People v. Suy CA5 ( 2020 )

Filed 11/24/20 P. v. Suy CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F078492
Plaintiff and Respondent,
(Super. Ct. No. 1464984)
v.
SOKHAN SUY, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Stanislaus County. Scott T.
Steffen, Judge.
Sandra Gillies, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and
William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Defendant Sokhan Suy stands convicted, following a jury trial, of assault with a
firearm, during the commission of which the jury found defendant personally used a
firearm and personally inflicted great bodily injury (GBI) upon the victim (Pen. Code,
§§ 245, subd. (a)(2), 12022.5, subd. (a) (section or § 12022.5(a)), 12022.7, subd. (a)
(section or § 12022.7(a)) (count I),1 and being a felon in possession of a firearm
(§ 29800, subd. (a)(1)) (count II).
Defendant was sentenced to the middle term of three years on count I for assault
with a firearm (§ 245, subd. (a)(2)), which was doubled under the “Three Strikes” law
(§§ 667, subds. (b)–(i)), 1170.12, subds. (a)–(d)) for a prior serious felony conviction
(§ 667, subd. (d)), and five additional years were added for the prior strike (§ 667,
subd. (a)), to be served consecutively. The sentence on count I was enhanced by four
years under section 12022.5(a), for personal use of a firearm, and enhanced by an
additional three years under section 12022.7(a), for personal infliction of GBI, each to be
served consecutively. As to count II, defendant was sentenced to the middle term of two
years (§§ 18, 29800, subd. (a)(1)), which was stayed under section 654. Finally,
defendant was ordered to pay various assessments and fines, including a restitution fine
of $300, a court assessment fee of $40, and a conviction assessment fee of $30.
On appeal, defendant claims (1) the trial court erred in failing to address his
request at sentencing to discharge his retained counsel so that a motion for a new trial
could be filed; (2) he was not given adequate notice of the enhancement under
section 12022.7(a), which assertedly violated his due process rights; and (3) pursuant to
People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), the trial court’s imposition of
various fines and fees violated defendant’s rights to due process and equal protection.
The People dispute defendant is entitled to any relief.
1 All further statutory references are to the Penal Code unless indicated otherwise.
2.
We conclude defendant did not have sufficient notice of the enhancement imposed
under section 12022.7(a) and this enhancement must be stricken. As resentencing is
required, we do not reach the merits of defendant’s additional assertions of error which
may be addressed by the trial court in the first instance upon remand.
FACTUAL SUMMARY
Sokny Suy2 is defendant’s younger brother. In September 2013, Jeremy M. was
living at Sokny’s house in Modesto, along with “Puff” and “X.” Sokny was growing
marijuana at the house, and his friend Jeremy was expected to watch over the crop.
Defendant would visit Sokny’s house, but he did not live there. Defendant had brought a
gun to the house days before the shooting and had given it to Sokny.
Jeremy had known defendant since he was 10 or 11 years old, and they had never
had any issues before. But in the weeks before the shooting, defendant had asked Jeremy
where the mother of his child was and where the child was, but Jeremy did not know
what he was talking about. Defendant accused Jeremy of having something to do with
defendant’s inability to locate them.
On the morning of September 25, 2013, after having stayed up all night, and
having smoked methamphetamine and marijuana, Jeremy was hanging marijuana up to
dry. Defendant, who had also been using drugs, was in the living room and sitting on the
couch looking at the floor. Also in the house were Sokny, Kanal, and a girl named Daisy;
Kanal and Daisy were in the kitchen that morning when the shooting occurred. Jeremy
asked defendant if everything was all right, but defendant did not respond. Jeremy
moved from the kitchen to the backyard, and something caught his attention. He turned,
felt something hit his face, and saw defendant with a gun, but Jeremy did not know if that
was the same gun he had seen defendant give to Sokny. Although he was not looking at
2 Because defendant and Sokny share the same last name, Sokny Suy will be referred to by
his first name.
3.
defendant immediately before being shot, he concluded that defendant fired the gun at
him because defendant was there holding a gun with his arm pointed straight out. After
he was shot, Jeremy ran and jumped over the back fence, walked down the street, saw
two people sitting in a truck, and asked for help.
Once at the hospital, he talked with the police and said it was defendant who shot
him on the right side of his face. Jeremy testified he lied to subsequent defense
investigators by telling them defendant did not shoot him and that he did not know who
did. Jeremy also told a defense investigator it was possible someone was fooling around
with the gun and it went off and shot him. Jeremy explained he lied to defense
investigators because defendant was his childhood friend, and Jeremy was trying to be a
good friend, but he did not know why defendant tried to kill him.
Jeremy was hospitalized for a week for the treatment of his shattered jaw, and he
had to wear a metal device around his head for two or three months. He still cannot chew
on the right side of his mouth.
The investigating officer, David Angarole, interviewed Sokny after the shooting.
Sokny’s initial account was that there were several people in the house when he heard
gunshots, but he did not see what happened. He thought the person who did the shooting
was someone named Red. At some point during the interview, however, Sokny changed
his story and said defendant shot Jeremy. Angarole later interviewed Jeremy, who said
that defendant shot him. Angarole also interviewed Daisy, who said she was in Sokny’s
vehicle in the driveway when she heard popping sounds, and then she saw defendant
exiting the house from the front door.
At trial, Sokny testified that four people were living in the house at the time of the
shooting—Sokny, Jeremy, Puff and X. Sokny heard gunshots that woke him on
September 25, 2013, but he did not see anyone in the house when he looked around.
Although he had told the police he had seen defendant holding a gun that morning, he
testified that was a lie. He explained that officers were accusing him of being the
4.
shooter, so he made up a detailed story about defendant being the shooter. Sokny also
testified he lied to the police because there were a lot of people in the house that morning,
some of whom were taking drugs. He thought the police were going to hold him for a
long period of time, and he wanted to get out of the interview to tend to his plants and
prevent the police from confiscating the marijuana.
Sokny explained on the day of the shooting at least 13 or 14 people had been at the
house smoking methamphetamine and heroin. He testified the gun had been in the house
a few days prior to the shooting, it was in the living room under the sofa, and everyone
had access to it. He had not seen defendant with the firearm the day of the shooting,
although he had seen him holding the gun a couple of days before. When he saw
defendant with the gun, Sokny took it back and hid it. He did not tell defendant where he
had hidden it. He denied seeing defendant in the house when he woke up the morning of
the shooting. Sokny admitted on cross-examination that he had no real reason to believe
that it was defendant who shot Jeremy.
Daisy testified for the defense. She knew Jeremy and Sokny, and she was present
in the house on the morning Jeremy was shot, helping to clean the house because they
were moving out. She was in the living room when she heard what she thought were
firecrackers; she heard two popping sounds. She never saw defendant handle a gun
inside the house, and she did not see him handling a gun immediately after the
shooting—she did not see what anyone did. She denied she told officers she saw
defendant leaving the house after the shooting. She remembered seeing Jeremy outside
after he was shot as she was leaving the house to go home.
Defense investigator Richard Baca also testified for the defense. He explained he
had a conversation with Jeremy on the phone about two months prior to trial. Jeremy
denied that defendant was the shooter, and Jeremy said he did not know who shot him.
One day later, Baca followed-up with another phone call and Jeremy said “‘[y]our client
shot me’” and then hung up the phone. Baca attempted to call Jeremy back, but Jeremy
5.
did not pick up the phone. Baca left a message for Jeremy to return his call, but Jeremy
never did so.
After closing arguments, the jury was instructed on the charged offense of
attempted murder and the charged enhancement under section 12022.53, subdivision (d)
(section or § 12022.53(d)). The jury was also instructed on the lesser related offense of
assault with a firearm and unpleaded enhancements for personal use of a firearm under
section 12022.5(a) and for personal infliction of GBI under section 12022.7(a).
The jury found defendant not guilty of attempted murder to which the
section 12022.53(d) enhancement applied. The jury found defendant guilty of the lesser
related offense of assault with a firearm, and found true the unpleaded enhancement
allegations under sections 12022.5(a) and 12022.7(a). The jury also found defendant
guilty of being a felon in possession of a firearm, and defendant had already admitted the
alleged prior serious felony conviction. Defendant was sentenced to an aggregate term of
18 years, after which defendant filed this appeal.
DISCUSSION
I. Notice of Section 12022.7(a) Enhancement
A. Background
Defendant was charged with attempted murder (§§ 187, 664), and it was alleged
that in the commission of the attempted murder, defendant personally and intentionally
discharged a firearm and proximately caused GBI (§ 12022.53(d)). On the first day of
trial, the parties discussed on the record the possibility of a plea agreement, but
determined settlement was unlikely.3 The prosecutor noted later that “given the way this
is charged, this could be a [sic] defendant’s entitled lesser of [section] 245[,
subdivision ](a)(2) with a [section] 12022.5 enhancement. So that’s what I expect the
jury instructions to be on.”
3 The record also reflects a settlement offer was made and declined prior to March 2016.
6.
Near the close of trial, the court indicated it had discussed jury instructions with
the attorneys off the record, and they had reached consensus on all except one related to
flight (CALCRIM No. 372). In the end, the jury was instructed on, among other things,
attempted murder, the firearm enhancement under section 12022.53(d), the lesser offense
of assault with a firearm and enhancements under section 12022.5(a) and 12022.7(a),
which were not pled in the information.
The jury acquitted defendant of attempted murder (§§ 187, 664), and instead found
him guilty of the lesser offense of assault with a firearm (§ 245, subd. (a)(2)). The jury
further found true that during the commission of assault with a firearm, defendant
personally used a firearm (§ 12022.5(a)), and personally inflicted GBI upon Jeremy
(§ 12022.7(a)).4
Defendant argues that because the requirements of section 12022.7(a) are not
necessarily included within section 12022.53(d), the People’s failure to charge
section 12022.7(a) or allege facts to support the section 12022.7(a) enhancement in the
information violated defendant’s due process right to notice of the charges against him.
B. Analysis
As an initial matter, the record does not reflect how the parties reached agreement
to instruct the jury on the lesser related offense of assault with a firearm and the
enhancement allegations under sections 12022.5(a) and 12022.7(a) as to that lesser
offense. (See People v. Birks (1998) 19 Cal.4th 108, 116–137 [the defendant not entitled
to instruction on lesser related offense, but parties may agree to instructions on related
charges].) The record suggests the prosecutor may have mistakenly believed section 245,
subdivision (a)(2), was a lesser included offense of attempted murder, perhaps because
4 Section 12022.53(d) does not apply to the felony of assault with a firearm under
section 245, subdivision (a)(2), and section 12022.7(a) does not apply to murder or manslaughter
or a violation of sections 451 or 452 (arson and unlawfully causing a fire). (§§ 12022.53,
subd. (a), 12022.7, subd. (g).)
7.
the attempted murder charge was pleaded with a section 12022.53(d) enhancement. The
agreement as to the instructions and verdict forms was reached off the record by the court
and the attorneys, so it is not clear whether the instruction on the offense under
section 245, subdivision (a)(2), was agreed to by the parties or mistakenly deemed a
lesser included offense for which an instruction was required. In any event, there is also
no record whether the instruction conference took place in defendant’s presence or
whether defendant was given notice of the enhanced sentence he faced if the jury was
instructed on the enhancement under section 12022.7(a) and found the allegation true.
While the failure to object before the trial court to insufficient notice of an
unpleaded sentence enhancement may result in forfeiture of the issue on appeal (People
v. Houston (2012) 54 Cal.4th 1186, 1227), an appellate court may decide an otherwise
forfeited claim where the trial court has made an error affecting “‘an important issue of
constitutional law or a substantial right[]’” (People v. Anderson (2020) 9 Cal.5th 946,
963, quoting In re Sheena K (2007) 40 Cal.4th 875, 887, fn. 7 [concluding it would reach
the inadequate notice of enhancements, despite the defendant’s failure to object at the
time of sentencing]). The People concede defendant’s argument in this regard is
cognizable on appeal. As explained below, because the error affected substantial rights
by depriving defendant of timely notice of the enhancement under section 12022.7(a) and
the potential sentence he faced, we exercise our discretion to address the issue on the
merits. (See People v. Butler (2003) 31 Cal.4th 1119, 1128; People v. Williams (1998)
17 Cal.4th 148, 161–162, fn. 6; see also People v. Anderson, supra, at p. 963.)
1. Applicable Legal Standards
It is a “preeminent principle that one accused of a crime must be ‘informed of the
nature and cause of the accusation.’ [Citation.] ‘It is fundamental that “When a
defendant pleads not guilty, the court lacks jurisdiction to convict him of an offense that
is neither charged nor necessarily included in the alleged crime. [Citations.] This
reasoning rests upon a constitutional basis: ‘Due process of law requires that an accused
8.
be advised of the charges against him in order that he may have a reasonable opportunity
to prepare and present his defense and not be taken by surprise by evidence offered at his
trial.’ [Citation.]” [Citation.]’ [Citations.] ‘No principle of procedural due process is
more clearly established than that notice of the specific charge, and a chance to be heard
in a trial of the issues raised by that charge, if desired, are among the constitutional rights
of every accused in a criminal proceeding in all courts, state or federal.’” (People v.
Thomas (1987) 43 Cal.3d 818, 823.) Moreover, “a defendant has a cognizable due
process right to fair notice of the specific sentence enhancement allegations that will be
invoked to increase punishment for his crimes.” (People v. Mancebo (2002) 27 Cal.4th
735, 747.)
“An accusatory pleading stating the charged offense provides the defendant not
only with notice of the offense actually charged but also with notice of any necessarily
included offenses.” (People v. Tardy (2003) 112 Cal.App.4th 783, 786.) To determine
whether one crime is necessarily included in another, courts apply either the accusatory
pleading test or the statutory elements test. (People v. Shockley (2013) 58 Cal.4th 400,
404 (Shockley); People v. Robinson (2016) 63 Cal.4th 200, 207 (Robinson).) “‘Under the
elements test, if the statutory elements of the greater offense include all of the statutory
elements of the lesser offense, the latter is necessarily included in the former. Under the
accusatory pleading test, if the facts actually alleged in the accusatory pleading include
all of the elements of the lesser offense, the latter is necessarily included in the former.’”
(Shockley, supra, at p. 404.)
A reviewing court does not consider the evidence produced at trial when analyzing
the relationship of a charged offense and a possible lesser included offense under either
the elements or the accusatory pleading test. (People v. Chaney (2005) 131 Cal.App.4th
253, 256; see People v. Ramirez (2009) 45 Cal.4th 980, 985 [“Under the ‘elements’ test,
we look strictly to the statutory elements, not to the specific facts of a given case.”].)
9.
While enhancements are not technically offenses, courts have applied the same
lesser-included offense analysis to consider whether a pleaded enhancement provides a
criminal defendant adequate notice that a different and unalleged enhancement may be
imposed. (People v. Dixon (2007) 153 Cal.App.4th 985, 1002 [pleading § 12022.53,
subd. (b), enhancement provided the defendant adequate notice the prosecution was
seeking to prove elements of the § 12022.2, subd. (b), which was necessarily included];
In re A.L. (2015) 233 Cal.App.4th 496, 500–504 [applying accusatory pleading test to
conclude § 12022, subd. (a), was necessarily included within § 12022, subd. (b), given
the language in the charging document].)
2. Due Process Error
The parties dispute whether, under the elements test, defendant was given
adequate notice of the uncharged enhancement under section 12022.7(a) as necessarily
included within the elements of the charged enhancement under section 12022.53(d).
Defendant was charged with attempted murder with the following enhancement
allegation: “During the commission of the above charged offense, defendant personally
and intentionally discharged a firearm and proximately caused great bodily injury or
death to another person, to wit, Jeremy [M.], in violation of Section 12022.53(d) .…”
“When, as here, the accusatory pleading incorporates the statutory definition of the
charged offense without referring to the particular facts, a reviewing court must rely on
the statutory elements to determine if there is a lesser included offense.” (Robinson,
supra, 63 Cal.4th at p. 207; accord, Shockley, supra, 58 Cal.4th at p. 404; People v.
Fontenot (2019) 8 Cal.5th 57, 65.) The question is whether, as a matter of law, the
statutory definition of the greater offense necessarily includes the lesser offense. (People
v. Parson (2008) 44 Cal.4th 332, 349.)
To prove the requirements of the firearm enhancement under section 12022.53(d),
it must be shown that, during the commission of an offense specified in section 12022.53,
subdivision (a), a defendant (1) personally and intentionally discharged a firearm and
10.
(2) proximately caused (3) GBI as defined in section 12022.7, or death (4) to any person
other than an accomplice. The enhancement under section 12022.7(a), applies to any
person who (1) personally inflicts; (2) GBI; (3) on any person other than an accomplice;
(4) in the commission of a felony or attempted felony.
One of the critical differences between the two enhancements is that while
section 12022.53(d) applies to those who have proximately caused GBI,
section 12022.7(a) applies only to those who personally inflict GBI. The term
“personally inflict” has a distinct legal meaning, which is different from proximate cause.
(People v. Cole (1982) 31 Cal.3d 568, 572.) In other words, “[p]roximately causing and
personally inflicting harm are two different things.” (People v. Bland (2002) 28 Cal.4th
313, 336.)
A defendant “personally” inflicts GBI if he directly causes the injury—that is, if
the defendant “himself” actually “inflicts the injury[]” by “directly perform[ing] the act
that causes the physical injury to the victim.” (People v. Cole, supra, 31 Cal.3d at
pp. 572, 579; People v. Modiri (2006) 39 Cal.4th 481, 495 [requiring a “direct physical
link between [the defendant’s] own act and the victim’s injury[]”].)
Proximate cause is conduct that is a substantial factor contributing to the injury
because that conduct set in motion the chain of events that naturally ripened into the
injury. (People v. Bland, supra, 28 Cal.4th at pp. 334–336; People v. Sanchez (2001) 26
Cal.4th 834, 845.)
Thus, it is possible for one who personally and intentionally discharges a firearm
to proximately cause GBI without personally inflicting GBI. For example, if someone
personally and intentionally discharges a firearm, which ejects a bullet into a gas can, that
in turn creates an explosion, which causes someone present to flee the fire and the noise,
which ultimately results in the fleeing person tripping on a crack in a sidewalk one block
away and breaking an ankle, the shooter has proximately caused the broken ankle but did
not personally inflict the injury. (See People v. Palmer (2005) 133 Cal.App.4th 1141,
11.
1151–1153 [§ 12022.53(d) extends to situation where bullet itself does not hit victim, but
discharge of firearm is nonetheless the proximate cause of the injury].) (See People v.
Rodriguez (1999) 69 Cal.App.4th 341, 346, 351 [victim injured after hitting his head
while trying to tackle the defendant; the defendant did not personally inflict injury];
People v. Jackson (2000) 77 Cal.App.4th 574, 576, 579–580 [victim injured tripping over
curb while walking away from the defendant; the defendant did not personally inflict
injury].)
The People argue that only if an individual did not personally discharge the
firearm could he or she have proximately caused, but not personally inflicted, a gunshot
wound. That logic, however, assumes additional facts that the GBI at issue was caused
by a bullet wound from the shooter’s gun—which are facts deduced from the evidence
here, not from the statutory elements of section 12022.53(d) or the information. Because
section 12022.7(a) is not necessarily included within section 12022.53(d), defendant did
not have adequate notice that he could be subject to an additional three-year penalty
under section 12022.7(a).
3. Prejudice
Neither party addresses whether this error was prejudicial. We assume the error is
subject to harmless error review under Chapman v. California (1967) 386 U.S. 18, rather
than being a structural error subject to automatic reversal. Defendant clearly suffered
prejudice under this standard. The improper enhancement added three years to his
sentence. We also cannot conclude beyond a reasonable doubt the lack of notice had no
effect on defendant’s decision to accept or negotiate a plea offer. As the information did
not provide defendant notice that he could be subject to the three-year GBI enhancement
under section 12022.7(a), defendant did not have the information needed to make an
informed decision. (People v. Wilford (2017) 12 Cal.App.5th 827, 840.) The three-year
enhancement under section 12022.7(a) must be stricken, the sentence vacated, and the
matter shall be remanded for resentencing.
12.
II. Remaining Issues
A. Sixth Amendment Right to Counsel and Motion for New Trial
Defendant contends that, after the trial court made the oral pronouncement of
sentence, defendant requested a new trial and asked that his retained counsel be
discharged. Defendant maintains the trial court failed to understand and exercise its
discretion to discharge defendant’s retained attorney, appoint him counsel, and allow him
to file a motion for a new trial. To the extent defendant’s request to discharge his counsel
was unclear, defendant argues the court should have questioned him.
Defendant’s request was made at the close of the sentencing hearing, which was
prepared in writing and read by his attorney.5 The note was read as follows: “I would
like to say I must appeal the jury decision, Number 1. [⁋] … [⁋] Number 2, there were
multiple issues not raised in court and additional in limine motions never filed on my
behalf. [⁋] Number 3, and I am now declaring under California Rules of Court and
penalty of perjury that I am an indigent defendant and cannot afford an attorney from this
point forward. My family was gracious to provide me with the attorney, but I do not
have the ability to pay for any attorney, and I [would] like to ask the Court [to] provide
me with the trial transcripts with what has—with that being said, the defendant would
like to file a motion for new trial to appeal the conviction.”
The trial court stated it was puzzled over the reference to a motion for a new trial.
The prosecutor argued defendant had retained counsel who had the authority to determine
whether or not to file a motion for a new trial. Defense counsel responded that he had
been as “careful as possible[,]” he “made ever technical objection[,]” and he “tried to
make this … as bulletproof as possible.” Defense counsel stated he had advised his client
he thought they were handicapped by certain testimony from his family, and concluded
5 An interpreter read the first few sentences to the court, but because it was written in
English, defendant’s attorney took over reading the statement to the court.
13.
he did not see “any merit in the in limine motions” nor did he “see any merit in any other
item for a new trial.” The court asked no further questions, but told defendant he would
have an appointed attorney for appeal.
As this matter will be remanded for resentencing, it is unnecessary for us to reach
defendant’s arguments as to his alleged request to discharge his retained counsel and
appoint new counsel for the purpose of filing a motion for a new trial. Neither purported
error in the posttrial context entitles defendant to an automatic retrial. (See People v.
Braxton (2004) 34 Cal.4th 798, 818–819 [inadequate appellate record to determine
whether motion for a new trial should have been granted requires remand for a belated
hearing on new trial motion].) The record is inadequate to determine the prejudicial
effect of any error in failing to appoint counsel for the purpose of filing a motion for a
new trial. Defendant is entitled to the appointment of counsel upon remand, and
defendant shall have the option to file a new trial motion prior to resentencing. (See
People v. Hales (1966) 244 Cal.App.2d 507, 511 [“If the judgment is vacated or set aside,
the motion for a new trial may then be entertained.”].)
B. Dueñas Claim
The trial court imposed a $300 restitution fine under section 1202.4,
subdivision (b)(1), and the court also imposed a corresponding parole revocation fine
(§ 1202.45) in the same amount, which was stayed, a $40 court operations assessment
(§ 1465.8, subd. (a)(1)), and a $30 criminal conviction assessment (Gov. Code, § 70373).
Relying on Dueñas, supra, 30 Cal.App.5th 1157, which was issued while this
appeal was pending, defendant contends his fees and fines should be stayed or stricken.
Moreover, because the trial court has already indicated defendant “is going to have very
little ability to pay,” defendant argues nothing will be accomplished by remanding for an
ability-to-pay hearing. Defendant asserts the restitution fine should be stayed
permanently, and the other fees stricken.
14.
In Dueñas, the court held the assessments under Penal Code section 1465.8 and
Government Code section 70373 may be “imposed only on those with the means to pay
them[]” (Dueñas, supra, 30 Cal.App.5th at pp. 1168–1169), and “that although the trial
court is required by … section 1202.4 to impose a restitution fine, the court must stay the
execution of the fine until and unless the People demonstrate that the defendant has the
ability to pay” (id. at p. 1172).
We conclude it is unnecessary to reach defendant’s Dueñas arguments given
remand of this matter for resentencing, despite defendant’s urging remand will
“accomplish nothing.” As defendant noted, the probation report has no information about
defendant’s work history, and no evidence of defendant’s inability to pay is present in the
record. When the trial court stated a “guess” that defendant would have very little ability
to pay, it was in reference to an amount over the minimum restitution fine and was based
only on an assumption.6 Defendant may address his inability-to-pay assertion pursuant to
Dueñas with the trial court in the first instance.
6 In discussing a $900 sentencing report fee, the prosecutor noted defendant had a probable
inability to pay that amount. However, this statement did not establish defendant had no present
or future ability to pay the $300 restitution fine. (§ 1202.4, subd. (d) [“Consideration of a
defendant’s inability to pay may include his or her future earning capacity.”].)
15.
DISPOSITION
The three-year enhancement under section 12022.7(a) is stricken. The sentence is
vacated and the matter is remanded to the trial court with directions to resentence
defendant in accordance with this opinion. Should defendant choose to do so, he may
bring a motion for a new trial, but must do so prior to resentencing.
MEEHAN, J.
WE CONCUR:
PEÑA, Acting P.J.
DeSANTOS, J.
16.