People v. Pardo CA1/4

Filed 8/25/20 P. v. Pardo CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, A158927 v. DARIC PARDO, (Mendocino County Super. Ct. No. Defendant and Appellant. SCUKCRCR1932373)

Defendant Daric Pardo pled no contest to unlawful possession of a weapon in jail, pursuant to Penal Code1 section 4574, subdivision (a). His six-year sentence included two one-year enhancements under Penal Code section 667.5, subdivision (b) because he had served two prior prison terms. Defendant argues that under People v. Dueñas (2018) 30 Cal.App.5th 1157 (Dueñas) and the Eighth Amendment, this case must be remanded for the trial court to determine his ability to pay certain fines and fees. Defendant also asserts that recent amendments to section 667.5, subdivision (b) apply retroactively and that both one-year enhancements must therefore be stricken from his sentence; the People agree. We agree that the

All further statutory references are to the Penal Code unless 1

otherwise specified.

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enhancements should be stricken, but on this record, we reject defendant’s contention regarding the fines and fees. BACKGROUND Defendant was arrested for “being under the influence of a controlled substance” and placed on a parole hold. While in jail, defendant ripped out a phone cord and used the phone’s handset receiver to smash a window; he later damaged the housing of a security camera. While defendant was still in custody, authorities found a homemade “shank” in his possession. Defendant pled no contest to unlawfully possessing a weapon in jail and admitted two prior prison term allegations in exchange for a six-year prison sentence and the dismissal of one count of felony vandalism and a prior strike allegation. The pre-sentencing probation report recommended an $1,800 restitution fine under section 1202.4(b). Responding to the recommendation, counsel stated defendant would be “presumptively unable to pay on these fines” and asked the court to “strike or suspend as many [fines and fees] in the court’s discretion.” The trial court said it would “reduce” the restitution fine to the $300 minimum, to which counsel replied, “Thank you, your Honor.” The trial court sentenced defendant to the six-year stipulated sentence and ordered him to pay a $40 court assessment fee pursuant to section 1465.8, a $30 criminal assessment fee pursuant to Government Code section 70373, and a $300 restitution fine pursuant to section 1202.4, subdivision (b).