Filed 2/23/23 P. v. Ayala CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B315862
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA470114)
v.
JAMAINE MARTELL AYALA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Henry J. Hall, Judge. Affirmed in part, reversed
in part, and remanded with directions.
Russell S. Babcock, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Scott A. Taryle and Chung L. Mar, Deputy
Attorneys General, for Plaintiff and Respondent.
_______________________________
In Jamaine Martell Ayala’s direct appeal of his convictions
for corporal injury upon a spouse, criminal threats with personal
use of a firearm, and felony vandalism, we remanded the matter
for the trial court to hold a new sentencing hearing to comply
with its statutory obligations under Penal Code section 1170.91.1
(People v. Ayala (Apr. 8, 2021, B304033) [nonpub. opn.] (Ayala).)
Upon remand, on October 4, 2021, the court sentenced Ayala to
the middle term of three years for the criminal threats, plus the
lower term of three years for the personal use of a firearm
enhancement. The court also imposed concurrent middle terms
for the corporal injury upon a spouse (three years) and the felony
vandalism (two years).
A few days after that sentencing hearing, on October 8,
2021, the Governor signed into law a trio of bills (specified below)
that amended section 1170 effective January 1, 2022. As
relevant here, the bills added subdivision (b)(6) of section 1170,
which provides for a presumptive lower term sentence where a
defendant “has experienced psychological, physical, or childhood
trauma” which “was a contributing factor in the commission of
the offense.” Ayala contends, the Attorney General concedes, and
we agree that the matter must be remanded for a new sentencing
hearing for the trial court to consider whether to impose a lower
1 Penal Code section 1170.91 requires a court to consider a
defendant’s United States military service-related posttraumatic
stress disorder (PTSD) as a factor in mitigation when imposing
sentence. (Pen. Code, § 1170.91, subd. (a).) Ayala presented
evidence of his service-related PTSD diagnosis.
Hereafter, undesignated statutory references are to the
Penal Code.
2
term sentence under section 1170, subdivision (b)(6), in light of
Ayala’s PTSD diagnosis.
Also on October 8, 2021, the Governor signed into law
Senate Bill No. 81, which amended section 1385. As relevant
here, the bill added subdivision (c) of section 1385, which requires
a court to consider specified mitigating circumstances (to the
extent they are proven by the defendant) in determining whether
to dismiss an enhancement in the furtherance of justice.
Subdivision (c) applies to all sentencings occurring after January
1, 2022. We agree with the parties that the amended version of
section 1385 will apply upon remand at the new sentencing
hearing.
The parties also note the October 12, 2021 abstract of
judgment does not accurately reflect the trial court’s ruling on
imposition of fines and assessments, and we order the trial court
to address the issue at the new sentencing hearing on remand, as
explained more fully below.
BACKGROUND
I. Trial and Verdicts
The following is an excerpt of the facts set forth in our
opinion in Ayala’s direct appeal of his convictions. (Ayala, supra,
B304033.) We set forth this abbreviated summary of the
evidence presented at Ayala’s trial to provide context for the
issues on appeal.
“Ayala and his wife Rose married in February 2016. At the
time of the charged incident in June 2018, they lived in a rented,
two-bedroom apartment in Los Angeles, and Rose was seven
months pregnant with their first and only child. When Rose
testified at trial, she explained that she and Ayala (who was out
of custody on bail), were legally separated.
3
“On June 17, 2018, the date of the charged offenses, Ayala
and Rose argued when she confronted him with evidence of his
infidelity as he lay in bed, using his cell phone. Rose recorded
audio of the argument on her cell phone because she believed
Ayala would admit the infidelity and she could play the audio at
their next couple’s counseling session. According to Rose’s
testimony, Ayala did not know Rose was recording the incident.
The prosecution played the audio for the jury during Rose’s
testimony and provided transcripts of the audio for the jury’s
review. [Fn. omitted.] The audio captured the words spoken
during the argument and the sounds of the altercation (e.g.,
punches to the wall, glass breaking, and thuds), as described
below.
“During the argument, Ayala got out of bed and punched
two holes in a bedroom wall. Using profanity, he yelled at Rose
and told her he hated her multiple times. Ayala, who was six feet
six inches tall and weighed around 240 pounds, lifted Rose off the
ground by placing his arms underneath her shoulders and
‘slammed [her] down on the floor,’ according to Rose’s
testimony.[2] She landed on her buttocks, in a seated position,
hitting a large box containing an unbuilt crib, which pressed into
her ribs. Ayala grabbed her by her hair and dragged her a couple
feet. He let her go and left the room.
“As Ayala walked to the other bedroom, he broke items in
the kitchen (e.g., fruit bowls) and some of Rose’s glass bottles of
perfume in the bathroom. Rose followed him, and they continued
to argue, with him repeating multiple times that he hated her.
“Rose was five feet five inches tall and seven months
2
pregnant.”
4
He told her to ‘[g]et up out of [his] face,’ as reflected on the audio
recording. Then, he threatened to punch her in the face.
“Ayala began packing his belongings to leave the
apartment. He grabbed his semiautomatic firearm from a
bedroom closet. Rose testified that Ayala kept the gun loaded
with the safety off, so he was ready to fire at an intruder. As
they continued to argue, and as Ayala was holding the gun, he
said, ‘I’m going to shoot you in the fucking face,’ as reflected on
the audio recording. According to Rose’s testimony, Ayala was
standing less than 10 feet away from her, facing her, and
pointing the gun toward the floor at a 45-degree angle. Rose
asked him to put down the gun. He told her multiple times to get
out of his face. He placed the gun on the counter where he was
gathering his belongings, as he packed. Rose asked him why he
had the gun, and he replied, ‘Shoot you if you don’t get the fuck
away from me,’ as reflected on the audio recording. Rose was
scared because of Ayala’s temper and his ‘experience’ in the
military.
“After she stopped recording the incident, Rose left the
apartment. The same day, she went to a police station and
reported the incident, and an officer took photos of her injuries.
Her injuries included bruises on her arm, swelling around her
ribs, broken capillaries on her chest, and pain all over her body.
She also developed hemorrhoids and sciatica which she
attributed to Ayala slamming her down on her buttocks. The
prosecutor showed the jury photos that Rose took of her bruised
arm and broken capillaries and a photo the officer took of her
bruised arm. [Fn. omitted.]” (Ayala, supra, B304033, pp. 2-4.)
5
After hearing testimony from Rose (including the portion
summarized above) and Ayala (in his defense),3 the jury found
Ayala guilty of corporal injury upon a spouse (§ 273.5, subd. (a)),
criminal threats (§ 422, subd. (a)), and felony vandalism with
damage over $400 (§ 594, subd. (a)).4 The jury also found true
the special allegation that Ayala personally used a firearm in the
commission of the criminal threats. (§ 12022.5, subd. (a).) The
jury found Ayala not guilty of assault with a firearm. (§ 245,
subd. (b).)
II. Initial Sentencing and Direct Appeal
The reporter’s transcript of the December 31, 2019 initial
sentencing hearing is included in the record before us. For
additional background regarding Ayala’s initial sentencing,
including documents referenced at that sentencing hearing, we
quote from and cite to our opinion in Ayala’s direct appeal of his
convictions.
Prior to the initial sentencing, the prosecution filed a
sentencing memorandum asserting “the trial court could impose
a maximum sentence of 14 years and eight months in prison for
Ayala’s offenses: the upper term of three years for the criminal
threats, plus the upper term of 10 years for the firearm
3 As stated above, we include a partial summary of the
prosecution’s evidence at Ayala’s trial to provide context for the
issues on appeal. We do not include a summary of all evidence
presented at trial, including Ayala’s testimony in his defense,
because it is not material to our resolution of the issues on
appeal.
4The prosecution presented evidence demonstrating that
the damage (holes in the walls and broken bottles of expensive
perfume) exceeded $400. (§ 594, subd. (b)(1).)
6
enhancement under section 12022.5, subdivision (a); a
consecutive term of one year (one-third the middle term) for the
corporal injury upon a spouse; and a consecutive term of eight
months (one-third the middle term) for felony vandalism. The
prosecution recommended the trial court instead sentence Ayala
to seven years and eight months in prison: the same sentence
outlined above, except the lower term of three years for the
firearm enhancement.
“In urging the trial court to impose the upper term for the
criminal threats, the prosecution cited the following
circumstances in aggravation: (1) ‘The crime involved great
violence, great bodily harm, threat of great bodily harm, or other
acts disclosing a high degree of cruelty, viciousness, or
callousness’ (Cal. Rules of Court, rule 4.421(a)(1));[5] (2) ‘The
defendant was armed with or used a weapon at the time of the
commission of the crime’ (rule 4.421(a)(2)); (3) ‘The victim was
particularly vulnerable’ (rule 4.421 (a)(3)) in that Rose was seven
months pregnant when Ayala committed the offenses; and
(4) ‘The defendant has engaged in violent conduct that indicates a
serious danger to society’ (rule 4.421(b)(1)). The prosecution cited
one circumstance in mitigation: Ayala’s minimal criminal record.
(Rule 4.423(b)(1).) As set forth in the probation report, Ayala’s
criminal history before the current offenses consisted of two out-
of-state convictions: driving under the influence of alcohol in
2011 and driving while his license was suspended or revoked in
2012.[6]” (Ayala, supra, B304033, p. 10.)
5“Undesignated rule references are to the California Rules
of Court.”
“The probation officer recommended the trial court impose
6
an upper term sentence in this case, finding no circumstances in
7
In his sentencing memorandum, “Ayala explained he
suffers from PTSD that is ‘70% connected to his [military]
service,’ as evidenced by service-related documents he attached to
the memorandum. Based thereon, he requested the trial court
place him on probation and order treatment as provided in
section 1170.9 . . . .” (Ayala, supra, B304033, p. 11.)7 He pointed
out that “[p]rotecting society” is a general objective of sentencing,
as set forth in rule 4.410(a)(1), and he argued he is not a threat to
society, citing his lack of history of other violent crime and his
record from his five years of service in the United States Army.
(Ibid.) He also listed “other circumstances in mitigation that he
argued demonstrated he was ‘on a path of self-improvement,’ ”
including that he was participating in therapy for his PTSD and
he was enrolled in an online law school program. (Id. at p. 12.)
Prior to the initial sentencing, “Ayala filed a ‘Motion to
Stay Custody in Lieu of Treatment,’ pursuant to section 1170.9.8
Therein he asserted he committed the offenses in this case ‘as a
result of his PTSD, and/or other mental health problems,
mitigation and listing two circumstances in aggravation (the first
and third circumstances in aggravation the prosecution included
in its sentencing memorandum, as set forth above).”
7The probation report does not reference Ayala’s PTSD
diagnosis or his mental health.
8 Under section 1170.9, if a defendant is otherwise eligible
for probation and the trial court determines the defendant (1)
was or is a member of the United States military and (2) may be
suffering from PTSD (or other specified conditions) as a result of
the person’s service, the court shall consider these circumstances
as a factor in favor of granting probation. (§ 1170.9, subds. (a) &
(b)(1).)
8
stemming from his service on the front lines during the Iraq and
Afghanistan war.’ ” (Ayala, supra, B304033, pp. 13-14.) In the
motion, he described his military service and his history of PTSD.
He attached to the motion, among other things, a report from a
recent psychological evaluation in which the clinical psychologist
concluded, “ ‘it is probable that [Ayala]’s behavior [in commission
of the charged offenses] is best explained by chronic, combat-
related PTSD, rather than to a [sic] reckless disregard for the
welfare of others.’ ” (Id. at p. 15.)
At the December 31, 2019 sentencing hearing, the trial
court (Judge Michael D. Abzug) made express findings under
section 1170.9 that Ayala served as a member of the United
States Military and had suffered from PTSD as a result of his
service. The court found that Ayala was eligible for probation
and acknowledged that his service-related PTSD was a factor in
favor of granting probation.
Ayala personally addressed the court, and counsel for both
sides presented argument. Thereafter, the trial court weighed
mitigating and aggravating circumstances, including Ayala’s
service-related PTSD, and denied Ayala’s request for probation.
The trial court sentenced Ayala to six years in prison: the
upper term of three years for the criminal threats, plus the lower
term of three years for the firearm enhancement. The court
imposed concurrent upper terms for corporal injury upon a
spouse (four years) and vandalism (three years). As factors in
aggravation, the court noted that Ayala’s convictions were of
increasing seriousness and, in the commission of the offenses in
this case, Ayala engaged in violent conduct that involved a threat
of great bodily harm. In selecting the term of imprisonment, the
court did not reference Ayala’s military service-related PTSD or
9
its obligation to consider this circumstance as a factor in
mitigation when imposing sentence pursuant to section 1170.91.
The court declined to strike the firearm enhancement under
section 12022.5, subdivision (a) because Rose was “terrified and
intimidated” and Ayala’s “threat to shoot her in connection with
ready access to a weapon which he has been trained to use
effectively is sufficient to justify the enhancement.” The court
imposed the low term of three years for the firearm enhancement
because “this is the first weapons offense that has been
committed by the defendant.”
Ayala appealed from the judgment of his convictions,
contending (1) the trial court abused its discretion in declining to
sentence him to probation due to his military service-related
PTSD, as provided in section 1170.9, and (2) the court abused its
discretion in imposing an upper term sentence, without
considering his service-related PTSD, as required under section
1170.91. We rejected the first contention. As to the second, we
remanded the matter for a new sentencing hearing because the
record did not demonstrate the court complied with its statutory
obligations under section 1170.91 to consider Ayala’s service-
related PTSD as a factor in mitigation when selecting the term of
imprisonment (separate and apart from its consideration of this
circumstance as a factor in mitigation in ruling on Ayala’s
request for probation under section 1170.9). (Ayala, supra,
B304033, pp. 2, 20-24.)
10
III. Hearing After Remand
On October 4, 2021, the trial court (Judge Henry J. Hall)
held the new sentencing hearing after remand.9 Ayala submitted
documents related to his military service-related PTSD diagnosis
and treatment. The court stated on the record the documents it
had reviewed and considered, which included the reporter’s
transcript of and exhibits from Ayala’s trial and all the parties’
sentencing submissions referenced above. The prosecutor read
victim impact letters into the record, including one from Rose.
Witnesses, including Ayala’s mother, made statements on Ayala’s
behalf. Ayala personally addressed the court, admitting that he
“said vicious things” to Rose, “used bad language,” “punched the
wall,” and “slapped some things over the counter” during the
incident that is the basis for the charged offenses in this case. He
denied touching Rose during the altercation.
The prosecutor urged the trial court to impose an upper
term sentence—even considering Ayala’s military service-related
PTSD diagnosis as a factor in mitigation—arguing that the
factors in aggravation outweigh the factors in mitigation (as
listed above in connection with the initial sentencing). Defense
counsel asked the court to impose a lower term sentence, arguing
Ayala’s minimal criminal record and service-related PTSD
outweigh the factors in aggravation.
In considering the matter in light of sections 1170.9 and
1170.91, the trial court accepted Judge Abzug’s findings made at
the initial sentencing that Ayala was a member of the United
States military and that he suffered from PTSD as a result of his
Judge Abzug, who had initially sentenced Ayala in this
9
case, had retired.
11
service. The court noted that Judge Abzug “did not, however,
find the current offense was a result of those factors.” The court
“assume[d]” Judge Abzug “implicitly made” the latter finding,
and the court “adopt[ed]” it “with substantial reluctance,”
explaining why the court had “significant doubts about the
impact of PTSD in this case.”10
Weighing aggravating and mitigating factors, including
Ayala’s service-related PTSD, the trial court declined to grant
probation. In considering the term of imprisonment, the court
considered Ayala’s service-related PTSD as a mitigating factor as
required under section 1170.91. The court reiterated its
understanding that Judge Abzug found Ayala’s PTSD had “a
nexus to the current crime.” As an additional mitigating factor,
the court cited Ayala’s “minor and insignificant” criminal record.
The court found “the most significant” aggravating factors—“the
violence of the crime and the vulnerability of the victim”—were
offset by the mitigating factors. Therefore, the court imposed the
middle term of two years for the criminal threats (the principal
10 As set forth above, under section 1170.9, if a defendant is
otherwise eligible for probation and the trial court determines the
defendant (1) was or is a member of the United States military
and (2) may be suffering from PTSD (or other specified
conditions) as a result of the person’s service, the court shall
consider these circumstances as a factor in favor of granting
probation. (§ 1170.9, subds. (a) & (b)(1).) Section 1170.91
requires a court to consider a defendant’s United States military
service-related PTSD as a factor in mitigation when imposing
sentence. (§ 1170.91, subd. (a).) Neither statute requires
consideration of the relation between the service-related PTSD
and the commission of the charged offenses.
12
term), as opposed to the upper term which was imposed at the
initial sentencing.
The court found it would not be in the interest of justice to
dismiss the firearm enhancement, explaining: “The defendant
was well-trained in the use of the firearm which he kept loaded
with the safety off. [¶] The defendant introduced the gun into
what was up to that point a mostly verbal domestic dispute.
There was punching holes in the wall. He twice threatened to
shoot the victim with the gun which has still not been recovered.
[¶] Moreover, the victim was pregnant at the time so his threats
to shoot her also threatened the unborn child.” The court
imposed the lower term of three years for the personal use
firearm enhancement under section 12022.5, subdivision (a), as
Judge Abzug had, because Ayala “had no prior weapons-related
offense.”
Thus, the trial court sentenced Ayala to five years in
prison: the middle term of two years for the criminal threats,
plus a consecutive term of three years (the lower term) for the
firearm enhancement. The court imposed concurrent middle
terms for corporal injury upon a spouse (three years) and
vandalism (two years).
DISCUSSION
Ayala contends the matter must be remanded for a new
sentencing hearing, so the trial court may consider the matter in
light of section 1170, subdivision (b)(6). The Attorney General
agrees, as do we.
On October 8, 2021, four days after Ayala’s last sentencing
hearing, the Governor signed Assembly Bill No. 124 (2021-2022
Reg. Sess.; Stats. 2021, ch. 695, § 5), Assembly Bill No. 1540
(2021-2022 Reg. Sess.; Stats. 2021, ch. 719, § 2), and Senate Bill
13
No. 567 (2021-2022 Reg. Sess.; Stats. 2021, ch. 731, § 1.3) into
law. The three bills amended section 1170, effective January 1,
2022. Senate Bill No. 567 was enacted last, and it incorporated
Assembly Bill No. 124’s and Assembly Bill No. 1540’s
amendments to section 1170. (See Stats. 2021, ch. 731, § 3(c).)
Thus, Senate Bill No. 567 became the operative legislation, and
we will refer to it when referencing applicable amendments to
section 1170. (See Gov. Code, § 9605, subd. (b).)
Relevant here, Senate Bill No. 567 added current
subdivision (b)(6) to section 1170, which provides in pertinent
part: “Notwithstanding paragraph (1) [directing that the court
impose a sentence not to exceed the middle term of a sentencing
triad except as provided in subdivision (b)(2)], and unless the
court finds that the aggravating circumstances outweigh the
mitigating circumstances that imposition of the lower term would
be contrary to the interests of justice, the court shall order
imposition of the lower term if any of the following was a
contributing factor in the commission of the offense: [¶] (A) The
person has experienced psychological, physical, or childhood
trauma, including, but not limited to, abuse, neglect, exploitation,
or sexual violence. . . .” Ayala’s military service-related PTSD
diagnosis would be a qualifying factor for consideration under
section 1170, subdivision (b)(6)(A) in determining whether to
impose a presumptive lower term sentence.
At Ayala’s last sentencing hearing on October 4, 2021, no
one referenced the trio of bills amending section 1170 that had
passed in the California Legislature, but had not yet been signed
by the Governor. The trial court, understandably, did not
evaluate the matter in light of the pending amendments to
section 1170. The parties agree that these amendments to
14
section 1170 apply retroactively to nonfinal judgments, like the
judgment before us in Ayala’s case. (See People v. Garcia (2022)
76 Cal.App.5th 887, 902 [“We agree with the parties the changes
effected by the new legislation [specifying Senate Bill No. 567
and Assembly Bill No. 124] apply retroactively to defendant’s
case as they are ameliorative in nature and therefore apply to all
nonfinal appeals”].)
In his opening appellate brief, Ayala argued, “Remand for
re-sentencing is not necessary as there is sufficient evidence on
the record from the trial court’s prior findings to compel the
imposition of the low-term.” He asserted that the trial court
(Judge Hall) “found that appellant’s PTSD, i.e. psychological
trauma, contributed to the offense, and he found the aggravating
and mitigating factors balance out.”11 In the respondent’s brief,
the Attorney General argued remand for resentencing is
appropriate because (1) “the requisite findings that a court must
make under sections 1170.9 or 1170.91 [the statutory provisions
the court applied at the prior sentencing hearings] do not
necessarily establish, as a matter of law, the ‘contributing factor’
requirement of 1170, subdivision (b)(6)(A),” and (2) “it is clear
from the record that the sentencing court [Judge Hall] had
‘significant doubts’ and ‘skepticism’ about ‘the casual relationship
between the PTSD and the commission of the crime,’ ” quoting
from the court’s comments. In his reply brief on appeal, Ayala
asks us to remand the matter for resentencing, apparently now
agreeing with the Attorney General that this is the appropriate
In the alternative, to the extent we were to reject this
11
primary argument, Ayala requested in his opening brief that we
remand the matter for resentencing.
15
disposition (“appellant respectfully requests that this court
remand this case to the trial court for re-consideration of the
appropriate base term to impose”).
We conclude the matter must be remanded for the trial
court to apply section 1170, subdivision (b)(6) in sentencing
Ayala. At the initial sentencing, Judge Abzug did not make a
finding regarding the relation between Ayala’s service-related
PTSD and the commission of the charged offenses in this case.
At the October 4, 2021 sentencing hearing, Judge Hall,
apparently believing such a finding was necessary for the
application of sections 1170.9 and 1170.91, “assume[d]” Judge
Abzug “implicitly made” a finding that the offenses were “a result
of” Ayala’s service-related PTSD and “adopt[ed]” the finding
“with substantial reluctance,” explaining why he had “significant
doubts about the impact of PTSD in this case.” Neither section
1170.9 nor section 1170.91 requires consideration of the relation
between the service-related PTSD and the commission of the
charged offenses, as we explained above. Thus, the issue of
whether Ayala’s PTSD was a contributing factor in the
commission of the offenses—a consideration required under
section 1170, subdivision (b)(6)(A)—was not squarely before the
court at the prior sentencing hearings, and we remand the matter
so the trial court may consider the matter directly in light of
section 1170, subdivision (b)(6).
As the parties point out, Senate Bill No. 81 (2021-2022 Reg.
Sess.; Stats. 2021, ch. 721, § 1), which added subdivision (c) to
section 1385 effective January 1, 2022, was signed into law on
October 8, 2021, after Ayala’s October 4, 2021 sentencing
hearing. Section 1385, subdivision (c)(2) requires a court to
consider a list of mitigating factors (to the extent they are proven
16
by the defendant) in determining whether to dismiss an
enhancement in furtherance of justice, including that the
“current offense is connected to mental illness.” (§ 1385, subd.
(c)(2)(D).) “Proof of the presence of one or more of these
circumstances weighs greatly in favor of dismissing the
enhancement, unless the court finds that dismissal of the
enhancement would endanger public safety.” (§ 1385, subd.
(c)(2).) Subdivision (c) “shall apply to all sentencings occurring
after January 1, 2022.” (§ 1385, subd. (c)(7).) The parties agree,
as do we, that section 1385, subdivision (c) will apply at Ayala’s
new sentencing hearing on remand regarding imposition of the
firearm enhancement. (See People v. Sek (2022) 74 Cal.App.5th
657, 674 [“Because any resentencing in this case will take place
after Senate Bill No. 81 became effective on January 1, 2022, we
agree with Sek that the court must apply the new law in any
such proceeding”].)
Finally, the parties note that the October 12, 2021 abstract
of judgment does not accurately reflect the trial court’s ruling on
imposition of fines and assessments. As reflected in the
reporter’s transcript and minute order from the October 4, 2021
sentencing hearing, the court stayed a $300 restitution fine under
section 1202.4, subdivision (b) unless or until the prosecution
proves Ayala’s ability to pay. And the court waived $120 in court
operations assessments ($40 per conviction) under section 1465.8,
subdivision (a)(1) and $90 in court facilities assessments ($30 per
conviction) under Government Code section 70373, subdivision
(a), based on Ayala’s inability to pay. The abstract of judgment,
however, reflects that the restitution fine and above-described
assessments are due. At the new sentencing hearing on remand,
17
the court shall address this discrepancy regarding the fines and
assessments.
DISPOSITION
The matter is remanded for a new sentencing hearing
consistent with this opinion. In all other respects, the judgment
is affirmed.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
ROTHSCHILD, P. J.
WEINGART, J.
18