Filed 11/18/20 P. v. Woods CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B297545
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BA462630
v.
KEVIN DONALD WOODS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Michael D. Abzug, Judge. Sentence
modified; remanded with directions.
Patricia S. Lai, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Scott A. Taryle and Michael Katz,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
In 2018 a jury convicted defendant and appellant Kevin
Donald Woods of assault by means of force likely to produce
great bodily injury. The jury found true an allegation that
Woods personally inflicted great bodily injury on the victim.
The trial court sentenced Woods to 18 years in the state prison.
On March 27, 2019, we affirmed Woods’s conviction but
remanded the case for the trial court to consider whether to
exercise its discretion to strike Woods’s serious felony priors
under Senate Bill No. 1393 (2017-2018 Reg. Sess.) (SB 1393).
This second appeal follows further proceedings in the
trial court. Woods contends (1) his one-year prison prior must
be stricken under Senate Bill No. 136 (2019-2020 Reg. Sess.)
(SB 136); (2) the trial court should stay his restitution fine and
court fees; and (3) the trial court should amend the abstract of
judgment to reflect one additional day of presentence credit. The
Attorney General agrees with all three contentions. Accordingly,
we strike Woods’s prison prior and remand the case for the trial
court to correct the abstract of judgment to reflect (1) one more
day of custody credit, and (2) that any and all court fines and fees
are stayed.
BACKGROUND
We summarized the facts giving rise to this prosecution
in our March 2019 opinion affirming Woods’s conviction. (People
v. Woods (Mar. 27, 2019, B289798) [nonpub. opn.] (Woods I).)
Woods asked us to take judicial notice of that opinion in this
appeal, and we granted that request. In short, Woods attacked
a homeless woman with whom he’d had a brief relationship,
leaving her with various injuries, including broken teeth.
(Woods I.) The trial court struck Woods’s four strike priors for
robbery and first degree burglary and sentenced him to 18 years
in the state prison. The court chose the upper term of four years
for the assault, plus three years for the infliction of great bodily
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injury, plus two five-year terms under Penal Code section 667,
subdivision (a)(1) for serious felony priors,1 plus one year under
section 667.5, subdivision (b) for a prior prison term. (Woods I.)
We affirmed Woods’s conviction but remanded the case for the
trial court to exercise its discretion to strike or retain Woods’s
serious felony priors, as SB 1393 had taken effect while the
case was on appeal. (Woods I.)
In the meantime, on February 27, 2019, Woods’s court-
appointed counsel filed a written motion in the trial court to
strike his serious felony prior enhancements. The record on
appeal does not include any written opposition by the District
Attorney. The trial court conducted a hearing—at which Woods
was present with counsel—on March 7, 2019. The court noted it
had received a letter dated January 8 from the Attorney General
suggesting the case be remanded “for the limited purpose of
determining whether or not” Woods’s five-year priors should be
stricken. (The Attorney General had filed a letter on that issue
at our request in Woods I and sent a copy to the trial court.)
The deputy district attorney told the court the People
believed the 18-year sentence was appropriate. The prosecutor
noted the victim was elderly and homeless, and suffered “lasting
injuries.” After hearing from counsel for Woods as well as the
prosecutor, the court declined to strike either of the serious felony
priors. The court noted it had stricken Woods’s four strikes as
well as all but one of his nine prison priors. The court stated
the 18-year sentence was “severe” “[b]ut not unreasonable.”
Based on “the totality of the record” and the facts pertaining both
to the defendant and the crime, the court declined to exercise its
discretion to strike the two five-year priors.
1 Statutory citations are to the Penal Code.
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At the March 7 hearing, defense counsel also asked the
court “to stay any of the court fees,” citing People v. Dueñas
(2019) 30 Cal.App.5th 1157 (Dueñas). The prosecutor said the
People “submit[ted]” on Woods’s motion to stay the fees. The
court stated, “I am happy to stay the fees, and I do. All of his
fees are stayed except those mandatory because of his financial
situation.” The minute order states, “All fines/fees, except those
mandatory, are permanently stayed.”
The only abstract of judgment in the record on appeal is
the abstract from the original sentencing in April 2018. That
abstract shows a restitution fine of $400, a court operations
assessment of $40, and a conviction assessment of $30. The
second page of the abstract states, “All fine/fees, except
mandatory, are permanently stayed.”
DISCUSSION
1. Woods’s one-year prison prior must be stricken
Woods contends the one-year enhancement the trial court
imposed under section 667.5, subdivision (b) must be stricken.
The Attorney General agrees.
On October 8, 2019, the Governor signed SB 136 into law.
Under the bill’s amendment to section 667.5, subdivision (b),
a one-year prior prison term enhancement applies only if the
defendant served the prison term for a sexually violent offense
as defined in Welfare & Institutions Code section 6600,
subdivision (b). (See Stats. 2019, ch. 590, § 1.) (People v. Lopez
(2019) 42 Cal.App.5th 337, 340-341.) The amended statute
applies to defendants whose cases are not yet final. (Lopez,
at pp. 341-342; People v. Gastelum (2020) 45 Cal.App.5th 757,
772-773.) Woods’s prison prior was not for a sexually violent
offense. Accordingly, we order it stricken.
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2. The parties agree Woods’s restitution fine and
court fees should be stayed
At Woods’s original sentencing in April 2018, the court
stated, “All fines and fees are permanently stayed except
those mandatory because of the defendant’s age and length
of time that [is] going to be spent in custody. I want him
at least to get some privileges and not have it all sucked up
by court fees.” The minute order for April 10, 2018 states,
“All fine/fees, except mandatory, are permanently stayed.”
As noted, the April 12, 2018 abstract of judgment says the
same thing.
By the time the parties appeared before the court on
the SB 1393 issue in March 2019, Division 7 of this court
had issued the Dueñas decision. Defense counsel asked the
court to “stay the fees unless the People demonstrate that
the defendant has the ability to pay the fine.” The court
stated, “All of his fees are stayed except those mandatory
because of his financial situation.”
On appeal, Woods argues the court should have stayed
his restitution fine and court fees, even those that are
mandatory. The Attorney General asserts the court “already
granted appellant’s request on remand to stay these fines
and fees.”
Dueñas held due process requires a trial court
to conduct an ability-to-pay hearing and determine a
defendant’s ability to pay before imposing assessments
under the Penal and Government Codes and before
executing a restitution fine under section 1202.4. (Dueñas,
supra, 30 Cal.App.5th at p. 1164.) We agree with other
courts that have concluded Dueñas was wrongly decided.
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(See People v. Hicks (2019) 40 Cal.App.5th 320, 327-329,
review granted Nov. 26, 2019, S258946; People v. Cota
(2020) 45 Cal.App.5th 786, 794-795; People v. Petri (2020)
45 Cal.App.5th 82, 90-92; People v. Adams (2020) 44
Cal.App.5th 828, 831-832.) Our Supreme Court is currently
reviewing whether a trial court must consider a defendant’s
ability to pay before imposing or executing fines, fees, or
assessments, and, if so, which party bears the burden of
proof. (People v. Kopp (2019) 38 Cal.App.5th 47, review
granted Nov. 13, 2019, S257844.)
We need not wade into this issue, however.2 The
Attorney General says the “reasonable inference” from the
court’s statement is that it intended to stay the fine and
assessments. As the parties appear to be in agreement,
we order the abstract to be amended to provide that the $400
restitution fine and the $70 in fees are permanently stayed.
3. Woods is entitled to one additional day of
presentence custody credit
Finally, Woods asserts he is entitled to 158 days of
actual custody credit instead of the 157 days awarded him at
2 Nor need we address Woods’s failure to object to the $400
restitution fine, which exceeds the mandatory minimum of $300.
(Former § 1202.4, subd. (b)(1), as amended by Stats. 2017,
ch. 101, § 1.) Even before Dueñas, courts were permitted to
consider a defendant’s ability to pay any amount above the
statutory minimum. (§ 1202.4, subd. (d); People v. Avila (2009)
46 Cal.4th 680, 729.) Accordingly, a failure to object to the $400
fine forfeited the claim on appeal. (People v. Frandsen (2019)
33 Cal.App.5th 1126, 1154.) For the same reason, we need not
address Woods’s argument that his counsel’s failure to object
constituted unconstitutional ineffectiveness.
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sentencing. The Attorney General agrees. Woods was arrested
on November 4, 2017, and sentenced on April 10, 2018. The
trial court is to correct the abstract of judgment to reflect 158
actual days and 23 good conduct days for a total of 181 days of
presentence credit.
DISPOSITION
We modify the judgment (1) to strike Woods’s one-year
prior prison term enhancement, (2) to order the restitution fine
and all court assessments stayed, and (3) to award Woods one
additional day of presentence custody credit. The trial court
is to prepare an amended abstract of judgment and to forward
a certified copy to the California Department of Corrections
and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
EDMON, P. J.
DHANIDINA, J.
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