Opinion
C087955
02-27-2020
THE PEOPLE, Plaintiff and Respondent, v. MANUEL JAIME CONTRERAS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16FE012499)
A jury found defendant Manuel Jaime Contreras guilty of false imprisonment, being a felon in possession of a firearm, and two counts of assault with a firearm. The trial court found defendant had one prior strike conviction, also constituting a prior serious felony conviction enhancement, and that he served a prior prison term, constituting an enhancement under Penal Code section 667.5, subdivision (b).
The jury acquitted defendant of kidnapping with the intent to commit oral copulation, kidnapping, and assault with the intent to commit oral copulation -- all against Corina Doe. It also acquitted him of three counts of making criminal threats. The jury was unable to make a determination on the charged assault of Corina and the court declared a mistrial as to that count. The jury found the gang enhancements attached to each count not true.
In 2001, defendant was convicted of assault with a firearm.
In 2008, defendant was convicted of possession of a controlled substance for sale.
All further section references are to the Penal Code unless otherwise specified.
On appeal, defendant contends the trial court committed prejudicial error by failing to instruct the jury sua sponte on brandishing a weapon because it is a lesser included offense of assault with a firearm, or, alternatively, defense counsel committed ineffective assistance of counsel by failing to request a jury instruction on brandishing a weapon. Defendant also argues the trial court improperly instructed the jury on flight and asks we remand this matter to allow the trial court to consider whether to exercise its discretion to strike his prior serious felony conviction enhancement pursuant to Senate Bill No. 1393 (Stats. 2018, ch. 1013, §§ 1-2) and hold a hearing to determine his ability to pay certain fines, fees, and assessments under People v. Dueñas (2019) 30 Cal.App.5th 1157. In supplemental briefing, defendant further contends and the People concede the one-year prior prison term enhancement imposed pursuant to section 667.5, subdivision (b), must be stricken under the amendment provided in Senate Bill No. 136 (Stats. 2019, ch. 590, § 1) effective January 1, 2020.
We agree the one-year prior prison term enhancement imposed under section 667.5, subdivision (b) must be stricken in light of Senate Bill No. 136 and remanded for the trial court to exercise its discretion under Senate Bill No. 1393. As such, we do not reach the merits of defendant's Dueñas challenge. We otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Sharon and Consuelo were talking in front of Consuelo's parent's house when defendant drove down the street toward them. Stopping right in front of Sharon and Consuelo, defendant got out of his car and started insulting Sharon. He called Sharon a "scrap" and told her to leave. After Sharon refused to leave, Consuelo's daughter, Corina, walked over from across the street and told Sharon to leave because she did not want a scene in front of her grandparent's house.
Scrap is a derogatory word for a Sureño gang member.
Sharon did not leave, and defendant returned to his car, grabbed a gun, and pointed it at Sharon while telling her to leave. Sharon complied. She got in her car and drove away. Defendant then pointed the gun at Consuelo and told her he was giving her a chance to go inside the house. Consuelo complied and went inside the house because she was scared defendant was going to shoot her. Defendant next ordered Corina to get into his car. Corina complied and defendant drove away with her.
Sacramento Police Officer Nathaniel Reason was responding to a nearby unrelated call when Sharon flagged him down. She told Officer Reason that "a male in a dark-colored Chevy Impala had just pointed a gun at her," and the location of the incident. Officer Reason broadcasted the information over the police radio. Officer Christina Trujillo, who was on her way to assist Officer Reason with the unrelated call, saw a car matching the description and location given by Officer Reason. The car suddenly pulled over and Officer Trujillo used her flashlight to see inside the car. She saw defendant and Corina. When defendant pulled over, he was a few houses away from the scene of the argument. Several other police officers responded to the scene. Corina told officers defendant pointed a gun at Sharon and her mother and told her to get in the car. The officers found a loaded and cocked gun in defendant's car.
At trial, Corina denied defendant pointed a gun at her mother and forced her into his car. She also admitted she had told investigators earlier she was going to recant her previous statements in court. When defendant testified, he stated he waved the gun at Sharon to get her to leave, but he never pointed it at her.
DISCUSSION
I
The Lesser Included: Brandishing A Weapon
Defendant argues the trial court was required to instruct the jury sua sponte on brandishing a weapon because sufficient evidence supported giving the instruction and because brandishing a weapon is a lesser included offense of assault with a firearm. In the alternative, defendant argues his trial counsel committed ineffective assistance of counsel by failing to request an instruction on brandishing a weapon. The People disagree arguing brandishing a weapon is not a lesser included offense, but rather, a lesser related offense to assault with a firearm. The People also argue defense counsel was not ineffective for failing to request an instruction on brandishing a weapon. We agree with the People.
A
The Trial Court Did Not Err In Failing
To Instruct The Jury Sua Sponte On Brandishing A Weapon
An offense may have one or more lesser included offenses. (People v. Birks (1998) 19 Cal.4th 108, 117.) If substantial evidence is presented at trial from which a reasonable jury could conclude the defendant committed the lesser included and not the greater offense, the trial court has a sua sponte duty to instruct the jury on the lesser included offense. (People v. Breverman (1998) 19 Cal.4th 142, 148-149.) We review de novo a trial court's failure to instruct on an allegedly lesser included offense. (People v. Cole (2004) 33 Cal.4th 1158, 1218.) We construe the evidence in the light most favorable to the defendant when we determine if the trial court had a duty to instruct on a lesser included offense. (People v. Turk (2008) 164 Cal.App.4th 1361, 1368, fn. 5.)
"The definition of a lesser necessarily included offense is technical and relatively clear. Under California law, a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser." (People v. Birks, supra, 19 Cal.4th at p. 117.) We conclude brandishing a weapon is not a lesser included offense to assault with a firearm under either the statutory elements test or the accusatory pleading test.
A person brandishes a weapon when "except in self-defense, in the presence of any other person, [he or she] draws or exhibits any firearm, whether loaded or unloaded, in a rude, angry, or threatening manner, or who in any manner, unlawfully uses a firearm in any fight or quarrel . . . ." (§ 417, subd. (a)(2).) An assault requires "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (§ 240.) Assault with a firearm requires "an assault upon the person of another with a firearm . . . ." (§ 245, subd. (a)(2).)
Starting in 1911, the California Courts of Appeal have consistently held brandishing a weapon is not a lesser included offense to assault with a firearm. (People v. Steele (2000) 83 Cal.App.4th 212, 214-215.) Bench Notes to CALCRIM No. 875 state, "[a] misdemeanor brandishing of a weapon or firearm under Penal Code section 417 is not a lesser and necessarily included offense of assault with a deadly weapon." However, in 1967, our Supreme Court veered away from that established precedent and impliedly held brandishing a weapon is a lesser included offense to assault with a firearm. (People v. Wilson (1967) 66 Cal.2d 749, 763-764.)
The defendant in Wilson was charged with two counts of murder and two counts of assault with a deadly weapon with the intent to commit murder. (People v. Wilson, supra, 66 Cal.2d at p. 752.) At the time of the incident, the defendant's wife, with whom he was separated, and three other men were at her apartment. (Ibid.) The defendant called his wife's apartment and spoke with one of the men named Lewis Champion. (Ibid.) The defendant drove to his wife's apartment later that night, broke in, and confronted Champion by pointing a shotgun at him. (Id. at pp. 752-753.) When Champion asked the defendant not to shoot him, the defendant agreed and told Champion to leave. (Id. at p. 753.) After Champion escaped, the defendant shot and injured one of the men and killed the third man and his wife. (Ibid.) The defendant testified he went to the apartment with the intent only to scare the occupants -- not to assault them. (Id. at p. 757.)
Regarding Champion, the defendant was convicted of assault with a deadly weapon, the lesser included offense to assault with a deadly weapon with the intent to commit murder. (People v. Wilson, supra, 66 Cal.2d at pp. 752, 757.) Because the jury acquitted defendant of assault with a deadly weapon with the intent to commit murder, our Supreme Court determined the evidence at trial showed the defendant did not have the intent to kill Champion and held an instruction on brandishing was mandatory. (Id. at pp. 757, 760.) "Under the evidence here presented, instructions on [brandishing a weapon] were closely and openly connected with the facts before the court." (Id. at p. 759.) Our Supreme Court failed to supply any analysis or reasoning, independent from the evidence at trial, for why an instruction on brandishing was required. (Id. at pp. 757-760.) It held the trial court's failure to instruct on the misdemeanor offense of brandishing a weapon was clearly prejudicial. (Id. at p. 757.)
Since Wilson, California Courts of Appeal have disregarded its holding and have held that brandishing a weapon is not a lesser included offense to assault with a deadly weapon. (People v. Steele, supra, 83 Cal.App.4th at pp. 218-219.) The court in Steele outlined why the Wilson court's holding is not instructive: (1) our Supreme Court did not explicitly state that brandishing was a lesser included offense to assault with a firearm; (2) it failed to discuss any rationale behind why brandishing would be considered a lesser included offense; (3) it never overruled preexisting appellate court decisions holding that brandishing was not a lesser included offense to assault with a firearm; and (4) no prior or subsequent cases support that proposition in Wilson. (Steele, at p. 220.) More importantly, the Wilson court "failed to follow its own rule, i.e., that the determination of whether an offense is lesser included is made from the language of the statute or the information, and not from the evidence adduced at trial." (Steele, at p. 221.)
Similarly, Escarcega, which was decided after our Supreme Court's ruling in Wilson, rejected the holding that brandishing a weapon is a lesser included offense to assault with a deadly weapon. (People v. Escarcega (1974) 43 Cal.App.3d 391, 398-399.) The court in Escarcega reasoned that an assault with a firearm could occur without brandishing a weapon. (Id. at p. 398.) "It might be committed by a hidden sniper" or " 'by firing a gun through a coat pocket without either drawing or exhibiting the weapon and without then being engaged in a fight or quarrel.' " (Ibid.) Brandishing requires that a weapon be drawn or exhibited in a rude, angry, or threatening manner. (§ 417, subd. (a)(2).) At no point in the hypotheticals utilized by the Escarcega court did the suspect draw or exhibit a weapon in such a manner while assaulting the victim. As such, "the Courts of Appeal of this state have expressly and consistently held [brandishing a weapon] does not cover or define an offense lesser than, and necessarily included within, the crime of assault with a deadly weapon as proscribed by [assault with a firearm]." (Escarcega, at p. 398.)
Defendant argues it is not possible to commit assault with a deadly weapon without brandishing a weapon. Relying on People v. McKinzie (1986) 179 Cal.App.3d 789, defendant argues the victim does not need to see the weapon for brandishing to occur: "[a]ll that is necessary is that the weapon is drawn in public, in the presence of the alleged victim, so that a third party -- whether the victim or another individual -- might see it." Again, if a suspect has a gun concealed in his sleeve and walks down the street and shoots the victim without revealing the gun -- neither the victim nor the third party saw the weapon. Therefore, the elements of brandishing are not met. (See People v. Escarcega, supra, 43 Cal.App.3d. at p. 398.) Thus, we agree with the years of precedent establishing that under the statutory elements test, brandishing a weapon is not a lesser included offense to assault with a firearm.
Under the second test for determining whether an offense is a lesser included offense, the accusatory pleading test, the language of the pleading determines whether the trial court had a duty to instruct on a lesser included offense. (People v. Birks, supra, 19 Cal.4th at p. 118.) Here, the pleading for assault with a firearm read, "defendant did willfully and unlawfully commit an assault" on the victims. The language of the pleading does not implicate brandishing a weapon because the pleading does not state defendant drew or exhibited a gun in a "rude, angry, or threatening manner, or who in any manner, unlawfully uses a firearm in any fight or quarrel . . . ." (§ 417, subd. (a)(2).)
To the extent defendant argues the trial court had a sua sponte duty to instruct on brandishing because it constituted his defense, we disagree. A trial court's "sua sponte duty to instruct on all material issues presented by the evidence extends to defenses as well as to lesser included offenses . . . ." (People v. Breverman, supra, 19 Cal.4th 142 at p. 157.) There is minimal support showing defendant relied on brandishing as a defense. Brandishing was mentioned one time in defendant's closing argument; and, as will be discussed more thoroughly, counsel argued for acquittal of multiple assault counts instead of opting for guilt of the lesser included crime of brandishing. There is no indication from the record that defendant relied on brandishing as a defense. Accordingly, the trial court did not have a sua sponte duty to instruct the jury on brandishing a weapon.
B
Defense Counsel Was Not Ineffective For Failing
To Request An Instruction On Brandishing A Weapon
Defendant argues in the alternative that his trial counsel rendered ineffective assistance by failing to request an instruction on brandishing a weapon. We disagree.
There are two components to an ineffective assistance of counsel claim: " 'A [defendant] must show that counsel's performance was deficient, and that the deficiency prejudiced the defense.' " (In re Welch (2015) 61 Cal.4th 489, 514.) To establish counsel's performance was deficient, defendant must show counsel's representation " ' "fell below an objective standard of reasonableness." ' " (Ibid.) Defendant must prove counsel's representation caused prejudice by showing he would have obtained a more favorable result without counsel's shortcomings. (People v. Cunningham (2001) 25 Cal.4th 926, 1003.)
There is a strong presumption that counsel's performance fell within the wide range of professional competence as a matter of trial strategy. (People v. Carter (2003) 30 Cal.4th 1166, 1211.) " 'It is all too tempting for a defendant to secondguess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. [Citation.] A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." ' " (In re Jones (1996) 13 Cal.4th 552, 561.) If the record lacks support for counsel's decision, a reviewing court will affirm the conviction unless there could be no satisfactory explanation for the decision. (People v. Anderson (2001) 25 Cal.4th 543, 569.)
Here, there are two rational explanations for defense counsel's strategy. As defendant points out in his opening brief -- the trial court would have likely denied the request to include brandishing a weapon because it is not a lesser included offense. In fact, brandishing is a lesser related offense. (People v. Escarcega, supra, 43 Cal.App.3d. at p. 398.) As our Supreme Court held when it explicitly overruled People v. Geirger (1984) 35 Cal.3d 510, a trial court has no obligation to instruct on a lesser related offense. (People v. Birks, supra, 29 Cal.4th at p. 136.)
The second tactical reason is counsel sought acquittal of the assault counts. Defense counsel conceded in closing argument that defendant may be guilty of assaulting Sharon, but argued there was conflicting evidence about whether defendant pointed a gun at Consuelo or Corina. Defense counsel's strategy was successful in this regard because the jury acquitted defendant of the assault against Corina. As such, the record demonstrates defense counsel's tactical decision to obtain acquittal by showing the prosecution did not establish the elements of the crime charged.
Accordingly, defendant's trial counsel did not commit ineffective assistance of counsel by not requesting a jury instruction on brandishing a weapon.
II
The Court Properly Instructed The Jury On Flight
Defendant argues the trial court prejudicially erred by instructing the jury with CALCRIM No. 372, which allowed the jury to infer guilt from the fact that he drove away from the scene of the incident. Defendant asserts this jury instruction violated his Fifth, Sixth, and Fourteenth Amendment rights because it was unsupported by sufficient evidence and it lessened the prosecution's burden of proof. We disagree.
We review de novo to determine if the jury instructions correctly stated the law, or whether they removed an issue from the jury's consideration, thereby effectively directing a finding adverse to the defendant. (People v. Posey (2004) 32 Cal.4th 193, 218.) We assess an allegedly erroneous jury instruction by determining whether a reasonable likelihood exists that the jury applied the challenged instruction in such a way as to violate the Constitution. (People v. Richardson (2008) 43 Cal.4th 959, 1028.)
Pursuant to CALCRIM No. 372, the trial court instructed the jury that, "[i]f the Defendant fled or tried to flee immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the Defendant fled or tried to flee, it is up to you to decide the meaning and importance of that conduct. [¶] However, evidence that the Defendant fled or tried to flee cannot prove guilt by itself." Under CALCRIM No. 200, the trial court also instructed the jury that, "[s]ome of these instructions may not apply, depending on your findings about the facts of the case. [¶] Do not assume just because I give a particular instruction that I am suggesting anything about the facts. [¶] After you have decided what the facts are, follow the instructions that I -- that do apply, rather, to the facts as you find them."
Defendant argues there was insufficient evidence to support the instruction. Not so. " 'In general, a flight instruction "is proper where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt." ' [Citations.] Evidence that a defendant left the scene is not alone sufficient; instead, the circumstances of departure must suggest 'a purpose to avoid being observed or arrested.' [Citations.] To obtain the instruction, the prosecution need not prove the defendant in fact fled, i.e., departed the scene to avoid arrest, only that a jury could find the defendant fled and permissibly infer a consciousness of guilt from the evidence." (People v. Bonilla (2007) 41 Cal.4th 313, 328.)
There was sufficient evidence to support the flight instruction. There is clear evidence that after defendant pointed the gun at Sharon and Consuelo, and instructed Consuelo to return to the house and Corina to get into his car, he immediately left the scene. A reasonable jury could infer from this conduct that defendant was seeking to avoid capture at the scene where he just assaulted two people. Indeed, after defendant left, both Sharon and Consuelo were in a place of refuge where it was safe for them to contact authorities about defendant's criminal actions. This evidence is sufficient to support the instruction.
Defendant relies on People v. Crandell (1988) 46 Cal.3d 833 for the proposition there was insufficient evidence to support the instruction. In that case, the defendant was convicted of two counts of first degree murder and other related charges. (Id. at p. 851.) After killing both victims, the defendant left the crime scene searching for help to dispose of the bodies. (Id. at pp. 848-849.) Once he located help, he drove back to the crime scene where the bodies were and was arrested. (Id. at pp. 849-850.) Our Supreme Court held the instruction was given in error, but that the error was harmless. (Id. at p. 870.) Our case is distinguishable. There is no evidence defendant was returning to the scene of the crime -- in fact, the opposite is true. Defendant was taken into custody as he was leaving the scene of the crime. As such, Crandell lends no support to defendant's argument.
Defendant further cites People v. Watson (1997) 75 Cal.App.3d 384 for the proposition that an arrest two days later and miles away from the scene does not support the instruction. (Id. at p. 403.) While the court in Watson did find the instruction was given in error, the error was not prejudicial. (Ibid.) Here, defendant was arrested moments after he left the scene of the crime. Again, Watson fails to support defendant's contention that the court gave the flight instruction in error.
Defendant next argues the fact that he was driving away from the scene supports the elements of false imprisonment and cannot also support the instruction on flight. Our Supreme Court has spoken directly on this issue. In People v. Navarette (2003) 30 Cal.4th 458, the defendant argued the robbery he committed continued until after he carried the stolen property to a position of safety. The defendant argued, "flight with the victim's property is part of the offense [of robbery] and not evidence that may be used to establish consciousness of guilt." (Id. at p. 502.) Our Supreme Court disagreed and reasoned, the "defendant did not need to flee the scene of his crimes to be guilty of robbery, and his flight is evidence of his consciousness of that guilt." (Ibid.) This is similar to defendant's argument. Defendant argues evidence of driving away with Corina goes to the crime of false imprisonment because it was the driving that prevented Corina from leaving the car. As such, defendant argues he was still committing the crime of false imprisonment and therefore any evidence of him driving away from the scene cannot show his consciousness of guilt.
However, the two concepts are not mutually exclusive. While defendant's driving away may have established that he falsely imprisoned Corina, it may also show his consciousness of guilt for assaulting Sharon and Consuelo. With Sharon leaving the scene and Consuelo going inside the house, a jury could reasonably infer that defendant feared either one of them could call the police about his criminal conduct. As such, he left the scene to avoid arrest. Defendant also ignores the fact that the People charged several felonies occurring before he left the scene of the crime, apart from false imprisonment -- three of which the jury found guilt. A reasonable jury could determine the numerous criminal acts defendant committed before he falsely imprisoned Corina created the basis for defendant's motivation to flee the scene.
Finally, to the extent defendant argues the instruction lessened the prosecution's burden of proof, we disagree. Our Supreme Court has consistently rejected the argument that the flight instruction impermissibly lowers the prosecution's burden of proof. (People v. Avila (2009) 46 Cal.4th 680, 710.)
Accordingly, the court did not err by instructing the jury on flight.
III
Remand For Reconsideration Of Defendant's
Prior Serious Felony Enhancement Is Warranted
Defendant's sentence includes a five-year enhancement for his prior serious felony conviction. While the People agree with defendant that Senate Bill No. 1393 applies to him, it disagrees remand is warranted. We agree with defendant that remand is appropriate in this case.
The five-year enhancement for a prior serious felony conviction was mandatory when the trial court sentenced defendant. Senate Bill No. 1393 amended section 667, subdivision (a), and section 1385, effective January 1, 2019, granting trial courts discretion to strike or dismiss the enhancement. (Stats. 2018, ch. 1013, §§ 1-2.) The amended law applies retroactively to defendant because his case was not final on the date Senate Bill No. 1393 became effective. (People v. Garcia (2018) 28 Cal.App.5th 961, 973.)
" 'Defendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that "informed discretion" than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record.' " (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) "After taking into account the change in policy and after hearing argument from both sides, the trial court may feel differently than when it initially sentenced defendant to the enhancement." (People v. Franks (2019) 35 Cal.App.5th 883, 895 (conc. & dis. opn. of Robie, J.).)
At sentencing, the trial court consecutively imposed the upper term on the principal count of assault with a firearm (doubled pursuant to the three strikes law) and imposed the middle term on all remaining counts (also doubled pursuant to the three strikes law), for a total of 27 years. Including the prior serious felony enhancement and the prior prison term enhancement, defendant received a total of 33 years in prison. At sentencing the court said, "I am very concerned about [defendant's] history. . . . [¶] I am going to adopt in significant part the recommendation of the Department of Probation because I think a lengthy term is warranted, and I do believe that [defendant] presents a threat to the public, at this time at least." These statements do not make clear what the court would have done had it known of its discretion to strike defendant's five-year enhancement. Although it believed a lengthy sentence was warranted, it did not specify how lengthy or whether that goal was reached by doubling defendant's sentence and imposing consecutive terms or whether it was reached by imposing the five-year enhancement. Defendant should not be denied the opportunity to argue to the judge for a reduced sentence given the change in the law. As such, remand is the general rule in this situation and we decline to abandon that rule.
Accordingly, we will remand the matter to allow the trial court to exercise its newly granted discretion to consider striking the enhancement.
IV
We Do Not Consider Defendant's Dueñas Challenge
In light of our decision to remand this matter for the trial court to consider its discretion under Senate Bill No. 1393, we do not reach the merits of defendant's argument that the fines, fees, and assessments imposed by the trial court violated his constitutional rights as identified in People v. Dueñas, supra, 30 Cal.App.5th at page 1157. Defendant may assert this challenge on remand and seek a hearing on his ability to pay certain fines, fees, and assessments.
V
The Section 667 .5, Subdivision (B) Enhancement Is Stricken Under Senate Bill No. 136
In supplemental briefing, defendant contends the one-year prior prison term enhancement imposed pursuant to section 667.5, subdivision (b), must be stricken under the amendment provided in Senate Bill No. 136, effective January 1, 2020. The People agree and so do we.
On October 8, 2019, Senate Bill No. 136 was signed into law and became effective on January 1, 2020. The legislation modifies section 667.5, subdivision (b), to eliminate one-year sentences for prior prison terms served unless the prior prison term involves a conviction of a sexually violent offense (which is not at issue here). The statute is retroactive and applies to cases not yet final as of its effective date. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303, 308; In re Estrada (1965) 63 Cal.2d 740.) Accordingly, we strike the sentence imposed for the section 667.5, subdivision (b) enhancement.
DISPOSITION
We strike the one-year prior prison term enhancement imposed under section 667.5, subdivision (b), and remand the matter for the trial court to consider exercising its newly granted discretion under sections 667, subdivision (a) and 1385, subdivision (b), as amended by Senate Bill No. 1393. Following remand, the trial court is directed to prepare a new abstract of judgment and forward a copy to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed. Nothing in this opinion affects defendant's right to seek a hearing on his ability to pay certain fines, fees, and assessments.
/s/_________
Robie, J. I concur: /s/_________
Blease, Acting P. J. Hoch, J., Concurrence and Dissent
I concur in all but Section IV regarding defendant's challenge to the imposition of certain fines, fees, and assessments. To that part, I respectfully dissent.
While the majority states it does not reach the merits of defendant's argument that the fines, fees, and assessments imposed by the trial court violated his constitutional rights as identified in People v. Dueñas (2019) 30 Cal.App.5th 1157, the majority nonetheless allows defendant to assert this challenge on remand and seek a hearing on his ability to pay certain fines, fees, and assessments imposed at sentencing. Assuming, without deciding defendant's Dueñas claims are preserved for review, I conclude defendant is not entitled to an ability to pay hearing. (People v. Kingston (2019) 41 Cal.App.5th 272; People v. Hicks (2019) 40 Cal.App.5th 320 (review granted Nov. 26, 2019, S258946); People v. Aviles (2019) 39 Cal.App.5th 1055 (petn. for review & request for depublication denied Dec. 11, 2019, S258563); People v. Caceres (2019) 39 Cal.App.5th 917, 927 (review denied Jan. 2, 2020, S258720).)
We may consider, as persuasive authority, the cases that have been granted review by our Supreme Court. (Cal. Rules of Court, rule 8.1115(e)(1).)
/s/_________
HOCH, J.