People v. Smith CA3

Filed 11/25/20 P. v. Smith CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sacramento) ----

THE PEOPLE, C089836

Plaintiff and Respondent, (Super. Ct. No. 18FE020878)

v.

KENNY LYNN SMITH,

Defendant and Appellant.

Defendant Kenny Lynn Smith timely appeals his judgment of conviction requesting remand (1) so that the superior court may strike his two prior prison term enhancements pursuant to Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill 136), and (2) for an ability to pay determination on certain fines and fees in light of People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). The People concede that defendant is entitled to relief under Senate Bill 136, but disagree that he is entitled to an ability to pay hearing.

1

We will strike the prior prison term enhancements as requested, but find that defendant has forfeited his Dueñas argument. We will affirm the judgment as modified. BACKGROUND The People’s April 4, 2019 amended information charged defendant with unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a); count one) and receiving a stolen motor vehicle valued at more than $950 (Veh. Code, § 496d, subd. (a); count two). It also was alleged that defendant was subject to enhancements for a prior Vehicle Code section 10851, subdivision (a) conviction (Pen. Code, § 666.5, subd. (a)),1 a prior strike (§§ 667, subds. (b)-(i), 1170.12), and two prior prison terms (§ 667.5, subd. (b)). Defendant was tried by a jury who found him guilty as charged. In a bifurcated proceeding, the trial court determined the enhancement allegations were true. Defendant’s motion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 was denied. On May 10, 2019, the trial court sentenced defendant to six years for count one (the midterm doubled because of the strike prior). The court also imposed six years for count two, but stayed that sentence pursuant to section 654, and stayed the two one-year prior prison term enhancements. Finally, the court imposed a $400 restitution fine (§ 1202.4, subd. (b)), a $400 parole revocation restitution fine (§ 1202.45),2 two $30 criminal conviction assessments (Gov. Code, § 70373), and two $40 court operations assessments (§ 1465.8). Defendant timely appealed.