People v. Newens CA3

Filed 8/3/22 P. v. Newens CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Butte) ----

THE PEOPLE, C094163

Plaintiff and Respondent, (Super. Ct. No. 19CF06083)

v.

JOSHUA DANIEL NEWENS,

Defendant and Appellant.

A jury found defendant Joshua Daniel Newens guilty of two counts of robbery (Pen. Code, § 211—counts 1 & 2) 1 and four counts of criminal threats. (§ 422, subd. (a)—counts 3-6.) In a bifurcated proceeding, the trial court found true the enhancement allegations that defendant had suffered two prior strike convictions (§§ 667, subd. (d), 1170.12, subd. (b)) and that defendant had suffered two prior serious felony convictions.

1 Undesignated statutory references are to the Penal Code.

1

(§ 667, subd. (a).) The trial court ultimately granted defendant’s request to strike one of the prior strikes and both of the serious prior felony convictions. It then sentenced defendant to an aggregate prison term of 13 years four months, comprised of consecutive terms of varying lengths for each of defendant’s substantive offenses. Defendant argues on appeal that reversal and remand is required because: (1) the application of section 654 required the staying of two terms for which he received consecutive sentences, and in light of the passage of Assembly Bill No. 518 (2021-2022 Reg. Sess.), remand is required for resentencing to allow the trial court to determine which terms to stay; (2) defendant is entitled to resentencing in light of the passage of Assembly Bill No. 124 (2021-2022 Reg. Sess.) to allow defendant the benefit of changes made to section 1170; and (3) the trial court failed to conduct an ability to pay hearing before imposing “mandatory” fines and fees, in violation of the constitution as explained in People v. Dueñas (2019) 30 Cal.App.5th 1157. The People concede that the trial court erred in failing to stay two of the criminal threats terms under former section 654 and that remand for a full resentencing is required so that the trial court may elect which terms to stay in light of legislative amendments to section 654 vesting the court with new authority. The People further argue, and defendant accepts, that his remaining issues on appeal may be brought to the trial court’s attention at the resentencing hearing on remand. We accept the parties’ concession and will remand this matter for a full resentencing hearing.2