Filed 10/14/20 P. v. Jansen 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Sutter)
----
THE PEOPLE, C090705
Plaintiff and Respondent, (Super. Ct. No. CRF190852)
v.
MICHAEL EDWARD JANSEN,
Defendant and Appellant.
In August 2019 a jury found defendant Michael Edward Jansen guilty of
burglarizing a motor vehicle (Pen. Code, § 459)1 and petty theft (§ 484, subd. (a)). In
separate proceedings, the trial court found true allegations that defendant served four
prior prison terms (former § 667.5, subd. (b)), and was previously convicted of a strike
offense.
1 Undesignated statutory references are to the Penal Code.
1
In October 2019 the trial court sentenced defendant to an aggregate term of 10
years in state prison, including the upper term of three years for burglarizing a motor
vehicle, doubled pursuant to the three strikes law, and four one-year consecutive terms
for the prior prison term enhancements.2 The court imposed a $300 restitution fine
(§ 1202.4, subd. (b)), a $40 court operations fee (§ 1465.8, subd. (a)), and a $30
conviction assessment (Gov. Code, § 70373).
Defendant now contends, and the Attorney General concedes, we should strike
defendant’s prior prison term enhancements based on recent legislation. We agree and
will modify the judgment accordingly. Defendant also contends the matter should be
remanded to allow the trial court to consider his ability to pay fines and fees under
People v. Dueñas (2019) 30 Cal.App.5th 1157. We conclude defendant has forfeited this
claim and will affirm the judgment as modified.
DISCUSSION3
A. Senate Bill No. 136
In October 2019 the Governor signed Senate Bill No. 136 (2019-2020 Reg. Sess.),
which amended section 667.5, effective January 1, 2020 (Stats. 2019, ch. 590, § 1).
Senate Bill No. 136 narrowed eligibility for the one-year prior prison term enhancement
to only those who have served a prior prison sentence for a sexually violent offense, as
defined in Welfare and Institutions Code section 6600, subdivision (b). (§ 667.5, subd.
(b).) The amendment applies “retroactively to all defendants whose judgments are not
yet final as of that date.” (People v. Petri (2020) 45 Cal.App.5th 82, 94.)
2 The court also sentenced defendant to six months in county jail for his petty theft
conviction, to be served concurrently with his prison sentence, but discharged that
sentence as a result of defendant’s presentence custody credits.
3 We omit any discussion of the underlying facts of this case, as these facts are not
relevant to defendant’s contentions or to our determination of the merits thereof.
2
Th parties agree that defendant is entitled to have the four one-year enhancements
stricken. His judgment was not final on the effective date of the amendment to former
section 667.5, subdivision (b) and his prior prison term enhancements were not based on
sexually violent offenses.
As the trial court imposed the maximum possible sentence, there is no need to
remand for resentencing. (See People v. Buycks (2018) 5 Cal.5th 857, 896, fn. 15;
People v. Winn (2020) 44 Cal.App.5th 859, 872-873.) Accordingly, we will strike the
enhancements and affirm the judgment as modified.
B. Ability to Pay
Defendant requests remand for an ability to pay hearing in light People v. Dueñas,
supra, 30 Cal.App.5th 1157. We agree with the Attorney General that defendant has
forfeited this claim.
Defendant was sentenced in October 2019, 10 months after publication of the
decision on which he relies. He did not argue that he lacked the ability to pay fines and
fees at sentencing, even when the trial court invited argument. His claim on appeal is
thus forfeited. (See People v. Avila (2009) 46 Cal.4th 680, 729 [finding forfeiture where
the defendant failed to object to imposition of restitution fine under former § 1202.4
based on inability to pay].)
3
DISPOSITION
The four one-year enhancements imposed pursuant to former section 667.5,
subdivision (b) are stricken. As modified, the judgment is affirmed. The trial court is
directed to prepare an amended abstract of judgment in accordance with this opinion and
forward a certified copy to the Department of Corrections and Rehabilitation.
/s/
Duarte, J.
We concur:
/s/
Hull, Acting P. J.
/s/
Renner, J.
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