People v. Alderete CA5

Filed 6/24/21 P. v. Alderete 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F080645 Plaintiff and Respondent, (Super. Ct. No. VCF277041) v.

MARCO ANTONIO ALDERETE, OPINION Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Tulare County. Kathryn T. Montejano, Judge. Robert L.S. Angres, 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, Carlos A. Martinez and Daniel B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo- In People v. Alderete (June 18, 2019, F075445 [nonpub. opn.]), we remanded appellant Marco Antonio Alderete’s case for resentencing and advised him that upon remand he could request the trial court to strike and/or stay court fines, fees, and

SEE CONCURRING OPINION

assessments based on his alleged inability to pay them, pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). At resentencing upon remand, appellant made such a request, but the trial court declined to consider it because there was “currently a split amongst the courts” as to the pertinent issue of whether due process and equal protection requires a trial court to determine a defendant’s ability to pay before imposing the fines, fees, and assessments and noted it would not consider such a request until the California Supreme Court has made a decision. Finding appellant has not been given an appropriate opportunity to make a record on his alleged inability to pay and harm of constitutional magnitude adequate for appellate review, we again remand, in accordance with this court’s decision in People v. Montes (2021) 59 Cal.App.5th 1107 (Montes), for the limited purpose of allowing appellant to request the court to strike and/or stay the restitution fine and court assessments. RELEVANT PROCEDURAL BACKGROUND A jury found appellant guilty of attempted murder (Pen. Code,1 §§ 664/187, subd. (a); count 1) and assault with a deadly weapon (§ 245, subd. (a)(1); count 2). As to count 1, it was alleged appellant personally used a deadly weapon in the commission of the offense (§ 12022, subd. (b)(1)). As to both counts, the jury found true that appellant had personally inflicted great bodily injury on the victim (§ 12022.7, subd. (a)). In a bifurcated bench trial, the court found appellant had suffered two prior strike felonies (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)), a prior serious felony (§ 667, subd. (a)(1)), and two prior prison convictions (§ 667.5, subd. (b)). As to count 1, the court sentenced appellant to 27 years to life plus three years for the great bodily injury enhancement, one year for the deadly weapon enhancement, and five years for the prior serious felony enhancement. The court stayed sentence as to