California Court of Appeal Oct 21, 2021 No. E072035AUnpublished
Filed 10/21/21 P. v. Petty CA4/2 Opinion on remand from Supreme Court NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E072035
v. (Super. Ct. No. BAF1800674)
WILLIAM JOEL PETTY, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Randall Donald White,
Judge. (Retired Judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant
to art. VI, § 6 of the Cal. Const.). Modified and affirmed with directions.
Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Teresa
Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
1
I.
INTRODUCTION
Defendant and appellant, William Joel Petty, appeals from the judgment entered 1 following a jury conviction for robbing a Sizzler restaurant (Pen. Code, § 211). The
court also found true allegations he had two prior strike convictions (§§ 667, subds. (c)
and (e)(1), 1170.12, subd. (e)(1)), two prior serious felony convictions (§ 667, subd. (a)),
and six prison priors (§ 667.5, subd. (b)). The trial court sentenced defendant to 25 years
to life, plus 14 years in prison.
Defendant contends the trial court violated his due process rights and state law by
instructing the jury to consider an eyewitness’s certainty when identifying defendant as
the perpetrator. Defendant also argues that, in accordance with Senate Bill No. 136
(2019-2020 Reg. Sess.), his four one-year prison priors must be stricken. In addition,
defendant argues the trial court erred in ordering him to pay fines, fees, and assessments,
because he demonstrated he did not have the ability to pay them.
As to defendant’s challenge to CALCRIM No. 315’s inclusion of certainty as a
factor to be considered in evaluating the accuracy of an identification, we initially
rejected that challenge as having previously been rejected by our Supreme Court. After
our initial opinion was filed, the California Supreme Court granted review, with further
action in the matter deferred pending consideration and disposition of a related issue in
People v. Lemcke (2021) 11 Cal.5th 644 (Lemcke). Thereafter the California Supreme
1 Unless otherwise noted, all statutory references are to the Penal Code.
2
Court held in Lemcke, supra, 11 Cal.5th 644 that the identification certainty factor in
CALCRIM No. 315 did not violate the defendant’s state or federal due process rights.
This case was then transferred back to this court with directions to vacate our initial
opinion and reconsider the cause in light of Lemcke. Having done so, we conclude
defendant was not prejudiced by the instruction and his state and federal constitutional
due process rights were not violated. We also reject defendant’s additional contention
raised in his post-remand, supplemental brief addressing Lemcke, that the identification
certainty clause in CALCRIM No. 315 violates state law because it is misleading.
As to defendant’s other contentions decided in our previously vacated decision in
this matter, our decision is unchanged. We agree with the parties that Senate Bill No.
136 requires this court to strike defendant’s four one-year prison priors. As to the court-
ordered fines, fees, and assessments, we conclude defendant failed to meet his burden of
demonstrating inability to pay the $10,000 restitution fine, $30 criminal conviction
assessment fee, or $40 court operations assessment fee. We further conclude the
probation officer’s recommendation report (probation report) was sufficient to support
the trial court imposing the pre-sentence probation report fee, not to exceed $1,095, and
booking fee of $514.53. The sentence is therefore modified to strike defendant’s four
section 667.5, subdivision (b) prior prison term enhancements. The judgment is
otherwise affirmed.
3
II.
FACTS
On May 17, 2018, at 8:40 a.m., Sysco delivery driver, S.M., parked his truck
alongside a Hemet Sizzler restaurant. As S.M. was unloading goods, using the backdoor
entry into the Sizzler kitchen, he was approached by a man later identified as defendant.
While S.M. was on the phone talking to his cousin and brother, defendant told S.M. he
was looking for the Sizzler manager and the office. S.M. said, “‘She’s over there
somewhere.’” “‘I don’t know where she’s at. You can go look for her.’” S.M. then
noticed defendant appeared to have a gun. Defendant said, “‘Walk in the office,’” and
“‘Either you either walk in there, or you’re going to regret it.’”
As S.M. walked toward the office, defendant held what S.M. thought was a gun on
S.M.’s back. While walking to the office, S.M. was still on his phone with his cousin and
brother. S.M. told them he was being robbed at the Hemet Sizzler, and to call the police.
S.M. remained on the phone and continued to tell them what was happening during the
robbery. On the way to the office with S.M., defendant grabbed a Sizzler employee and
took her with them into the office. When in the office, S.M. noticed the weapon
defendant was using was not a gun. It was a construction tool, which appeared to be a
nail gun. Defendant then located the Sizzler manager, M.M., in the dining area and told
her to come to the office.
M.M. testified that, not knowing what was going on, M.M. walked over to the
office. When she approached defendant, he pushed something toward her stomach,
4
grabbed a salad bar attendant, “threw her” towards M.M., and told M.M. to give him all
her money. At that point, M.M. realized they were being robbed. M.M. and the other
employee walked with defendant into the office. While they were in the office with
S.M., defendant told M.M. to get the money out of the safe. Defendant pointed the nail
gun at M.M. as she opened the safe and removed the money. M.M. put $3,300 in
defendant’s bag.
While defendant was distracted by M.M. putting money in the bag defendant was
holding, S.M. ran out of the office and called 911. Throughout the robbery, S.M. had
been relaying over his phone what was happening during the robbery to his cousin and
brother. When defendant noticed S.M. had left the office, defendant fled with the bag of
money.
S.M. testified that defendant was wearing sunglasses, dark clothing, and a beanie,
had a short, dark mustache and beard, was African-American, and appeared in his 40’s or
50’s. M.M. testified defendant had a mustache and beard, was wearing black pants, a
gray sweater, a beanie, and sunglasses, and had a black Nike bag.
A. Surveillance Videos
Police reviewed surveillance videos from the Sizzler and Circle K, located next to
the Sizzler. The videos were played for the jury during the trial. The Circle K video
shows defendant pulling into the Circle K parking lot, in a black GMC pickup truck with
red writing on yellow paper license plates. Defendant is seen entering the Circle K and
then returning to the GMC truck. The Circle K video provided a clear view of defendant
5
wearing a blue t-shirt, tan jacket, and sunglasses. The video shows the GMC truck leave
the parking lot, drive towards the Sizzler, circle the parking lot a couple of times, park in
the parking lot, drive closer to the Sizzler, and park 40 to 50 feet from the Sizzler’s
entrance. The Circle K video shows defendant then exit the GMC truck and walk
towards the Sizzler service entry carrying a bag. Two minutes later he is seen returning
at a quick pace to the GMC truck, reentering the truck, and driving away.
The Sizzler video shows defendant inside the Sizzler during the robbery.
Defendant is wearing different clothing than in the Circle K surveillance video.
Nevertheless, he appears to be the same person in both videos. His physical features,
moustache, and sunglasses appear to be the same in both videos. The Sizzler video
shows defendant with a mustache and goatee, wearing black pants, a gray sweater or
hoody, a beanie, black shoes with white bottoms, and sunglasses. The robbery lasted
about two and a half minutes, from 9:00 a.m. to 9:02 a.m. The police were called at 9:04
a.m.
B. Vagabond Inn Evidence
Detective Young testified that, when he was assigned to investigate the Sizzler
robbery, he reviewed Officer Lynton’s report, the surveillance videos, and still frame
photographs from the Sizzler and Circle K videos. The day after the robbery, Young
noticed defendant’s truck parked in the Hemet Vagabond Inn parking lot. Young ran the
vin number on the truck and it showed that defendant was the owner of the truck. Two
officers assisting Young showed the hotel manager a photograph from the Circle K video.
6
The hotel manager provided the officers with defendant’s hotel room number and a key
card to enter the hotel room. Young and the two officers knocked on defendant’s hotel
room door. No one answered but the officers heard a male voice inside. The officers
entered the room using the room keycard. Young testified that upon entering, Young
immediately recognized defendant as the same person in the Sizzler and from Circle K
surveillance videos. He had a mustache and a short beard.
After arresting defendant and obtaining a search warrant, officers found in
defendant’s hotel room clothing that matched defendant’s clothing in the Circle K and
Sizzler surveillance videos. The clothing included the same blue t-shirt and tan jacket
defendant wore at the Circle K, a black beanie he wore in the Sizzler, and black shoes
with white rubber soles defendant wore at the Circle K and Sizzler. The officers also
found a folder that had defendant’s name on it. Inside the folder was a Wells Fargo Bank
deposit bag containing about $1,000 in cash. Defendant’s wallet contained an additional
$278 in cash and two separate transaction receipts from Money Mart for wiring $300 to
another account. Young testified that officers also found in the hotel room a blue Fila
duffle bag, which was different from the black Nike duffle bag defendant used during the
robbery.
C. Additional Evidence Presented at Trial
Young testified he conducted separate photograph lineups for S.M. and M.M.,
during which both S.M. and M.M. identified defendant as the Sizzler robber. Young
further testified defendant’s sunglasses were found in defendant’s GMC truck. Young
7
believed the sunglasses looked like the ones defendant wore in the Circle K and Sizzler
surveillance videos. Young did not find the nail gun or Nike bag. Young testified he
concluded based on all of the evidence he had seen, including the GMC truck, clothing,
the description and appearance of the Sizzler robber, the money found in the deposit bag
in defendant’s hotel room, and the surveillance videos, that defendant was the Sizzler
robber.
Young acknowledged during his testimony that someone had reported to dispatch
that a red truck had been involved in the Sizzler robbery but he did not know who the
caller was. Defendant’s sole defense witness, H.G., testified that, at the time of the
robbery, she was employed at the Sizzler as a preparer. On the day of the robbery, she
arrived for work at the Sizzler at 9:10 a.m. Her shift normally starts at 9:30 a.m. The
police interviewed her concerning the robbery on the day of the robbery. She told the
police that at 9:15 a.m., she saw a man running towards a big, dark red truck. When the
police showed her a photograph of a truck, she told them it was not the same truck she
saw. H.G. acknowledged that when she saw the truck, she was focused on her phone and
got confused about what she saw. H.G. said she did not witness the robbery. She saw
someone leave the Sizzler, get into a truck, and drive away. Defendant’s investigator
interviewed her. She told him she saw either a red or dark colored truck. She was told
the cameras showed a black truck. This confused H.G. H.G. acknowledged she was
confused about the color of the truck.
8
III.
CALCRIM NO. 315
Defendant contends that the trial court denied his due process rights by giving
CALCRIM No. 315, which instructed the jury that when evaluating the accuracy of a
witness’s identification of the defendant, the jury consider, among other factors: “How
certain was the witness when he or she made an identification?”{2CT 367}
After this court issued its decision in this case, holding that there was no
instructional error under People v. Wright (1988) 45 Cal.3d 1126, 1141-1143, People v.
Johnson (1992) 3 Cal.4th 1183, 1231-2132, and People v. Sánchez (2016) 63 Cal.4th
411, 461-463 (Sánchez), the California Supreme Court granted defendant’s petition for
review and deferred deciding the identification certainty issue until after deciding a
similar issue in Lemcke, supra, 11 Cal.5th 644. After Lemcke was decided, the California
Supreme Court remanded this case back to this court to reconsider and decide the
identification certainty issue based on Lemcke. In a supplemental brief, defendant
acknowledges that in Lemcke the court held that the identification certainty factor in
CALCRIM No. 315 did not violate the defendant’s due process rights. However,
defendant argues that the instruction violates state law because the instruction is 2 misleading. Defendant argues that giving the instruction therefore constitutes prejudicial
error requiring reversal.
2 The People did not file a supplemental brief on the issue.
9
The People contend defendant forfeited any challenge to the instruction by failing
to object in the trial court. Regardless of whether defendant forfeited the issue, we reject
defendant’s challenge to the instruction on the merits. In doing so, we review
defendant’s objection to the instruction de novo. (People v. Posey (2004) 32 Cal.4th 193,
218.)
A. Identification Facts
S.M. and M.M. identified defendant as the perpetrator of the robbery in
photograph lineups and in court. M.M. testified that a little before 9:00 a.m., on the day
of the robbery, she saw an employee talking with someone at the salad bar. M.M.
identified in court the person as defendant. M.M. testified it was about two and a half
minutes from the time she first saw defendant until he fled. The officers arrived about
three minutes later. M.M. showed the officers the Sizzler surveillance video. During the
trial, M.M. identified defendant in the video. M.M. further testified that Officer Lynton
interviewed her. An hour and a half later he returned, showed her and other Sizzler
employees a still photograph from the Circle K surveillance video, and told her it was a
photograph of the robber. Four days later, on May 21, 2018, she participated in a
photograph lineup conducted by Young, during which she selected defendant’s
photograph as the perpetrator.
S.M. testified Young conducted a photograph lineup on May 23, 2018. During the
photograph lineup, S.M. selected defendant’s photograph from six photographs. S.M.
testified that he recognized defendant as the Sizzler robber “right away,” and that S.M.
10
was certain at the time of trial that defendant was the robber. At the time of the
photograph lineup, S.M. asked if the robber had already been arrested. S.M. did not
recall what he was told. S.M. also asked if he had selected the right person as the robber
and the officer said he could not tell S.M. S.M. testified that, before he and defendant
went into the Sizzler office, S.M. got a good look at defendant. S.M. said that he and
defendant were a foot away from each other, and they were face to face “more than
once,” for “10, 15 seconds.” S.M. added that before he and defendant went into the
Sizzler office, S.M. had “a lot of eye contact.”
Young testified that on May 23, 2018, he conducted a photograph lineup with
S.M. S.M. asked Young if the defendant had already been arrested, and Young told him
they had someone in custody. Young testified that during the photograph lineup with
M.M., she narrowed down her selection to two photographs, one of which included
defendant.
B. Analysis
Defendant argues the CALCRIM No. 315 witness identification certainty factor is
contrary to empirical studies that show witness certainty has no correlation with
identification accuracy and is therefore misleading and violates state law. The court in
Lemcke agreed that, “Contrary to widespread lay belief, there is now near unanimity in
the empirical research that ‘eyewitness confidence is generally an unreliable indicator of
accuracy.’ [Citations.]” (Lemcke, supra, 11 Cal.5th at p. 647.) Lemcke further stated
that, “[a]s currently worded, CALCRIM No. 315 does nothing to disabuse jurors of that
11
common misconception, but rather tends to reinforce it by implying that an identification
is more likely to be reliable when the witness has expressed certainty.” (Id. at p. 647.)
Nevertheless, the court in Lemcke concluded the instruction did not violate federal or
state due process rights to a fair trial, and therefore the court did not reverse the decision.
(Id. at pp. 646-647.)
Although the court in Lemcke recognized the significance that witness certainty
plays in the factfinding process, the Lemcke court did not state or suggest that the
instruction violated any state law or the state constitution. The Lemcke court, however,
requested the Judicial Council and its Advisory Committee on Criminal Jury Instructions
to evaluate whether or how the instruction might be modified and directed trial courts to
omit the certainty factor from CALCRIM No. 315 unless the defendant requests
otherwise. (Lemcke, supra, 11 Cal.5th at p. 647)
Defendant argues the instruction violates state law because it is misleading, but the
defendant does not identify any specific law or cite any supporting case law or statutory
authority. Lemcke does not discuss whether the instruction violates state law, other than
stating it does not violate state constitutional due process rights. Lemcke states that there
is “nothing in CALCRIM No. 315’s instruction on witness certainty that operates to
‘lower the prosecution's burden of proof.’ As Sánchez, supra, 63 Cal.4th 411, explained
with respect to CALJIC No. 2.92’s similarly worded instruction, the instruction does not
direct the jury that ‘certainty equals accuracy.’ (Sánchez, at p. 462.) Nor does the
instruction state that the jury must presume an identification is accurate if the eyewitness
12
has expressed certainty. (Cf. Francis v. Franklin (1985) 471 U.S. 307, 316 [instruction
that ‘directs the jury to presume an essential element of the offense’ violates due
process].) Instead, the instruction merely lists the witness’s level of certainty at the time
of identification as one of 15 different factors that the jury should consider when
evaluating the credibility and accuracy of eyewitness testimony. The instruction leaves
the jury to decide whether the witness expressed a credible claim of certainty and what
weight, if any, should be placed on that certainty in relation to the numerous other factors
listed in CALCRIM No. 315. Indeed, even [the defendant] acknowledges that, on its
face, the instruction is ‘superficially neutral.’” (Lemcke, supra, 11 Cal.5th at p. 655.)
The Lemcke court added that, “[a]lthough the wording of the instruction might
cause some jurors to infer that certainty is generally correlative of accuracy
[citation], [the defendant] was permitted to present expert witness testimony to combat
that inference.” (Lemcke, supra, 11 Cal.5th at pp. 657-658.) The court in Lemcke does
not indicate the instruction is unlawful.
We conclude that under Lemcke, the identification certainty factor in CALCRIM
No. 315 did not violate defendant’s state or federal due process rights. (Lemcke, supra,
11 Cal.5th at pp. 646-647.) Defendant also has not established that the identification
certainty factor violated any state law.
13
IV.
SENATE BILL NO. 136
Defendant contends, and the People agree, that recently enacted Senate Bill No.
136 applies retroactively to this case. Senate Bill No. 136 amended section 667.5,
subdivision (b), effective January 1, 2020. (Stats. 2019, ch. 590, § 1.) Senate Bill No.
136 narrowed eligibility for a one-year prior prison term enhancement to those who have
served a prior prison sentence for a sexually violent offense. Defendant was sentenced
on January 11, 2019. The trial court imposed four prior prison term enhancements,
which were not for sexually violent offenses. Defendant is therefore entitled to the
ameliorative benefit of the statute because Senate Bill No. 136 applies retroactively to the
instant case.
Whether a particular statute is intended to apply retroactively is a matter of
statutory interpretation. (See People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307
[noting “‘the role of a court is to determine the intent of the Legislature’”].) Generally
speaking, new criminal legislation is presumed to apply prospectively unless the statute
expressly declares a contrary intent. (§ 3.) However, where the Legislature has reduced
punishment for criminal conduct, an inference arises under In re Estrada (1965) 63
Cal.2d 740, “‘that, in the absence of contrary indications, a legislative body ordinarily
intends for ameliorative changes to the criminal law to extend as broadly as possible,
distinguishing only as necessary between sentences that are final and sentences that are
not.’” (Lara, supra, at p. 308.) “A new law mitigates or lessens punishment when it
14
either mandates reduction of a sentence or grants a trial court the discretion to do so.”
(People v. Hurlic (2018) 25 Cal.App.5th 50, 56.)
There is no indication in Senate Bill No. 136 or its associated legislative history
that the Legislature intended Senate Bill No. 136 and amended section 667.5, subdivision
(b) not to apply retroactively to all defendants whose sentences were not yet final when
the bill went into effect on January 1, 2020. Under such circumstances, we find
that Estrada’s inference of retroactive application applies. (People v. Cruz (2020) 46
Cal.App.5th 715, 738-739; People v. Lopez (2019) 42 Cal.App.5th 337, 340-342 [Senate
Bill No. 136 applies retroactively to cases not yet final on appeal]; People v. Jennings
(2019) 42 Cal.App.5th 664, 680-682.) Therefore, defendant is entitled to have his four
one-year prior prison term enhancements stricken.
V.
FINES, FEES, AND ASSESSMENTS
Defendant contends the trial court abused its discretion in imposing various fines,
fees, and assessments, including a $10,000 restitution fine, $30 criminal conviction
to exceed $1,095, and booking fee of $514.58. Defendant argues they were improper
because he does not have the ability to pay them.
A. Procedural Background
During defendant’s sentencing hearing on January 11, 2019, the court stated it had
received and considered the probation officer’s sentencing recommendation report filed
15
on November 30, 2016. The court said it intended to follow the probation officer’s
recommendations. Defendant, who represented himself in propria persona, asserted in
response that his 1984, 35 year-old robbery conviction prior should be stricken because 3 there was no “Tahl” waiver showing he intelligently pled to the crime. Defendant also
objected to his 1999 robbery prior because the information alleged larceny, not robbery,
and he did not knowingly and intelligently plead to that prison prior crime.
Defendant mentioned he had a couple of prior felony convictions that should be
reduced to misdemeanors under Proposition 47. The prosecutor noted that some of
defendant’s felony priors had already been reduced to misdemeanors and the court
therefore had found they did not qualify as prior enhancements. The other priors required
the filing of a petition. As to those, the trial court in the instant case stated defendant’s
request to reduce the felony priors to misdemeanors was not properly before the court.
The court denied defendant probation and imposed a 14-year determinate prison
term, which included five years for each of defendant’s two serious priors (§ 667, subd.
(a)) and one year for each of the other four priors (§ 667.5, subd. (b)). The court further
sentenced defendant to an indeterminate term of 25 years to life for his robbery
conviction. The court ordered defendant to pay the cost of the presentence probation
report, with the probation department to determine the amount, not to exceed $1,095.
3 Under In re Tahl (1969) 1 Cal.3d 122, 132, each of the three constitutional rights- “self-incrimination, confrontation, and jury trial-must be specifically and expressly enumerated for the benefit of and waived by the accused prior to acceptance of his guilty plea.” (People v. Allen (1999) 21 Cal.4th 424, 427, 435.)
16
Defendant was further ordered to pay a booking fee of $514. In addition, the court
ordered defendant to pay a $10,000 restitution fine; a stayed $10,000 parole revocation
restitution fine; a $30 criminal conviction assessment fee; and a $40 court operations
assessment fee.
In response to the sentencing order, defendant stated that the trial court had
previously declared that he was indigent. He further told the court he did not have the
ability to pay $10,000 in restitution. The court responded that, if he wanted to contest the
fine, he needed to present the court with evidence. In response, defendant again said he
had been declared an indigent by the court. The court said, “that was then; this is now.”
Defendant replied, “I still don’t have any money.” The court again told defendant he
would need to present the court with evidence of that fact, which the court said it would
be happy to consider. Defendant did not present or offer to present any evidence of
inability to pay, or request a continuance for an additional hearing to present such
evidence. As a consequence, the fines, fees, and assessments were ordered as initially
stated by the court.
B. Forfeiture
The People argue defendant forfeited his ability-to-pay objections to the $30
“Government Code section 29550.2 places on the People the burden of proving a
defendant’s ability to pay a booking fee. Because the fee is not ‘punishment’ for
constitutional purposes [citation], the People’s burden of proof is by preponderance of
evidence [citations]. But a defendant who does nothing to put at issue the propriety of
imposition of a booking fee forfeits the right to challenge the sufficiency of the evidence
to support imposition of the booking fee on appeal, in the same way that a defendant who
goes to trial forfeits his challenge to the propriety of venue by not timely challenging it.”
(People v. McCullough, supra, 56 Cal.4th at p. 598.) “[T]he Legislature considers the
29
financial burden of the booking fee to be de minimis and has interposed no procedural
safeguards or guidelines for its imposition.” (Id. at p. 599.)
In the instant case, the trial court did not make express findings that defendant had
the ability to pay the probation report and booking fees. However, such a finding could
be reasonably inferred from the trial court’s comments and finding of defendant’s ability
to pay the restitution fine. Defendant was permitted to present evidence refuting a
finding of ability to pay the $10,000 restitution fine, and failed to do so. The People’s
burden to demonstrate defendant’s ability to pay the booking fee and probation report fee
was met by submitting the probation report, which provided sufficient facts
demonstrating defendant had the ability to pay the restitution fine and other court
imposed fees and assessments, including the probation report and booking fees.
The probation report indicated that defendant’s future financial position and
earnings during the year after the sentencing hearing, would likely be minimal. Under
section 12.03.1b, subdivision (e), the court was not permitted to consider defendant’s
prison earnings during his 39 year prison term, other than his earnings within a year after
sentencing. However, as discussed regarding defendant’s ability to pay the restitution
fine, the probation report demonstrated a high likelihood defendant has assets which
could be used to pay the fines and fees. According to the uncontested probation report,
defendant had been continuously employed from January 2017, up until his arrest, he had
$2,750 in monthly discretionary income; and he had recently purchased a new truck. We
therefore conclude the trial court reasonably found that defendant had the ability to pay
30
the probation report and booking fees, and thus did not abuse its discretion in ordering the
fees.
VI.
DISPOSITION
The judgment is modified to strike defendant’s four section 667.5, subdivision (b)
prior prison term enhancements. The judgment is otherwise affirmed. The trial court is
directed to prepare an amended abstract of judgment and forward a certified copy to the
Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J. We concur:
MILLER P. J.
MENETREZ J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the identification certainty factor in CALCRIM No. 315 does not violate due process, and that Senate Bill No. 136 requires striking the defendant's four one-year prior prison term enhancements. The court further held that the defendant failed to meet his burden of demonstrating an inability to pay the imposed fines and fees.
Issues
Does the inclusion of witness certainty in CALCRIM No. 315 violate due process or state law?
Does Senate Bill No. 136 apply retroactively to require striking the defendant's prior prison term enhancements?
Did the trial court err in imposing fines, fees, and assessments without an ability-to-pay hearing?
Disposition. Modified and affirmed with directions.
Quotations verified verbatim against the opinion
“the identification certainty factor in CALCRIM No. 315 did not violate the defendant’s state or federal due process rights.”
“Senate Bill No. 136 requires this court to strike defendant’s four one-year prison priors.”
“we conclude defendant failed to meet his burden of demonstrating inability to pay the $10,000 restitution fine, $30 criminal conviction assessment fee, or $40 court operations assessment fee.”