People v. Smith CA1/3

Filed 1/29/21 P. v. Smith CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE, Plaintiff and Respondent, A159496 v. HENRY A. SMITH, JR., (Solano County Defendant and Appellant. Super. Ct. No. VCR-213103)

Defendant Henry A. Smith, Jr. appeals from the resentencing on his convictions for murder of a police officer, robbery, and possession of a firearm. He contends that his murder sentence is erroneous because (1) the abstract of judgment incorrectly reflects an additional term that was not imposed on resentencing, and (2) he cannot be sentenced to any additional term beyond life without parole. He also contends that the trial court improperly imposed fines, fees, and restitution without determining his ability to pay them. We conclude that the abstract of judgment should be modified to correct the clerical error as to the murder sentence, and affirm the judgment in all other respects. FACTUAL AND PROCEDURAL BACKGROUND The following is a brief summary of the factual and procedural background in this case relevant to the resolution of the appeal.

1

Defendant was charged by amended information with first degree murder (Pen. Code § 187, subd. (a));1 second degree robbery (§ 211); and felon in possession of a firearm (§ 12021, subd. (a)(1)). In connection with the murder count, the information further alleged that defendant personally and intentionally used and fired a handgun, killing police officer James Capoot (§§ 12022.5, subd. (a), 12022.53, subds. (b)–(d) (sections 12022.53(b)–(d)), and alleged the special circumstances that defendant killed Officer Capoot knowing he was peace officer engaged in his duties (§ 190.2, subd. (a)(7) (section 190.2(a)(7))), while committing robbery (§ 190.2, subd. (a)(17) (section 190.2(a)(17))), and to avoid lawful arrest and escape from lawful custody (§ 190.2, subd. (a)(5) (section 190.2(a)(5))). The jury found defendant guilty as charged, and the trial court sentenced defendant on November 9, 2015. For the murder conviction, the court imposed three concurrent terms of life without parole (LWOP) based on the section 190.2(a)(5), 190.2(a)(7), and 190.2(a)(17) special circumstance findings. The court also imposed a concurrent 50 years to life term as a second strike pursuant to section 1170.12. The court also imposed a concurrent 25 years to life term as a firearm enhancement under section 12022.53(d). It stayed the remaining firearm enhancements. Defendant appealed his conviction and argued, among other things, that he was entitled to resentencing under the January 2018 amendment to section 12022.53, which provides trial courts with the discretion to strike firearm enhancements “in the interest of justice . . . .” (§ 12022.53, subd. (h), as amended Stats. 2017, ch. 682, § 2.) We remanded for resentencing and affirmed in all other respects, concluding that “remand is appropriate