People v. Dusablon CA2/6

Filed 9/15/20 P. v. Dusablon CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B302577
(Super. Ct. No. 2018029780)
Plaintiff and Respondent, (Ventura County)
v.
CAMERON DUSABLON,
Defendant and Appellant.
Cameron Dusablon appeals a judgment following conviction
of providing drugs to a person confined in jail, with a finding that
he served a prior prison term. (Pen. Code, §§ 4573.9, subd. (a),
667.5, subd. (b).)1 We strike the prior prison term enhancement,
reverse and remand for resentencing, but otherwise affirm.
FACTUAL AND PROCEDURAL HISTORY
On August 19, 2019, Dusablon pleaded guilty to providing
drugs to a person confined in jail, and admitted suffering a prior
serious felony strike conviction and serving two prior prison
1 All statutory references are to the Penal Code.
terms. (§§ 4573.9, subd. (a), 667, subds. (c) & (e), 1170.12, subds.
(a) & (c), 667.5, subd. (b).) The prosecutor agreed that the trial
court could impose any authorized sentence; the maximum
sentence that could be imposed was 10 years. On September 17,
2019, the trial court sentenced Dusablon to a prison term of 28
months, including 16 months midterm for the crime and 12
months for the prior prison term enhancement. Pursuant to its
tentative sentence commitment, the court struck the remaining
findings.
The trial court also found that Dusablon lacked the
financial ability to pay the public defender fee and the
presentence investigation fee. The court then imposed a $300
restitution fine, a $300 parole revocation restitution fine
(suspended), a booking fee, and other fees. It stayed the
restitution fine and booking fee, however, pursuant to People v.
Dueñas (2019) 30 Cal. App. 5th 1157. In staying, the trial judge
stated that he was referring the restitution fine and booking fee
to the Department of Corrections and Rehabilitation and would
“let them determine whether [Dusablon] has the ability to pay
from wages and trust accounts placed on his books while he’s a
prisoner at the Department of Corrections on this case . . . .”
Finally, the court awarded Dusablon 229 days of presentence
custody credit.
Dusablon appeals and contends that: 1) the prior prison
term enhancement must be struck pursuant to recent
amendments to section 667.5, subdivision (b), and 2) the trial
court erred by ordering the Department of Corrections and
Rehabilitation to determine his financial ability to pay the
restitution fine and booking fee. The Attorney General concedes.
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DISCUSSION
I.
Dusablon argues that the prior prison term enhancement
must be struck in view of the recent amendment to section 667.5,
subdivision (b).
Effective January 1, 2020, Senate Bill No. 136 amended
section 667.5, subdivision (b) to provide: “[T]he court shall
impose a one-year term for each prior separate prison term for a
sexually violent offense as defined in subdivision (b) of Section
6600 of the Welfare and Institutions Code . . . .” (Stats. 2019, ch.
590, § 1.) Dusablon asserts that he may not be punished for his
one-year prior prison term enhancement because the prison term
was served for identity theft, not for an enumerated sexually
violent offense.
“ ‘When the Legislature amends a statute so as to lessen
the punishment[,] it has obviously expressly determined that its
former penalty was too severe and that a lighter punishment is
proper as punishment for the commission of the prohibited act. It
is an inevitable inference that the Legislature must have
intended that the new statute imposing the new lighter penalty
now deemed to be sufficient should apply to every case to which it
constitutionally could apply. The amendatory act imposing the
lighter punishment can be applied constitutionally to acts
committed before its passage provided the judgment convicting
the defendant of the act is not final.’ ” (People v. Superior Court
(Lara) (2018) 4 Cal. 5th 299, 307.)
Dusablon’s judgment is not yet final and thus Senate Bill
No. 136 applies to him. (People v. Jennings (2019) 42
Cal. App. 5th 664, 682.) The Attorney General properly requests a
remand for resentencing in order that the trial court may
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reconsider its sentencing options. (People v. Stamps (2020) 9
Cal. 5th 685; People v. Buycks (2018) 5 Cal. 5th 857, 893; Jennings,
at p. 682.) Dusablon’s plea was not a negotiated plea with
specific terms. Accordingly, we strike the one-year prior prison
term enhancement and reverse and remand for resentencing to
permit the trial court to exercise its sentencing discretion in light
of changed circumstances.
II.
Dusablon asserts, and the Attorney General agrees, that
the trial court erred by ordering the Department of Corrections
and Rehabilitation to determine Dusablon’s ability to pay the
restitution fine and booking fee from his prison wages and trust
accounts. (See People v. Neal (2018) 29 Cal. App. 5th 820, 826 [the
trial court, not a probation officer, makes the final determination
of a defendant’s ability to pay a fee].) Upon remand, the court
shall make a final determination of Dusablon’s ability to pay the
restitution fine and booking fee.
DISPOSITION
We modify the judgment to strike the one-year prison term
enhancement imposed pursuant to section 667.5, subdivision (b),
and reverse and remand for resentencing as stated herein. We
direct the trial court to prepare an amended abstract of judgment
accordingly and to forward the amended abstract to the
Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J. PERREN, J.
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Bruce A. Young, Judge
Superior Court County of Ventura
______________________________
Jolene Larimore, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, David E. Madeo and Stacy S. Schwartz,
Deputy Attorneys General, for Plaintiff and Respondent.
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