Opinion
C088395
02-19-2020
THE PEOPLE, Plaintiff and Respondent, v. RICKY SIMS, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 13F02391)
A jury convicted defendant Ricky Sims of attempted murder and making a criminal threat, with findings that he personally used a firearm, intentionally discharged a firearm, committed attempted murder for the benefit of a criminal street gang, and was previously convicted of a serious felony (rape). (People v. Sims (Mar. 16, 2018, C074948) [nonpub. opn.] p. 8.) This is his second appeal.
In his first appeal, we reversed the criminal street gang finding, struck the corresponding 10-year sentencing enhancement, corrected his presentence credit, and affirmed the judgment as modified, but we remanded the matter to permit the trial court to exercise its discretion on whether to strike the firearm enhancement. We also directed the trial court to prepare a corrected and amended abstract of judgment and to forward a copy of the corrected and amended abstract to the Department of Corrections and Rehabilitation. (People v. Sims, supra, C074948, p. 25.) On remand, the trial court exercised its discretion by not striking the firearm enhancement, but it did not prepare a corrected and amended abstract of judgment.
Defendant now contends (1) the trial court erred in failing to conduct a full resentencing, (2) we should remand to permit the trial court to exercise its new discretion to strike the five-year sentencing enhancements for a prior serious felony under Penal Code section 667, subdivision (a)(1), (3) we should remand for a determination of defendant's ability to pay the imposed fines and assessments, and (4) the trial court failed to prepare a corrected and amended abstract of judgment and send a copy to the Department of Corrections and Rehabilitation.
Undesignated statutory references are to the Penal Code.
We conclude defendant is not entitled to a full resentencing because in our prior decision we modified the judgment and affirmed it as modified. But we will remand the matter to give the trial court an opportunity to exercise its discretion concerning whether to strike the five-year sentencing enhancements, and to determine defendant's ability to pay the imposed fines and assessments. We will also direct the trial court to prepare a corrected and amended abstract of judgment and to forward it to the Department of Corrections and Rehabilitation.
BACKGROUND
The facts underly defendant's convictions in this case are not germane to this appeal. They may be found in our opinion in People v. Sims, supra, C074948. We granted defendant's motion to incorporate by reference the record on appeal in that case.
In the original sentencing hearing, the trial court sentenced defendant to an aggregate determinate term of 46 years, plus a consecutive indeterminate term of 14 years to life. The indeterminate term consisted of seven years to life for attempted murder, doubled to 14 years to life under the three strikes law. The determinate term consisted of the following: for the attempted murder conviction, 20 years for personal discharge of a firearm (§ 12022.53, subd. (c)), a consecutive term of 10 years for committing the crime for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)), and a consecutive term of five years for the prior serious felony conviction (§ 667, subd. (a)(1)). For the criminal threat conviction, the trial court imposed the upper term of three years, doubled to six years under the three strikes law (§ 422), plus a consecutive five-year term for defendant's prior serious felony conviction (§ 667, subd. (a)(1)). As noted, in the previous appeal we struck defendant's 10-year term for committing the attempted murder for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)). (People v. Sims, supra, C074948, p. 25.)
DISCUSSION
I
Defendant contends the trial court erred by not conducting a full resentencing. But our disposition in the first appeal did not require a full resentencing; rather, we struck the term for the gang enhancement. We stated, in pertinent part: "The true finding on the section 186.22 gang enhancement allegation is reversed and the 10-year sentence for that enhancement in count one is stricken. . . . The judgment is affirmed as modified . . . ." (People v. Sims, supra, C074948, p. 25.)
We have statutory authority to modify a judgment (§ 1260), which we did by reversing the gang enhancement and striking the associated term. We also modified the award of presentence credit. (People v. Sims, supra, C074948, p. 25.) Because the trial court exercised its discretion by not striking the firearm enhancement, there was no resentencing to be done on remand.
II
Defendant seeks remand in light of the passage of Senate Bill No. 1393 (2017-2018 Reg. Sess.) effective January 1, 2019, which amends section 667 "to give courts discretion to dismiss or strike a prior serious felony conviction for sentencing purposes." (People v. Garcia (2018) 28 Cal.App.5th 961, 965.) The trial court imposed two separate five-year terms for defendant's prior serious felony conviction for rape, one term each for the attempted murder and criminal threat convictions. The amendment to section 667 gives a sentencing court discretion to strike the five-year term for a prior serious felony conviction, and the amendment applies retroactively to cases not yet final when the amendment became effective. (Garcia, at pp. 971-973.)
The Attorney General concurs that Senate Bill No. 1393 applies retroactively to defendant's case, but argues remand is unwarranted because the trial court denied defendant's motion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 to strike defendant's prior serious felony conviction for purposes of the three strikes law and also, on remand, exercised its discretion against defendant's request to strike the firearm enhancement.
In both the Romero motion and the hearing on remand concerning the firearm enhancement, the trial court determined that defendant did not merit the requested relief because of his past incorrigible criminality. In considering whether to strike the firearm enhancement on remand, the trial court said: "In the range of 'reasonably appropriate to exercise discretion,' this case couldn't be further from one where discretion would be appropriate. Defendant's prior criminal history and the conduct in this case make him completely and utterly outside any thought anybody could have had when they have given the Court the ability to strike a [firearm enhancement] . . . ."
We noted in the first appeal that remand is the general rule when an amendment to a statute gives a sentencing court new discretion before the judgment becomes final. (People v. Sims, supra, C074948.) Moreover, in this appeal, we will remand anyway to permit the trial court to determine defendant's ability to pay the imposed fines and assessments and to prepare a corrected and amended abstract of judgment. Under the circumstances, on remand the trial court can exercise its new discretion concerning whether to strike the five-year sentencing enhancements.
III
When the trial court sentenced defendant, it imposed the following fines and assessments:
• a $2,000 restitution fine under section 1202.4, subdivision (b);
• a $2,000 parole revocation restitution fine under section 1202.45, subdivision (a);
• an $80 court operations assessment under section 1465.8, subdivision (a); and
• a $60 court facility assessment under Government Code section 70373, subdivision (a)(1).
The trial court did not determine defendant's ability to pay the fines and assessments.
Defendant now contends we must vacate the imposed fines and assessments and remand for a determination of his ability to pay them. In People v. Dueñas (2019) 30 Cal.App.5th 1157, the court held it is improper to impose certain fines or assessments without determining defendant's ability to pay. (Id. at pp. 1168, 1172.) Although some courts have subsequently criticized Dueñas's legal analysis (see, e.g., People v. Hicks (2019) 40 Cal.App.5th 320, review granted Nov. 26, 2019, S258946), the California Supreme Court has not yet issued an opinion resolving the current split in authority. (See, e.g., People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019, S257844.) Here, we will remand the matter and give the trial court an opportunity to consider defendant's ability to pay the imposed fines and assessments.
IV
In our opinion in case No. C074948, we included in our disposition a direction to the trial court to prepare a corrected and amended abstract of judgment and to forward a certified copy of the corrected and amended abstract of judgment to the Department of Corrections and Rehabilitation. (People v. Sims, supra, C074948, p. 25.) As the parties now agree, the record does not reflect the trial court completed these instructions relating to the abstract of judgment. We will again direct the trial court to prepare a corrected and amended abstract of judgment and to forward a certified copy of the corrected and amended abstract of judgment to the Department of Corrections and Rehabilitation.
DISPOSITION
The fines and assessments are vacated, and the matter is remanded to give the trial court an opportunity to exercise its discretion concerning whether to strike the five-year sentencing enhancements, and also to consider reimposing the fines and assessments after determining defendant's ability to pay them. The judgment is otherwise affirmed. The trial court shall prepare a corrected and amended abstract of judgment and forward it to the Department of Corrections and Rehabilitation.
/S/_________
MAURO, J. I concur: /S/_________
ROBIE, Acting P. J. DUARTE, J., Concurring and Dissenting.
I disagree with the conclusion that remand is appropriate under People v. Dueñas (2019) 30 Cal.App.5th 1157 to permit a hearing on defendant's ability to pay. Because the majority appears to come to that conclusion in Part III of its opinion, I respectfully dissent from Part III and the related portion of the Disposition and otherwise concur.
I agree with those authorities that have concluded that due process does not require the trial court to conduct a hearing and conclude that the defendant has the present ability to pay before imposing the assessments and restitution fines at issue here and in Dueñas. (People v. Hicks (2019) 40 Cal.App.5th 320, 327-329, review granted Nov. 26, 2019, S258946; People v. Aviles (2019) 39 Cal.App.5th 1055, 1069; People v. Caceres (2019) 39 Cal.App.5th 917, 928.)
/S/_________
DUARTE, J.