People v. Wells CA5

Filed 2/11/21 P. v. Wells CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F080461 Plaintiff and Respondent, (Super. Ct. No. F14903226) v.

JAMES CARTER WELLS, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Arlan L. Harrell, Judge.

Rachel Varnell, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Amanda D. Cary and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Appellant. -ooOoo-

*Before Detjen, Acting P.J., Peña, J. and Meehan, J.

INTRODUCTION A jury convicted defendant James Carter Wells in 2014 of corporal injury to a spouse (Pen. Code, § 273.5, subd. (a)), assault with a deadly weapon (§ 245, subd. (a)(1)), and misdemeanor vandalism (§ 594, subd. (a)(2)). The court found true allegations defendant had suffered two prior serious felony convictions (§ 667, subd. (a)) in addition to other enhancement allegations. Defendant appealed the judgment and our court remanded the matter to the trial court to conduct a resentencing hearing to consider whether to strike defendant’s prior serious felony enhancements in light of the passage of Senate Bill No. 1393 (2017–2018 Reg. Sess.) (Senate Bill 1393). At resentencing in 2019, the trial court reimposed a $4,500 state restitution fine (Pen. Code, § 1202.4, subd. (b)), a $120 court security fee (id., § 1465.8), and a $90 criminal conviction assessment (Gov. Code, § 70373). Defense counsel did not object to the imposition of the fines and fees. Defendant now asserts his counsel provided ineffective assistance during the resentencing hearing by failing to request an ability to pay hearing in light of People v. Dueñas (2019) 30 Cal.App.5th 1157 (Duenas). We affirm the judgment. FACTUAL BACKGROUND Defendant and D.B. (the victim) were in a long-term romantic relationship. On April 6, 2014, they had an argument. According to the victim, defendant choked her and warned her not to “disrespect his house.” When the victim left defendant’s house in her car, defendant threw a brick into the driver’s side window, shattering the glass. A jury convicted defendant of corporal injury to a spouse (Pen. Code, § 273.5, subd. (a)), assault with a deadly weapon (§ 245, subd. (a)(1)), and misdemeanor vandalism (§ 594, subd. (a)(2)) in connection with the incident. Following a bifurcated trial, the court found true allegations defendant personally used a deadly and dangerous weapon, a brick, in connection with the incident (§ 12022, subd. (b)(1)), that he had