Filed 1/16/20 P. v. Encisco CA4/2

Opinion following rehearing

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

MARIO ENCISO, JR.,

Defendant and Appellant.

E070907

(Super.Ct.No. RIF1500886)

OPINION

APPEAL from the Superior Court of Riverside County. Bernard Schwartz, Judge. Affirmed with directions.

Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Annie Featherman Fraser and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.

FACTUAL AND PROCEDURAL HISTORY

A. PROCEDURAL HISTORY

On January 11, 2017, an information charged defendant and appellant Mario Enciso, Jr., with murder under Penal Code section 187, subdivision (a) (count 1); and active participation in a criminal street gang under section 186.22, subdivision (a) (count 2). As to count 1, the information also alleged that the murder was intentionally committed while defendant was actively participating in a gang, to benefit a gang, and with a firearm under section 186.22, subdivisions (a), and (b)(1)(C), section 187, subdivision (a), section 190.2, subdivision (a)(22), and section 12022.53, subdivision (d). The information further alleged that defendant had a prior strike conviction, a prior serious felony conviction, and three prison priors under section 667, subdivisions (a), through (c), (e)(1), section 667.5, subdivision (b), and section 1170.12, subdivision (c)(1).

Trial commenced on February 1, 2018. On February 23, the jury found defendant guilty of the lesser offense of second degree murder under section 187, subdivision (a), and active participation in a criminal street gang. The jury also found true the gang and firearm enhancement allegations.

On May 18, 2018, in a bifurcated proceeding held prior to sentencing, defendant admitted the prior conviction and prison term allegations. The trial court declined to strike the prior strike conviction and sentenced defendant to a determinate term of seven years and an indeterminate term of 55 years to life as follows: 15 years to life, doubled to 30 years to life, for the second degree murder; a consecutive 25 years to life for the gun-use enhancement; a consecutive year each for two of the prison priors, and a consecutive five-year term for the serious felony prior. The court imposed and stayed the sentence on count 2.

On July 12, 2018, defendant filed a timely notice of appeal. After we issued our opinion on October 18, 2019, defense counsel filed a petition for rehearing on October 23, 2019. The People filed a response to the petition on October 30, 2019. On November 4, 2019, we granted the petition and vacated our opinion. We hereby issue this new opinion.

B. FACTUAL HISTORY

On February 11, 2015, defendant, a member of the criminal street gang Moreno Valley Locos (MVL), fellow gang members Robert Contreras and Victor Carlos, and Contreras’s girlfriend Jackelyn Lopez drove to a convenience store in Lopez’s car. Rival 18th Street gang members Moises Molina and Jesus Vargas, and two women, were walking out of the convenience store when Contreras and Carlos walked in—defendant had remained near the car. The men declared their respective gangs and Contreras said, “This is our neighborhood.” Molina told Vargas to “Get that thing” and Vargas went to the car, at which time Contreras heard Vargas “load[] [a firearm] and chamber a round.”

Contreras called to defendant, who was still by Lopez’s car, and defendant walked over to Molina, who was unarmed. Defendant said “What’s up,” Molina responded, “What’s up,” and defendant shot Molina in the chest. Molina ran a short distance from the scene, then collapsed; he died from a single gunshot wound to the left chest.

DISCUSSION

A. THE CASE IS REMANDED FOR THE TRIAL COURT TO EXERCISE ITS DISCRETION UNDER SECTION 667

Defendant contends that “this case must be remanded to permit the court to consider exercising its discretion to strike the prior serious felony enhancement pursuant to newly-amended provisions (Pen. Code, § 667, subd. (a) & 1385).” (All caps omitted.) The People concede that defendant “is entitled to a remand.”

In this case, defendant admitted a prior serious felony conviction allegation. As a result, his overall sentence was enhanced by a consecutive term of five years under section 667, subdivision (a)(1). At the time of defendant’s sentencing on May 18, 2018, the trial court lacked jurisdiction to strike or dismiss a prior serious felony sentence enhancement under section 667, subdivision (a). (See People v. Turner (1998) 67 Cal.App.4th 1258, 1269 [imposition of the five-year sentence enhancement under section 667, subdivision (a), is mandatory and may not be stricken].)

However, as of January 1, 2019, sections 667, subdivision (a), and 1385, now confer upon the trial courts the discretion to strike or dismiss such enhancements in the interest of justice under section 1385. Senate Bill No. 1393 (SB 1393) was enacted to “delete the restriction prohibiting a judge from striking a prior serious felony conviction in connection with imposition of the 5-year enhancement” under existing law. (Legis. Counsel’s Dig., Sen. Bill No. 1393 (2017-2018 Reg. Sess.) Stats. 2018, ch. 1013.) “The result is courts now have discretion to strike a five-year enhancement. The amendment applies retroactively to all cases not final on its effective date.” (People v. Dearborne (2019) 34 Cal.App.5th 250, 268.) Here, the People concede the amendment applies retroactively and requires us to remand for the trial court to exercise its discretion. We agree.

Therefore, this case shall be remanded to the trial court to exercise its discretion under section 667, subdivision (a).

B. ON REMAND, THE TRIAL COURT SHOULD EXERCISE ITS DISCRETION UNDER SECTION 12022.53

Defendant contends that his attorney rendered ineffective assistance of counsel at sentencing when he failed to ask the sentencing court to consider its discretion to strike the firearm enhancement imposed under section 12022.53, subdivision (d). The People contend that the issue “has been rendered moot by virtue of the remand for resentencing on the nickel prior.” The People argue that we should decline to address this issue because defendant “is entitled to resentencing under SB 1393,” and therefore, defendant “will be able to make the request to strike the personal gun use enhancement at resentencing, regardless of whether defense counsel was ineffective.” Defendant, however, contends that the issue is not moot because “[t]he merits of his claim should be reviewed by this court and the order for remand must include directions to permit the sentencing court to further consider its discretion to strike the firearm enhancement.” We agree with defendant.

The People concede that “at the time of [defendant’s] sentencing[,] the trial court had new found discretion under subdivision (h) of section 12022.53 to strike [defendant’s] personal gun use enhancement. SB 620, effective, January 1, 2018, amended sections 12022.5 and 12022.53. Those sections created various sentence enhancements for defendants who use firearms during the commission of a felony or attempted felony. Prior to the passage of SB 620, imposition of the enhancements were mandatory; trial courts were prohibited from striking or dismissing allegations under these sections. [Citations.] SB 620 removed that prohibition, and granted trial courts express authority to strike or dismiss applicable firearm enhancements at the time of sentencing.” Moreover, as the People provided, “the amendment to subdivision (h) of section 12022.53 also expressly extended the authority of a trial court to strike or dismiss a section 12022.53 enhancement ‘to any resentencing that may occur pursuant to any other law.’ ”

Here, the parties agree that at the time of defendant’s sentencing, May 18, 2018, the trial court had the discretion to strike the firearm enhancement under section 12022.53, subdivision (b). We need not consider defendant’s ineffective assistance of counsel argument for counsel’s failure to request the court to consider its discretion since we are remanding the case for the reasons set forth, ante. Therefore, on remand, we direct the trial court to exercise its discretion under amended section 12022.53.

C. ON REMAND, THE COURT SHOULD DETERMINE DEFENDANT’S ABILITY TO PAY

On June 10, 2019, defendant filed a request for leave to file a supplemental brief. On June 14, 2019, we granted defendant’s request and gave the People an opportunity to respond. In his supplemental brief, defendant contends that the trial court violated due process rights under the federal and state constitutions by imposing fines and fees without determining his ability to pay under People v. Dueñas (2019) 30 Cal.App.5th 1157.

In People v. Duenas, supra, 30 Cal.App.5th 1157, the appellate court held that imposition of fees and fines without first holding a hearing to determine a defendant’s ability to pay violated the defendant’s due process and equal protection rights under federal and California constitutions. The court stated that imposing fines and fees without determining a defendant’s ability to pay inflicts additional punishment on those who are unable to pay. (Ibid.)

In this case, the trial court imposed a $7,000 restitution fine under Penal Code section 1202.4, $80 in court operations assessment fees under Penal Code section 1465.8, $60 in criminal conviction assessment fees under Government Code section 70373, and $514.58 in booking fees under Government Code section 29550. Before assessing these fines and fees, the trial court did not hold a hearing to determine defendant’s ability to pay the fines and fees. Defense counsel, however, argued for a minimum restitution fine of $300, in light of the $6,928.60 in victim restitution being imposed and because neither defendant nor his family had any funds to begin to repay the restitution fine.

We agree with the People that because this case must be remanded for resentencing, we should also “ ‘remand the matter to the trial court so that [defendant] may request a hearing and present evidence demonstrating his inability to pay the fines, fees and assessments imposed by the trial court.’ ”

D. ON REMAND, THE COURT SHOULD STRIKE DEFENDANT’S TWO PRISON PRIOR SENTENCES

In the petition for rehearing, defendant contends that he is entitled to have his prison prior sentence enhancements stricken pursuant to the amendment to section 667.5, subdivision (b), by Senate Bill 136 (SB 136) effective January 1, 2020. In this case, the trial court imposed two consecutive one-year enhancements under section 667.5, subdivision (b), for prior prison terms. The People concede that the sentence on the section 667.5, subdivision (b), priors must be stricken after January 1, 2020.

On October 8, 2019, SB 136 was signed into law and became effective on January 1, 2020. SB 136 modifies section 667.5, subdivision (b), to eliminate the one-year sentences for prior prison terms served unless the prior prison term involves a conviction of a sexually violent offense (which is not involved here). The statute is retroactive and applies to cases not yet final as of its effective date. (See People v. Garcia (2018) 28 Cal.App.5th 961, pp. 972-973.) Defendant’s conviction was not final on January 1, 2020, nor has the remittitur been issued. We agree with the parties that defendant’s two, one-year sentences for his prison priors should be stricken.

Because the case is already remanded for resentencing, we hereby order the trial court to comply with SB 136 and strike defendant’s prison prior sentence enhancements.

DISPOSITION

The judgment of conviction is affirmed. The matter is remanded for resentencing to allow the trial court to exercise its discretion in determining whether to strike the findings and sentences for the serious felony prior under section 667, subdivision (a), and the firearm enhancement under section 12022.53, subdivision (d); and to strike the two one-year prison prior enhancements under SB 136. Moreover, on remand, no fines or fees shall be imposed by the trial court absent a finding that defendant has the present ability to pay the fines and fees. After resentencing, the court is directed to forward an amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

J.

We concur:

McKINSTER

Acting P. J.

SLOUGH

J.