People v. Molina CA5

Filed 6/22/22 P. v. Molina 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F082625 Plaintiff and Respondent, (Super. Ct. No. CR18006263) v.

CHRISTIAN MOLINA, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Stanislaus County. Shawn D. Bessey, Judge. Robert F. Kane, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Hill, P. J., Smith, J. and Meehan, J.

Defendant Christian Molina contends on appeal that (1) his sentence must be vacated and reduced by two years because Assembly Bill No. 124’s (2021–2022 Reg. Sess.) (Assembly Bill 124) amendments to Penal Code section 11701 must be applied to his case, and (2) that his case should be remanded for the trial court to hold an ability-to-pay hearing regarding section 1465.8 and Government Code section 70373 assessments and the restitution fine imposed by the trial court. The People agree that amended section 1170 applies, but contend that defendant’s case must be remanded to the trial court for resentencing in light of amended section 1170, and at that time, defendant may raise the issue of his ability to pay the fine and assessments with the trial court. We vacate defendant’s sentence and remand for resentencing in light of amended section 1170. In all other respects, we affirm. PROCEDURAL SUMMARY On June 24, 2019, the Stanislaus County District Attorney filed an information charging defendant with first-degree burglary (§ 459; count I); battery on a spouse or cohabitant (§ 273.5, subd. (a); count II); making criminal threats (§ 422, subd. (a); count III); and three counts of assault with a deadly weapon (§ 245, subd. (a)(1), counts IV–VI). The information alleged defendant personally inflicted great bodily injury (§ 12022.7, subd. (e)) as to counts II, V, and VI. On November 18, 2020, a jury found defendant guilty on all counts and found true the great bodily injury allegations. On February 11, 2021, the trial court sentenced defendant to a total of 12 years eight months in prison with credit for 1,021 days in custody as follows: three years (the midterm) for count II, plus four years for the section 12022.7 enhancement; four years (the midterm) for count I, stayed; two years (the midterm) for count III, concurrent; one year (one-third the midterm) for each of counts IV through VI, consecutive; and one year four months (one-third the midterm),