Opinion
B295989
03-24-2020
THE PEOPLE, Plaintiff and Respondent, v. ALEJANDRO PADILLA, Defendant and Appellant.
Michael B. Petersen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Steven E. Mercer and Michael C. Keller, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. VA146838) APPEAL from a judgment of the Superior Court of Los Angeles County, Roger Ito, Judge. Affirmed in part; reversed in part; and remanded with instructions. Michael B. Petersen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Steven E. Mercer and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
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Alejandro Padilla appeals from a judgment entered after a jury convicted him of one count of possession of a firearm by a felon and one count of possession of ammunition by a felon. The jury also found true Padilla was released from custody on bail at the time he committed the offenses. On appeal, Padilla contends the trial court erred in allowing the jury to hear testimony that at the time of the offenses he was out on bail on a firearm charge. He argues the evidence of the underlying charge was not probative because the trial court had already judicially noticed that Padilla was out on bail at the time of commission of the offenses, and the testimony was unduly prejudicial.
Padilla also contends, the People concede, and we agree the trial court erred by imposing but not staying under Penal Code section 654 a two-year sentence for possession of ammunition. The People also concede and we agree the trial court should have stayed imposition of the two-year sentence for the on-bail enhancement pursuant to section 12022.1 because there was no evidence Padilla had been convicted of the charge for which he was out on bail. In addition, on remand the trial court should ensure the abstract of judgment reflects Padilla was convicted after a jury trial, not a negotiated plea.
All undesignated statutory references are to the Penal Code.
Padilla argues further the trial court violated his right to due process, as set forth in this court's opinion in People v. Dueñas (2019) 30 Cal.App.5th 1157, 1168, by imposing court fines and assessments absent evidence of his ability to pay. The People concede and we agree that on remand the trial court should afford Padilla an opportunity to request a hearing and present evidence demonstrating his inability to pay the applicable fines and assessments. We affirm Padilla's conviction but reverse the sentence and remand for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Information
An information charged Padilla with possession of a firearm by a felon (§ 29800, subd. (a)(1), count 1) and unlawful possession of ammunition by a felon (§ 30305, subd. (a)(1), count 2). As to both counts, the information alleged that at the time of the commission of the offenses, Padilla was released from custody on bail within the meaning of section 12022.1 for a firearm charge in case number BA460878. The information also alleged Padilla had suffered a prior conviction of a serious or violent felony under the three strikes law (§§ 667, subds. (b)-(j), 1170.12) and three prior convictions for which he served prison terms within the meaning of section 667.5, subdivision (b).
Padilla pleaded not guilty and denied the special allegations. B. Pretrial Proceedings
Padilla requested the trial court bifurcate trial of the alleged prior convictions. The court granted the request, stating, "That request is granted. . . . Mr. Padilla, you discussed that with him yesterday. They will know he's a convicted felon, however, they will not know of the nature of the offense nor will they know, with your agreement, of the out-on-bail allegation, what it was that he was out on bail for. I'll just let them know he had another case pending and he was out on bail at the time. I'll take judicial notice of that. That's what you want to do, right, Mr. Neptune?" Padilla's attorney responded, "Yes." C. The Evidence at Trial
Deputy Kegan McInnis and his partner, Deputy Ryken, were on patrol the evening of January 6, 2018. At approximately 11:40 p.m. the deputies were in their marked patrol vehicle in a residential neighborhood near the corner of Anzac Avenue and 95th Street. It was a clear night, the street lights illuminated the streets, and there were almost no pedestrians or traffic.
Deputy McInnis was the only witness who testified at trial.
Deputy McInnes first noticed Padilla in a sport utility vehicle driving southbound on Anzac Avenue. The deputies were behind Padilla's vehicle when Deputy McInnis noticed the vehicle's expired registration. As the deputies pulled closer to Padilla's vehicle, Padilla slowed down as he approached the intersection, but he did not stop at the stop sign. Padilla made a right turn onto 95th Street. When the deputies' patrol car was approximately 20 feet behind Padilla's vehicle, Deputy McInnis observed a "handgun with a white grip fly from the passenger window or the passenger area of the vehicle." Deputy McInnis also heard the sound of metal hitting another metal object.
The deputies turned on their patrol car's overhead lights and pulled Padilla over. Padilla exited the vehicle, was handcuffed by Deputy Ryken, and was placed in the back seat of the patrol vehicle. Deputy McInnis then went to the area where he saw the handgun thrown from the vehicle, and he located a black handgun with white grips in a residential driveway. The handgun was approximately 50 to 75 feet from where Padilla was pulled over. Not more than two minutes had passed from when Deputy McInnis observed the handgun being thrown from the vehicle. The handgun appeared fully functional and was loaded with seven .22-caliber rounds.
At the scene, Deputy Ryken read Padilla his Miranda rights, and Padilla agreed to speak to the deputies without the presence of an attorney. Over Padilla's objection at trial, Deputy McInnis testified the deputies "asked [Padilla] why he threw the gun from the vehicle, and he told us that he didn't want to catch another case because he was currently out on bail on an additional firearm case." D. The Jury Instructions and Verdict
Miranda v. Arizona (1966) 384 U.S. 436, 471.
Before instructing the jury, the trial court explained the parties had stipulated Padilla was previously convicted of a felony. The court also explained it had taken judicial notice of the fact Padilla was out on bail in case number BA460878 at the time of commission of the offense. The trial court instructed the jury to accept these matters as fact, and it admonished the jury not to "use it for bad character evidence against the defendant or he's more likely than not to commit a crime. Nothing like that." The trial court also instructed the jury with CALCRIM No. 103, that "[t]he fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendant just because he has been arrested, charged with crime, or brought to trial."
The jury convicted Padilla on both counts and found true the on-bail allegation for each count. Following a bench trial on the alleged prior convictions, the trial court found true the allegation Padilla suffered a 2001 conviction of robbery, which was a prior serious or violent felony under the three strikes law. E. The Sentencing
The trial court sentenced Padilla on count 1 (possession of firearm) to the middle term of two years, doubled as a second strike, to four years in state prison. The court imposed a consecutive two-year term for the on-bail enhancement pursuant to section 12022.1. As to count 2 (possession of ammunition), the trial court imposed the middle term of two years to run concurrent with count 1 "to the extent it is not [stayed by section] 654, which I think it may be." The trial court dismissed the allegation of a prior strike as to count 2 pursuant to section 1385. The trial court did not impose a sentence for the on-bail enhancement as to count 2.
The court imposed on each count a $30 court facilities assessment (Gov. Code, § 70373, subd. (a)(1)) and a $40 court operations assessment (Pen. Code, § 1465.8, subd. (a)(1)). The court also imposed the statutory minimum restitution fine of $300 (Pen. Code, § 1202.4, subd. (b)(1)), and it imposed and suspended a parole revocation restitution fine in the same amount (§ 1202.45).
Padilla timely appealed.
DISCUSSION
A. The Trial Court Did Not Abuse Its Discretion in Admitting Testimony About Padilla's Pending Firearm Charge
Padilla contends the trial court abused its discretion in admitting Deputy McInnis's testimony that Padilla said he threw the gun out of the vehicle because he was concerned he had a pending firearm case, arguing the evidence was more prejudicial than probative and should have been excluded under Evidence Code section 352. The trial court did not abuse its discretion.
1. Trial court proceedings
Prior to trial, Padilla requested the trial court bifurcate trial of the alleged prior convictions. The court granted the request, stating, "That request is granted. . . . Mr. Padilla, you discussed that with him yesterday. They will know he's a convicted felon, however, they will not know of the nature of the offense nor will they know, with your agreement, of the out-on-bail allegation, what it was that he was out on bail for. I'll just let them know he had another case pending and he was out on bail at the time. I'll take judicial notice of that. That's what you want to do, right, Mr. Neptune?" Padilla's attorney responded, "Yes."
When the prosecutor asked Deputy McInnis what Padilla said when asked why he had thrown the gun from the car, Padilla's counsel timely objected and requested a sidebar. The following exchange occurred between Padilla's counsel (James Neptune) and the trial court:
"Mr. Neptune: So, Your Honor, basically where the People are going is they're . . . eliciting statements from Officer McInnis where according to the police report my client stated that he threw the firearm from the vehicle because he was scared of getting caught with it. He additionally stated he's out [on] bail for a firearms charge and did not want to catch another case. . . . I don't think that it's appropriate for the People to be allowed to prove up the out on bail allegation simply by taking judicial notice. The court had indicated that it was going to basically try and sanitize what the out on bail allegation was about. But by allowing the People to elicit this statement and go into that, they're obviating the court's ruling with regard to that issue.
"The court: But that's what he said, Mr. Neptune. It's an incriminating statement. It's highly incriminating. I can direct them they're to disregard any statements with regards to why he was out on bail at least for purposes of this. He's admitted he threw the gun then it's an admissible statement against his interest. . . .
"Mr. Neptune: All right.
"The court: You want me to . . . admonish [the jury] how they're going to use it at this point or you just want to have it come in? Either way, they're going to hear it.
"Mr. Neptune: Right. They're going to hear it either way. Just admonish them about how it's to be used."
After Deputy McInnis testified that Padilla stated "he didn't want to catch another case because he was currently out on bail on an additional firearm case," the court instructed the jury: "Ladies and gentlemen, that last statement is to be used for a specific purpose at this point, okay, that he was out on bail, that he didn't want to catch another case. That statement is only used for purposes of indicating the defendant knew that he had a firearm and that he discarded the firearm. It's not to be used for any other purpose such as that he had another case, he was out on bail. . . . It's only used as an indication that he acknowledged he had a weapon and in fact he discarded a weapon." During his closing argument, the prosecutor highlighted Padilla's statement to the deputies.
In his closing argument, the prosecutor argued Padilla's admission he threw the gun out of the car because he was afraid to be caught with a firearm in light of his pending gun charge showed Padilla knew he possessed the firearm. The prosecutor argued, "He knew about the firearm and he didn't want to get caught with it basically." The prosecutor similarly argued the statement showed Padilla had knowledge he possessed the ammunition.
The jury was instructed with CALCRIM No. 2511 that to prove a defendant is guilty of the crime of unlawfully possessing a firearm, the People must prove: "1. The defendant possessed a firearm; [¶] 2. The defendant knew that he possessed the firearm; [¶] AND [¶] 3. The defendant had previously been convicted of a felony." The jury was also instructed with CALCRIM No. 2591, which similarly provided that for the offense of unlawfully possessing ammunition the People needed to prove the defendant knew he possessed the ammunition.
2. Padilla did not forfeit his evidentiary objection
The People argue Padilla forfeited his argument the trial court should have excluded testimony about Padilla's statement because his attorney failed to argue in the trial court the evidence was more prejudicial than probative under Evidence Code section 352. We decline to find forfeiture.
To preserve a claim that a trial court abused its discretion in admitting evidence, a party must make a timely and specific objection. (Evid. Code, § 353, subd. (a) [verdict may only be set aside based on erroneous admission of evidence where '"[t]here appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion"']; People v. Brooks (2017) 3 Cal.5th 1, 42 [an objection must ""'fairly inform the trial court, as well as the party offering the evidence, of the specific reason or reasons the objecting party believes the evidence should be excluded, so the party offering the evidence can respond appropriately and the court can make a fully informed ruling.'"") However, "[i]n a criminal case, the objection will be deemed preserved if, despite inadequate phrasing, the record shows that the court understood the issue presented." (People v. Scott (1978) 21 Cal.3d 284, 290 [defendant did not forfeit constitutional challenge to medical examination where trial court fully understood challenge even though defense counsel did not reference constitution in objection]; accord, People v. Scott (2015) 61 Cal.4th 363, 402 [defendant's objection under § 352 to photographs as prejudicial preserved where defense counsel at trial only argued evidence was cumulative, but trial court addressed prejudicial effect in overruling objection].)
Although Padilla's counsel at trial focused on the unfairness of the court admitting testimony that Padilla had a pending firearm charge after Padilla had stipulated to the court taking judicial notice he was out on bail and the trial court had agreed to "sanitize what the out on bail allegation was about," the record shows the court understood Neptune's objection was based on a balancing under Evidence Code section 352. Before admitting the evidence, the trial court analyzed the testimony, considered its relevance (finding it was "highly incriminating" and fell within an exception to the hearsay rule), and proposed to limit potential prejudice by admonishing the jury not to consider the statement as to why Padilla was out on bail for any purpose other than Padilla's knowledge he possessed the firearm and ammunition and his attempt to discard the firearm.
Although the trial court stated during pretrial proceedings the jury would not be told the charge for which Padilla was out on bail, it appears from the record the trial court was unaware of Padilla's statement to Deputy McInnis at the time of the court's pretrial ruling on the out-on-bail enhancement.
3. The trial court did not abuse its discretion in impliedly finding Padilla's statement about why he threw the handgun from the vehicle was more probative than prejudicial
"Evidence Code section 352 provides that a court 'in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.' We review a trial court's ruling under this section for abuse of discretion and will reverse a trial court's exercise of discretion to admit evidence 'only if "the probative value of the [evidence] clearly is outweighed by [its] prejudicial effect." [Citation.]' [Citation.] 'Prejudice for purposes of Evidence Code section 352 means evidence that tends to evoke an emotional bias against the defendant with very little effect on issues, not evidence that is probative of a defendant's guilt.'" (People v. Valdez (2012) 55 Cal.4th 82, 133; accord, People v. Mills (2010) 48 Cal.4th 158, 195; see People v. Goldsmith (2014) 59 Cal.4th 258, 266 ["[W]e will not disturb the trial court's ruling 'except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.'"].)
The elements of the offense of unlawful possession of a firearm by a convicted felon "are conviction of a felony and ownership, possession, custody or control of a firearm capable of being concealed on the person." (People v. Snyder (1982) 32 Cal.3d 590, 592; accord, People v. Blakely (2014) 225 Cal.App.4th 1042, 1052; see CALCRIM No. 2511.) A violation of section 30305, subdivision (a)(1), similarly requires the convicted felon have knowledge of possession of the ammunition. (See CALCRIM No. 2512.) Padilla's response to the deputies that he threw the handgun from his vehicle because "he didn't want to catch another case because he was currently out on bail on an additional firearm case" is probative of the fact Padilla had knowledge he possessed the firearm (and the ammunition inside). As the trial court found, the statement was "highly incriminating" and admissible under the hearsay exception for a declaration against penal interest. (See Evid. Code, § 1230.)
Evidence Code section 1230 provides, "Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, was so far contrary to the declarant's pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminal liability, . . . that a reasonable man in his position would not have made the statement unless he believed it to be true." Padilla was unavailable for purposes of section 1230 because he exercised his privilege against self-incrimination and did not testify at trial. (See People v. Gordon (1990) 50 Cal.3d 1223, 1251.) The statement would have also been admissible under the hearsay exception for an admission of a party. (Evid. Code, § 1220.)
The jury also could have inferred consciousness of guilt from Padilla's awareness of his pending firearm charge—his throwing of the firearm out of his vehicle's window shows he was aware he needed to discard a firearm he was not allowed to possess. (See People v. Jones (2017) 3 Cal.5th 583, 610 [trial court did not abuse its discretion in declining to exclude evidence under Evidence Code section 352 because the taped conversation was relevant to an inference by the jury that the defendant was aware of his guilt].)
The trial court also instructed the jury with CALCRIM No. 371, "If defendant tried to hide evidence . . . that conduct may show he was aware of his guilt. If you conclude the defendant made such an attempt, it is up to you to decide its meaning and importance. However, evidence of such an attempt cannot prove guilt by itself."
Padilla's argument any probative value of his statement was outweighed by the prejudicial effect from the jury knowing he faced the same charge in another case is not persuasive. Padilla relies on Supreme Court authority that addresses the prejudicial nature of admission of prior convictions, not pending charges. (See People v. Barrick (1982) 33 Cal.3d 115, 125-126 [unfair prejudice "particularly likely where the prior conviction is for the same crime as that which forms the basis of the charges against defendant"].) A pending charge for a crime is not as prejudicial as a conviction. As the trial court instructed the jury (with CALCRIM No. 103), "The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendant just because he has been arrested, charged with [a] crime, or brought to trial." Further, the trial court gave a limiting instruction that made clear Padilla's statement that "he didn't want to catch another case" could "only [be] used for purposes of indicating the defendant knew that he had a firearm and that he discarded the firearm. It's not to be used for any other purpose such as that he had another case, he was out on bail." The court had also previously admonished the jury not to use Padilla's out-on-bail status "for bad character evidence against the defendant or he's more likely than not to commit a crime." We presume jurors are "able to understand and correlate instructions" and are "presumed to have followed the court's instructions." (People v. Sanchez (2001) 26 Cal.4th 834, 852.) Under these circumstances, the trial court did not abuse its discretion in admitting testimony about Padilla's pending firearm charge. B. We Remand for the Trial Court To Correct Sentencing Errors
People v. Roof (1963) 216 Cal.App.2d 222, 225-227, relied on by Padilla in his reply brief, is distinguishable. In Roof, the court reversed the judgment because of the prejudicial effect of an officer's testimony the defendant stated "he had been charged with contributing to the delinquency of a minor." (Id. at p. 225.) Instead of giving a limiting instruction, the trial court simply said, "All right, we can forget about that. Let us proceed." (Ibid.) The Court of Appeal concluded the limiting instruction failed to cure the prejudice because "[a]mong the facts which are generally considered to be incapable of obliteration from the minds of the jurors by the court's direction is the fact that the accused has been previously charged with or convicted of a crime." (Id. at pp. 225-226.) The court noted the admission of the testimony showed the defendant "had been accused of a serious moral offense," which deprived the defendant of the presumption he had good character. (Id. at p. 227.) In contrast to Roof, the trial court here gave a limiting instruction, Padilla's statement was probative of his knowledge he possessed a firearm and ammunition, and the jury was already aware Padilla was out on bail on a pending charge.
The trial court also instructed the jury with CALCRIM No. 358, which admonishes the jury to "[c]onsider with caution any statement made by the defendant tending to show his guilt unless the statement was written or otherwise recorded," and CALCRIM No. 359, which instructs the jury it may "rely on the defendant's out-of-court statements to convict him only if you first conclude that other evidence shows that the charged crime was committed."
1. Count 2 for unlawful possession of ammunition
Padilla contends, the People concede, and we agree the trial court erred in failing to stay under section 654 the two-year sentence imposed for unlawful possession of ammunition.
Section 654 prohibits separate punishment for multiple offenses arising from the same act or from a series of acts constituting an indivisible course of criminal conduct. (People v. Williams (2013) 57 Cal.4th 776, 781; People v. Rodriguez (2009) 47 Cal.4th 501, 507.) "'Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.'" (Rodriguez, at p. 507, italics omitted.) Where section 654 applies, "the trial court must impose a full term and stay execution of that term." (People v. Relkin (2016) 6 Cal.App.5th 1188, 1198.)
Padilla possessed a single firearm that was loaded with the ammunition, and there was no evidence in the record that would have supported the trial court's implied finding Padilla had more than one objective in possessing the loaded firearm and the ammunition in the firearm. (See People v. Sok (2010) 181 Cal.App.4th 88, 100 [trial court should have stayed sentence for defendant's possession of ammunition where it imposed sentence for unlawful possession of firearm and there was no evidence of different or multiple objectives]; accord, People v. Lopez (2004) 119 Cal.App.4th 132, 137-138.) On remand, the trial court must stay execution of the two-year sentence for unlawful possession of ammunition pursuant to section 654.
Section 654 requires the court to impose punishment under the provision that provides for the longest potential term of imprisonment. (§ 654, subd. (a); People v. Sok, supra, 181 Cal.App.4th at p. 100.) Because the trial court dismissed the allegation of the prior strike conviction on count 2, the potential punishment was greater on count 1.
2. Section 12022.1 on-bail enhancement
Padilla contends, the People concede, and we agree the trial court should have stayed imposition of the two-year on-bail enhancement pursuant to section 12022.1, subsection (b), in light of the absence of any evidence Padilla was convicted of the firearm charge in case No. BA460878.
Section 12022.1, subdivision (b), imposes a consecutive, mandatory two-year enhancement for "[a]ny person arrested for a secondary offense that was alleged to have been committed while that person was released from custody on a primary offense." The statute defines "primary offense" as "a felony offense for which a person has been released from custody on bail or on his or her own recognizance prior to the judgment becoming final, including the disposition of any appeal, or for which release on bail or his or her own recognizance has been revoked." (§ 12022.1, subd. (a)(1).) The statute defines a "secondary offense" as "a felony offense alleged to have been committed while the person is released from custody for a primary offense." (§ 12022.1, subd. (a)(2).)
"Whenever there is a conviction for the secondary offense and the enhancement is proved, and the person is sentenced on the secondary offense prior to the conviction of the primary offense, the imposition of the enhancement shall be stayed pending imposition of the sentence for the primary offense." (§ 12022.1, subd. (d); accord, People v. Meloney (2003) 30 Cal.4th 1145, 1149 (Meloney).) Thus, section 12022.1 requires two separate findings, one by the jury and the other by the trial court: "At the trial of a section 12022.1 enhancement, the jury only determines whether the enhancement is proven. The court determines later, at the time of sentencing, whether the enhancement can be imposed." (People v. Smith (2006) 142 Cal.App.4th 923, 935.) In order to impose the enhancement, "there must be 'proof of conviction of the primary offense.'" (People v. Buycks (2018) 5 Cal.5th 857, 890.)
Upon presentation of evidence a defendant was convicted of the primary offense, the trial court in the primary or secondary offense case retains the power to lift the stay and impose the enhancement. (Meloney, supra, 30 Cal.4th at p. 1150 ["[T]he stay may be lifted by a motion in the primary-offense court, by a motion in the secondary-offense court (which can take judicial notice of the conviction on the primary felony offense), or by a writ petition in the Court of Appeal"].)
There is no evidence in the record that at the time of sentencing, Padilla had been convicted of the firearm charge in case No. BA460878. Thus, the trial court erred in failing to stay the two-year on-bail enhancement. We remand the matter with directions for the trial court to stay imposition of the on-bail enhancement on count 1 until a determination is made whether Padilla has been convicted of the primary offense. If on remand the trial court determines Padilla was convicted of the primary offense, the court may impose the enhancement or strike the enhancement pursuant to section 1385. (Meloney, supra, 30 Cal.4th at p. 1149.) C. On Remand Padilla Is Entitled To Request a Hearing on His Ability To Pay the Court Fines And Assessments
Although the jury found the on-bail enhancement true as to count 2, because the enhancement is a status enhancement, the trial court properly applied the enhancement only once to the aggregate term. (People v. Warinner (1988) 200 Cal.App.3d 1352, 1356.) Following resentencing, the court should ensure the abstract of judgment accurately reflects that Padilla was convicted by a jury, not a negotiated plea. --------
Padilla requests we remand for the trial court to conduct an ability-to-pay hearing in accordance with this court's opinion in People v. Dueñas, supra, 30 Cal.App.5th at pages 1168 and 1172, because he is indigent and qualified for free counsel at the time of trial. The People note Padilla did not object to the imposition of fines and assessments at the time of sentencing, but they agree that on remand Padilla may request an ability-to-pay hearing. We agree Padilla should have an opportunity on remand to request a hearing and present evidence demonstrating his inability to pay the fines and assessments imposed by the trial court. (People v. Belloso (2019) 42 Cal.App.5th 647, 654-655; People v. Castellano (2019) 33 Cal.App.5th 485, 488-489; People v. Dueñas, supra, 30 Cal.App.5th at pp. 1168, 1172.)
DISPOSITION
The judgment of conviction is affirmed. We reverse the sentence and remand with directions for the trial court (1) to stay the concurrent two-year sentence for unlawful possession of ammunition (count 2) under section 654; (2) to stay the imposition of the two-year on-bail enhancement on count 1 under section 12202.1, subsection (b), unless evidence is presented that Padilla has been convicted of the primary offense in case No. BA460878, in which case the enhancement must be imposed or stricken; and (3) to conform the abstract of judgment to the modified sentence, including to reflect that Padilla was convicted by a jury. The trial court is also directed on remand to allow Padilla an opportunity to request a hearing and present evidence demonstrating his inability to pay the court facilities and court operations assessments, restitution fine, and parole revocation restitution fine. If Padilla demonstrates his inability to pay the assessments, it must strike them. If the trial court determines Padilla does not have the ability to pay the restitution and parole revocation restitution fines, it must stay execution of the fines.
FEUER, J. We concur:
PERLUSS, P. J.
SEGAL, J.