People v. Jones CA2/6

Filed 3/22/22 P. v. Jones CA2/6
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B306118
(Super. Ct. No. 18CR06985)
Plaintiff and Respondent, (Santa Barbara County)

v.

DAVION DWAYNE JONES et al.,

Defendants and Appellants.

Defendants break into a house they believe is uninhabited.
While ransacking the house, they find its fearful resident hiding
in a closet. We draw upon our Supreme Court’s holding in People
v. Anderson (2011) 51 Cal.4th 989, 991-992, “We hold here that
the intent element of robbery does not include an intent to apply
force against the victim or to cause the victim to feel fear. It is
robbery if the defendant committed a forcible act against the
victim motivated by the intent to steal, even if the defendant did
not also intend for the victim to experience force or fear.”
 Here we conclude the defendants have committed a robbery
even though they were unaware of the victim’s presence.
Davion Dwayne Jones appeals a judgment following
conviction of home invasion robbery, residential burglary (two
counts), street terrorism, carjacking, giving false information to a
police officer, and unlawful driving. (Pen. Code, §§ 211, 213,
subd. (a)(1)(A), 459, 186.22, subd. (a), 215, subd. (a), 148.9, subd.
(a)1; Veh. Code, § 10851, subd. (a).) The trial court also made
findings that Jones suffered prior serious felony and strike
convictions, served two prior prison terms (then struck),
committed the crimes to benefit a criminal street gang, and was
personally armed with a firearm during commission of the
crimes. (§§ 667, subd. (b)-(i), 1170.12, subds. (a)-(d), 667, subd.
(a)(1), 667.5, subd. (b), 186.22, subd. (b)(1), 12021.5, subd. (a).)
Adolph Washington, Jr. appeals a judgment following
conviction of home invasion robbery, residential burglary (two
counts), and street terrorism. (§§ 211, 213, subd. (a)(1)(A), 459,
186.22, subd. (a).) The trial court also made findings that
Washington suffered prior serious felony and strike convictions,
served two prior prison terms, committed the crimes to benefit a
criminal street gang, and a principal was armed with a firearm
during commission of the crimes. (§§ 667, subd. (b)-(i), 1170.12,
subds. (a)-(d), 667, subd. (a)(1), 667.5, subd. (b), 186.22, subd.
(b)(1), 12022, subd. (a)(1).)
This appeal concerns robbery and burglary crimes that
Jones and Washington, members of the “Front Hood Compton
Crips,” committed in the Santa Barbara area in 2018, following a
catastrophic wildfire and ensuing mudslide. On appeal, Jones

All statutory references are to the Penal Code unless
1

otherwise stated.

2
and Washington raise claims of sufficiency of the evidence as well
as sentencing errors. The Attorney General concedes many of the
asserted sentencing errors and properly requests resentencing
pursuant to People v. Buycks (2018) 5 Cal.5th 857, 893 [“full
resentencing rule” authorizes trial court to modify every aspect of
sentence upon resentencing]. We reject the sufficiency of the
evidence claims as requests to reweigh the evidence and draw
different inferences therefrom. The Attorney General also
concedes that recent changes to the criminal street gang
enhancement law and street terrorism law require remand to the
court for limited retrial regarding Assembly Bill No. 333 (AB 333)
(Stats. 2021, ch. 699, §§ 1-5). We reverse and remand for retrial
regarding AB 333 and also resentencing pursuant to recent
changes in section 654 (Assem. Bill No. 518 (AB 518) (Stats.
2021, ch. 441, § 1)), and Buycks, but otherwise affirm.
FACTUAL AND PROCEDURAL HISTORY
July 18, 2018, Burglary of H.H. Residence
(Count 4)
On July 18, 2018, H.H. and her husband were moving from
their Goleta home to another home in Los Angeles. During the
process of moving, they left their Goleta home for approximately
24 hours. When they returned, they found the bedroom closet in
disarray, kitchen and desk drawers open, and splintered French
patio doors. H.H. reported the burglary to the Santa Barbara
County Sheriff. Following her interview with a sheriff’s deputy,
H.H. realized that her computer laptop and cellular telephone
were missing; each contained identifying family photographs.
Records from a cellular telephone carrier established that
Jones’s telephone was in contact with a cellular tower

3
approximately one mile from the H.H. residence as well as points
further north that day.
Home Invasion Robbery and Burglary of S.K. Residence
(Counts 1 and 2)
On July 18, 2018, S.K. lived in Montecito in a neighborhood
that had been damaged by a devastating mudslide. The three
homes nearest her home were vacant and a public safety sign
warned the public not to enter the area. A creek behind S.K.’s
home still contained mud and debris.
At approximately 10:30 that evening, S.K. was awakened
by “pounding” on her locked front door. Alarmed and sensing
that she was in danger, S.K. telephoned the police emergency
dispatcher with her landline telephone. The dispatcher
suggested that S.K. lock the bedroom door and hide in the closet
until police assistance arrived. S.K. and the dispatcher remained
in telephone contact as S.K. lay in a fetal position on the closet
floor. S.K. urged the police to hurry, informing the dispatcher
that the intruders were manipulating the locked bedroom door
handle. S.K. then stated that the intruders were speaking to
each other, had violently broken the bedroom door, and were
ransacking the bedroom. S.K. became more frightened and
believed her life was endangered. One intruder then opened the
closet door, saw S.K. curled up on the floor, and uttered, “Oh,
shit.” S.K. did not look at the man because she feared she would
be killed as a witness to his identity. She pleaded for the
dispatcher to help her, informed the dispatcher that an intruder
had opened the closet door and saw her, and stated to the

4
dispatcher that “they may kill [her].” At trial, the prosecutor
played the recorded emergency call.2
Meanwhile, Santa Barbara Sheriff’s Deputies Simon
Trujillo and Damian Marquez arrived in separate patrol cars
which were equipped with mobile audio and visual recorders,
relevant excerpts of which were admitted into evidence at trial.
Trujillo saw weak lighting inside S.K.’s home that appeared to be
a flashlight or a cellular telephone. The deputies announced
their presence and Trujillo saw Jones run from the residence. He
appeared to be holding a light in one hand and another object in
his extended left hand. Behind Jones, Trujillo saw one or two
other men, including Washington, who nearly bumped into Jones.
Trujillo thought that Jones had a handgun in his left hand and
was aiming it toward Marquez. Trujillo then fired a gunshot at
the three men who retreated into S.K.’s house and left through
the rear door. S.K.’s driveway contained a black-colored Honda
Civic automobile that was registered to Jones’s girlfriend.
Trujillo requested additional law enforcement assistance,
advising that there were three armed suspects. California
Highway Patrol officers arrived and found Washington, wearing
shorts and a distinctive logo T-shirt, hiding in nearby bushes; he
was disheveled and his clothing was muddy. Washington had
$298 in his possession as well as his cellular telephone which had
driving directions from the area to Compton.

2The parties have transmitted the exhibit of the recorded
emergency call to this court for review. We have listened to the
recording. S.K. informs the dispatcher that an intruder uttered
“Oh, shit” when he opened the bedroom closet door and saw S.K.
The recording also captures the violent breaking of the locked
bedroom door.

5
 Sheriff’s Sergeant Kenneth Rushing and his canine officer
searched for the other suspects. In the creek vegetation, Rushing
found a baseball cap and, in the mud, a small-caliber handgun.
Rushing later found a second baseball cap, separate tracks in the
mud, and mud on a fence in two places, suggesting that two
people had scaled the fence.
Two sheriff’s detectives joined the search and found two
males wearing dirty and disheveled clothing. When the
detectives called out to them, one of the men, later determined to
be Jones, ran. The second man, minor M.L., stopped. A nearby
restaurant security camera captured the detention and Jones’s
flight. At trial, the prosecutor played the video recording.
The detectives arrested M.L., whose clothing was torn and
muddy. During a search incident to his arrest, the detectives
found five cellular telephones on M.L., including four belonging to
S.K. and her family and one belonging to Jones. Jones’s
telephone contained photographs of Jones wearing the baseball
caps found in the muddy creek as well as a video of him sitting in
the front seat of the Honda Civic automobile on the day of the
home invasion robbery. In the video, Jones wore the distinctive
teddy bear T-shirt that he wore when he fled S.K.’s home and
that he carried at the time of his arrest.
Meanwhile, deputies rescued S.K. from her closet. Items
missing from her home included four cellular telephones, jewelry,
and an inexact amount of cash (“hundreds of dollars”) contained
in the master bedroom nightstands.3 Some of the telephones and

A police detective testified that S.K. may have informed
3

him that a “rough amount” of $500 was missing from her
bedroom nightstands. He expressed uncertainty, however, as to
the amount she stated.

6
jewelry had been in S.K.’s daughter’s bedroom and the cash plus
a telephone had been in S.K.’s bedroom. S.K. later identified
some of the recovered jewelry and the telephones.
Carjacking
(Count 3 - Jones)
In the afternoon of July 19, 2018, J.D. parked in front of a
store in Montecito and left the engine running. He left his key
fob, wallet, and cellular telephone inside the vehicle. While J.D.
was inside the store, Jones entered the vehicle. J.D. left the store
and struggled with Jones over the driver’s side door. Losing the
struggle, J.D. released the door and Jones drove away. Police
later located the vehicle through J.D.’s cellular telephone left
inside. Jones had abandoned the vehicle by then.
Jones soon was found hiding in a bush. He lied to the
arresting officer concerning his name and birthdate. Jones’s
pockets contained jewelry later identified by S.K. as that
belonging to her daughter. At a field identification and at trial,
J.D. identified Jones as the man who took his vehicle.
Sheriff’s detectives searched the Honda Civic automobile
and found M.L.’s backpack inside the trunk. The detectives also
found H.H.’s laptop computer and her cellular telephone inside
the vehicle. M.L.’s and Jones’s fingerprints were on the outside
of the vehicle.
Analysis of the cellular telephone data in Washington’s
telephone placed him in Montecito near the time of the S.K.
residence burglary. Analysis of the data in Jones’s cellular
telephone placed him near the H.H. and S.K. residences at the
time of the burglaries.

7
 Recorded Police Interviews and Jail Telephone Calls
In a recorded police interview, sheriff’s detectives
interviewed Washington following his arrest. He admitted that
he lived in Compton and arrived in the Santa Barbara area in a
black-colored automobile with two other men whose names he did
not know. Washington admitted that he entered S.K.’s residence
and that he and the two men held pillowcases in which the other
two men took items from the home. Washington stated: “[I]t
don’t take a rocket scientist but you know . . . what was going on,
I ain’t that stupid.” At trial, the prosecutor played the recorded
interview.
Jones and Washington made telephone calls from jail which
were recorded and played at trial. Jones stated that he was with
“two of [his] cousins” who were also arrested and that police
officers shot at them when they saw a gun. Jones also referred to
the gun in street gang vernacular (“DDP”) and used the phrase,
“on Crip.”
During a jail telephone call, Washington stated that he was
“not going to be a gang member no more” and that the person he
called should stay away from his (Washington’s) gang associates.
Criminal Street Gang Evidence
In 2003, during a traffic stop and a later drug investigation,
Jones admitted to a Los Angeles County sheriff’s deputy that he
was a member of the Front Hood Compton Crips. The deputy
wrote field identification cards for Jones during each incident. In
2012, a sheriff’s deputy saw Washington run with a handgun.
The deputy pursued Washington who was then arrested for
unlawful possession of a firearm. Washington admitted to the
deputy that he was a member of the Front Hood Compton Crips.

8
 At trial, Los Angeles County Sheriff’s Deputy Orlando
Saldana testified as a criminal street gang expert. He stated that
Front Hood Compton Crips was a criminal street gang whose
members committed robberies, home invasions, burglaries, and
murders, among other crimes. Saldana testified that he knew
Washington, who admitted to him in 2017 that he was a member
of the gang. Saldana reviewed photographs of Washington’s and
Jones’s tattoos and concluded that the tattoos represented their
membership in the gang. Saldana also reviewed social media
postings of the two men that reflected their gang activities.
Conviction and Sentencing
Following a court trial, the court convicted Jones of home
invasion robbery, residential burglary (two counts), street
terrorism, carjacking, giving false information to a police officer,
and unlawful driving. (§§ 211, 213, subd. (a)(1)(A), 459, 186.22,
subd. (a), 215, subd. (a), 148.9, subd. (a); Veh. Code, § 10851,
subd. (a).) The court also found that Jones carried a firearm,
suffered prior serious felony and strike convictions, served prior
prison terms, and committed the crimes for the benefit of a
criminal street gang. (§§ 12021.5, subd. (a), 667, subd. (a)(1), 667,
subd. (b)-(i), 1170.12, subds. (a)-(d), 667.5, subd. (b), 186.22, subd.
(b)(1).) It sentenced Jones to a determinate prison term of 18
years, plus 115 consecutive years to life, imposed various fines
and fees, ordered $13,035.33 in victim restitution (according to
the abstract of judgment), and awarded him 780 days of
presentence custody credit.
The trial court also convicted Washington of home invasion
robbery, residential burglary (two counts), and street terrorism.
(§§ 211, 213, subd. (a)(1)(A), 459, 186.22, subd. (a).) The court
also found that a principal used a firearm during commission of

9
the crimes, Washington suffered prior serious felony and strike
convictions, served prior prison terms, and committed the crimes
for the benefit of a criminal street gang. (§§ 12022, subd. (a)(1),
667, subd. (a)(1), 667, subd. (b)-(i), 1170.12, subds. (a)-(d), 667.5,
subd. (b), 186.22, subd. (b)(1).) It sentenced Washington to a
determinate prison term of 11 years, plus 70 years to life,
imposed various fines and fees, ordered $13,035.33 in victim
restitution (according to the abstract of judgment), and awarded
him 796 days of presentence custody credit.
Washington and Jones appeal and contend that: 1)
insufficient evidence supports the home invasion robbery
conviction (count 1); 2) insufficient evidence exists that three
persons committed the home invasion robbery (count 1); 3)
insufficient evidence exists that they participated in the robbery
of S.K.; 4) insufficient evidence supports their convictions of the
H.H. burglary; 5) newly enacted legislation, AB 333, requires
retrial concerning street gang enhancements and count 5 (street
terrorism), and AB 518 requires resentencing to permit the court
to exercise new sentencing discretion regarding section 654; 6)
the firearm enhancements to counts 1 and 2 do not rest upon
sufficient evidence (Jones); (7) the trial court failed to orally
impose the $13,035.33 victim restitution order which, in any
event, is not supported by sufficient evidence; (8) the trial court
erred by imposing fines, fees, and assessments without first
determining their abilities to pay; (9) the trial court erred by
imposing and staying two prior prison term enhancements
pursuant to section 667.5, subdivision (b) (Washington); 10) the
trial court improperly imposed 10-year criminal street gang
enhancements rather than 15-year minimum parole eligibility
terms for count 2; and 11) the trial court abused its discretion by

10
imposing a $5,000 restitution fine and a stayed $5,000 parole
revocation fine (Washington).
DISCUSSION
Sufficiency of the Evidence Contentions
I.
Jones and Washington argue that insufficient evidence of
taking S.K.’s property by either force or fear supports their home
invasion robbery convictions (count 1). They assert that S.K.’s
fear was incidental to the taking of her property, given that she
was fearful from the outset. Jones and Washington appear to
contend that the opening of the bedroom closet door did not cause
S.K. any additional fear.
Section 211 defines robbery as “the felonious taking of
personal property in the possession of another, from his person or
immediate presence, and against his will, accomplished by means
of force or fear.” “Fear” includes fear of an unlawful injury to the
person robbed. (§ 212.) “To establish a robbery was committed
by means of fear, the prosecution ‘must present evidence “. . . that
the victim was in fact afraid, and that such fear allowed the
crime to be accomplished.” ’ ” (People v. Morehead (2011) 191
Cal.App.4th 765, 772.) The law does not require that a defendant
intend that the victim experience fear. (People v. Anderson,
supra, 51 Cal.4th 989, 995-996.) The element of fear may be
established by evidence that the victim was deterred from
preventing the theft or attempting to immediately reclaim the
property. (People v. Flynn (2000) 77 Cal.App.4th 766, 771
[statement of general rule].)
In reviewing the sufficiency of evidence to support a
conviction, we examine the entire record and draw all reasonable
inferences therefrom in favor of the judgment to determine

11
whether there is reasonable and credible evidence from which a
reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt. (People v. Brooks (2017) 3 Cal.5th 1, 57.) Our
review is the same in a prosecution primarily resting upon
circumstantial evidence. (People v. Rivera (2019) 7 Cal.5th 306,
331.) We do not redetermine the weight of the evidence or the
credibility of witnesses. (People v. Albillar (2010) 51 Cal.4th 47,
60; People v. Young (2005) 34 Cal.4th 1149, 1181 [“Resolution of
conflicts and inconsistencies in the testimony is the exclusive
province of the trier of fact”].) We must accept logical inferences
that the trier of fact might have drawn from the evidence
although we may have concluded otherwise. (Rivera, at p. 331.)
“If the circumstances reasonably justify the trier of fact’s
findings, reversal of the judgment is not warranted simply
because the circumstances might also reasonably be reconciled
with a contrary finding.” (Albillar, at p. 60.) In our review, we
focus upon the evidence that was presented, rather than evidence
that might have been but was not presented. (People v. Story
(2009) 45 Cal.4th 1282, 1299.)
Sufficient evidence and reasonable inferences therefrom
establish that S.K. was in fear for her life and that fear allowed
defendants to commit the robbery. S.K. repeatedly informed the
police dispatcher that she was frightened and thought that
defendants might kill her. She stated that they pounded on the
front door, broke into her residence, and broke down the master
bedroom door. The dispatcher acknowledged that she heard the
bedroom door being broken. S.K. lay in a fetal position on the
closet floor while defendants ransacked her home and master
bedroom. She refused to look at the intruder who opened the
closet door in increased fear that he might kill her. S.K. did not

12
attempt to prevent the thefts by answering the door or
attempting to reclaim her property. Jones and Washington used
fear to take and retain S.K.’s property. S.K. was no match for
three younger men who broke down her bedroom door at night
and found her hiding in the closet. The home invasion robbery
convictions are supported by sufficient evidence.
The act by which the taking is accomplished need not be
motivated by an intent to use force against the victim or to “cause
the victim to feel fear.” (People v. Anderson, supra, 51 Cal.4th
989, 995.) From this, we conclude that because Jones and
Washington were unaware of the victim’s presence is beside the
point. What matters is that the victim’s fear facilitated the
robbery.
II.
Jones and Washington contend that insufficient evidence
exists that three persons committed the home invasion robbery
(count 1). (§ 213, subd. (a)(1)(A) [home invasion robbery requires
defendant to act in concert with two or more persons].) They
suggest alternative scenarios for the crime that do not involve
three intruders in the master bedroom.
Sufficient evidence and all reasonable inferences therefrom
support the finding of three persons committing the robbery.
S.K. repeatedly referred to more than one person breaking down
her locked bedroom door and entering her bedroom. When one
defendant opened her closet door and uttered, “Oh, shit,” the
three men immediately left the home and nearly bumped into one
another in their flight to the automobile parked in the driveway.
S.K. informed the dispatch operator that the intruders ran away
after one opened the closet door and saw her. A reasonable
inference from defendants’ hasty flight is that one man informed

13
the two others that S.K. was present. We do not substitute our
inferences for those drawn by the trial court. (People v. Albillar,
supra, 51 Cal.4th 47, 60.)
III.
Jones and Washington each assert that insufficient
evidence exists that they participated in the robbery of S.K.
(count 1).
Sufficient evidence supports the conviction of robbery for
each defendant. Jones and Washington violently broke S.K.’s
locked bedroom door; S.K. heard more than one man speaking.
They and M.L. carried pillow cases in which to place the items
taken from S.K., including several hundred dollars and a cellular
telephone. When arrested, Washington carried $298 cash. As
fellow gang members, Jones and Washington were present at
S.K.’s residence and drove together to Montecito from Compton.
The three men immediately fled together upon finding S.K. in the
master bedroom closet.
Moreover, evidence exists that Jones and Washington aided
and abetted the home invasion robbery. (People v. Nguyen (2015)
61 Cal.4th 1015, 1054.) Relevant factors for aiding and abetting
liability include presence at the scene, companionship, and
conduct before and after the offense. (Ibid.) It is also a
reasonable inference from the evidence that breaking down a
locked bedroom door would reveal the presence of an individual
inside. Although the defendants may have believed S.K.’s home
was unoccupied and may have been surprised to find her in the
closet, it is reasonable to assume that a person may be inside a
locked master bedroom.

14
 IV.
Jones and Washington argue that insufficient evidence
supports their convictions of the H.H. burglary as opposed to
merely possessing H.H.’s stolen property.
Possession of stolen property alone is not sufficient to
support the possessor’s conviction of burglary. (In re D.M.G.
(1981) 120 Cal.App.3d 218, 227.) “When, as here, a defendant is
found in possession of property stolen in a burglary shortly after
the burglary occurred, the corroborating evidence of the
defendant’s acts, conduct, or declarations tending to show his
guilt need only be slight to sustain the burglary convictions.”
(People v. Mendoza (2000) 24 Cal.4th 130, 176 [statement of
general rule].)
Here sufficient evidence supports the convictions. The
H.H. burglary occurred a short distance away from the S.K.
burglary and in the same time period. Each crime occurred by
forcefully breaking doors. Jones, Washington, and M.L. were
together that day and drove to the Santa Barbara area in Jones’s
girlfriend’s vehicle. Jones and Washington are members of the
same criminal street gang. The girlfriend’s vehicle contained
H.H.’s laptop and cellular telephone. Jones’s cellular telephone
also placed him near (within one mile) the H.H. residence that
day.4 The three men fled when confronted by the deputies,
abandoning the vehicle with its purloined goods. This evidence,
and all reasonable inferences therefrom, constitute more than

4We grant Jones’s two motions for judicial notice
concerning the proximity of H.H.’s residence to the freeway and
the approximate 10-mile distance between the H.H. and S.K.
residences.

15
“slight” corroborative evidence. (People v. Mendoza, supra, 24
Cal.4th 130, 176.)
V.
Jones and Washington argue that they are entitled to the
ameliorative benefits of AB 333 and AB 518, effective January 1,
2022, regarding changes in proof of criminal street gang
enhancements and street terrorism, and in sentencing discretion
pursuant to section 654. The Attorney General concedes that the
recent legislative changes apply to Jones’s and Washington’s
convictions because their judgments are not final. (In re Estrada
(1965) 63 Cal.2d 740, 744-746.) As AB 333 increases the
threshold for conviction of a section 186.22 offense and imposition
of the enhancement, we agree that Jones and Washington are
entitled to the benefit of these changes in the law. (People v.
Lopez (2021) 73 Cal.App,5th 327, 344.)
AB 333 amends section 186.22 in several ways. It modifies
the definitions of pattern of criminal activity and criminal street
gang and clarifies the evidence required to show a benefit to a
criminal street gang. It increases the threshold for conviction of
the offense and imposition of the enhancement. Importantly
here, AB 333 amends the law regarding predicate offenses and
requires a common benefit to the street gang that is more than
reputational. (Stats. 2021, ch. 699, § 3.) We remand the matter
for a limited retrial to allow the prosecution an opportunity to
retry the gang enhancements and street terrorism count and
meet its burden of proof pursuant to AB 333’s new requirements.
The Attorney General also properly concedes that Jones
and Washington are entitled to the benefit of AB 518, permitting
the trial court to exercise new sentencing discretion pursuant to
section 654. AB 518 amends section 654 by removing the

16
requirement that a defendant shall be punished under the
provision providing for the longest term of imprisonment and
granting the trial court discretion to impose punishment under
any of the applicable provisions.
VI.
Jones contends that the trial court based the section
12021.5, subdivision (a) firearm enhancements appended to
counts 1 and 2 upon insufficient evidence. The court imposed an
upper three-year term to each count for the firearm finding.
At trial, the court found the use of a firearm enhancement
within the meaning of sections 12022.5, subdivision (a) and
12022.53, subdivision (b) not proven beyond a reasonable doubt.
The trial judge pointed to the testimony of Deputy Trujillo that
he was uncertain that Jones held a firearm (as opposed to
another object) when he fled S.K.’s residence.
The trial court found, however, that a principal was armed
with a firearm pursuant to section 12022, subdivision (a)(1)
during the commission of counts 1 and 2. The court also found
that Jones was “armed with a firearm in the vehicle” during
commission of a street gang crime pursuant to section 12021.5,
subdivision (a).
The Attorney General concedes that the firearm finding of
section 12021.5, subdivision (a) is not supported by sufficient
evidence. Section 12021.5, subdivision (a) punishes: “Every
person who carries a loaded or unloaded firearm on his or her
person, or in a vehicle, during the commission or attempted
commission of any street gang crimes.” The Attorney General
points out that there was insufficient evidence that Jones carried
a firearm in a vehicle or otherwise during commission of a street
gang crime (crimes against S.K.). We agree, strike the section

17
12021.5, subdivision (a) firearm enhancement finding regarding
counts 1 and 2, and remand for resentencing.
Sentencing Contentions
VII.
Jones and Washington argue that the trial court failed to
pronounce the $13,035.33 victim restitution to S.K. as stated in
the abstracts of judgment. They add that the amount is not
supported by sufficient evidence or stated as joint and several
liability. Jones and Washington assert that they received
ineffective assistance of counsel by failure of their counsel to
object.
The Attorney General responds that Jones and Washington
have forfeited this argument by not objecting during sentencing,
but concedes that the amount is not appropriate because the
figure rests upon the probation officer’s “bare assertions” at
sentencing. (People v. Gemelli (2008) 161 Cal.App.4th 1539, 1542
[restitution order must rest upon rational and factual basis].)
The probation officer advised the trial court of different
amounts of victim restitution due S.K., ranging from lost wages
of $3,420 to $13,045.43, without further explanation or notice to
defendants. The prosecutor briefly stated that the latter amount
was for the value of jewelry and cash taken from S.K., but the
probation officer did not provide any detail. The court did not
impose any amount of victim restitution and retained jurisdiction
concerning the matter. The abstracts of judgment, however,
reflect $13,035.33 regarding S.K.
As conceded by the Attorney General, the trial court abused
its discretion concerning the $13,035.33 restitution due S.K.
Jones and Washington were not afforded notice of the increased
amount, the amount was not explained or ordered as joint and

18
several liability, and the court did not pronounce the amount of
restitution due. Upon remand, the trial court shall determine the
restitution due S.K. after notice to defendants, explanation of the
amount, and objections if any.
VIII.
Jones and Washington argue that the trial court erred by
imposing fees, fines, and assessments without establishing their
abilities to pay. (People v. Dueñas (2019) 30 Cal.App.5th 1157.)
They concede that they did not object at sentencing and claim
that they received ineffective assistance of counsel.
The Attorney General responds that upon remand for
resentencing, Jones and Washington may present evidence
regarding their inabilities to pay. (People v. Santos (2019) 38
Cal.App.5th 923, 934; People v. Castellano (2019) 33 Cal.App.5th
485, 490 [“[A] defendant must in the first instance contest in the
trial court his or her ability to pay the fines, fees and
assessments to be imposed and at a hearing present evidence of
his or her inability to pay the amounts contemplated by the trial
court”].) We agree with the Attorney General’s suggestion,
vacate the fees, fines, and assessments, and also remand for this
resentencing purpose.
IX.
Washington contends that the 2020 amendment to section
667.5, subdivision (b) precludes imposition of the two one-year
prior prison term enhancements to count 5 (street terrorism)
because the offenses underlying the enhancements were not
sexually violent offenses. (Stats. 2019, ch. 590, § 1.)
The second amended information alleged that Washington
served prior prison terms pursuant to section 667.5, subdivision
(b) for burglary, possession of a firearm by a felon, and unlawful

19
possession of ammunition. The trial court found the allegations
true, imposed two enhancements to count 5, and then stayed the
entirety of sentence for count 5 pursuant to section 654. 5
The Attorney General correctly concedes that imposition of
the prior prison term enhancements was improper. Accordingly,
we strike the findings and imposition of the two prior prison term
enhancements and remand for resentencing.
X.
Jones and Washington argue that the trial court incorrectly
added a 10-year prison term to their sentences for count 2
(residential burglary, person present) for the criminal street gang
enhancement, rather than imposing the minimum parole
eligibility term of 15 years. The Attorney General concedes.
At sentencing, the trial court imposed and then stayed a
prison term of 21 years plus 27 years to life for Washington for
count 2. The court also imposed and then stayed a prison term of
23 years plus 29 years to life for Jones for count 2. (Washington
and Jones each received life sentences pursuant to the “Three
Strikes” law.) Section 186.22, subdivision (b)(5) provides,
however, that the 15-year minimum parole eligibility
requirement should be imposed rather than a criminal street
gang enhancement if a defendant is convicted of a felony
punishable by imprisonment for life. (People v. Montes (2003) 31
Cal.4th 350, 353; People v. Williams (2014) 227 Cal.App.4th 733,
736-737.) Accordingly, we strike the 10-year criminal street gang
enhancement and instruct the court to resentence Jones and
Washington regarding count 2. (People v. Buycks, supra, 5
Cal.5th 857, 893.)

Earlier, the trial court struck the prior prison term
5

enhancements regarding Jones.

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 XI.
Washington complains of the imposition of a $5,000
restitution fine and stayed $5,000 parole revocation fine as
opposed to the similar $4,000 fines imposed upon Jones.
(§§ 1202.4, subd. (b), 1202.45.) Washington concedes that he
failed to object and claims he received the ineffective assistance
of counsel. Inasmuch as we are remanding the matter for
resentencing regarding fines, fees, and assessments as discussed
herein, Washington may argue the amounts of restitution fine
and stayed parole revocation fine in the trial court.
DISPOSITION
The judgments are reversed and the matters remanded for
1) limited retrial regarding AB 333 and the criminal street gang
enhancements and street terrorism count, and 2) resentencing as
set forth herein. The judgments are otherwise affirmed.
NOT TO BE PUBLISHED.

GILBERT, P. J.
We concur:

PERREN, J.

TANGEMAN, J.

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 Brian E. Hill, Judge

Superior Court County of Santa Barbara

______________________________

John Derrick, under appointment by the Court of Appeal,
for Defendant and Appellant Davion Jones.
David Andreasen, under appointment by the Court of
Appeal; California Appellate Project for Defendant and Appellant
Adolph Washington.
Rob Bonta, Attorney General, Matthew Rodriquez, Acting
Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Susan Sullivan Pithey, Assistant Attorney General,
Stephanie A. Miyoshi and Eric J. Kohm, Deputy Attorneys
General, for Plaintiff and Respondent.

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