People v. Ricketts CA4/2

Filed 1/26/21 P. v. Ricketts CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E073578

v. (Super.Ct.No. RIF103852)

JON-PIERRE DANDRAUX RICKETTS, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. David A. Gunn, Judge.

Affirmed with directions.

Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and

Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, and Minh U.

Le, Deputy Attorneys General, for Plaintiff and Respondent.

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 FACTUAL AND PROCEDURAL HISTORY

A. PROCEDURAL HISTORY

On March 22, 2006, a jury convicted defendant and appellant Jon Pierre Dandraux

Ricketts of premeditated attempted murder under Penal Code1 sections 664, 187 (count

1); assault with a deadly weapon under section 245, subdivision (b) (count 2); discharge

of a firearm from a motor vehicle under section 12034, subdivision (c) (count 3); and

being a felon in possession of a firearm under section 12021, subdivision (a) (count 4).

The jury found true allegations that (1) race was a substantial motivating factor in

committing the crimes under former section 422.75 for counts 1 through 3; (2) defendant

committed the crimes with the intent to promote, further, or assist a criminal gang under

section 186.22, subdivision (b), for counts 2 and 3; (3) defendant knowingly failed to

register his gang-related conviction under section 186.33, subdivision (b), for count 4;

(4) defendant personally used a firearm under section 12022.5, subdivision (a), for count

2; (5) defendant was a principal and a principal personally and intentionally discharged a

firearm causing great bodily injury under section 12022.53, subdivisions (d), and (e)(1),

for counts 1 through 3; and (6) defendant personally inflicted great bodily injury on a

person who was not an accomplice under section 12022.5, subdivision (a), for count 2.

(People v. Ricketts (Dec. 15. 2008, Unpub. Opn.) E040370, 2008 Cal.App.Unpub. LEXIS

10062 *1-*2 (Ricketts1).)

1 All further statutory references are to the Penal Code unless otherwise specified.

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 On April 20. 2006, the trial court sentenced defendant to state prison for a total

term of 81 years eight months to life as follows: 15 years to life plus 25 years to life

under section 12022.53, subdivision (d), and four years under section 422.75, subdivision

(c), for count 1; nine years plus three years under section 12022.7, subdivision (a), four

years under section 422.75, subdivision (c), and 10 years under section 186.22,

subdivision (b), for count 2; eight months plus one year under section 186.33, subdivision

(b), for count 4. The court imposed and stayed sentencing on all remaining counts and

true findings. (Ricketts1, supra, 2008 Cal.App.Unpub. LEXIS 10062, *1-*2)

After defendant appealed, we struck the true finding that race was a substantial

factor with respect to count 2 and vacated the corresponding four-year sentence. In all

other respects, we affirmed the judgment. We directed the trial court to modify the

abstract of judgment accordingly. (Ricketts1, supra, 2008 Cal.App.Unpub. LEXIS

10062, *85.) On August 8, 2009, the trial court modified defendant’s sentence to 77

years eight months to life;

On September 14, 2018, the Department of Corrections and Rehabilitation

(CDCR) wrote a letter recommending resentencing defendant’s conviction under section

245, subdivision (b) (assault with a semiautomatic firearm) and accompanying

enhancements under People v. Gonzalez (2009) 178 Cal.App.4th 1325. This letter was

filed with the court on September 24, 2018.

Almost one year later, on August 21, 2019, defendant filed a resentencing brief

and asked the court to stay the enhancement under section 12022.7, subdivision (a), the

lesser of the two enhancements, as to count 2 under People v. Gonzalez, supra, 178

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Cal.App.4th 1325. Defendant also asked the court to strike the enhancement under

section 422.75, subdivision (c), as to count 2 pursuant to this court’s decision on his

direct appeal because the abstract of judgment still indicated that the enhancement was

stayed. Moreover, defendant asked the court to exercise its new discretion under Senate

Bill No. 620 to strike or dismiss one or more of the enhancements under sections 12022.5

and 12022.53. In exercising that discretion, defendant requested that the court consider

the “whole host of post-conviction factors” under Assembly Bill No. 1812 “to determine

if such resentencing would be in the interest of justice.”

On August 28. 2019, the trial court resentenced defendant to a term of 24 years

eight months plus 40 years to life in prison, for a total term of 64 years eight months to

life.2 The court stayed the enhancement under section 12022.7, subdivision (a), under

Gonzales, as recommended by the CDCR and without objection from the People, and

struck the enhancement under section 422.75, subdivision (c), pursuant to our remittitur.

Furthermore, the trial court exercised its discretion and struck the enhancement under

section 12022.5, subdivision (a)(1), and the accompanying 10-year term as to count 2.

The trial court declined to strike the other gun enhancements.

On September 3, 2019, defendant filed a timely notice of appeal.

2 At the hearing on August 28, 2019, the court pronounced the sentence as 67
years eight months. By minute order dated September 20, 2019, the trial court found “the
minute order dated 08/28/2019 does not correctly/clearly reflect the court order and
orders it corrected Nunc Pro Tunc. The correction indicates defendant “Sentenced to
State Prison for a determinate sentence of 24 yrs 8 mos plus indeterminate sentence of 40
yrs to Life.”

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 B. FACTUAL HISTORY3

“This case arises from a drive-by shooting on May 30, 2002, on Linden Street in

Riverside. Jamil Johnson, one of the passengers in the car, testified at trial for the

prosecution after entering into a plea agreement. The following background is based

primarily on his testimony.

“In April 2002, Johnson, Hale[4], and Scott[5] became members of the 1200 Blocc

Crips gang (1200 Blocc). 1200 Blocc is a predominantly Black gang and a rival of a

Hispanic gang, Eastside Riva or ‘ESR.’ The tension between the two gangs was

particularly high in early 2002 when, according to Johnson, there were ‘a lot of shootings

going on.’

“On the afternoon of May 30, 2002, Scott was driving his car and Johnson was his

passenger. They drove past a pickup truck with people inside who Johnson described as

‘Mexicans,’ and who he assumed were members of ESR. The people in the truck stared

at, or ‘mad-dogged,’ them as they drove by; Scott and Johnson mad-dogged them back.

The truck made a U-turn and pulled up behind Scott’s car. After Scott sped up to get

away, he was pulled over by the police for speeding.

3 The facts underlying defendant’s conviction are from our opinion in Rickets I,
supra, 2008 Cal.App.Unpub. LEXIS 10062.

4 Codefendant Charles Lenard Hale, Jr.

5 Codefendant Derrick Anthony Scott.

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 “Scott and Johnson then picked up Hale and drove to Bordwell Park, a gathering

spot for 1200 Blocc members. Ricketts, a 1200 Blocc member, was there. Ricketts had

been released from prison four days earlier after serving a sentence for auto theft. His

gang moniker is ‘Money.’ Scott, Johnson, Hale, and Ricketts were together in an area of

the park that had covered picnic tables. They talked and drank beer. According to

Johnson, they did not discuss the incident involving the Mexicans in the truck and did not

talk about going ‘to shoot any Mexicans.’

“At the park, Ricketts showed the others a nine-millimeter semiautomatic gun in

his waistband. Johnson had previously seen Scott with the same gun. When a police car

drove by the park, Ricketts placed the gun on top of a covering over the picnic tables.

After the police left the area, Ricketts retrieved the gun.

“Scott, Ricketts, Johnson, and Hale got into Scott’s car to go to ‘Bobcat’s’ house.

Ricketts asked if he could ‘ride shotgun.’ Johnson, who was previously in the front seat,

let Ricketts get into the front passenger seat because Ricketts was ‘bigger and needs more

room.’ Scott drove, Johnson sat behind Scott, and Hale sat behind Ricketts. Along the

way, Ricketts told the others: ‘I’m going to turn you guys into riders.’ A ‘rider,’ Johnson

explained, is someone who participates in criminal activity with a gang and supports the

gang ‘to the fullest.’

“Bobcat lives on Cranford Avenue. To get to Bobcat’s house from Bordwell Park,

they would ‘normally take University’ Avenue, but would sometimes take Linden Street.

On this occasion, there was no discussion about taking a particular route to get to

Bobcat’s house. At trial, Johnson offered a possible explanation: University Avenue was

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being patrolled by the police at that time and, because Ricketts was carrying a gun, he (if

he was making the decision) would use Linden Street instead of University Avenue to

avoid being pulled over by the police. The part of Linden Street they would use to get to

Bobcat’s house is within ESR’s territory.

“On Linden Street, Gilbert Mauricio and Cecilia Govea were standing outside an

apartment building. Mauricio is described by Johnson as ‘a Mexican dude,’ and Govea

as a ‘Mexican.’ Scott drove slowly past them. Mauricio mad-dogged them and Johnson

mad-dogged him back. Ricketts told Scott to make a U-turn and said that he was going to

‘have his hat.’ Johnson understood this to mean that Ricketts intended to kill him. Scott

made the U-turn. Ricketts pulled the gun out of his waistband. Scott stopped the car near

Mauricio. Ricketts fired several shots toward Mauricio. Mauricio threw Govea to the

ground and covered her with his body. One of the bullets hit S.C., a four-year-old boy, in

the foot. As the car drove away, Ricketts yelled, ‘Money Loc, East Coast.’

“According to Johnson, the shooting was not planned and it was a ‘big surprise’ to

see Ricketts pull the gun out on Linden Street and start shooting. He said that Hale also

appeared surprised. When the shooting began, Johnson and Hale dove ‘for the

floorboards in the back seat.’

“After the shooting, Scott drove them to ‘Esco’s’ house. Esco is a ‘shot-caller’ or

the Georgia Street Mob or ‘GSM,’ and a ‘big-time gang member.’ GSM is affiliated

with, or a subset of, 1200 Blocc. At Esco’s house, Ricketts gave the gun to someone,

then used bleach to wash the side of the car and his hands and arms to get rid of

gunpowder residue.

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 “After leaving Esco’s house, they drove to Bobcat’s house and then to a movie

theater. They planned to ‘sneak’ into the theater to look for movie ticket stubs they could

use to build an alibi. When they were unsuccessful, they drove to Johnson’s house.

Ricketts told the others, ‘nobody better not snitch.’ When they arrived at Johnson’s

house, they were arrested.” (Ricketts, supra, 2008 Cal.App.Unpub. LEXIS 10062, *2-

*7.)

DISCUSSION

A. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN

DECLINING TO STRIKE DEFENDANT’S GUN ENHANCEMENTS

Defendant contends that “the trial court erred in declining to strike the Penal Code

section 12022.53 firearm enhancement.” For the reason set forth post, we disagree with

defendant and find that the court did not abuse its discretion in declining to strike the

enhancement.

Senate Bill 620, effective January 1, 2018, amended section 12022.53, subdivision

(h), to give trial courts discretion to strike firearm enhancements in the interest of justice.

As amended, section 12022.53, subdivision (h), provides: “The court may, in the interest

of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an

enhancement otherwise required to be imposed by this section.” Section 12022.5 was

similarly amended. Subdivision (c) of section 12022.5 states: “The court may, in the

interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss

an enhancement otherwise required to be imposed by this section.”

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 Moreover, “[a] trial court’s power to dismiss under section 1385 may be exercised

only ‘ “in furtherance of justice,’ ” which mandates consideration of ‘ “the constitutional

rights of the defendant, and the interests of society represented by the People.’ ” ’

(People v. Clancey (2013) 56 Cal.4th 562, 280; accord People v. Hatch (2000) 22 Cal.4th

260, 268.) “At the very least, the reason for dismissal must be ‘that which would

motivate a reasonable judge.’ ” (People v. Orin (1975) 13 Cal.3rd 937, 945; accord,

Clancey, at pp. 580-581.) “[A] court’s exercise of this power is subject to review for

abuse of discretion.” (Clancey, at p. 581; see also People v. Carmony (2004) 33 Cal.4th

367, 376.) “Where, as here, a discretionary power is . . . by express statute vested in the

trial judge, his or her exercise of that wide discretion must not be disturbed on appeal

except on a showing that the court exercised its discretion in an arbitrary, capricious or

patently absurd manner that resulted in a manifest miscarriage of justice.” (People v.

Jordan (1986) 42 Cal.3rd 308, 316.)

Here, after we modified defendant’s judgment on direct appeal, his sentence

included the following gun enhancements: (1) consecutive 25 years to life for a

principal’s personal and intentional discharge of a firearm causing great bodily injury

under section 12022.53, subdivisions (d) and (e), as to count 1; (2) a consecutive 10-year

term for defendant’s personal use of a firearm under section 12022.5, subdivision (a), as

to count 2; and (3) stayed terms for a principal’s personal and intentional discharge of a

firearm causing great bodily injury under section 12022.53, subdivisions (d) and (e)(1),

as to count 3.

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 In defendant’s resentencing brief, he argued several factors in support of striking

one or more of his gun enhancements under sections 12022.5 and 12022.53, including the

absence of a prior strike conviction in his record before this case, his young age at the

time of the underlying case, the lengthy original term imposed, and his demonstrated

willingness to participate in the rehabilitative programs in prison. Defendant also

attached his completion certificates and other documents relating to programs in which

had been involved in prison.

At the resentencing hearing on August 28, 2019, defendant called three witnesses:

two correctional officers and his mother. They testified that they believed defendant had

been reformed while he was in prison. Defendant also took the stand and testified that he

had changed and had taken responsibility for his conduct.

The People asked the trial court to consider the underlying criminal conduct,

which occurred in an area with several children present, in addition to the adult victims.

Defendant did not “care at that time” when he decided to “shoot up an area.”

The trial court stated that it had considered defendant’s resentencing brief and

other documents in the underlying case, including the police report and original probation

report. The court recognized the progress defendant had made and based on that “good

work,” the court struck the 10-year enhancement under section 12022.5, subdivision (a),

as to count 2, and the consecutive 10-year term. The court, however, declined to strike

the remaining gun enhancement. The court noted that defendant’s underlying conduct

was extremely serious and his punishment, as modified at the resentencing, still needed to

“fit the crime.” The court stated that defendant had only been out of prison for four days

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when he “swayed a handgun” around and shot at victims in a public area. The court then

went on to state: “I recognize my discretion to strike all of those [enhancements]. At the

same time, I think I’ve listed aspects of the crime which I feel, again, the Court

appropriately considered when sentencing Mr. Ricketts in the first place. Again, this is a

violent, senseless crime that resulted in injury to a four-year-old victim. [¶] Again, I

think that the gun enhancements are appropriate, the ones that I’m leaving in place.”

Notwithstanding the trial court’s detailed reasons for striking one enhancement but

declining to strike the other enhancements, defendant argues that the court abused its

discretion because it failed to consider the “entire picture.” In his reply brief, defendant

again argues that the trial court abused its discretion “because the circumstances in this

case, especially when considering appellant’s years long rehabilitative efforts, reflect

appellant’s overall sentence for the instant attempted murder conviction is now unjust.”

In essence, defendant is asking us to reweigh the evidence of the factors in mitigation

because the People and “the trial court below placed great consideration on the facts

involved in the underlying offense.” We disagree. As noted above, the trial court

acknowledged considering the facts of the underlying case in addition to all the evidence

provided regarding the factors in mitigation. This is precisely the reason why the trial

court decided to exercise its discretion and strike one of the gun enhancements.

Based on the evidence and the transcript of the hearing on the resentencing, we

cannot find that the trial court’s decision was arbitrary, capricious or patently absurd. We

therefore find that the trial court properly exercised its discretion in declining to strike the

firearm enhancements under section 12202.53.

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 B. DEFENDANT HAS FORFEITED HIS CHALLENGE TO THE

RESTITUTION FINE

Defendant contends that the trial court’s imposition of a restitution fine without

holding a hearing to determine defendant’s ability to pay should be stayed. Defendant

argues that “[i]mposing the restitution fine violated [defendant]’s right to due process.

(People v. Dueñas (2019) 30 Cal.App.5th 1157, 1168, 1172; see also U.S. Const., 5th &

14th Amends.; Cal. Const., art. I, § 15.)” The People claim that defendant has forfeited

his claim because he failed to raise it first in the trial court.

In this case, the trial court imposed a $5,000 section 1202.4 restitution fine at the

original sentencing hearing in 2006. The court also imposed and suspended a $5,000

parole revocation fine under section 1202.45. The trial court did not hold a hearing to

determine defendant’s ability to pay the fines. Moreover, at the resentencing hearing in

2019, the trial court did not discuss any fines and fees, and maintained the restitution fine

at $5,000, as imposed originally.

In People v. Dueñas, 30 Cal.App.5th 1157, the court held, in pertinent part, that

the imposition of a restitution fine, without a determination that the defendant has the

present ability to pay the fine, violates a defendant’s due process rights under the state

and federal Constitutions. (Id. at p. 1172.) The People contend that, because defendant

did not raise his claims in the trial court, his argument has been forfeited. We agree with

the People.

In People v. Gutierrez (2019) 35 Cal.App.5th 1027, Division 1 of our district

addressed the emerging body of case law regarding Dueñas and forfeiture of restitution

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fines. The court pointed out that there exists a potential split in authority on Dueñas and

forfeiture principals. At least two cases, People v. Castellano (2019) 33 Cal.App.5th 485

and People v. Johnson (2019) 35 Cal.App.5th 1315, have found that failure to object to

the imposition of restitution fines and other fines, fees, and assessments at the time of

their imposition did not forfeit the issue because Dueñas was “ ‘a newly announced

constitutional principle that could not reasonably have been anticipated at the time of

trial.’ ” (Gutierrez, supra, at p. 1032, quoting Castellano, at p. 489.) However, in

another case, People v. Frandsen (2019) 33 Cal.App.5th 1126, the court found that

defendant had forfeited the issue for a variety of reasons, including that “even pre-

Dueñas governing law permitted a challenge to a maximum restitution fine based on

ability-to-pay grounds.” (Gutierrez, at p. 1032.) Nevertheless, Gutierrez held that these

cases were not actually at odds. Indeed, the court in Gutierrez ultimately found it

“unnecessary to address any perceived disagreement on the forfeiture issue” because

“[b]oth Castellano and Johnson “involved situations in which the trial court imposed the

statutory minimum restitution fine,” while in the case before them “as in Frandsen, the

trial court imposed the statutory maximum restitution fine.” (Id. at pp. 1032-1033.) This

was relevant because, “as Frandsen correctly notes, even before Dueñas a defendant had

every incentive to object to imposition of a maximum restitution fine based on inability to

pay because governing law as reflected in the statute [citation] expressly permitted such a

challenge.” (Id. at p. 1033.) According to this reading of Johnson, Castellano, and

Frandsen, these cases are not contradictory, but counsel two different approaches

depending on whether the challenged restitution fine was the minimum or some amount

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in excess of that. That is, a defendant can be found to have forfeited his right to

challenge a restitution fine on ability to pay grounds only if that fine was greater than the

minimum.

In this case, we are persuaded by Gutierrez’s reasoning and its reading of Johnson,

Castellano, and Frandsen. Accordingly, because the trial court in this case imposed a

$5,000 restitution fine—well above the $300 minimum fine, we find that defendant’s

failure to object to the restitution fine forfeited his ability to challenge the imposition of

the restitution fine.

Defendant’s additional argument that his counsel was ineffective for failing to

preserve the inability-to-pay issue is without merit. We cannot determine from the record

why counsel failed to request a hearing on defendant’s ability to pay at the resentencing

hearing. It is possible that defendant did have the ability to pay the fine and assessments

and, therefore, counsel made a rational decision not to raise the issue. Moreover, in the

absence of a record from which we could determine that defendant did not have the

ability to pay, defendant has failed to establish a reasonable probability that, if counsel

had raised the issue below, he would have obtained relief. (See Strickland v. Washington

(1984) 466 U.S. 688, 694.)

C. THE ABSTRACT OF JUDGMENT SHOULD BE AMENDED

Defendant argues, and the People agree, that the trial court failed to calculate his

actual custody credits as of the date of resentencing. We agree with the parties.

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 In this case, according to the probation report, defendant was arrested on May 30,

2002. Based on that date, the parties agree that defendant has served 6,300 days of actual

custody.

We will direct the trial court to amend the abstract of judgment to reflect the

number of days that defendant has served in prison as of the date of resentencing.

(People v. Buckhalter (2001) 26 Cal.4th 20, 23, 37; § 2900.1; People v. Saibu (2011) 191

Cal.App.4th 1005; 1012-1013.)

DISPOSITION

The trial court is directed to modify defendant’s abstract of judgment to reflect the

correct number of days that defendant has served in the custody of the Director of the

Department of Corrections and Rehabilitation, in accordance with this opinion. The trial

court is directed to forward a certified copy of the amended abstract to the appropriate

authorities. (People v. Quinonez (2020) 46 Cal.App.5th 457, 467.) In all other respects,

the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER
Acting P. J.

We concur:

SLOUGH
J.

FIELDS
J.

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