People v. Abernathy CA5

Filed 6/27/22 P. v. Abernathy 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F082964 Plaintiff and Respondent, (Super. Ct. No. F21902193) v.

ERIQ RAY ABERNATHY, OPINION Defendant and Appellant.

THE COURT * APPEAL from a judgment of the Superior Court of Fresno County. James A. Kelley, Judge. Joshua G. Wilson, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Michael P. Farrell, Assistant Attorney General, Amanda D. Cary and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

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

Defendant Eriq Ray Abernathy contends on appeal that his $296 presentence report fee must be vacated because Assembly Bill 1869’s (2019−2022) (Assembly Bill 1869) amendment to Penal Code section 1203.1b1 must be applied to his case. We vacate the portion of the judgment requiring payment of fees pursuant to former section 1203.1b. We affirm in all other respects. PROCEDURAL SUMMARY On March 16, 2021, the Fresno County District Attorney filed a complaint charging defendant with possession of a firearm by a felon (§ 29800, subd. (a)(1); count 1); carrying a loaded firearm in public (§ 25850, subd. (a); count 2); carrying a concealed firearm in a vehicle (§ 25400, subd. (a)(1); count 3); and possession of ammunition by a person prohibited from owning a firearm (§ 30305, subd. (a)(1); count 4). It was further alleged in count 2 that defendant had a prior robbery conviction (§§ 211, 25850, subd. (c)(1)) and was not the registered owner of the firearm capable of being concealed (§ 25850, subd. (c)(6)); and in count 3, that defendant was not the registered owner of the loaded firearm (§ 25400, subd. (c)(6)) and had a prior robbery conviction (§§ 211, 25400, subd. (c)(1)). It was also alleged that defendant had a prior “strike” conviction within the meaning of the Three Strikes law (§§ 667, subd s. (b)–(i), 1170.12, subds. (a)–(d)). On March 26, 2021, pursuant to a plea agreement, defendant pled nolo contendere as to count 3, admitted the prior strike conviction and admitted that he was not the registered owner of the loaded firearm. The remaining counts were dismissed on the People’s motion. On April 27, 2021, the trial court granted a Romero2 motion to strike defendant’s prior strike conviction, sentenced defendant to a two-year term, and awarded defendant