People v. Lozano CA3

California Court of Appeal Sep 25, 2020 No. C090499Unpublished

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Holding. The court held that the defendant's one-year prior prison term enhancement must be stricken due to the retroactive application of Senate Bill No. 136, but that the defendant forfeited his challenge to the imposition of fines and fees by failing to object at sentencing.

Issues

Whether the one-year prior prison term enhancement must be stricken pursuant to Senate Bill No. 136.
Whether the defendant forfeited his challenge to the imposition of fines and fees by failing to request an ability to pay hearing at sentencing.

Disposition. Affirmed as modified.

Quotations verified verbatim against the opinion

“We strike defendant’s prior prison term enhancement and otherwise affirm the judgment.”

“Because Senate Bill 136 will become effective before defendant’s judgment becomes final, we agree with the parties that the amended law will apply to him retroactively.”

“The sentencing hearing was held eight months after Dueñas was decided; there was thus authority for requesting an ability to pay hearing at the time of the sentencing hearing and defendant failed to do so.”

Filed 9/25/20 P. v. Lozano CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Butte) ----

THE PEOPLE, C090499

Plaintiff and Respondent, (Super. Ct. No. 19CF00802)

PASCUAL MORALES LOZANO,

Defendant and Appellant.

Defendant Pascual Morales Lozano appeals his felony conviction for possession of ammunition by a felon. Defendant asserts, and the People concede, a one-year sentence enhancement imposed on him pursuant to Penal Code section 667.5, subdivision (b) must be stricken because of recently adopted legislation. (Statutory section citations that follow are to the Penal Code, unless otherwise set forth.) He also asserts the trial court erred in imposing fines and fees without conducting an ability to pay hearing. We strike defendant’s prior prison term enhancement and otherwise affirm the judgment.

FACTS AND PROCEDURAL HISTORY Police officers searched defendant’s house and cars, finding 177 rounds of ammunition in the trunk of one of the cars. Defendant was charged with felony possession of ammunition by a felon (§ 30305, subd. (a)(1)) and misdemeanor possession of drug paraphernalia (Health & Saf. Code, § 11364, subd. (a)). It was also alleged defendant had a prior prison term (§ 667.5, subd. (b)) for child abuse (§ 273a, subd. (a)), disturbing the peace with gang activity (§§ 415, 186.22, subd. (d)), and assault likely to cause great bodily injury (§ 245, subd. (a)(1)). The charge for possession of drug paraphernalia was dismissed before trial. The jury found defendant guilty of possession of ammunition by a felon. At a bifurcated hearing, the court found the prior prison term enhancement true. At sentencing in September 2019, the court sentenced defendant to the upper term of three years for possession of ammunition and an additional year for the prior prison term enhancement. It also imposed a restitution fine of $300 (§ 1202.4, subd. (b)), a second restitution fine of $300 that was stayed (§ 1202.45), a court operation assessment of $40 (§ 1465.8, subd. (a)), and a court facilities assessment of $30 (Gov. Code, § 70373).

People v. Lozano CA3

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THE PEOPLE, C090499

PASCUAL MORALES LOZANO,

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DISCUSSION

MURRAY, J.

HOCH, J.

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