People v. Davis

Filed 4/30/20

CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

THE PEOPLE, F077426 Plaintiff and Respondent, (Tulare Super. Ct. No. VCF294982) v.

IVAN DAVIS, OPINION Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Tulare County. Gary L. Paden, Judge. Peter J. Boldin, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, David A. Lowe and Clifford E. Zall, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo- Defendant appeals from a judgment rendered from his resentencing on a plea bargain. He contends the matter should be remanded because Senate Bill No. 1393 (Stats. 2018, ch. 1013, §§ 1, 2; SB 1393) came into effect after his resentencing, and that the court erred in imposing certain fines and fees without properly determining his ability to pay. We conclude that remand pursuant to SB 1393 would be futile, and therefore do not address the Attorney General’s alternative argument that defendant’s claim is non-

cognizable in the absence of a certificate of probable cause. We also find that defendant forfeited his ability-to-pay claim. We affirm the judgment. BACKGROUND Defendant was convicted of first degree burglary (Pen. Code, §§ 459, 460, subd. (a); count 1);1 unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a); count 2); receiving a stolen motor vehicle (§ 496d, subd. (a); count 3); and pled no contest to misdemeanor domestic battery (§ 243, subd. (e)(1); count 4).2 Defendant admitted he previously suffered prior strike and serious felony convictions (§§ 667, subds. (a), (b)–(i), 1170.12, subds. (a)–(d)). (People v. Davis (Sept. 25, 2017, F071582) at pp. 2–3 [nonpub. opn.] (Davis I).) In an unpublished opinion filed in September 2017, this court reversed the convictions on counts 1 and 3, affording the prosecution the option to retry count 1, but dismissing count 3. (Davis I, supra, F071582, at p. 9.) We otherwise affirmed the judgment. (Ibid.) On remand, the parties reached a plea bargain. On January 23, 2018, defendant pled no contest to count 1 (first degree burglary), and admitted he had a prior conviction under section 667, subdivision (a)(1). Before accepting the plea, the court said:

“So what we’re talking about here is that as to Count 1, you would enter a plea to a first degree residential burglary, which is a strike.… [¶] … [¶] So – and the Court would strike the strike and impose the mid term of four years plus an additional five years, and run it concurrent with the time you’re already doing.” On April 4, 2018, the court sentenced defendant to nine years in prison, comprised of four years for first degree burglary and five years for the prior conviction