People v. Bailey CA1/5

Filed 6/4/21 P. v. Bailey CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

THE PEOPLE, Plaintiff and Respondent, A161124 v. LEE JAMES BAILEY, (Solano County Super. Ct. No. FCR262979) Defendant and Appellant.

Lee James Bailey appeals from a resentencing proceeding held pursuant to Penal Code section 1170, subdivision (d)(1).1 Bailey contends the trial court abused its discretion by declining to strike his firearm and prior serious felony conviction enhancements, and that the court erred by failing to consider his ability to pay two assessments and a restitution fine. We affirm. BACKGROUND In 2009, Bailey, then 21 years old, shot and robbed a man in a hotel room. The bullet lodged in the man’s spine, partially paralyzing him. The prosecution charged Bailey with attempted first degree murder with firearm enhancements (§§ 664, 187, subd. (a), 12022, subd. (a)(1), 12022.53, subds. (b)–(d)); second degree robbery with firearm enhancements (§§ 211, 12022,

1 Undesignated statutory references are to the Penal Code.

subd. (a)(1), 12022.53, subds. (b)–(d)); and assault with a semiautomatic weapon with a firearm enhancement (§§ 245, subd. (b), 12022.5, subds. (a), (d)). The information alleged Bailey had a prior serious felony conviction (§ 667, subd. (a)(1)) and a prior strike conviction (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)). Bailey pled no contest to the robbery and admitted personally and intentionally discharging a firearm during that crime (§ 12022.53, subd. (c)). Bailey also admitted the prior conviction allegations. The parties agreed Bailey would receive a 35-year prison sentence, comprised of 5 years for the robbery, doubled for the prior strike conviction; a mandatory 20 years for the firearm enhancement; and a mandatory 5 years for the prior serious felony conviction. The prosecution dismissed the remaining charges and enhancements. In 2011, the court sentenced Bailey to 30 years in state prison. It imposed a $40 court operations assessment (§ 1465.8); a $30 criminal conviction assessment (Gov. Code, § 70373); and a $7,000 restitution fine (§ 1202.4, subd. (b)). Several years later, the Department of Corrections and Rehabilitation (CDCR) notified the court that it had failed to double the five- year base term for the robbery conviction. The court amended the abstract of judgment to reflect a 35-year prison sentence. A. In 2019, the Secretary of the CDCR recommended the court recall Bailey’s sentence and resentence him pursuant to section 1170, subdivision (d)(1) based on a change in the law granting trial courts discretion to strike prior serious felony enhancements in the interest of justice. The recommendation attached documents showing Bailey’s