People v. Smith CA2/7 ( 2020 )

Filed 9/9/20 P. v. Smith CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B290425
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA141321)
v.
JUSTIN SMITH et al.,
Defendants and
Appellants.
APPEALS from judgments of the Superior Court of
Los Angeles County, Patrick Connolly, Judge. Convictions
affirmed; remanded for resentencing.
Joy A. Maulitz, under appointment by the Court of Appeal,
for Defendant and Appellant Justin Glen Smith.
Marta I. Stanton, under appointment by the Court of
Appeal, for Defendant and Appellant Kobe Kincherlow.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Senior Assistant
Attorney General, Paul M. Roadarmel, Jr. and Stephanie A.
Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
____________________________________
Justin Glen Smith and Kobe Kincherlow appeal from
judgments entered after a jury convicted them each of crimes
arising from their participation in a scheme to extort money from
a recycling center in south Los Angeles and found true related
weapon and criminal street gang enhancements. We affirm the
convictions and remand the matters for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Amended Information
Smith and Kincherlow were charged with one count of
conspiracy to commit extortion (Pen. Code, § 182, subd. (a)(1))1
(count 1); one count of second degree robbery (§ 211) (count 4);
one count of assault with an assault weapon (§ 245, subd. (a)(3))
(count 6); one count of assault with a semiautomatic firearm
(§ 245, subd. (b)) (count seven); and one count of extortion (§ 520)
(count 17). Smith and Kincherlow were also charged with
one count each of possession of a firearm by a felon (§ 29800,
subd. (a)(1)) (count 8, Kincherlow) (count 16, Smith).
As to counts 1, 4, 6, 7 and 17, it was alleged the crimes were
committed for the benefit of, at the direction of, or in association
with a criminal street gang (§ 186.22, subd. (b)). It was further
alleged as to counts 1, 4 and 17 that a principal was armed with a
1 Statutory references are to this code.
2
firearm (§ 12022, subd. (a)(1)) and as to count 4 that a principal
had personally used a firearm (§ 12022.53, subds. (b), (e)(1)).
Kincherlow was alleged to have suffered three prior
convictions for serious or violent felonies within the meaning of the
three strikes law (§§ 667, subds. (b)-(i), 1170.12), and three serious
felony convictions arising out of the same case under section 667,
subdivision (a), and had served five prior prison terms (§ 667.5,
subd. (b)). As to Smith, the information alleged he had suffered
one prior serious or violent felony conviction under the
three strikes law and had served one prior prison term.
2. Trial Testimony
The East Coast Crips is a large criminal street gang with
approximately 1,000 members in Los Angeles. Its primary
activities include vandalism, theft, narcotics sales, weapons
possession, burglaries, robberies, assaults with firearms,
attempted murder and murder. Smith and Kincherlow belonged
to the Quetorius 102 subset of the East Coast Crips (Q102’s),
whose territory ranged at the time of trial from 103rd Street to
the south, 99th Street or Century Boulevard to the north,
Stanford or McKinley Avenues to the east and Wall or Main
Streets to the west. Smith was known as “Baby Hitman,” and
Kincherlow was known as “Sleep.” Smith’s older brother, Daivon
Lewis, known as “Little Hitman,” was tried with Smith and
Kincherlow and was also convicted of multiple crimes related to
the Q102’s plan to extort, or “tax,”2 businesses along South Main
Street.3
2 According to the People’s gang expert, the term “taxing”
meant extortion. Gang members require individuals to pay
money to conduct business in the neighborhood without
3
In July 2016 Smith, Kincherlow, Lewis and several of their
fellow gang members developed a plan to tax the business next to
Eco Recycling on South Main Street. Chanel Grant, who testified
for the People pursuant to a negotiated plea agreement, had seen
people moving equipment for growing marijuana into the
building. When Grant knocked on the door and asked what was
going on, a man threatened her with a gun and told her to mind
her own business. Grant told Smith, Kincherlow and Lewis
about the incident, and they accompanied her to the grow house.
The man who had threatened Grant was not there; but the gang
members learned the grow house was owned by the brother-in-
law of Hector Sanchez, the owner of the business next door, Eco
Recycling. Sanchez offered to set up a meeting with his brother-
in-law.
When Sanchez failed to set up the meeting with the owner
of the grow house, the gang members directly approached him.
Kincherlow told him an agreement would have to be reached for
pulling a gun on Grant. Kincherlow and Lewis reported to the
other gang members the owner had agreed to pay five pounds of
marijuana and $10,000 per month to compensate the gang and to
continue to operate in the neighborhood. Sanchez would handle
the agreement on behalf of the owner.
Sanchez again delayed, telling Kincherlow and Lewis he
did not have the money. Eventually he provided Kincherlow with
some money and marijuana on behalf of the grow house, which
was shared among the gang members. The amount of money and
interference from the gang. Sometimes, the gang also offers
protection in exchange for the money.
3 Lewis has separately appealed his convictions. (See People
v. Lewis (Sept. 9, 2020, B296286) [nonpub. opn.].)
4
marijuana was less than the amount agreed upon, however, so
Kincherlow returned to Eco Recycling. Sanchez again put him
off. The gang members concluded Sanchez was taking a cut of
the amount they were to be paid and decided he would have to
pay what was still owed or face retaliation. Although Grant did
not accompany Kincherlow, Lewis and Smith when they again
visited Sanchez at Eco Recycling, they told her when they
returned that Smith had taken two guns, including an AR-15
assault weapon, from Sanchez. They did not tell Grant they had
taken cash from Sanchez.
When Sanchez testified, he denied any knowledge of a grow
house next door. He had been approached in June 2016 by
Kincherlow, Smith, Lewis and Grant, who claimed she had been
threatened at gunpoint at the business next door. Kincherlow
told Sanchez he represented all Crips and, if Sanchez wanted to
stay in business, he would have to pay money. Sanchez denied
anyone associated with his business had pointed a gun at Grant
but agreed to talk to Kincherlow and Lewis the next day. The
next day Kincherlow and Lewis demanded $2,000 for the incident
with Grant and monthly payments of the same amount to operate
his recycling business. After that conversation Sanchez
purchased and installed security cameras outside the Eco
Recycling office.
Throughout the rest of June Sanchez resisted Kincherlow
and Lewis’s requests for money by inviting them to smoke and
drink with him but claiming he had not received money from his
brother-in-law. He testified he was afraid of the gang and used a
friendly demeanor to defuse the situation. Sometime in July
Kincherlow and Lewis told Sanchez he owed money for June and
July, as well as penalties, and demanded he pay $10,000.
5
On July 27, 2016, after having been rebuffed multiple
times, Kincherlow and Lewis entered the Eco Recycling office and
demanded money. Sanchez, feeling threatened, did not resist
when Lewis took approximately $7,100 from a desk drawer, put it
in a bag and left.4 Half an hour later, Lewis returned,
accompanied by Smith and another gang member, James
Thompson, and demanded another $3,000. Kincherlow followed a
few minutes later. Smith had a pistol, and Thompson had an
assault rifle he held down at his side. Smith threatened Sanchez
and pointed his pistol at Sanchez’s employee, Deandrey Perry.
Thompson stood behind Smith, blocking the door. Smith began
opening drawers and took a .40 caliber gun that belonged to
Sanchez. Kincherlow told Smith to calm down and not to take
the gun, but Smith refused to give it back. Kincherlow, Lewis
and Thompson left the office, but Smith continued to make
threats and told Sanchez he would need to pay $3,100 to get his
gun back. As Smith walked out of the office, he stumbled, turned
around and pointed two guns at the office doorway before
leaving.5 Sanchez believed Smith was waiting to shoot them if
they left the office.
4 Los Angeles Police Detective Christian Mrakich testified
Sanchez had told him two men searched his office and took the
money from a cashbox on his desk.
5 Perry testified he had been counting money when
Kincherlow and Lewis first entered the Eco Recycling office.
Although he did not see them take the money, he later noticed it
was gone. When Smith entered, he had his hand in his pocket as
though he was carrying a gun. Thompson stood with a stiff leg as
if he had something large in his pants. Later, Smith had a gun in
his hand as he threatened Sanchez and Perry and said he could
kill both of them if he wanted. After the gang members left,
6
Sanchez closed the recycling center after the incident. He
eventually reported the crime to the police and provided the video
surveillance footage, which was played for the jury. The video
showed, when entering the office, Smith had his hands in his
pockets as if he was concealing a weapon; and Thompson walked
stiffly. After leaving, Smith withdrew two semiautomatic
handguns from his pockets and aimed them at the door;
Thompson held an automatic rifle, which he then thrust down his
pant leg.
Los Angeles Police Detective Christian Mrakich testified
Lewis, Kincherlow, Smith and Thompson had been identified in
the video by local officers familiar with the Q102’s and arrested.
Mrakich, who explained his investigation corroborated Grant’s
testimony, also stated Grant told him she had stolen a stainless
steel .44 caliber revolver in a house burglary, which she then sold
to Kincherlow. A stainless steel .44 caliber revolver was later
recovered from an unlocked storage shed associated with
Kincherlow’s apartment.6
Lewis was the only defendant to testify about the Eco
Recycling shakedown. Lewis admitted he, Smith and Kincherlow
were members of the East Coast Crips Q102’s. According to
Lewis, after Grant told him someone at the grow shop had pulled
Perry saw Smith on the live video feed pointing his weapons at
him and Sanchez through the door.
6 The revolver was found in a black backpack along with
ammunition, a black ski mask, handcuffs, plastic gloves and a
box of condoms. The same brand of condoms was found in
Kincherlow’s wallet when he was arrested. The revolver’s serial
number matched the serial number of the weapon reported stolen
in the burglary described by Grant.
7
a gun on her, he and Kincherlow accompanied her to speak with
the owner of the shop. The owner told them to step around to
speak with his business partner (Sanchez) at Eco Recycling. The
grow shop owner explained the situation to Sanchez, who invited
Lewis and Kincherlow to come back the next day to discuss
amends. According to Lewis, no threats were made; and the tone
of the conversation was civil. The next day Sanchez told them
the security guard who had threatened Grant would be fired and
Sanchez and his business partner would sell them marijuana at a
cheap price. Soon after, Sanchez, who was friendly to them,
shared samples of the marijuana as they smoked and drank at
the Eco Recycling office. Lewis bought marijuana from Sanchez
multiple times and sold it to his clients. He arranged to buy a
pound of marijuana for Smith and paid Sanchez $1,600 in
advance. Lewis and Kincherlow received the marijuana from
Sanchez; but, when Smith examined it, he told Lewis the amount
was short.
Lewis returned to the Eco Recycling office. Perry was
sitting near the door with a gun on his lap. Sanchez had a rifle,
and another handgun was on a desk. Lewis told Sanchez the
marijuana was short and asked to swap it for another bag sitting
on the table. Sanchez refused. Smith then walked in, visibly
angry, followed by Thompson (although Lewis did not see either
with a weapon). Perry, responding to Smith’s aggressive manner,
issued a gang challenge and announced he was a member of the
Pueblo Bishop Bloods. Sanchez told everyone to “chill” and “be
cool” and offered to ask the grow shop owner why the marijuana
was short. Kincherlow walked in, and Sanchez told him to get
control of his boys. Thompson asked why Perry and Sanchez had
weapons and if they were being set up. Sanchez denied it was a
8
setup and said he could not reach the grow shop owner. He
offered his M-15 rifle to Thompson to hold as collateral. Lewis
left and assumed his fellow gang members left with him.
3. Verdicts and Sentencing
The jury found the defendants guilty on all counts and
found true the special gang and firearm allegations except the
allegation against Kincherlow on count 4 that a principal had
personally used a firearm (§ 12022.53, subds. (b) & (e)(1)).
Kincherlow and Smith admitted their prior convictions and
prison terms in bifurcated proceedings.
The trial court sentenced Smith as a second strike offender
to an indeterminate term of 14 years to life plus an aggregate
determinate term of 42 years eight months. The sentence
consisted of a life term, with the minimum term doubled
(14 years to life), plus 10 years for the firearm enhancement for
conspiracy to commit extortion, with consecutive terms of
10 years for robbery, plus 10 years for the firearm enhancement;
four years for assault with a semiautomatic firearm, plus one
year four months for the firearm enhancement; and 16 months
for possession of a firearm by a felon; plus five years for the prior
serious felony enhancement and one year for the prior prison
term enhancement. The court imposed concurrent sentences of
17 years for assault with an assault weapon with enhancements
plus 10 years for extortion with enhancements.
The trial court denied Kincherlow’s Romero motion7 to
dismiss two of his three prior strikes because the offenses arose
7 People v. Superior Court (Romero) (1996) 13 Cal.4th 497,
529-531.
9
from a single act involving a single victim.8 The court sentenced
Kincherlow as a third strike offender to 25 years to life for
robbery, plus 10 years for the gang enhancement and one year for
the firearm enhancement; plus a consecutive term of 14 years to
life as a second strike offender for conspiracy to commit extortion
to benefit a criminal street gang; plus five years for the prior
serious felony conviction (aggregating 55 years to life). The court
imposed concurrent sentences of 22 years for assault with an
assault weapon with enhancements, 24 years for assault with a
semiautomatic weapon with enhancements, three years for
possession of a firearm by a felon and life plus one year for
extortion with enhancements.
The court imposed $240 in court operation assessments and
$180 in court construction fees on each defendant and a
restitution fine of $5,000.
CONTENTIONS
Smith and Kincherlow challenge as insufficient the
evidence supporting several of their convictions and contend the
trial court’s decision to replace a juror during deliberations was
improper. In addition, they argue certain aspects of their
sentences are improper, and Kincherlow contends the court
abused its discretion by failing to dismiss two of his prior strike
convictions under People v. Superior Court (Romero) (1996)
13 Cal.4th 497 (Romero). Finally, Smith and Kincherlow contend
the court erred by imposing assessments, fees and fines without
first determining their ability to pay, as discussed in this court’s
8 The court also denied as untimely the prosecutor’s effort to
introduce an additional strike conviction from 2007.
10
decision in People v. Dueñas (2019) 30 Cal.App.5th 1157(Dueñas).
DISCUSSION
1. Substantial Evidence Supports Kincherlow’s Conviction
for Robbery Under a Natural and Probable
Consequences Theory
The robbery charge was based on Smith’s theft of Sanchez’s
gun. Kincherlow argues he cannot be culpable for aiding and
abetting Smith’s crime because he tried to stop Smith from
taking the gun and sought to defuse the tension created when
Smith began threatening Sanchez and Perry. Under the
prosecutor’s theory of the case, however, Kincherlow was guilty
because the robbery was a natural and probable consequence of
the conspiracy to extort Eco Recycling. “‘“‘Each member of the
conspiracy is liable for the acts of any of the others in carrying
out the common purpose, i.e., all acts within the reasonable and
probable consequences of the common unlawful design.’”’”
(People v. Maciel (2013) 57 Cal.4th 482, 515, citations omitted;
see People v. Guillen (2014) 227 Cal.App.4th 934, 998 [“each
member of a conspiracy is criminally responsible for the acts of
fellow conspirators committed in furtherance of and which follow
as a natural and probable consequence of, the conspiracy, even
though such acts were not intended by the conspirators as part of
their common unlawful design”].)
“[U]nder the natural and probable consequences doctrine,
an aider and abettor is guilty not only of the intended crime, but
also ‘for any other offense that was a “natural and probable
consequence” of the crime aided and abetted.’” (People v.
McCoy (2001) 25 Cal.4th 1111, 1117.) “‘The latter question is not
whether the aider and abettor actually foresaw the
11
additional crime, but whether, judged objectively, it
was reasonably foreseeable. [Citations.] Liability under the
natural and probable consequences doctrine ‘is measured by
whether a reasonable person in the defendant’s position would
have or should have known that the charged offense was a
reasonably foreseeable consequence of the act aided and
abetted.’” (People v. Medina (2009) 46 Cal.4th 913, 920; accord,
People v. Robins (2020) 44 Cal.App.5th 413, 422.) “‘[T]o be
reasonably foreseeable “[t]he consequence need not have been a
strong probability; a possible consequence which might
reasonably have been contemplated is enough . . . .” [Citation.]’
[Citation.] A reasonably foreseeable consequence is to be
evaluated under all the factual circumstances of the individual
case [citation] and is a factual issue to be resolved by the jury.”
(Medina, at p. 920; Robins, at p. 422.) We review a jury’s finding
for substantial evidence.9
9 In considering a claim of insufficient evidence in a criminal
case, “‘we review the whole record to determine whether any
rational trier of fact could have found the essential elements of
the crime . . . beyond a reasonable doubt. [Citation.] The record
must disclose substantial evidence to support the verdict—
i.e., evidence that is reasonable, credible, and of solid value—such
that a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt. [Citation.] In applying this test, we
review the evidence in the light most favorable to the prosecution
and presume in support of the judgment the existence of every
fact the jury could reasonably have deduced from the evidence.
[Citation.] “Conflicts and even testimony [that] is subject to
justifiable suspicion do not justify the reversal of a judgment, for
it is the exclusive province of the trial judge or jury to determine
the credibility of a witness and the truth or falsity of the facts
upon which a determination depends. [Citation.] We resolve
12
There is little question the jury could find the robbery of
the gun was a reasonably foreseeable consequence of the
conspiracy to extort Eco Recycling. Kincherlow and Lewis had
forced Sanchez to give up more than $7,000 in cash only half an
hour before Smith and Thompson entered the office armed and
ready to take the additional money the gang members believed
Sanchez owed them. Kincherlow may have harbored doubts
about Smith’s aggressive approach and seizure of the gun; but he,
along with Lewis, had led the conspiracy to extort Eco Recycling,
meeting repeatedly with the reluctant Sanchez and pushing him
to pay up.10 Kincherlow argues the jury’s questions and requests
for readback of testimony indicate their discomfort with finding
him guilty of robbery. That is indeed the probable basis for the
jury’s finding of not true for Kincherlow on the related firearm-
use allegation, but it bears no further weight.
neither credibility issues nor evidentiary conflicts; we look for
substantial evidence. [Citation.]” [Citation.] A reversal for
insufficient evidence “is unwarranted unless it appears ‘that
upon no hypothesis whatever is there sufficient substantial
evidence to support’” the jury’s verdict.’” (People v. Penunuri
(2018) 5 Cal.5th 126, 142; accord, People v. Zamudio (2008)
43 Cal.4th 327, 357.)
10 Kincherlow’s citation to cases standing for the limited
proposition that a defendant’s mere presence at the scene of a
crime is insufficient to sustain a conviction (see, e.g., People v.
Miranda (2011) 192 Cal.App.4th 398, 407) is misleading. The
court in Miranda similarly affirmed a defendant’s conviction for
aiding and abetting a robbery on precisely the same grounds as
present here. (Id. at pp. 408-409.)
13
2. Substantial Evidence Supports the Convictions for
Assault with an Automatic Weapon
Kincherlow and Smith each contend insufficient evidence
supported their convictions for assault with an automatic weapon
because the evidence failed to establish Thompson pointed the
rifle at Sanchez or Perry or that the weapon was loaded and
operational.
To prove a defendant committed assault with an assault
weapon pursuant to section 245, subdivision (a)(3), the
prosecution must establish the defendant willfully performed an
act with such a firearm with the present ability to apply force
with that firearm. (§§ 240, 245, subd. (a)(3); see People v.
Williams (2001) 26 Cal.4th 779, 787.) It is enough for the
defendant to have had “only a general criminal intent and not a
specific intent to cause injury.” (Williams, at p. 782;
accord, People v. Chance (2008) 44 Cal.4th 1164, 1169.)
“[A]ssault only requires an intentional act and actual knowledge
of those facts sufficient to establish that the act by its nature will
probably and directly result in the application of physical force
against another.” (Williams, at p. 790.)
Certain purposeful acts have long been recognized as
assaultive conduct because of their inherent danger to others:
“‘Holding up a fist in a menacing manner, drawing a sword, or
bayonet, presenting a gun at a person who is within its range,
have been held to constitute an assault.’” (People v. Colantuono
(1994) 7 Cal.4th 206, 219, quoting People v. McMakin (1857)
8 Cal. 547, 548; see People v. Rivera (2019) 7 Cal.5th 306, 333
[intentional display of a firearm in a menacing manner may be
enough to establish assault].) As McMakin explains, “The
drawing of a weapon is generally evidence of an intention to use
14
it. Though the drawing itself is evidence of the intent, yet that
evidence may be rebutted when the act is accompanied with a
declaration, or circumstances, showing no intention to use it. But
when the party draws the weapon, although he does not directly
point it at the other, but holds it in such a position as enables
him to use it before the other party could defend himself, at the
same time declaring his determination to use it against the other,
the jury are fully warranted in finding that such was his
intention.” (McMakin, at p. 549; accord, People v. Chance, supra,44 Cal.4th at p. 1172 [assault does not require a direct attempt at
violence, “‘any indirect preparation towards it . . . such as
drawing a sword or bayonet, or even laying one’s hand upon his
sword, would be sufficient’”]; see People v. Raviart (2001)
93 Cal.App.4th 258, 263 [“[a]ssault with a deadly weapon can be
committed by pointing a gun at another person [citation], but it is
not necessary to actually point the gun directly at the other
person to commit the crime”].)
As to the operational capacity of the gun at the time of the
offense, the Supreme Court has long allowed fact finders to infer
a firearm is operational and loaded from the defendant’s conduct.
(See People v. Rodriguez (1999) 20 Cal.4th 1, 12-13 (Rodriguez).)
In Rodriguez the Supreme Court overturned a court of appeal
decision that had reversed an assault conviction for the
prosecutor’s failure to prove the firearm was loaded. The
Supreme Court reminded the appellate court it was obligated to
review the record in the light most favorable to the judgment:
“‘“If the circumstances reasonably justify the trier of fact’s
findings, the opinion of the reviewing court that the
circumstances might also reasonably be reconciled with a
contrary finding does not warrant a reversal of the judgment.”’”
15
(Id. at p. 11.) The Court declined to address the longtime rule
that “an assault is not committed by a person’s merely pointing
an (unloaded) gun in a threatening manner at another person”
(id. at p. 11, fn. 3), and instead focused on “the required quantum
of circumstantial evidence necessary to demonstrate present
ability to inflict injury and thus to sustain a conviction of assault
with a firearm” (ibid.). In the absence of direct evidence, the
Court concluded, “A defendant’s own words and conduct in the
course of an offense may support a rational fact finder’s
determination that he used a loaded weapon.” (Id. at p. 13.)
Because the defendant had pointed his gun in the face of the
victim and threatened to kill him as he had another victim the
preceding day, the Court affirmed the conviction, concluding it
could not find the jury had been unreasonable. (Ibid.)
Several courts have chafed at the Rodriguez Court’s refusal
to overrule the requirement of circumstantial evidence a firearm
was operational (see, e.g., People v. Lochtefeld (2000)
77 Cal.App.4th 533, 542, fn. 10 [calling the rule an “anachronism”
and urging the Supreme Court to reexamine it and discard it];
see also People v. Miceli (2002) 104 Cal.App.4th 256, 269 [citing
Lochtefeld]), but the Supreme Court has declined to do so.
(See People v. Penunuri (2018) 5 Cal.5th 126, 147 [acknowledging
the traditional rule, but following Rodriguez: “[T]he fact that the
gun was loaded may be inferred from circumstantial evidence,
and we will uphold an assault conviction if the inference is
reasonable”].)
In this case the evidence showed that Thompson followed
Smith into the Eco Recycling office, walking in a stiff-legged
manner, shortly after Lewis and Kincherlow had taken $7,000
from Sanchez. Thompson withdrew the assault rifle from his
16
pant leg and held it pointing at the floor while blocking the door,
preventing Sanchez and Perry from leaving. Smith, who was also
armed, threatened Sanchez and Perry, by stating he and his gang
members could just kill them unless they produced additional
cash. Sanchez and Perry each testified he was frightened by the
weapons and did not move when Smith opened the drawer and
removed Sanchez’s gun. Although there is no testimony
Thompson pointed the assault rifle at Sanchez or Perry, there
was ample evidence from which the jury could reasonably
conclude Thompson was prepared to use the rifle immediately if
necessary and it was fully operational. Under these
circumstances we may not second-guess the jury’s conclusion
Smith and Kincherlow were guilty of assault with an automatic
weapon.
3. Substantial Evidence Supports Kincherlow’s Conviction
for Possession of a Firearm by a Felon
Section 29800, subdivision (a)(1), states, “Any person who
has been convicted of . . . a felony . . . and who owns, purchases,
receives, or has in possession or under custody or control any
firearm is guilty of a felony.” The elements of this offense are
conviction of a felony and ownership or knowing possession,
custody or control of a firearm. (People v. Blakely (2014)
225 Cal.App.4th 1042, 1052; People v. Snyder (1982) 32 Cal.3d
590, 592 [former § 12021, subd. (a)(1)].) Possession may be actual
or constructive. “‘A defendant has actual possession when the
weapon is in his [or her] immediate possession or control,’” that
is, when he or she is actually holding or touching it. (Blakely, at
p. 1052; see People v. Montero (2007) 155 Cal.App.4th 1170,
1179.) “To establish constructive possession, the prosecution
must prove a defendant knowingly exercised a right to control the
17
prohibited item, either directly or through another person.”
(People v. Sifuentes (2011) 195 Cal.App.4th 1410, 1417,
disapproved on another ground in People v. Farwell (2018)
5 Cal.5th 295, 304, fn. 6.) “A firearm can be under a person’s
dominion and control without it being available for use.”
(Blakely, at p. 1052.)
Kincherlow does not dispute he lived in the apartment
adjoining the carport where the .44 caliber handgun was found but
contends there was no direct evidence linking him to the weapon.
He asserts his teenage stepson also had access to the unsecured
locker. However, joint dominion or control is sufficient to establish
the crime (People v. Miranda (2011) 192 Cal.App.4th 398, 410), and
“constructive possession can be established by circumstantial
evidence and the reasonable inferences drawn therefrom” (id. at
p. 411). The weapon recovered from the locker had previously been
reported as stolen, a fact that aligns with Grant’s testimony she
sold Kincherlow a stainless steel .44 caliber handgun she had stolen
in a burglary. The fact the backpack contained the same brand of
condoms as found in Kincherlow’s wallet when he was arrested
further supports the inference Kincherlow had exercised control
over the weapon. In short, the jury had sufficient evidence to
conclude he was in possession of the firearm.
4. The Trial Court Did Not Abuse Its Discretion by
Discharging Juror No. 5
a. The jurors’ complaints and the removal of Juror No. 5
On the second day of deliberations the presiding juror sent a
note complaining that Juror No. 5 was allowing past experiences to
affect his decisions and did not seem to know the facts presented at
trial. The court informed counsel of the note and indicated its
intention to question the presiding juror and, possibly, other jurors.
18
The presiding juror, Juror No. 6, advised the court that Juror No. 5
had discussed an experience with a police officer and indicated his
belief police officers are not always truthful. Juror No. 6 also stated
Juror No. 5 had not paid attention to the evidence, was not familiar
with it and appeared confused. When the court explained it was
not concerned with whether Juror No. 5 believed or disbelieved
witnesses, Juror No. 6 stated Juror No. 5 was not considering the
evidence. The court determined no additional inquiry was needed.
The following day, the presiding juror sent a second note:
“Multiple jurors have concerns about Juror [No. 5]. We have
noticed he is not focused on the case. He has been observed not
following the case, falling asleep. He did not know which defendant
or attorney is which. He told us he had [a] son that was an officer
but later denied stating it. He also asked if we saw guns on the
videos. . . . He does not know what he is voting for.”
The court informed counsel it would again speak to the
presiding juror, as well as the other jurors who were having
concerns about Juror No. 5. The court also noted it had called a
recess during closing arguments because Juror No. 5 appeared to be
falling asleep.
Juror No. 6 told the court Juror No. 3 had written the note.
Juror No. 6 expressed her own concerns that Juror No. 5 was falling
asleep during deliberations and was not paying attention to the
videos. He also told irrelevant, rambling stories and had admitted
he did not understand what issues jurors were voting on. She
added that Juror Nos. 2, 4 and 11 also had issues with Juror No. 5.
Juror No. 3, a nurse, repeated the same concerns about Juror No. 5:
He was not paying attention, did not know which defendant was
which or who the attorneys were she stated, “We may be discussing
something and he’ll ask us, ‘What?’ And we have to repeat
19
everything again. I feel like I am personally explaining things to
him child-like. And he seems to be falling asleep.” She speculated
he was suffering from dementia and confirmed he had denied
having a son who was a police officer after saying he did.
Juror Nos. 2, 4 and 11 confirmed the views of Juror Nos. 3
and 6, noting their frustration when, after falling asleep, Juror
No. 5 would wake up and ask what had happened, forcing them to
start over. They also confirmed he did not know who was who, had
denied seeing guns in the video and had stated his son was a police
officer, only to deny it later. Finally, the court spoke with Juror
No. 5. When asked if he had been falling asleep during
deliberations, he said, “You know, you fall asleep and you don’t
know it,” but claimed he could still hear what was being said. He
denied telling the other jurors his son was a police officer.
The court then heard argument from counsel. Kincherlow’s
attorney argued Juror No. 5 had been deliberating but the other
jurors did not like his viewpoint. He, therefore, could not be
removed under section 1089. Smith’s attorney concurred, pointing
out being “slow or forgetful” was not a ground for dismissal and
these were simply normal problems in deliberation. The court
disagreed and removed Juror No. 5. The court based its decision on
Juror No. 5’s inconsistent statements about his son, his admission
of sleeping during trial and deliberations and his failure to pay
attention and participate in deliberations.
b. Governing law
Section 1089 provides, in part, “If at any time, whether
before or after the final submission of the case to the jury, a juror
dies or becomes ill, or upon other good cause shown to the court is
found to be unable to perform his or her duty, or if a juror
requests a discharge and good cause appears therefor, the court
20
may order the juror to be discharged . . . .” Kincherlow and
Smith challenge the trial court’s discharge of Juror No. 5 as
improper, asserting other jurors complained about Juror No. 5
because they disagreed with his views, not because he had failed
to perform his duty as a juror.
“When a court is informed of allegations which, if proven
true, would constitute good cause for a juror’s removal, a hearing
is required.” (People v. Barnwell (2007) 41 Cal.4th 1038, 1051.)
“‘[A] trial court’s inquiry into possible grounds for discharge of a
deliberating juror should be as limited in scope as possible, to
avoid intruding unnecessarily upon the sanctity of the jury’s
deliberations. The inquiry should focus upon the conduct of the
jurors, rather than upon the content of the deliberations.
Additionally, the inquiry should cease once the court is satisfied
that the juror at issue is participating in deliberations and has
not expressed an intention to disregard the court’s instructions or
otherwise committed misconduct, and that no other proper
ground for discharge exists.’” (Id. at p. 1054; see also People v.
Nelson (2016) 1 Cal.5th 513, 569 [“a trial court may intervene in
jury deliberations where it receives reports of juror misconduct or
in response to an impasse, but such interventions must be limited
and undertaken with the utmost respect for the sanctity of the
deliberative process”].)
A trial court’s decision to discharge a juror under
section 1089 is reviewed for abuse of discretion. (People v.
Armstrong (2016) 1 Cal.5th 432, 450.) However, in reviewing the
record we apply the more stringent “demonstrable reality
standard” of review rather than the more deferential substantial
evidence standard. (Armstrong, at p. 451.) This “‘heightened
standard . . . more fully reflects an appellate court’s obligation to
21
protect a defendant’s fundamental rights to due process and to a
fair trial by an unbiased jury.’” (Id. at p. 450, quoting People v.
Barnwell, supra, 41 Cal.4th at p. 1052.)
c. The court properly removed Juror No. 5
The record supports the trial court’s decision to discharge
Juror No. 5. This is not a case like People v. Bowers (2001)
87 Cal.App.4th 722, at pages 730-731, in which the reviewing
court reversed on the ground the isolated accusation of sleeping
occurred after the juror in question had made known his
disagreement with the view of the evidence shared by the
remaining jurors. The court here emphasized to the presiding
juror it was not interested in Juror No. 5’s perception of
witnesses or position on any particular issue; rather, the court
limited its inquiry to Juror No. 5’s conduct, which included
sleeping and failing to track issues discussed in deliberations. In
addition, the court did not rely only on the presiding juror; the
court also questioned Juror Nos. 2, 3 (the author of the second
note), 4 and 11, all of whom confirmed instances of Juror No. 5’s
falling asleep and his inability to focus or deliberate
constructively, as well as his misstatements of fact. While the
Supreme Court has not hesitated to reverse when a trial court
fails to meet the demanding standard of “demonstrable reality”
(see, e.g., People v. Armstrong, supra, 1 Cal.5th at pp. 451-454
[trial court relied on only two jurors who had stated challenged
juror was refusing to deliberate; evidence showed limited
instances and failed to account for juror’s differing view of
evidence]; People v. Cleveland (2001) 25 Cal.4th 466, 485-486
[trial court abused its discretion by discharging juror whose view
of the evidence differed from that of other jurors; record failed to
establish demonstrable reality that juror had refused to
22
deliberate]), it has found ample cause for discharge when a juror
is seen sleeping from time to time during deliberations or trial.
(See People v. Williams (2015) 61 Cal.4th 1244, 1277-1278
[affirming discharge where six jurors described seeing challenged
juror sleeping during deliberations]; People v. Bonilla (2007)
41 Cal.4th 313, 350 [sleeping during trial constitutes good cause
for dismissal of a juror]; People v. Ramirez (2006) 39 Cal.4th 398,
456-457 [affirming discharge of juror for sleeping]; People v.
Johnson (1993) 6 Cal.4th 1, 21-22 [affirming trial court’s excusal
of juror for sleeping corroborated by “[t]he court, its two deputies,
and the prosecutor”].)
5. The Trial Court Abused Its Discretion in Refusing To
Dismiss One of Kincherlow’s Prior Strikes
Section 1385, subdivision (a), vests the court with
discretion to dismiss a qualifying strike conviction “in
furtherance of justice.” (Romero, supra, 13 Cal.4th at p. 530;
People v. Williams (1998) 17 Cal.4th 148, 158.) “[I]n ruling
whether to strike or vacate a prior serious and/or violent felony
conviction allegation or finding under the Three Strikes law . . .
or in reviewing such a ruling, the court . . . must consider
whether, in light of the nature and circumstances of his present
felonies and prior serious and/or violent felony convictions, and
the particulars of his background, character, and prospects, the
defendant may be deemed outside the [three strikes] scheme’s
spirit, in whole or in part, and hence should be treated as though
he had not previously been convicted of one or more serious
and/or violent felonies.” (Williams, at p. 161.) We review the
trial court’s decision not to dismiss a prior strike allegation under
section 1385 for abuse of discretion. (In re Large (2007)
41 Cal.4th 538, 550.) “‘“[T]he burden is on the party attacking
23
the sentence to clearly show that the sentencing decision was
irrational or arbitrary.”’” (People v. Carmony (2004) 33 Cal.4th
367, 376.)
Notwithstanding a court’s broad discretion, in rare
circumstances the dismissal of one or more prior strike
convictions may be required when the convictions arose from the
same act. (See People v. Vargas (2014) 59 Cal.4th 635, 640
(Vargas).) In Vargas the defendant had been convicted of
carjacking and robbery growing out of a single act in which she
took the victim’s car by force. Years later, she was convicted of
several felonies arising from a burglary. When sentenced, it was
alleged that her carjacking and robbery convictions were separate
strikes within the meaning of the Three Strikes law. The trial
court denied her motion to dismiss the carjacking strike. The
Supreme Court reversed, holding, in the unusual circumstance
presented when a defendant’s single act committed against a
single victim gives rise to multiple felony convictions, only one of
those convictions may be treated as a strike in later criminal
proceedings. (Id. at p. 647.)
Relying on Vargas, Kincherlow contends the trial court
abused its discretion when it denied his motion to dismiss two of
what were counted as three strikes arising from a single act
against a single person. Kincherlow was convicted in 1991 of
attempted robbery, attempted murder and mayhem after he
pointed a gun at a driver waiting in a drive-through line at a fast-
food restaurant, demanded the driver give up his wallet and car
and then immediately shot the driver in the face. The victim
survived but was blinded by the gunshot. (See People v.
Kincherlow (Oct. 4, 1994, B075489) [nonpub. opn.] at p. 3.) The
trial court sentenced Kincherlow, who was 17 years old when the
24
crimes were committed, to a state prison term of 14 years for
attempted murder and stayed his sentences on the other two
convictions under section 654 because all three crimes arose from
a single course of action. (Id. at pp. 18-19.)11
The trial court here abused its discretion in declining to
dismiss Kincherlow’s prior strike conviction for mayhem.
Mayhem results when a person “unlawfully and maliciously
deprives a human being of a member of his own body, or . . .
disfigures . . . or disables the tongue, or puts out an eye . . . .” A
single gunshot resulted in Kincherlow’s convictions for both
attempted murder and mayhem. Under Vargas, therefore, the
trial court should have dismissed that strike.
Kincherlow’s attempted robbery conviction, however, does
not fall within the scope of Vargas. Although a 17-year-old youth
who demands a victim relinquish his car and immediately shoots
him in the face could be viewed as having panicked during the
single act of carjacking, the Supreme Court has viewed this exact
sequence as two separate acts falling outside the limited scope of
Vargas. As the Vargas Court acknowledged, it had previously
held “‘the electorate and the Legislature rationally could—and
did—conclude that a person who committed additional violence in
the course of a prior serious felony (e.g., shooting or pistol-
whipping a victim during a robbery, or assaulting a victim during
a burglary) should be treated more harshly than an individual
11 Section 654 “expressly prohibits separate punishment for
two crimes based on the same act but has been interpreted to also
preclude multiple punishment for two or more crimes occurring
within the same course of conduct pursuant to a single intent.”
(Vargas, supra, 59 Cal.4th at p. 642; accord, People v. Harrison
(1989) 48 Cal.3d 321, 335.)
25
who committed the same initial felony, but whose criminal
conduct did not include such additional violence.’” (Vargas,
supra, 59 Cal.4th at p. 646, quoting People v. Benson (1998)
18 Cal.4th 24, 35.) Accordingly, the trial court here did not abuse
its discretion in declining to dismiss the attempted robbery
strike, and Kincherlow remains a third strike offender.
6. Smith’s and Kincherlow’s Sentences Require Correction
a. The sentence for extortion (count 17) must be stayed
pursuant to section 654
As discussed, California law generally prohibits a single
criminal act from being punished more than once. As applicable
here, under section 654 a defendant may not be punished for both
the conspiracy to commit a crime and the underlying crime when
the conspiracy had no objective apart from the underlying crime.
(People v. Dalton (2019) 7 Cal.5th 166, 247, citing People v. Lewis
(2008) 43 Cal.4th 415, 539; People v. Beman (2019)
32 Cal.App.5th 442, 446-447; People v. Vargas (2001)
91 Cal.App.4th 506, 570-571.)
Smith and Kincherlow were each convicted of conspiracy to
commit extortion (count 1), as well as the underlying crime of
extortion (count 17). The overt acts charged in the conspiracy
count were identical to the objective of the underlying crime: As
the prosecutor argued, “[T]he conspiracy is the plan; the extortion
is the actual taking of the money. Here, we have both.” The trial
court ordered the sentences for count 17 to run concurrently to
those on count 1; but, as the Attorney General concedes, those
26
sentences, including any enhancements, should have been stayed
under section 654.12
b. Kincherlow’s concurrent sentence for assault with a
semiautomatic weapon (count 7) should have been
14 years rather than 24 years
Kincherlow contends, and the Attorney General concedes,
the enhancements for his concurrent sentence for assault with a
semiautomatic firearm were misapplied. Kincherlow was
sentenced to the upper term of nine years, to which the court
added 10 years for the true finding on the gang enhancement and
five years for the prior serious felony enhancement under
section 667, subdivision (a), for a total of 24 years. The prior
12 An additional sentencing issue related to these counts may
require consideration on remand. The Supreme Court recently
granted review in People v. Lopez (2020) 46 Cal.App.5th 505,
review granted July 15, 2020, S261747. The court of appeal in
that case had held “a conspiracy conviction . . . may be subject to
the alternate penalty provision of section 186.22,
subdivision (b)(4)(B), which imposes a prison term of 15 years to
life for certain gang-related crimes.” (Lopez, at p. 510.) The
Supreme Court granted review limited to the following question:
“Did the trial court err by sentencing defendant to 15 years to life
under the alternate penalty provision of the criminal street gang
penalty statute (Pen. Code, § 186.22, subd. (b)(4)(B)) for his
conviction of conspiracy to commit home invasion robbery, even
though conspiracy is not an offense listed in the penalty
provision?” Because Smith and Kincherlow were sentenced for
conspiracy to commit extortion (count 1) to an indeterminate
term of life with a minimum term of seven years under the
alternative penalty provision of section 186.22,
subdivision (b)(4)(C), the decision by the Supreme Court may
affect that portion of their sentences.
27
serious felony enhancement should not have been applied to both
this count and to count 6 (assault with an assault weapon), since
determinate terms were imposed for each aggravated assault.
(See People v. Sasser (2015) 61 Cal.4th 1, 7; accord, People v. Tua
(2018) 18 Cal.App.5th 1136, 1141.) As for the gang enhancement,
the court imposed 10 years under section 186.22,
subdivision (b)(1)(C), when it should have imposed the five-year
enhancement under subdivision (b)(1)(B), as this crime is a
serious felony, not a violent one. The proper concurrent term,
therefore, is nine years for the aggravated assault, plus five years
for the gang enhancement, for a total of 14 years.
c. The trial court erred by imposing the 10-year gang
enhancement on Kincherlow for robbery (count 4)
instead of the 15-year mandatory minimum for third
strike offenders
The trial court sentenced Kincherlow to 41 years to life for
robbery, consisting of a third strike sentence of 25 years to life,
plus 10 years for the gang enhancement, five years for the
section 667, subdivision (a), prior serious felony enhancement
and one year for the section 12022 firearm enhancement.
Kincherlow contends the court erred by imposing a 10-year term
for the gang enhancement instead of the minimum parole
eligibility term of 15 years. The Attorney General concedes he is
correct.
“[S]ection 186.22, subdivision (b)(5) . . . provides that a
defendant who commits ‘a felony punishable by imprisonment in
the state prison for life’ for the benefit of a criminal street gang
‘shall not be paroled until a minimum of 15 calendar years have
been served.’” (People v. Montes (2003) 31 Cal.4th 350, 352;
see People v. Lopez (2005) 34 Cal.4th 1002, 1004 [where a
28
defendant is convicted of a violent felony punishable by life
imprisonment, “section 186.22, subdivision (b)(5) . . . applies and
imposes a minimum term of 15 years before the defendant may
be considered for parole”]; People v. Williams (2014)
227 Cal.App.4th 733, 736 [“[s]ection 186.22, subdivision (b)(5)
provides that the 15-year minimum parole eligibility requirement
should be imposed instead of the [criminal street gang] sentence
enhancement . . . if the defendant is convicted ‘of a felony
punishable by imprisonment in the state prison for life’”].) “‘This
provision establishes a 15-year minimum parole eligibility period,
rather than a sentence enhancement for a particular term of
years.’” (Williams, at p. 740.) “Thus, the predicate for
application of section 186.22, subdivision (b)(5)’s exception to the
imposition of a consecutive term for the gang enhancement is
that the defendant has been convicted of a felony punishable by
life imprisonment.” (Williams, at p. 740; see Lopez, at p. 1004
[“[s]ection 186.22(b)(1)(C) does not apply . . . where the violent
felony is ‘punishable by imprisonment in the state prison for
life,’” and “[i]nstead, section 186.22, subdivision (b)(5) . . . applies
and imposes a minimum term of 15 years before the defendant
may be considered for parole”]; People v. Fiu (2008)
165 Cal.App.4th 360, 390 [“[i]f the parole limitation of
subdivision (b)(5) is applicable, the 10-year enhancement
is not”].)
d. The one-year enhancements imposed pursuant to
section 667.5, subdivision (b), must be stricken
Former section 667.5, subdivision (b), in effect at the time
of sentencing, provided for an enhancement of one year for each
prior separate prison term served for “any felony.” Pursuant to
this section, the trial court imposed an additional one-year term
29
on Smith and imposed and stayed three additional years on
Kincherlow.13
Effective January 2, 2020, however, the Legislature
amended the statute to specify that only sexually violent offenses
are subject to this enhancement. (§ 667.5, subd. (b), as amended
by Stats. 2019, ch. 590, § 1.) The Attorney General concedes this
amendment is retroactive. (See People v. Superior Court (Lara)
(2018) 4 Cal.5th 299, 306-308; In re Estrada (1965) 63 Cal.2d
740.) Accordingly, we strike the one-year prior prison term
enhancements imposed on Smith and Kincherlow pursuant to
section 667.5, subdivision (b), and remand their cases 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’”]; People v. Bell (2020)
48 Cal.App.5th 1, 24 [upon appellate court’s striking of a
section 667.5, subdivision (b), prior prison term enhancement,
“the trial court is entitled to reconsider appellant’s entire
sentence”].)
13 The trial court improperly imposed and stayed the
three one-year prior prison sentence enhancements on
Kincherlow pursuant to section 667.5, subdivision (b). “Once the
prior prison term is found true within the meaning of
section 667.5(b), the trial court may not stay the one-year
enhancement, which is mandatory if not stricken.” (People v.
Langston (2004) 33 Cal.4th 1237, 1241; People v. Lua (2017)
10 Cal.App.5th 1004, 1020.) Had the section not been amended,
we would have remanded this issue to the trial court to
determine whether to impose or strike the enhancements.
30
e. Remand for Resentencing Is Also Necessary Pursuant
to Section 667, Subdivision (a)
Smith and Kincherlow contend, and the Attorney General
concedes, remand is also appropriate for the trial court to
exercise its discretion whether to strike the prior serious felony
conviction enhancements imposed pursuant to section 667,
subdivision (a).
In 2018 the Governor signed into law Senate Bill No. 1393
(2017-2018 Reg. Sess.), which went into effect on January 1,
2019. (See Stats. 2018, ch. 1013, §§ 1, 2.) Senate Bill No. 1393
amended section 1385 by deleting subdivision (b), which
prohibited trial courts from exercising discretion “to strike any
prior conviction of a serious felony for purposes of enhancement
of a sentence under [s]ection 667.” (Former § 1385, subd. (b).)
Senate Bill No. 1393 applies retroactively to Smith and
Kincherlow because their sentences were not final at the time the
new law became effective on January 1, 2019. (People v. Jones
(2019) 32 Cal.App.5th 267, 272 [Sen. Bill No. 1393 applies
retroactively]; People v. Garcia (2018) 28 Cal.App.5th 961, 973
[same]; see In re Estrada, supra, 63 Cal.2d at pp. 744-745 [absent
contrary legislative intent, “[i]f the amendatory statute lessening
punishment becomes effective prior to the date the judgment of
conviction becomes final then, in our opinion, it, and not the old
statute in effect when the prohibited act was committed,
applies”].) Accordingly, on remand the trial court should exercise
its discretion as to imposition of the section 667, subdivision (a),
prior serious felony conviction enhancements.
31
7. Smith and Kincherlow Will Have an Opportunity To
Request an Ability-to-pay Hearing on Remand
As part of their sentences the trial court imposed on each
defendant $240 in court operation assessments, $180 in court
construction fees and restitution fines of $5,000. Relying on this
court’s decision in Dueñas, supra, 30 Cal.App.5th 1157, which
required ability-to-pay hearings as a matter of due process, Smith
and Kincherlow argue remand is required to permit them to
establish their inability to pay those assessments, fees and fines.
Because they had a right to raise an ability-to-pay objection in
connection with imposition of a restitution fine greater than the
$300 statutory minimum (see § 1202.4, subds. (c) [court may
increase restitution fine beyond $300 statutory minimum],
(d) [defendant bears burden of demonstrating his or her inability
to pay restitution fine in excess of statutory minimum]), but
failed to so, the Attorney General contends Smith and
Kincherlow forfeited any Dueñas argument. (See People v. Smith
(2020) 46 Cal.App.5th 375, 395 [defendant forfeited challenge to
assessments and fines because he “did not object in the trial court
on the grounds that he was unable to pay, even though the trial
court ordered him to pay the $10,000 statutory maximum
restitution fine”]; People v. Gutierrez (2019) 35 Cal.App.5th 1027,
1033 [“[a]s a practical matter, if [the defendant] chose not to
object to a $10,000 restitution fine based on an inability to pay,
he surely would not complain on similar grounds regarding an
additional $1,300 in fees”]; but see People v. Taylor (2019)
43 Cal.App.5th 390, 400-401 [defendant did not forfeit Dueñas
challenge to court operations and facilities assessments, even
though he did not object to the maximum $10,000 restitution fine,
because the “defendant’s inability to pay is just one among many
32
factors the court should consider in setting the restitution fine
above the minimum”].)
Although we have previously declined to apply a general
rule of forfeiture in cases in which sentencing occurred before the
decision in Dueñas because it announced a constitutional
principle that could not have been reasonably anticipated
(see People v. Castellano (2019) 33 Cal.App.5th 485, 489), under
the circumstances present here we might be inclined to agree
with the Attorney General. However, because we must remand
the case for resentencing in any event, Smith and Kincherlow
will have the opportunity to request a hearing concerning their
ability to pay fines, fees and assessments.
DISPOSITION
The convictions are affirmed. We vacate Smith’s and
Kincherlow’s sentences and remand the cases for resentencing
with directions for the trial court to correct the various errors
identified in this opinion; to exercise its discretion whether to
impose the sentence enhancements for Smith’s and Kincherlow’s
prior serious felony convictions pursuant to section 667,
subdivision (a); to consider, if requested, Smith’s and
Kincherlow’s ability to pay fines, fees and assessments; and to
conduct such other sentencing matters consistent with this
opinion.
PERLUSS, P. J.
We concur:
SEGAL, J. FEUER, J.
33