Filed 4/25/22 P. v. Crawford 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 COURT*

APPEAL from a judgment of the Superior Court of Fresno County. Francine Zepeda, Judge.

Allan E. Junker, 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, Catherine Chatman, Edrina Anderson and R. Todd Marshall, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant Jezrell Leavel Crawford contends on appeal that his $296 report fee must be vacated because Assembly Bill No. 1869’s (2019−2020 Reg. Sess.) (Assembly Bill 1869) amendment to Penal Code section 1203.1b[1] must be retroactively applied to his case. The People argue the amendments are not retroactive, but that the balance of defendant’s report fee must nonetheless be vacated under former section 1203.1b.

We also ordered the parties to submit supplemental briefing regarding the impact of Senate Bill No. 567 (2021–2022 Reg. Sess.) (Senate Bill 567), which modified section 1170, subdivision (b), to require imposition of the middle term of imprisonment unless circumstances in aggravation justify imposition of a greater sentence. (Stats. 2021, ch. 731, § 1.3.) It further modified section 1170, subdivision (b), to require that the circumstances in aggravation be found true beyond a reasonable doubt or be stipulated to by the defendant. (Ibid.) The parties agree that defendant is entitled to the benefit of Senate Bill 567. We accept the People’s concessions.

We vacate the portion of the judgment requiring payment of fees pursuant to former section 1203.1b and vacate defendant’s sentence and remand for resentencing consistent with the changes brought about by Senate Bill 567. In all other respects, we affirm.

PROCEDURAL SUMMARY

On August 19, 2021, the Fresno County District Attorney filed an information charging defendant with false imprisonment by violence (§ 236; count 1), forcible rape (§ 261, subd. (a)(2); count 2), and assault by means likely to produce great bodily injury (§ 245, subd. (a)(4); count 3).

On February 2, 2021, the trial court granted the prosecution’s motion to amend the charge in count 1 to section 273.5, subdivision (a).

On February 2, 2021, defendant pled no contest to count 1. The remaining counts were dismissed.

On March 4, 2021, probation was denied, and defendant was sentenced to state prison for the upper term of four years. Defendant received 1,152 days for time served and statutory credit. The trial court also imposed various fines and fees and imposed a $296 report fee (former § 1203.1b).

On March 4, 2021, defendant filed a notice of appeal.

FACTUAL SUMMARY

On July 28, 2019, defendant and CV[2] had an argument, during which defendant physically attacked CV. His attacks on CV continued that evening, including squeezing her neck multiple times until she became light-headed, and forcing her to have intercourse when she did not want to by holding his forearm across her neck making her unable to breath, scream or get away from him. He would not let her have her phone.

DISCUSSION

1. Assembly Bill 1869

Defendant contends his $296 report fee must be vacated pursuant to the retroactive application of former section 1203.1b. The People argue the amendments are not retroactive, but that the balance of defendant’s report fee must nonetheless be vacated under former section 1203.1b. We agree with the People.

Operative July 1, 2021, Assembly Bill 1869 eliminated many fines, fees, and assessments that courts have imposed under a variety of statutes, including former section 1203.1b, previously allowing collection of probation report fees. (Stats. 2020, ch. 92, § 47.) Here, the parties agree, as do we, that any unpaid portion of the probation report fees ordered pursuant to former section 1203.1b are uncollectable and unenforceable as of July 1, 2021. (§ 1465.9, subd. (a); Gov. Code, § 6111, subd. (a).) However, Assembly Bill 1869 is not retroactive as defendant argues. (See People v. Lopez-Vinck (2021) 68 Cal.App.5th 945, 954 [intent of the Legislature in Assembly Bill 1869 is to “eliminate all outstanding debt incurred as a result of the imposition of administrative fees”].)

Defendant’s case was not final on January 1, 2021, and he was ordered to pay a $296 report fee pursuant to former section 1203.1b. Defendant is entitled to the benefit of Assembly Bill 1869.

We therefore vacate the portion of the judgment requiring payment of fees pursuant to former section 1203.1b. Any portion of those fees not collected before July 1, 2021, is unenforceable and uncollectable.

2. Senate Bill 567

Next, effective January 1, 2022, Senate Bill 567 amended section 1170, so that it now provides, “The court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term, and the facts underlying those circumstances have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.” (§ 1170, subd. (b)(2).)

As the parties agree, Senate Bill 567 is retroactive to cases not yet final on appeal pursuant to In re Estrada (1965) 63 Cal.2d 740 (see People v. Flores (2022) 73 Cal.App.5th 1032, 1034,1038–1039 [remanding for resentencing under another ameliorative amendment to section 1170 by Senate Bill 567]) and defendant’s sentence is not yet final.

Defendant was sentenced to the upper term of four years in count 1. The trial court explained its sentence, stating,

“I am going to impose the aggravated term of four years. The reason I am going to impose that, is that I did hear the preliminary hearing of this case. The confidential victim was pretty terrified. She had a one-month old baby. She still had stitches. [Defendant] did have sex with her against her will at that time at the hotel. She was pretty terrified. She only had, I believe, only birthday cake to eat for a few days, not given any food, was too scared to call for assistance, even though I believe her sister was right there in the next room. But I will find that aggravated term of four years is appropriate.”

The facts that the trial court relied upon in sentencing defendant to the upper term were not stipulated to by defendant, nor found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial, as required by Senate Bill 567’s amendments to section 1170. Therefore, defendant is entitled to resentencing under Senate Bill 567.

DISPOSITION

The portion of the judgment imposing fees pursuant to former section 1203.1b is vacated, the sentence is vacated, and the matter is remanded to the trial court for resentencing in light of amended section 1170, subdivision (b). In all other respects, we affirm.

* Before Levy, Acting P. J., Detjen, J. and Peña, J.

[1] All statutory references are to the Penal Code unless otherwise noted.

[2] Defendant’s girlfriend, with whom he has a child, will be referred to as “CV” (confidential victim).