Filed 6/4/21 P. v. Bailey CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent,

v. LEE JAMES BAILEY , Defendant and Appellant. A1 61124
( Solano County Super. Ct. No. FCR262979 )

Lee James Bailey appeals from a resentencing proceeding held pursuant to Penal Code section 1170, subdivision (d)(1)

. 1 Bailey contends the
trial court abused its discretion by declining to strike his firearm and prior serious felony conviction enhancements, and that the court erred by failing to
consider his ability to pay two a ssessments and a restitution fine

. We affirm.
BACKGROUND
In 2009, Bailey, then 21 years old, shot and robbed a man in a hotel

room. The bullet lodged in the man’s spine , partially paralyzing him

. T he prosecution charged Bailey with attempted first degree murder with firearm
enhancements ( §§ 664, 187, subd. (a) , 1 2022, subd. (a)(1), 12022.53, subds. (b)

– (d) ) ; second degree robbery with firearm en hancements ( § § 211 , 12022,

1 Undesignated statutory references are to the Penal Code.2

subd. (a)( 1) , 12022.53, subds. (b)

– (d)) ; and assault with a semiautomatic

weapon with a firearm enhancement ( § § 245, subd. (b), 12022.5, subds

. (a), (d)). The information alleged Bailey had a prior serious felony conviction ( § 667, subd. (a) (1) ) and a prior strike conviction ( §§ 66 7, subds. (b)

– ( i), 1170.12, subds. (a )

– (d)). Bailey pled no contest to the robbery and admitted personally and intentionally discharging a firearm during th at crime ( § 12022.53, subd. (c) ). Bailey also admitted the prior conviction allegations. The parties agreed Bailey would receive a 35

- year prison sentence , comprised of 5 y ears for the robbery, doubled for the prior strike conviction ; a mandatory 20 years for the firearm enhancement ; and a mandatory 5 years for the prior serious felony
conviction. The prosecution dismissed the remaining charges and
enhancements. In 2011, the court sentenced Bailey to 30 years in state prison

. It imposed a $40 court operations assessment (§ 1465.8); a $30 criminal conviction assessment (Gov. Code, § 70373); a nd a $7,000 re stitution fi ne ( § 1202.4 , subd. (b) )

. Several years later, the Department of Corrections and Rehabilitation ( CDCR ) notified the court that i t had failed to double the five

year base term for the robbery conviction

. T he court amended the abstract of judgment to reflect a 35

- yea r prison sentence

. A.
In 2019 , the Secretary of the CDCR recommended the court recall Bailey’s sentence and resentence him pursuant to section 1170,
subdivision (d)(1) based on a change in the law granting trial court s discretion to strike prior serious felony enhancement s in the interest of justice

. The recommendation attached documents showing Bailey’s3

attendance in rehabilitative programs, his work assignment history , and a report showing no rule viol ations

. The court recalled the sentence, appointed counsel , and scheduled a resentencing hearing

. Before resentencing , defense counsel filed a memorandum of poi nts and authorities urg ing the c o urt to strike the firearm
and serious felony enhancement s based on legislatio n giving trial courts
discretion to dismiss these enhancements in the interest of justice. 2 (See People v. Garcia (2018) 28 Cal.App.5th 961, 965; People v. Thompkins (2020) 50 Cal.App.5th 365, 388.) Defense counsel offered numerous supporting documents, including a social history describin g Bailey’ s childhood and documenting his rehabilitation while incarcerated , an d a psychological
evaluation

. Counsel also submitted documen t s h ighlight ing Bailey’s post conviction achievements

. The prosecution urged the court to leave Bailey’s sentence intact

. It argued striking the enhancements would not serve the interest of justice
because the underlying offense was the culmination of escalating criminal
behavior that began when Bailey was 18 years old with an arrest for residential burglary and that was followed by convictions for forgery, receiving stolen property, grand theft, and reckless driving

. The prosecution
also suggested the violent and c allous circumstances of the crime

— where Bailey shot the victim and le ft him gravely injur ed

— did not support striking
the enhancements

. Finally, the prosecution noted Bailey had received the benefit of the plea bargain : a 35

- year prison term in exchange for the

2 Counsel also requested a youthful offender parole hearing pursuant to People v. Franklin (2016) 63 Cal.4th 261 and an opportunity to s upplemen t the record with evidence relevant to such a hearing

. The court granted th e request and considered the evidence at resentencing.4

prosecution’s dismissal of more serious charges and enhancements that
would have resulted in a much longer prison term.
B.
At the September 2020 r esentencing hearing , the court considered the CDCR ’s recommendation , defense counsel’s memorandum of points and authorities and supporting documentation , and the prosecution’s opposition.
It also h eard argument from defense counsel , who urged the court to strike
the enhancements and point ed to Bailey’s “ life history” and his “extraordinary record of achievement in prison

. ” Defense counsel also
contended Bailey’s physical condition support ed a reduction in the sentence. Bailey gave a statement admitting responsibility for the crime and expressing remorse for the pain and suffering he caused the victim and the victim’s family

. After examining the “whole case ,” the court declined to reduce Bailey’s term of imprisonment or strike either enhancement

. The court noted the seriousness of the offense and the tragic consequences for the victim’s family , as well as Bailey’s youth when he committed the offense , his expression of

g enuine remorse , and his progress while incarcerated . After considering these circumstances, the court d etermined “it would not serve the interest of justice” to strike either enhancement.
Defense counsel also urged the court to conclude Bailey lacked the ability to pay the restitution fine or , in the alternative, to s chedule an ability to pay hearing. Counsel argued Bailey’s current prison job did not pay a salary and that Bailey could pay only a “small fraction ” of the restitut ion fine while in prison. The court denied the request.5 DISCUSSION Section 1170, subdivision (d)(1) authorizes the Secretary of the CDCR to recommend the trial court recall a previously imposed sentence “and resentence the defendant in the same manner as if [he or she] had not previously been sentenced, provided the new s entence, if any, is no greater than the initial sentence.” The Secretary may recommend recall and resentencing where

— as here

— there is a change in sentencing law “due to new statutory or case law authority with statewide application.” (Cal. Code Regs., ti t. 15, § 3076.1, subds. (a)(3) & (d)(1).) Section 1170, subdivision (d)(1) contemplates a two

- step process. ( People v. McCallum (2020) 55 Cal.App.5th 202, 214

– 215 ( McCallum ); Dix v. Superior Court (1991) 53 Cal.3d 442, 455

– 456, 463.) The trial court fi rst decides whether to recall the sentence. ( McCallum , at p. 210 ; People v.
Frazier (2020) 55 Cal.App.5th 858, 863.) If the court recalls the sentence, it then holds a resentencing hearing. ( Dix , at p. 463.)
A. No Abuse of Discretion in Declining to Strik e the Enhancements A court resentencing a defendant under section 1170, subdivision (d)(1) must “apply the sentencing rules of the Judicial Council so as to eliminate disparity of sentences and to promote uniformity of sentencing.” It “ may reduce a defendant’s term of imprisonment and modify the judgment, including a judgment entered after a plea agreement, if it is in the interest of justice.” (§ 1170, subd. (d)(1) , italics added.) The court also “ may consider postconviction factors, including, b ut not limited to, the inmate ’ s disciplinary record and record of rehabilitation while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have
reduced the inmate ’ s risk for future violence, and evidence that reflects that circumstances have changed since the inmate ’ s original sentencing so that6

the inmate ’ s continued incarceration is no longer in the interest of justice.” ( Ibid. , italics added ; see also McCallum , supra , 55 Cal.App.5th at p. 210

. ) We review the court’s sentencing decision s

— including its decision not to strike Bailey’s enhancements

— for abuse of discretio n. ( People v. Shaw (2020) 56 Cal.App.5th 582, 587; People v. Pearson (2019) 38 Cal.App.5th 112, 116.) “ ‘ “ Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion ‘ must not be disturbed on appeal
except on a showing that the court exercised its discretion in an arbit rary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. ’ ” ’ ” ( McCallum , supra , 55 Cal.App.5th at p. 211.) This “ ‘ standard “involves abundant deference” to the court’s ruling.’ ” ( Ibid. ) We cannot reverse the decision merely because “ ‘ “ reasonable people might disagree

.

‘ An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge. ’ ” ’ ” ( People v. Carmony (2004) 33 Cal.4th 367, 377 .) Applying this deferential standard of review, we conclude t he court did
not abuse its discretion in declining to reduce Bailey’s term of imprisonmen t

. At resentencing, t he court considered the extensiv e information offered b y the CDCR , defense counsel , and Baile y. It also considered the circumstances of
the crime and the postconviction factors in section 1170, subdivision (d)(1)

. After evaluatin g the “whole case , ” the court determined striking the
enhancements would not “serve the interest of justice .” W hile we commend Bailey’s expression of remorse and hi s achievements while incarcerated , we cannot conclude the court acted in an arbitrary, capricious, or absurd manner by declining to reduce Bailey’s sentence or strike the enhancements. ( People
v. Delson (1984) 161 Cal.App.3d 56, 60, 62

– 63 [no abuse of discretion in declining to modify sentence under § 1170, subd. (d) ] ; People v. Pearson ,7

supra , 38 Cal.App.5t h at p p . 117

– 118 [no abuse of discretion in declining to
strike firearm enhancemen t]. )
Neither Bailey’s dissatisfaction with the court’s weighing of the postconviction factors in section 1170, subdivision (d)(1) , nor his desire for a different result , demonstrate s an abuse of discretion

. ( See People v. Willover (2016) 248 Cal.App.4t h 302, 320

– 324 .) Reversal is not required merely because the court did not discuss each and every postconviction factor at resentencing . ( People v. Lee (2017) 16 Cal.App.5th 861, 867.) Also unpersuasive is Bailey’s reliance on Martinez v. Board of Parole Hearings ( 2010) 183 Cal.App.4t h 5 78 and People v. Torres (2020) 48 Cal.App.5th 550

. Those cases , which construed the compassionate release provision o f
section 1170 , s ubdivision (e)
, have no application to a proceeding conducted pursuant to subdivision (d) (1)

. B. Bailey’s Challenge to the Assessments and the Restitution Fine Fails Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 ( Dueñas ) , B ailey contends the court violated his constitutional rights by imposing the court operations and criminal conviction assessment s, and the restitution fine , without determining his ability to pay

. We are not persuaded. A trial court must impose a $40 court operations assessment and a $30
criminal conviction assessment for each felony conviction. (§ 1465.8 , subd. (a)(1) ; Gov. Code, § 70373, subd. (a)(1)

. ) At resentencing, Bailey did not object to the se assessments , nor request a hearing on his ability to pay th em

. His “failure to challenge the [assessments] in the trial court precludes him from doing so on appeal.” ( People v. Aguilar (2015) 60 Cal.4th 862, 864 ; People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153 ; People v. Baker (2018) 20 Cal.App.5th 711, 720 [ U.S. Const., 8th Amend. claim forfeited if not raised in the trial court].)8

We also reject the claim on the merits

. The court’s failur e to determine
whether Bailey is able to pay the court operations and criminal conviction

assessment s does not impair his access to the courts , n or subject him to imprisonment as a consequenc e for failing to pay

. ( People v. Petri (2020)
45 Cal.App.5th 82, 87, 9 1

– 92 .) 3 Moreover, a ny assumed error in imposing the assessments without making an ability to pay finding is harmless beyond a
reasonable doubt because it is likely that Bailey will have an opportunity to pay the $70 in assessments “through prison wages” during the remainder of his lengthy sentence. ( People v. Oliver (2020) 54 Cal.App.5th 1084, 1101 .) The assessments are not grossly disproportionate to Bailey’s conviction

. ( People v. Lowery (2020) 43 Cal.App.5th 1046 , 105 7

– 10 5 8

. ) Bailey’s challenge to the $7,000 restitution fine under section 1202.4, subdivision (b) also fails. “Inability to pay is a factor for the court to consider in setting the amount of a restitution fine, a longside ‘ any relevant factors including, but not lim ited to, .

. . the seriousness and gravity of the offense and the circumstances of its commission, any economic gain derived by the defendant as a result of the crime, the extent to which any other person suffered any losses as a result of the crime, and t he number of victims
involved in the crime. ’ ” ( People v. Potts (2019) 6 Cal.5th 1012, 1056

. ) Here, the record supports an inference Bailey has the ability to pay the restitution fine from probable prison wages. ( People v. Aviles (2019)
39 Cal.App.5th 1055, 107 6 [ failure to conduct ability to pay hearing was harmless beyond a reasonable doub t ] ; People v. Potts , supra , 6 Cal.5th at

3 The California Supreme Court is considering whether a trial court must consider a defendant ’ s ability to pay before imposing or executing certain fines, fees , and asse ssments, and if so, which party bears the burden of proof regarding inability to pay. ( People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019, S257844.)9

p. 1057 [trial court permitted to conclude monetary burden th at restitution fine imposed on the defendant was outweighed by seriousness of the offense
and harm caused to victim ].) The restitution fine is “ not grossly disproportionate to [Bailey ’s] level of culpability and the harm he caused

. ” ( Aviles , at p. 1072 ; People v. Lowery , supr a , 43 Cal.App.5th at pp. 1057

– 1058.)
DISPOSITION The judgment is affirmed.10 R ODRIGUEZ , J. *

WE CONCUR:

N EEDHAM , P. J.

B URNS , J.

A 161124 People v. Bailey
*Judge of the Superior Court of Alameda County , assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution