Opinion
C090521
06-05-2020
THE PEOPLE, Plaintiff and Respondent, v. JEROME MARKEL DAVIS, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15F02816)
This case returns to us for a second time following defendant Jerome Markel Davis's first appeal in which we affirmed his convictions but remanded the matter for resentencing to allow the trial court to exercise newly granted discretion to strike defendant's firearm enhancements. (People v. Davis (Sept. 28, 2018, C084396) [nonpub. opn.] (Davis).)
Upon remand, the trial court exercised its discretion to strike the Penal Code section 12022.53, subdivision (d) firearm enhancement attached to defendant's attempted murder conviction, and then resentenced him to a determinate term of 30 years four months in state prison. The aggregate determinate sentence included a full 10-year term for a firearm enhancement (§ 12022.5, subd. (a)) on a subordinate term. The court orally waived the fees and fines previously imposed except direct victim restitution.
Undesignated statutory references are to the Penal Code.
Although the trial court orally stated that defendant's new aggregate sentence would be 32 years two months, it appears the court erred mathematically when adding up the terms because the aggregate sum of the terms actually imposed by the court equals 30 years four months as reflected in the sentencing minutes and the abstract of judgment.
On appeal, defendant contends the trial court erred in imposing a full term for the firearm enhancement under section 12022.5 because it was attached to a consecutive, subordinate term. He also argues the abstract of judgment fails to reflect the trial court's oral waiver of the previously imposed fees and fines.
We conclude the court erred in imposing a full upper term for the firearm enhancement on count four, and shall remand for resentencing. We further conclude that the trial court had no discretion to waive or otherwise stay the mandatory criminal conviction and court operations assessments. Upon remand, the court shall impose the mandatory assessments; it shall also impose a restitution fine unless compelling and extraordinary reasons exist for not imposing the fine.
FACTUAL AND PROCEDURAL BACKGROUND
The facts underlying defendant's convictions are not relevant to the issues he raises on appeal. Briefly summarized, based on three separate shootings, a jury found defendant guilty of the attempted murder of Q.B. (§§ 664/187; count one), grossly negligent discharge of a firearm (§ 246.3; count three), assault with a firearm on J.W. (§ 245, subd. (a)(2); count four), and discharge of a firearm at an inhabited dwelling (§ 246; count five). The jury found that defendant committed the attempted murder for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), and that he personally used a firearm (§ 12022.53, subds. (b), (c), & (d)). The jury also found that he personally used a firearm during the assault offense (§ 12022.5, subd. (a)). The trial court originally sentenced defendant to a total aggregate term of 17 years three months in prison, plus 25 years to life for the section 12022.53, subdivision (d) firearm enhancement attached to the attempted murder offense (count one). (Davis, supra, C084396.)
Upon remand, the trial court struck the section 12022.53, subdivision (d) firearm enhancement and resentenced defendant as follows. The court imposed the midterm of seven years for the attempted murder offense (count one), plus 10 years for the gang enhancement (§ 186.22, subd. (b)(1)). For the assault offense (count four), the court imposed a consecutive term of one year (one-third the midterm), plus the upper term of 10 years for the firearm enhancement under section 12022.5, subdivision (a). The court imposed consecutive one-third the midterm sentences of eight months for the grossly negligent discharge offense (count three), and one year eight months for discharging a firearm at an inhabited dwelling (count five). Defendant's new aggregate sentence was 30 years four months.
At the resentencing hearing, the court orally "waive[d] any fines and fees that were originally imposed due [to] the lengthy time that [defendant] [would] be spending in prison, other than any restitution to any victims of this offense." The abstract of judgment, however, reflects a $120 criminal conviction assessment under Government Code section 70373 ($30 for each of defendant's four convictions), a $160 court operations assessment under section 1465.8 ($40 for each conviction), and a $384.94 main jail booking fee and a $64.82 main jail classification fee, neither of which included a statutory basis for the fees.
DISCUSSION
1.0 Enhancements Under Section 1170.1
Defendant contends, and the People concede, that the trial court erred under section 1170.1 by imposing a full 10-year term on the section 12022.5, subdivision (a) firearm enhancement attached to count four, the assault offense. We agree.
"Section 1170.1, subdivision (a) governs the calculation and imposition of a determinate sentence when, as here, the defendant has been convicted of more than one felony." (People v. Beard (2012) 207 Cal.App.4th 936, 940, fn. omitted (Beard).) Under section 1170.1, when a person is convicted of two or more felonies and consecutive sentences are imposed, the total sentence consists of "the principal term, the subordinate term, and any additional term imposed for applicable enhancements for prior convictions, prior prison terms, and section 12022.1." (§ 1170.1, subd. (a).)
Section 1170.1, subdivision (a) provides in relevant part: "Except as otherwise provided by law, and subject to Section 654, when any person is convicted of two or more felonies, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same or by a different court, and a consecutive term of imprisonment is imposed under Sections 669 and 1170, the aggregate term of imprisonment for all these convictions shall be the sum of the principal term, the subordinate term, and any additional term imposed for applicable enhancements for prior convictions, prior prison terms, and Section 12022.1. The principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes, including any term imposed for applicable specific enhancements. The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses. . . ."
"The principal term consists of the greatest term of imprisonment imposed plus any applicable specific enhancements." (Beard, supra, 207 Cal.App.4th at p. 941; § 1170.1, subd. (a).) "The 'subordinate term' for each consecutive felony conviction consists of one-third of the middle term of imprisonment prescribed for the subordinate offense plus one-third of the term imposed for any applicable specific enhancements." (Beard, at p. 941; § 1170.1, subd. (a).)
" 'Sentence enhancements are generally of two types: those which go to the nature or status of the offender, and those which go to the nature or circumstances of the offense. [Citation.] An enhancement which is based on the defendant's conduct in committing the charged offense, such as the personal use of a weapon or the infliction of great bodily harm, is imposed on the count to which it applies. [Citation.]' " (Beard, supra, 207 Cal.App.4th at p. 942.) "By contrast, the enhancements based on prior convictions are status enhancements because 'they are related to the status of the offender, rather than the manner of commission of a crime . . . . [Citations].' " (Ibid.)
In this case, at resentencing the trial court chose count one, the attempted murder offense, as the principal term and counts three, four, and five as subordinate terms. The court imposed the midterm of seven years for the attempted murder conviction, and correctly imposed consecutive one-third the midterm sentences for the subordinate terms under section 1170.1, subdivision (a). The court erred, however, when it imposed a full upper 10-year term for the firearm enhancement attached to count four, the assault offense.
The firearm enhancement attached to count four was a specific enhancement based on the nature or circumstances of the crime. (Beard, supra, 207 Cal.App.4th at p. 942.) Thus, under section 1170.1, subdivision (a), the court could impose only one-third of the term chosen (10 years), which would be three years four months. We shall therefore vacate the 10-year upper term for the section 12022.5 firearm enhancement on count four and remand for resentencing. (See People v. Buycks (2018) 5 Cal.5th 857, 893 ["when part of a sentence is stricken on review, on remand for resentencing 'a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances' "].)
2.0 Fees and Fines
Defendant contends the abstract of judgment does not accurately reflect the court's oral pronouncement of judgment because it includes court operations and court facilities assessments despite the court orally waiving all fees and fines previously imposed (except for direct victim restitution). The People concede that the assessments as well as the main jail booking and classification fees should be stricken given the court's oral waiver of all fees and fines. We accept the People's concession in part.
Ordinarily, where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186; People v. Zackery (2007) 147 Cal.App.4th 380, 385.) Here, the abstract of judgment differs from the court's oral pronouncement of judgment and the resentencing minutes. As explained more fully below, however, the court's oral pronouncement regarding the waiver of fees and fines was partially unauthorized.
While the trial court orally stated that all fines and fees were waived except for direct victim restitution, the court had no authority to waive or otherwise stay the mandatory court facilities assessment under Government Code section 70373 or the mandatory court operations assessment under section 1465.8. (People v. Woods (2010) 191 Cal.App.4th 269, 271-272 [Gov. Code, § 70373 and § 1465.8 fees are mandatory, and the trial court is not authorized to stay the fees].) The same is not true for the main jail booking and classifications fees. (See, e.g., Gov. Code, § 29550.2, subd. (a) [court may choose not to impose booking fees if a defendant does not have the ability to pay].)
Government Code section 70373, subdivision (a)(1) provides in relevant part: "To ensure and maintain adequate funding for court facilities, an assessment shall be imposed on every conviction for a criminal offense . . . in the amount of thirty dollars ($30) for each misdemeanor or felony. . . ."
Section 1465.8, subdivision (a)(1) provides in pertinent part: "To assist in funding court operations, an assessment of forty dollars ($40) shall be imposed on every conviction for a criminal offense . . . ."
Because we are remanding for resentencing, we shall direct the trial court to impose a $120 court facilities assessment (Gov. Code, § 70373) and a $160 court operations assessment (§ 1465.8). To the extent the court chooses to strike the main jail booking and classification fees, any amended abstract of judgment should not include any reference to those fees.
For further guidance upon remand, the trial court must also impose a mandatory restitution fine under section 1202.4, unless compelling and extraordinary reasons for not imposing the fine exist. (§ 1202.4, subd. (b).) A defendant's inability to pay is not a compelling and extraordinary reason not to impose the restitution fine. (§ 1202.4, subd. (c).) An identical parole revocation restitution fine under section 1202.45 must also be imposed, which amount must be stayed unless parole is revoked.
Section 1202.4, subdivision (b) states: "In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record."
Section 1202.45, subdivision (a) provides: "In every case where a person is convicted of a crime and his or her sentence includes a period of parole, the court shall, at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4." --------
DISPOSITION
The sentence is vacated. The matter is remanded for resentencing consistent with this opinion.
/s/_________
BUTZ, J. We concur: /s/_________
ROBIE, Acting P. J. /s/_________
KRAUSE, J.