Filed 6/4/21 P. v. Bailey CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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ordered 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.

 A161124

 (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 assessments 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. The 

prosecution charged Bailey with attempted first degree murder with firearm 

enhancements (§§ 664, 187, subd. (a), 12022, subd. (a)(1), 12022.53, subds. 

(b)–(d)); second degree robbery with firearm enhancements (§§ 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 (§§ 667, subds. (b)–(i), 1170.12, 

subds. (a)–(d)). 

Bailey pled no contest to the robbery and admitted personally and 

intentionally discharging a firearm during that 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 years 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); and a $7,000 restitution fine

(§ 1202.4, subd. (b)). Several years later, the Department of Corrections and 

Rehabilitation (CDCR) notified the court that it had failed to double the fiveyear base term for the robbery conviction. The court amended the abstract of 

judgment to reflect a 35-year 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 courts 

discretion to strike prior serious felony enhancements in the interest of 

justice. The recommendation attached documents showing Bailey’s 
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attendance in rehabilitative programs, his work assignment history, and a 

report showing no rule violations.

The court recalled the sentence, appointed counsel, and scheduled a

resentencing hearing. Before resentencing, defense counsel filed a 

memorandum of points and authorities urging the court to strike the firearm 

and serious felony enhancements based on legislation 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 describing Bailey’s childhood and 

documenting his rehabilitation while incarcerated, and a psychological 

evaluation. Counsel also submitted documents highlighting Bailey’s

postconviction 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 callous circumstances of the crime—where 

Bailey shot the victim and left him gravely injured—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 supplement 

the record with evidence relevant to such a hearing. The court granted the

request and considered the evidence at resentencing.
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prosecution’s dismissal of more serious charges and enhancements that

would have resulted in a much longer prison term.

B.

At the September 2020 resentencing 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 heard argument from defense counsel, who urged the court to strike 

the enhancements and pointed to Bailey’s “life history” and his 

“extraordinary record of achievement in prison.” Defense counsel also 

contended Bailey’s physical condition supported 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 

genuine remorse, and his progress while incarcerated. After considering 

these circumstances, the court determined “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 schedule 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 restitution fine

while in prison. The court denied the request. 
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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 sentence, 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., tit. 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 first 

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 Strike 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, but 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 that 
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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 decisions—including its decision not 

to strike Bailey’s enhancements—for abuse of discretion. (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 arbitrary, 

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 the court did 

not abuse its discretion in declining to reduce Bailey’s term of imprisonment. 

At resentencing, the court considered the extensive information offered by the 

CDCR, defense counsel, and Bailey. It also considered the circumstances of 

the crime and the postconviction factors in section 1170, subdivision (d)(1). 

After evaluating the “whole case,” the court determined striking the 

enhancements would not “serve the interest of justice.” While we commend 

Bailey’s expression of remorse and his 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, 
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supra, 38 Cal.App.5th at pp. 117–118 [no abuse of discretion in declining to 

strike firearm enhancement].)

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, demonstrates an abuse of discretion. (See People v. Willover

(2016) 248 Cal.App.4th 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.4th 578 and People v. Torres (2020) 48 Cal.App.5th 550. 

Those cases, which construed the compassionate release provision of 

section 1170, subdivision (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), 

Bailey contends the court violated his constitutional rights by imposing the 

court operations and criminal conviction assessments, 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 these assessments, nor request a hearing on his ability to pay them. 

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].)
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We also reject the claim on the merits. The court’s failure to determine 

whether Bailey is able to pay the court operations and criminal conviction 

assessments does not impair his access to the courts, nor subject him to 

imprisonment as a consequence for failing to pay. (People v. Petri (2020) 

45 Cal.App.5th 82, 87, 91–92.)3 Moreover, any 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, 1057–1058.)

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, alongside ‘any relevant factors 

including, but not limited 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 the 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, 1076 [failure to conduct ability to pay hearing was 

harmless beyond a reasonable doubt]; 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 assessments, 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 that 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, supra, 43 Cal.App.5th at pp. 1057–1058.) 

DISPOSITION

The judgment is affirmed.
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RODRIGUEZ, J.*

WE CONCUR:

NEEDHAM, P. J.

BURNS, J.

A161124

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