Filed 5/9/22 P. v. Castro 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F. Brian Alvarez, Judge.

Alex Green, 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 and Cameron M. Goodman, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

In this appeal, defendant Dontrea Ann Castro challenges the sentence she received for one count and a fee imposed that has since been repealed by the Legislature. We remand this matter for resentencing, and order that any unpaid portion of the fee imposed for the preparation of a presentence probation report be vacated.

PROCEDURAL SUMMARY

On December 15, 2020, an information was filed charging defendant with resisting an executive officer (Pen. Code,[1] § 69; count 1), and misdemeanor loitering to commit prostitution (§ 653.22, subd. (a); count 2). The information also contained allegations that defendant suffered a prior strike conviction (§§ 667,

subds. (b)–(i), 1170.12, subds. (a)–(d)) for assault with a deadly weapon (§ 245, subd. (a)(1)).

On March 17, 2021, a jury found defendant guilty of counts 1 and 2. On April 30, 2021, defendant was sentenced to the middle term of two years for count 1, doubled to four years for the prior strike conviction (§§ 69, 667, subd. (e)(1)). Defendant was given credit for time served for the misdemeanor conviction in count 2.

FACTUAL SUMMARY

On January 7, 2020, officer Alana Williams was patrolling in the Parkway area of southwest Fresno when she observed a vehicle with a single male motorist. A female was also observed standing at the passenger side of the vehicle. Williams identified defendant as the female she saw on that day standing next to the vehicle.

Williams was aware this area was known as a common area for prostitution. Based on her observations and experience, Williams believed defendant was loitering in the area for the purpose of prostitution. Williams made the decision to arrest defendant for the crime of loitering to commit prostitution. While still in her patrol car, Williams reached defendant and told her to “take a seat.” After defendant repeatedly stated she would not, Williams exited her vehicle and approached defendant on the sidewalk. Defendant continued to argue with Williams in response to her commands to sit down. When Williams told defendant she was under arrest, defendant responded she was not “out there doing that,” or engaging in any sexual acts.

Realizing defendant was much taller than her and weighed more, Williams called for additional units. Noticing defendant was getting agitated, Williams removed the taser from her vest. After hearing on her radio that additional units were on the way, Williams put the taser back into her vest. Williams then grabbed defendant’s arm to try to prevent her from leaving. Defendant “ripped” her arm away and started punching Williams in the face. At this point, Williams was no longer holding on to defendant. Noticing she was experiencing blurry vision, Williams attempted to protect herself. Defendant then grabbed Williams’s hair, which resulted in parts of her hair being pulled out.

Eventually, Williams and defendant ended up in the middle of the street, with Williams on her back and defendant standing over her. Williams again called for help when she had the opportunity during this portion of the fight. This newest call for help was done in a manner that would inform others there was now an emergency. Fearing for her life, Williams continued to struggle with defendant. Williams started to consider how to use less lethal methods of protection. First, Williams tried to use her taser, but missed. Defendant started to punch her again, now scratching at her eyes, and Williams dropped the taser. Williams next tried pepper spray, which did not work.

After trying and failing with two less lethal options for protection, Williams then took out her department issued firearm because she feared for her life. Williams again told defendant to stop. Using expletives, defendant told Williams she did not care, confirming to Williams she was in danger, and caused her to fire a warning shot. Defendant looked over Williams’s shoulder at this point, and Williams finally heard sirens. Defendant turned and started to walk away in the opposite direction. To prevent her from fleeing, Williams grabbed defendant, who hit her again several times. Eventually, another officer pulled defendant off Williams. Evidence showing the various injuries Williams suffered was introduced into evidence.

Officer Arthur Barragan testified that on January 7, 2020, he responded to a “Code 3” request for assistance. When he arrived, he observed Williams getting up off the ground and appearing to be disheveled and in pain. He also observed another officer attempting to take a female into custody. Barragan identified this female as defendant. Barragan assisted the other officer to get control over defendant.

Defendant told detective Eden Cerda that she initially walked away from Williams because she did not agree with the accusation she was engaging in prostitution. Defendant admitted she told Williams she did not care after Williams informed defendant she had a gun and would shoot if she did not stop. Defendant told Cerda that she “just wanted to leave,” and was just defending herself.

DISCUSSION

I. The Sentence for Count 1

A. Assembly Bill No. 124 Applies Retroactively and Justifies Remand

After defendant was sentenced in this case, Assembly Bill No. 124 (2021–2022 Reg. Sess.) (Stats. 2021, ch. 695, §§ 5–6) (Assembly Bill 124) was enacted, amending section 1170, subdivision (b)(6)(B), which provides in relevant part:

“(1)When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term .… [¶] … [¶]

“(6) … unless the court finds that the aggravating circumstances outweigh the mitigating circumstances that imposition of the lower term would be contrary to the interests of justice, the court shall order imposition of the lower term if any of the following was a contributing factor in the commission of the offense: [¶] … [¶]

“(B) The person is a youth, or was a youth as defined under subdivision (b) of Section 1016.7 at the time of the commission of the offense.”

A “youth” for purposes of section 1016.7, subdivision (b), includes any person under the age of 26 on the date the offense was committed. Defendant was 22 years of age when this offense was committed.

“[A]bsent evidence to the contrary, [we presume] the Legislature intended

amendments to statutes that reduce punishment for a particular crime to apply to all

whose judgments are not yet final on the amendments’ operative date.” (People v. Lopez

(2021) 73 Cal.App.5th 327, 344.) This includes “statutes that merely ma[k]e a reduced

punishment possible.” (People v. Frahs (2020) 9 Cal.5th 618, 629.) Because Assembly Bill 124 and its implementation are silent regarding retroactivity, it does apply to all nonfinal cases on appeal. (Lopez, supra, at p. 344; In re Estrada (1965) 63 Cal.2d 740, 744–746.)[2]

When sentencing defendant, the trial court mentioned that she was “relatively young,” but seemed to mention that fact in the context of her history of offenses. It is not entirely clear the court was using this fact when weighing aggravating and mitigating circumstances to reach a conclusion that served the best interests of justice.

In their response, the People agree that this case should be remanded to allow the trial court to consider whether her “youth” was a contributing factor in the commission of the offense. (See § 1170, subd. (b)(6)(B).) Based on the record before us, we agree this matter must be remanded for resentencing.

II. The Balance of the Fee For the Presentence Report

When defendant was sentenced, the trial court imposed a fee authorized by former section 1203.1b. This fee of $296 was for the preparation of a presentence report. Assembly Bill No. 1869 (2019–2020 Reg. Sess.) (Assembly Bill 1869) repealed section 1203.1b, on July 1, 2021. (Stats. 2020, ch. 92, § 47.) Assembly Bill 1869 also resulted in the enactment of section 1465.9, subdivision (a), which provides “[t]he balance of any court-imposed costs” pursuant to section 1203.1b “shall be unenforceable and uncollectible and any portion of a judgment imposing those costs shall be vacated.” (Stats. 2020, ch. 92, § 62.)

When interpreting statutory language, we engage in a de novo review. (People v. Brackins (2019) 37 Cal.App.5th 56, 65.)

“ ‘Statutory construction begins with the plain, commonsense meaning of the words in the statute, “ ‘because it is generally the most reliable indicator of legislative intent and purpose.’ ” [Citation.] “When the language of a statute is clear, we need go no further.” ’ (People v. Manzo (2012) 53 Cal.4th 880, 885.) ‘Absent any indicia of a contrary legislative intent, the word “shall” is ordinarily construed as mandatory .… [Citation.]’ ” (People v. Greeley (2021) 70 Cal.App.5th 609, 626.)

The statute specifically states the balance of any assessments imposed pursuant to former section 1203.1b on June 30, 2021, are now unenforceable and uncollectable as of July 1, 2021. Moreover, “any portion of a judgment imposing those costs shall be vacated.” (§ 1465.9, subd. (a).)

The trial court may no longer enforce the fees imposed for the preparation of the presentence report if it remains unpaid. As required by section 1465.9, the enforcement of any unpaid balances for such assessments must be vacated from the court order on sentencing. (See People v. Greeley, supra, 70 Cal.App.5th at pp. 626–627.)

DISPOSITION

The case is remanded and the trial court is directed to resentence defendant consistent with section 1170, subdivision (b)(6). The trial court is also directed to vacate the fees imposed under former section 1203.1b for the preparation of a presentence probation report that remained unpaid as of July 1, 2021. In all other respects, the judgment is affirmed.

* Before Peña, Acting P. J., Meehan, J. and Snauffer, J.

[1] All further statutory references will be to the Penal Code.

[2] On November 15, 2021, defendant asked this court to take judicial notice of the legislative history behind Assembly Bill 124. We deferred our decision on that request on November 18, 2021. We now consider that request moot as we are remanding this matter for resentencing. We note, however, the language of a statute contains the purest expression of legislative intent. (People v. Arant (1988) 199 Cal.App.3d 294, 296–297.) Regardless of whether or not defendant is currently on probation, her judgment is not yet final, and therefore, she is entitled to receive the ameliorative benefit of this legislative change. (People v. McKenzie (2020) 9 Cal.5th 40, 46.)