People v. Jones CA3 ( 2022 )

Filed 12/5/22 P. v. Jones CA3
NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C094454
Plaintiff and Respondent, (Super. Ct. No. 17FE012470)
v.
MICHAEL TERRELL JONES,
Defendant and Appellant.
During a drug deal, amid an exchange of gunfire, defendant Michael Terrell Jones
shot and killed Manuel Tellez. Following a jury trial, defendant was convicted of second
degree murder with a personal use of a firearm enhancement and illegally possessing a
firearm. On appeal, defendant contends the trial court prejudicially erred by instructing
the jury that: defendant’s flight could demonstrate consciousness of guilt, and the jury
could consider defendant’s failure to explain or deny adverse evidence in his trial
testimony. We conclude any instructional error was harmless.
1
Defendant also raises sentencing errors. He contends the matter must be
remanded for resentencing in light of legislative changes to Penal Code 1 section 1170
made by Senate Bill No. 567 (2021-2022 Reg. Sess.) and the fees imposed under former
Government Code section 29550.2 must be vacated in light of the enactment of Assembly
Bill No. 1869 (2019-2020 Reg. Sess.). Defendant also claims errors in the abstract of
judgment require correction. As to the sentencing claims, we agree with defendant. We
will affirm the convictions, vacate the sentence, and remand for resentencing.
BACKGROUND
Tellez grew and sold marijuana. He agreed to sell defendant approximately three
pounds of marijuana. They met in an apartment parking lot. Tellez went with his friend
Alejandro Fierros. Defendant went with Kenneth Pack and “Little Money.” 2 Both Tellez
and defendant went to the meeting armed; Tellez with a Glock 9-millimeter handgun and
defendant with a .45-caliber Glock model 21 handgun.
Defendant got in the back of Tellez’s van, and after the parties agreed on a price,
Little Money went to get scales. As they waited for Little Money to return, Fierros,
defendant, Pack, and Tellez smoked some marijuana. Fierros testified while they were
smoking, and he was relighting his pipe, he heard gunshots. The first shots were fired by
defendant and Tellez immediately returned fire. Defendant admitted he shot and killed
Tellez. He claimed, however, Tellez had shot at him first while trying to rob him of his
money, and he fired in self-defense.
While the shooting continued, defendant got out of the van and fell to the ground.
Pack helped him up and defendant told Pack he had been shot. Defendant dropped the
gun and Pack picked it up. Defendant and Pack fled the scene in a Toyota Camry.
1 Undesignated statutory references are to the Penal Code.
2 Little Money arrived in a separate car from defendant and Pack. According to
defendant, Little Money left before the shooting occurred.
2
Fierros testified Tellez was dead by the time defendant and Pack drove away. Fierros left
the scene and called 911. Tellez died of multiple gunshot wounds and was declared dead
at the scene.
Defendant sustained multiple gunshot wounds. Defendant drove to a nearby
hospital. On the way to the hospital, defendant grabbed the gun from Pack’s lap and
threw it out the car window near a freeway onramp. He took the money he had been
going to use to purchase the marijuana, put it in the center console of the car, and told
Pack he could take it. The next day, police officers brought Fierros to the hospital and he
identified defendant as the shooter.
Pack left the hospital in the Camry. Defendant called his then-girlfriend Michelle
Travis3 and told her he had been shot. Pack told Michelle where she could pick up the
Camry.4 There was a lot of blood in the Camry and Michelle had the car detailed. Police
officers later stopped Michelle while she was driving the Camry and impounded the car.
There was no visible blood evidence in the car.
When interviewed by law enforcement officers at the hospital, defendant
fabricated a story about the shooting, suggesting he was in a different area, and denied
having had a gun. Later, while in custody, defendant spoke in a phone call from the jail,
with friends about the gun. They had not been able to find the gun defendant had
discarded. Defendant described the location and implored them to find the gun. Based
on information from that call, police officers found defendant’s handgun in the bushes
near a highway onramp. All of the bullets at the scene were fired by either defendant’s or
Tellez’s gun. The bullets that killed Tellez had been fired from defendant’s gun.
3 Michelle is now defendant’s wife.
4 Neither defendant nor Pack owned the Camry. The car had been rented by Michelle’s
aunt.
3
At trial, defendant admitted he had lied in his interviews with law enforcement and
testified he did not remember everything he had said to them, because he was lying. He
lied about not having a gun; tried to make the shooting sound like a different shooting;
did not reference Michelle but discussed his relationships with other women; and did not
identify Pack by name. He never told the officers he had shot Tellez in self-defense. He
also testified he had lied to law enforcement officers to protect Tellez and Fierros,
because in his lifestyle the “street code” dictated he did not want anyone to go to jail.
Defendant was charged by information with special circumstance first degree
murder during an attempted robbery (§§ 187, subd. (a), 190.2, subd. (a)(17); count one),
attempted robbery (§§ 664/211; count two), and unlawful possession of a firearm
(§ 29800, subd. (a)(1); count three). As to counts one and two, it was further alleged
defendant had personally and intentionally discharged a firearm causing death.
(§ 12022.53, subd. (d).) The jury found defendant not guilty of first degree murder and
not guilty of attempted robbery. The jury found defendant guilty of second degree
murder and unlawful possession of a firearm and found true the firearm enhancement
allegation attached to count one.
The trial court sentenced defendant to an indeterminate term of 15 years to life for
the murder conviction, plus a term of 25 years to life for the firearm enhancement, and a
concurrent determinate upper term of three years on the unlawful possession of a firearm.
Defendant timely appealed.5
5 Notice of appeal was filed July 13, 2021. Due to delays in the preparation of the
record, record augmentation, and multiple extensions of time being granted, the matter
was fully briefed on August 24, 2022.
4
DISCUSSION
I
Jury Instructions
Defendant contends the trial court erred by instructing the jury that if defendant
fled immediately after the crime was committed, that conduct might show consciousness
of guilt. (CALCRIM No. 372.) He claims there was not substantial evidence of flight
because the evidence showed he drove himself to the hospital for medical treatment for
his gunshot wounds, not to avoid arrest. Defendant also claims the trial court erred by
instructing the jury that if, in his testimony, defendant had failed to explain or deny any
adverse evidence that he could reasonably be expected to have explained or denied, that
failure could be considered in evaluating the evidence. (CALCRIM No. 361.) Defendant
again claims there is not substantial evidence to support this instruction because, although
he may have offered an implausible explanation of adverse evidence, that is not a failure
to explain or deny adverse evidence.
The People counter these claims are forfeited because defendant failed to object to
these instructions in the trial court. The People also contend there is substantial evidence
to support giving both instructions, and any error was harmless.
Initially, defendant acknowledges he did not object to these instructions in the trial
court, but contends his instructional claims are cognizable on appeal as they affected his
substantial rights. (§ 1259.)
“The rule of forfeiture does not apply . . . if the [jury] instruction was an incorrect
statement of the law [citation], or if the instructional error affected the defendant’s
substantial rights.” (People v. Franco (2009) 180 Cal.App.4th 713, 719.) “Substantial
rights” are equated with errors resulting in a miscarriage of justice under People v.
Watson (1956) 46 Cal.2d 818. (People v. Arredondo (1975) 52 Cal.App.3d 973, 978.)
“Ascertaining whether claimed instructional error affected the substantial rights of the
defendant necessarily requires an examination of the merits of the claim—at least to the
5
extent of ascertaining whether the asserted error would result in prejudice if error it was.”
(People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.) Accordingly, we will review
the merits of defendant’s instructional error claims.
A. Flight as Consciousness of Guilt
As given in this case, CALCRIM No. 372, states: “If the defendant fled
immediately after the crime was committed, that conduct may show that he was aware of
his guilt. If you conclude the defendant fled, it is up to you to decide the meaning and
importance of that conduct. However, evidence that the defendant fled cannot prove guilt
by itself.”
“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.]” (People v. Bradford (1997)
14 Cal.4th 1005, 1055.) Leaving the scene of the crime is not, alone, sufficient to
warrant giving the instruction. Rather, the circumstances must suggest the defendant’s
purpose in leaving is to avoid being observed or arrested. (People v. Bonilla (2007)
41 Cal.4th 313, 328.) It is not error to give a flight instruction where the evidence
suggests reasons for flight other than consciousness of guilt because the instruction
permits the jury to consider alternative explanations for flight and determine which
inference is more reasonable. (People v. Barnett (1998) 17 Cal.4th 1044, 1152-1153;
People v. Rhodes (1989) 209 Cal.App.3d 1471, 1477.)
Defendant shot Tellez multiple times at close range. He went back to his car and
drove away from the scene. He did not call for help for either himself or Tellez. On his
way to the hospital, defendant threw his gun out of the car window so he would not be
found with it. He arranged for the bloody car to be taken away from the hospital, and
ensured he did not have a large amount of cash on him when he checked in to the
hospital. In addition, while at the hospital, he lied to law enforcement officers regarding
his presence in the area where the shooting occurred. In their totality, these
6
circumstances were sufficient to permit the jury to consider whether defendant left the
crime scene to avoid being observed or arrested. That is all the prosecution was required
to establish to warrant the trial court giving the instruction. (People v. Bonilla, supra,41 Cal.4th at p. 328.) We find no error in giving CALCRIM No. 372.
B. Failure to Explain or Deny Adverse Evidence
The trial court also instructed the jury with CALCRIM No. 361, which states: “If
the defendant failed in his testimony to explain or deny evidence against him, and if he
could reasonably be expected to have done so based on what he knew, you may consider
his failure to explain or deny in evaluating that evidence. Any such failure is not enough
by itself to prove guilt. The People must still prove the defendant guilty beyond a
reasonable doubt. [¶] If the defendant failed to explain or deny it is up to you to decide
the meaning and importance of that failure.”
CALCRIM No. 361 should be given only when a testifying defendant completely
fails to explain or deny incriminating evidence or claims to lack knowledge despite the
evidence showing the defendant could reasonably be expected to have such knowledge.
(People v. Cortez (2016) 63 Cal.4th 101, 117.) CALCRIM No. 361 is not directed at the
defendant’s credibility as a witness, but to the reasonable inferences that may flow from a
testifying defendant’s silence when that defendant fails to explain or deny evidence
against them that is peculiarly within their knowledge. (Id. at pp. 117-119.) Because the
instruction is not directed at a defendant’s credibility, a defendant’s testimony that is
contradictory to other witnesses’ testimony or conflicts with the defendant’s extrajudicial
statements is not a failure to explain or deny warranting giving the instruction. (Id. at
pp. 117-118; People v. Saddler (1979) 24 Cal.3d 671, 683 (Saddler) [discussing
substantially similar language in CALJIC No. 2.62].) Similarly, an indirect or vague
answer, a failure to recall details, or implausible, bizarre, or unbelievable testimony is not
a failure to explain or deny and does not warrant giving the instruction. (Cortez, at
7
pp. 117-119; People v. Roehler (1985) 167 Cal.App.3d 353, 393 [discussing substantially
similar language in CALJIC No. 2.62].)
The People claim the instruction was supported by defendant’s claimed lack of
recall of topics in his police interviews; his failure to explain what happened to the
money he had available to purchase the marijuana; his failure to explain inconsistent
testimony about reaching for the van door with the same hand that was holding the gun;
and his failure to explain how the Camry was cleaned. These evidentiary gaps do not rise
to the level of a failure to deny or explain adverse evidence that was peculiarly within
defendant’s knowledge. Neither defendant’s inconsistent testimony describing the details
of the shooting nor his lack of recall of the statements he made to law enforcement is a
failure to explain, and they do not support giving the instruction. Moreover, defendant
did explain his lack of recall as being caused by the fact he had been lying to the officers.
As the People’s argument itself reflects, defendant did explain what happened to the
money—he said he placed it in the center console of the Camry. As for defendant’s
failure to explain how the Camry was cleaned, defendant was in custody when this
occurred. He testified Michelle told him she was going to have the car cleaned , but he
did not learn she had done that until trial. Information about what happened to the money
and how the Camry was cleaned was not peculiarly within defendant’s knowledge.
Because there was no evidence that supported the conclusion defendant failed to explain
or deny adverse evidence, the trial court erred in giving this instruction.
The parties disagree as to what standard applies to determine whether the
instructional error was prejudicial. Defendant claims the instructional errors reduced the
prosecutor’s burden of proof by permitting an unjustified inference and infringed upon
his right to present a meaningful defense. Based on these claims of federal constitutional
error, defendant claims we should evaluate the claimed errors under the standard of
prejudice in Chapman v. California (1967) 386 U.S. 18, namely, whether the error was
harmless beyond a reasonable doubt. The People argue any error is evaluated under the
8
state law standard of People v. Watson, supra, 46 Cal.2d 818, namely, whether, in the
absence of error, there is a reasonable probability of a more favorable result for
defendant.
Defendant cites no authority that error instructing with CALCRIM No. 361
implicates federal constitutional concerns or requires review under Chapman. Nor does
defendant cite any case that has applied that standard to a claim that there was
insufficient evidence to support giving an instruction. Indeed, courts have uniformly
applied the harmless error standard of Watson when reviewing claims of instructional
error pertaining to CALCRIM No. 361 and CALJIC No. 2.62. (See Saddler, supra,
24 Cal.3d at p. 683; People v. Vega (2015) 236 Cal.App.4th 484, 501; People v. Lamer
(2003) 110 Cal.App.4th 1463, 1471; People v. Roehler, supra, 167 Cal.App.3d at p. 393.)
This case presents no reason to depart from that uniformity of decision.
Instructional errors that warrant application of the Chapman standard of prejudice
are those which potentially infringe on a federal constitutional right or the defendant’s
due process rights, such as where the instruction improperly describes or omits an
element of an offense; misdescribes an alternative theory of guilt; lightens the burden of
proof; infringes on a defendant’s privilege against self-incrimination; raises an improper
presumption; or directs a finding or a partial verdict upon a particular element. (People v.
Hendrix (2022) 13 Cal.5th 933, 942-943; People v. Aledamat (2019) 8 Cal.5th 1, 3, 9;
Saddler, supra, 24 Cal.3d at pp. 678-680; see also People v. Flood (1998) 18 Cal.4th 470,
502-504.) These are claims that the instruction given incorrectly states the applicable
law. By contrast, when the claimed error is that the instruction correctly states the law
but has no application to the facts of the case (was not factually supported by evidence at
trial), we review the claim under the standard in Watson because a factual inadequacy is
something the jury is fully equipped to detect. (People v. Canizales (2019) 7 Cal.5th 591,
612-613; People v. Guiton (1993) 4 Cal.4th 1116, 1129-1130.)
9
Other than a bare assertion, defendant makes no argument that giving CALCRIM
No. 361 prevented him from presenting a complete defense and does not identify what
defense he was prevented from presenting. Defendant testified on his own behalf and
presented a detailed and thorough version of the facts, including his claim of self-defense.
He vigorously cross-examined Fierros and challenged the credibility of Fierros’s
testimony. We find no merit in the claim the instruction prevented defendant from
presenting his complete defense. Nor do we find CALCRIM No. 361 otherwise violated
defendant’s due process rights. The instruction does not remove, or incorrectly describe
an element of an offense. Nor does it raise an improper presumption or inference or
direct a particular finding. (Saddler, supra, 24 Cal.3d at pp. 679-680.) Because we find
no federal constitutional error, and the instruction correctly states the law, but had no
application to the facts of the case, we apply the Watson harmless error standard.
Any harmful impact of CALCRIM No. 361 was mitigated by the language of the
instruction itself. It applies only if the jury finds a failure to explain or deny evidence.
Even then, the instruction makes clear that such a finding does not create a presumption
of guilt or by itself warrant an inference of guilt; nor does it relieve the prosecution of the
burden of proving every essential element of the crime beyond a reasonable doubt; and it
leaves the meaning and importance of defendant’s failure to explain or deny to the jury.
(People v. Ballard (1991) 1 Cal.App.4th 752, 756-757.) The potential harm of the
instruction was further mitigated by CALCRIM No. 200, which instructed the jury
“[s]ome of these instructions may not apply, depending upon your findings about the
facts of the case. After you’ve decided what the facts are, follow the instructions that do
apply to facts as you find them.” We presume the jury followed this instruction. (People
v. Vega, supra, 236 Cal.App.4th at pp. 502-503.) Consequently, if the jury found that
defendant did explain and deny the evidence against him, we can assume the jury
disregarded this instruction and defendant cannot have suffered any prejudice.
10
Lastly, in closing argument, although the People argued factors relating to
defendant’s credibility, such as his admittedly false statements to law enforcement, prior
inconsistent statements, self-interest, and the implausibility of his testimony, those issues
were the subject of other jury instructions. The People did not argue defendant failed to
deny or explain evidence and did not reference this instruction. We cannot conclude it is
reasonably probable that defendant would have obtained a more favorable result if this
instruction had not been given. Accordingly, the error was harmless.
II
Senate Bill No. 567
Defendant contends we must remand for resentencing because the trial court’s
imposition of an upper term sentence on the unlawful possession of a firearm conviction
did not satisfy the new requirements of section 1170, subdivision (b), added by Senate
Bill No. 567 (2021-2022 Reg. Sess.). The People agree.
A. Background
The probation report indicates defendant was granted five years’ formal probation
in 2016. A violation of probation petition was filed and found true after the jury verdicts
in this case.6 Based on the testimony in this case, the trial court found defendant had
violated his probation in the earlier case.
At the sentencing hearing, relying exclusively on the probation report, the trial
court weighed factors in aggravation and mitigation. In aggravation, the court found:
The crime involved great violence and demonstrated a high degree of callousness;
defendant engaged in violent conduct indicating a serious danger to society; defendant’s
prior convictions as an adult were numerous or of increasing seriousness; and defendant
was on probation at the time of the offense. As a factor in mitigation, the court noted
6 The violation of probation petition itself is not included in our record on appeal, but the
true finding is.
11
defendant was youthful, age 25, at the time of the offense.7 In imposing the upper term
sentence, the trial court did not give particular weight to any of these circumstances.
B. Analysis
While defendant’s appeal was pending, the Legislature enacted Senate Bill
No. 567, which took effect on January 1, 2022. Among other things, the bill amended
section 1170, subdivision (b) to impose new requirements for trial courts selecting among
three possible sentences for an offense. (Stats. 2021, ch. 731, § 1.3.)
As amended, section 1170, subdivision (b) provides that aggravating
circumstances now justify the imposition of an upper term sentence only if “the facts
underlying those circumstances have been stipulated to by the defendant, or have been
found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.”
(§ 1170, subd. (b)(2), as amended by Stats. 2021, ch. 731, § 1.3.) The amended statute
also adds a third acceptable method of factfinding, permitting courts to “consider the
defendant’s prior convictions in determining sentencing based on a certified record of
conviction without submitting the prior convictions to a jury.” (§ 1170, subd. (b)(3).)
The amended statute now also provides circumstances in which the lower term is the
presumptive term when those circumstances have been a contributing factor in the
commission of the offense. Those mitigating circumstances include when the defendant
“has experienced psychological, physical, or childhood trauma, including, but not limited
to, abuse, neglect, exploitation or sexual violence” (§ 1170, subd. (b)(6)(A)) and when
7 The probation report indicates defendant was 25 years old at the time of the offense
and reflects his birthday as December 10, 1991. The indeterminate term abstract of
judgment indicates defendant’s date of birth is November 4, 1995, and the determinate
term abstract of judgment indicates defendant’s birthday is October 1, 1989. The offense
took place on July 3, 2017. If October 1, 1989, is defendant’s birthday, he would not be a
youthful offender. If it is either of the other two dates, he is now presumptively entitled
to a lower term sentence under section 1170, subdivision (b)(6).
12
the defendant was under 26 years old when the offense was committed (§ 1170, subd.
(b)(6)(B)).
None of the aggravating circumstances relied on by the trial court here were
properly considered and proven as required by amended section 1170, subdivision (b).
Defendant did not stipulate to the underlying facts supporting the aggravating factors,
neither a jury nor a judge found the underlying facts true beyond a reasonable doubt, and
none of the aggravating factors fell within the exception found in amended section 1170,
subdivision (b)(3). Thus, resentencing is required unless we find the error was harmless.
The law requires a two-step analysis for determining harmless error: (1) whether
the court could impose the aggravated term under the Sixth Amendment; and (2) whether
the court would impose the aggravated term under section 1170. (People v. Zabelle
(2022) 80 Cal.App.5th 1098, 1112.) We review the first question for prejudice under the
standard described in Chapman and the second under the standard in Watson. (Id. at
pp. 1112-1113.)
As a first step, there is little doubt defendant was on probation at the time of the
offense and that this could have been established in a statutorily permissible manner.
Following the jury verdicts, the trial court found defendant had violated his probation.
The violation of probation was based on defendant’s criminal conduct in this case. It is
an obvious predicate fact to finding a probation violation that defendant was on probation
at the time. Thus, defendant was on probation when he committed these offenses. We
are mindful that the standard of proof for a violation of probation is a preponderance of
the evidence (People v. O’Connell (2003) 107 Cal.App.4th 1062, 1066), but the jury
verdicts indicate the facts supporting the violation of probation were found true beyond a
reasonable doubt. Defendant did not, and does not, challenge the probation violation
finding. Accordingly, we find, “beyond a reasonable doubt, that the jury, applying the
beyond-a-reasonable-doubt standard, unquestionably would have found true” this
13
aggravating circumstance “had it been submitted to the jury.” (People v. Sandoval
(2007) 41 Cal.4th 825, 839.)
As to the second step in our analysis, we conclude there is a reasonable probability
the trial court would have imposed a more favorable sentence if it had not relied on
aggravating factors that were not proven in accordance with the newly amended statute.
Even if we conclude a jury would have found the aggravating factors that defendant’s
prior convictions as an adult were numerous and of increasing seriousness, as those
convictions are reflected in the probation report, we cannot reach such a conclusion as to
whether defendant’s crimes involved great violence and demonstrated a high degree of
callousness and whether he poses a “serious” danger to society. These circumstances
involve vague and subjective determinations, and we cannot be confident a jury would
have assessed the facts in the same manner as the trial court did. (People v. Sandoval,
supra, 41 Cal.4th a p. 840.)
Further, and importantly, there was evidence that would have supported a
presumptive lower term sentence under section 1170, subdivision (b)(6). The probation
report indicated defendant was under the age of 26 at the time of the crime. The court
noted defendant’s youth as a mitigating factor but did not consider that factor in light of
the now presumptive low term sentence. (§ 1170, subd. (b)(6)(B).) In addition, there
was evidence defendant was declared a ward of the court in 2006; placed out of his home
from 2007 to 2012; began using drugs at age 15; and participated in drug counseling in
2013. This is suggestive of childhood or psychological trauma. (§ 1170, subd.
(b)(6)(A).)
The trial court did not have the benefit of section 1170, subdivision (b)(6) at the
time of defendant’s sentencing hearing and as such, did not conduct the analysis required
of that section. When the trial court imposed sentence, defendant was not entitled to a
presumptive lower term as a result of his youth at the time of the offense or upon a
showing that childhood or psychological trauma was a “contributing factor in the
14
commission” of his offenses. (§ 1170, subd. (b)(6).) Defendant had less incentive to
develop (or clarify) the record regarding these issues. By the same token, the trial court
had less incentive to assess whether psychological or childhood trauma was a
contributing factor. (See People v. Banner (2022) 77 Cal.App.5th 226, 242 [“record is
likely incomplete relative to statutory factors enacted after judgment [is] pronounced”],
citing People v. Frahs (2020) 9 Cal.5th 618, 637-638.) When a sentencing court is
unaware of the scope of its discretionary powers, “the appropriate remedy is to remand
for resentencing unless the record ‘clearly indicate[s]’ that the trial court would have
reached the same conclusion ‘even if it had been aware that it had such discretion.’ ”
(People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) The record before us does not make
it clear that the trial court would have imposed the upper term had section 1170,
subdivision (b)(6) been in effect at the time. (Banner, at p. 242.) Accordingly, we must
vacate the sentence and remand for resentencing.
III
Assembly Bill No. 1869
Defendant contends the booking fee and jail classification fees imposed under
former Government Code section 29550.2 must be vacated in light of Assembly Bill
No. 1869 (2019-2020 Reg. Sess.). The People agree. Because we vacate the sentence
and remand for resentencing, we need not address this claim. We note, however, on
resentencing, these fees may no longer be imposed. (Assem. Bill No. 1869; Stats. 2020,
ch. 92, § 2 [repealing Gov. Code, § 29550.2].)
IV
Errors in Abstract of Judgment
Defendant also raises claims regarding errors in the abstracts of judgment. The
People agree. Because we remand the matter for resentencing, the parties may address
these issues to the trial court in the first instance.
15
DISPOSITION
The judgment of conviction is affirmed. The sentence is vacated, and the matter is
remanded to the trial court for full resentencing, in light of the new legislation. (People
v. Buycks (2018) 5 Cal.5th 857, 893.)
/s/
EARL, J.
We concur:
/s/
ROBIE, Acting P. J.
/s/
RENNER, J.
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