentence report fee pursuant to former section 1203.1b. Assembly Bill No. 1869, however, repealed section 1203.1b (Stats. 2020, ch. 92, § 47), and also enacted section 1465.9, which states in relevant part: "The balance of any court-imposed costs pursuant to Section . . . 1203.1b . . ., as those sections read on June 30, 2021, shall be unenforceable and uncollectible and any portion of a judgment imposing those costs shall be vacated." (§ 1465.9, subd. (a).) Accordingly, we shall vacate the $702 investigation and presentence report fee.
DISPOSITION
The orders denying defendant's petition for redesignation under section 1170.18 and his petition for resentencing under section 1170.91 are affirmed. The $263.85 main jail booking fee, the $28.75 main jail classification fee, and the $702 investigation and presentence fee are vacated. The clerk shall prepare an amended abstract of judgment and forward it to the Department of Corrections and Rehabilitation.
WE CONCUR: BLEASE, ACTING P. J., ROBIE, J.