Filed 9/25/20 P. v. Lozano 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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, C090499
Plaintiff and Respondent, (Super. Ct. No. 19CF00802)
v.
PASCUAL MORALES LOZANO,
Defendant and Appellant.
Defendant Pascual Morales Lozano appeals his felony conviction for possession of
ammunition by a felon. Defendant asserts, and the People concede, a one-year sentence
enhancement imposed on him pursuant to Penal Code section 667.5, subdivision (b) must
be stricken because of recently adopted legislation. (Statutory section citations that
follow are to the Penal Code, unless otherwise set forth.) He also asserts the trial court
erred in imposing fines and fees without conducting an ability to pay hearing. We strike
defendant’s prior prison term enhancement and otherwise affirm the judgment.
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FACTS AND PROCEDURAL HISTORY
Police officers searched defendant’s house and cars, finding 177 rounds of
ammunition in the trunk of one of the cars. Defendant was charged with felony
possession of ammunition by a felon (§ 30305, subd. (a)(1)) and misdemeanor possession
of drug paraphernalia (Health & Saf. Code, § 11364, subd. (a)). It was also alleged
defendant had a prior prison term (§ 667.5, subd. (b)) for child abuse (§ 273a, subd. (a)),
disturbing the peace with gang activity (§§ 415, 186.22, subd. (d)), and assault likely to
cause great bodily injury (§ 245, subd. (a)(1)). The charge for possession of drug
paraphernalia was dismissed before trial.
The jury found defendant guilty of possession of ammunition by a felon. At a
bifurcated hearing, the court found the prior prison term enhancement true. At
sentencing in September 2019, the court sentenced defendant to the upper term of three
years for possession of ammunition and an additional year for the prior prison term
enhancement. It also imposed a restitution fine of $300 (§ 1202.4, subd. (b)), a second
restitution fine of $300 that was stayed (§ 1202.45), a court operation assessment of $40
(§ 1465.8, subd. (a)), and a court facilities assessment of $30 (Gov. Code, § 70373).
DISCUSSION
I
Senate Bill No. 136
Defendant first contends the one-year prior prison term enhancement imposed
pursuant to section 667.5, subdivision (b) must be stricken pursuant to the amendment to
section 667.5, subdivision (b) by Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill
136) effective January 1, 2020. The People concede the issue.
Signed by the Governor on October 8, 2019, and effective January 1, 2020, Senate
Bill 136 amends section 667.5, subdivision (b), to eliminate the one-year prior prison
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term enhancement for most prior convictions including defendant’s. (Stats. 2019,
ch. 590, § 1.)
Because Senate Bill 136 will become effective before defendant’s judgment
becomes final, we agree with the parties that the amended law will apply to him
retroactively. (See In re Estrada (1965) 63 Cal.2d 740, 744-745 [absent evidence of
contrary legislative intent, ameliorative criminal statutes apply to all cases not final when
the statute takes effect].) Therefore, we modify the judgment to strike defendant’s one-
year prior prison term enhancement. We need not remand this matter for resentencing, as
the trial court already imposed the maximum sentence available. (People v. Lopez (2019)
42 Cal.App.5th 337, 342.)
II
Ability to Pay Hearing
Defendant, relying on People v. Dueñas (2019) 30 Cal.App.5th 1157, next argues
the $370 in fines and fees could not legally be imposed on him without first determining
his ability to pay. He requests we strike the fines and fees or remand for an ability to pay
hearing. He also asserts this error cannot be forfeited for a failure to raise an objection
because Dueñas and its findings were unforeseeable. The People argue forfeiture
because Dueñas was decided months before defendant’s sentencing hearing. We agree
with the People.
The sentencing hearing was held eight months after Dueñas was decided; there
was thus authority for requesting an ability to pay hearing at the time of the sentencing
hearing and defendant failed to do so. Therefore, we find defendant has forfeited his
right to challenge these fines and fees on appeal. (Cf. People v. Castellano (2019)
33 Cal.App.5th 485, 489 [finding the defendant did not forfeit Dueñas argument because
it was decided after sentencing]; see People v. Aguilar (2015) 60 Cal.4th 862, 866-867
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[defendant’s failure to object at sentencing to certain fees on the basis of his inability to
pay forfeited the challenge on appeal].)
DISPOSITION
The one-year prior prison term enhancement (§ 667.5, subd. (b)) imposed is
stricken. In all other respects, the judgment is affirmed. The trial court shall prepare an
amended abstract of judgment and transmit it to the Department of Corrections and
Rehabilitation.
HULL, Acting P. J.
We concur:
MURRAY, J.
HOCH, J.
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