Filed 11/18/20 P. v. Woods CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

KEVIN DONALD WOODS,

Defendant and Appellant.

B297545

Los Angeles County

Super. Ct. No. BA462630

APPEAL from an order of the Superior Court of 

Los Angeles County, Michael D. Abzug, Judge. Sentence 

modified; remanded with directions.

Patricia S. Lai, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters,

Chief Assistant Attorney General, Susan Sullivan Pithey, 

Assistant Attorney General, Scott A. Taryle and Michael Katz, 

Deputy Attorneys General, for Plaintiff and Respondent.

_________________________
2

In 2018 a jury convicted defendant and appellant Kevin 

Donald Woods of assault by means of force likely to produce 

great bodily injury. The jury found true an allegation that 

Woods personally inflicted great bodily injury on the victim. 

The trial court sentenced Woods to 18 years in the state prison. 

On March 27, 2019, we affirmed Woods’s conviction but 

remanded the case for the trial court to consider whether to 

exercise its discretion to strike Woods’s serious felony priors 

under Senate Bill No. 1393 (2017-2018 Reg. Sess.) (SB 1393).

This second appeal follows further proceedings in the 

trial court. Woods contends (1) his one-year prison prior must 

be stricken under Senate Bill No. 136 (2019-2020 Reg. Sess.)

(SB 136); (2) the trial court should stay his restitution fine and 

court fees; and (3) the trial court should amend the abstract of 

judgment to reflect one additional day of presentence credit. The 

Attorney General agrees with all three contentions. Accordingly, 

we strike Woods’s prison prior and remand the case for the trial 

court to correct the abstract of judgment to reflect (1) one more 

day of custody credit, and (2) that any and all court fines and fees 

are stayed.

BACKGROUND

We summarized the facts giving rise to this prosecution 

in our March 2019 opinion affirming Woods’s conviction. (People 

v. Woods (Mar. 27, 2019, B289798) [nonpub. opn.] (Woods I).) 

Woods asked us to take judicial notice of that opinion in this 

appeal, and we granted that request. In short, Woods attacked 

a homeless woman with whom he’d had a brief relationship, 

leaving her with various injuries, including broken teeth. 

(Woods I.) The trial court struck Woods’s four strike priors for 

robbery and first degree burglary and sentenced him to 18 years 

in the state prison. The court chose the upper term of four years 

for the assault, plus three years for the infliction of great bodily 
3

injury, plus two five-year terms under Penal Code section 667, 

subdivision (a)(1) for serious felony priors,

1 plus one year under 

section 667.5, subdivision (b) for a prior prison term. (Woods I.) 

We affirmed Woods’s conviction but remanded the case for the 

trial court to exercise its discretion to strike or retain Woods’s 

serious felony priors, as SB 1393 had taken effect while the 

case was on appeal. (Woods I.)

In the meantime, on February 27, 2019, Woods’s courtappointed counsel filed a written motion in the trial court to 

strike his serious felony prior enhancements. The record on 

appeal does not include any written opposition by the District 

Attorney. The trial court conducted a hearing—at which Woods 

was present with counsel—on March 7, 2019. The court noted it 

had received a letter dated January 8 from the Attorney General 

suggesting the case be remanded “for the limited purpose of 

determining whether or not” Woods’s five-year priors should be 

stricken. (The Attorney General had filed a letter on that issue 

at our request in Woods I and sent a copy to the trial court.)

The deputy district attorney told the court the People 

believed the 18-year sentence was appropriate. The prosecutor 

noted the victim was elderly and homeless, and suffered “lasting 

injuries.” After hearing from counsel for Woods as well as the 

prosecutor, the court declined to strike either of the serious felony 

priors. The court noted it had stricken Woods’s four strikes as 

well as all but one of his nine prison priors. The court stated 

the 18-year sentence was “severe” “[b]ut not unreasonable.” 

Based on “the totality of the record” and the facts pertaining both 

to the defendant and the crime, the court declined to exercise its 

discretion to strike the two five-year priors.

1 Statutory citations are to the Penal Code.
4

At the March 7 hearing, defense counsel also asked the 

court “to stay any of the court fees,” citing People v. Dueñas

(2019) 30 Cal.App.5th 1157 (Dueñas). The prosecutor said the 

People “submit[ted]” on Woods’s motion to stay the fees. The 

court stated, “I am happy to stay the fees, and I do. All of his 

fees are stayed except those mandatory because of his financial 

situation.” The minute order states, “All fines/fees, except those 

mandatory, are permanently stayed.”

The only abstract of judgment in the record on appeal is 

the abstract from the original sentencing in April 2018. That 

abstract shows a restitution fine of $400, a court operations 

assessment of $40, and a conviction assessment of $30. The 

second page of the abstract states, “All fine/fees, except 

mandatory, are permanently stayed.”

DISCUSSION

1. Woods’s one-year prison prior must be stricken

Woods contends the one-year enhancement the trial court 

imposed under section 667.5, subdivision (b) must be stricken. 

The Attorney General agrees.

On October 8, 2019, the Governor signed SB 136 into law. 

Under the bill’s amendment to section 667.5, subdivision (b), 

a one-year prior prison term enhancement applies only if the 

defendant served the prison term for a sexually violent offense 

as defined in Welfare & Institutions Code section 6600, 

subdivision (b). (See Stats. 2019, ch. 590, § 1.) (People v. Lopez

(2019) 42 Cal.App.5th 337, 340-341.) The amended statute 

applies to defendants whose cases are not yet final. (Lopez,

at pp. 341-342; People v. Gastelum (2020) 45 Cal.App.5th 757, 

772-773.) Woods’s prison prior was not for a sexually violent 

offense. Accordingly, we order it stricken.
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2. The parties agree Woods’s restitution fine and 

court fees should be stayed

At Woods’s original sentencing in April 2018, the court 

stated, “All fines and fees are permanently stayed except 

those mandatory because of the defendant’s age and length 

of time that [is] going to be spent in custody. I want him 

at least to get some privileges and not have it all sucked up 

by court fees.” The minute order for April 10, 2018 states, 

“All fine/fees, except mandatory, are permanently stayed.” 

As noted, the April 12, 2018 abstract of judgment says the 

same thing.

By the time the parties appeared before the court on 

the SB 1393 issue in March 2019, Division 7 of this court 

had issued the Dueñas decision. Defense counsel asked the 

court to “stay the fees unless the People demonstrate that 

the defendant has the ability to pay the fine.” The court 

stated, “All of his fees are stayed except those mandatory 

because of his financial situation.”

On appeal, Woods argues the court should have stayed 

his restitution fine and court fees, even those that are 

mandatory. The Attorney General asserts the court “already

granted appellant’s request on remand to stay these fines 

and fees.”

Dueñas held due process requires a trial court 

to conduct an ability-to-pay hearing and determine a 

defendant’s ability to pay before imposing assessments 

under the Penal and Government Codes and before 

executing a restitution fine under section 1202.4. (Dueñas, 

supra, 30 Cal.App.5th at p. 1164.) We agree with other 

courts that have concluded Dueñas was wrongly decided. 
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(See People v. Hicks (2019) 40 Cal.App.5th 320, 327-329, 

review granted Nov. 26, 2019, S258946; People v. Cota

(2020) 45 Cal.App.5th 786, 794-795; People v. Petri (2020) 

45 Cal.App.5th 82, 90-92; People v. Adams (2020) 44 

Cal.App.5th 828, 831-832.) Our Supreme Court is currently 

reviewing whether a trial court must consider a defendant’s 

ability to pay before imposing or executing fines, fees, or 

assessments, and, if so, which party bears the burden of 

proof. (People v. Kopp (2019) 38 Cal.App.5th 47, review 

granted Nov. 13, 2019, S257844.)

We need not wade into this issue, however.2 The 

Attorney General says the “reasonable inference” from the 

court’s statement is that it intended to stay the fine and 

assessments. As the parties appear to be in agreement, 

we order the abstract to be amended to provide that the $400 

restitution fine and the $70 in fees are permanently stayed.

3. Woods is entitled to one additional day of 

presentence custody credit

Finally, Woods asserts he is entitled to 158 days of 

actual custody credit instead of the 157 days awarded him at 

2 Nor need we address Woods’s failure to object to the $400 

restitution fine, which exceeds the mandatory minimum of $300. 

(Former § 1202.4, subd. (b)(1), as amended by Stats. 2017, 

ch. 101, § 1.) Even before Dueñas, courts were permitted to 

consider a defendant’s ability to pay any amount above the 

statutory minimum. (§ 1202.4, subd. (d); People v. Avila (2009) 

46 Cal.4th 680, 729.) Accordingly, a failure to object to the $400 

fine forfeited the claim on appeal. (People v. Frandsen (2019) 

33 Cal.App.5th 1126, 1154.) For the same reason, we need not 

address Woods’s argument that his counsel’s failure to object 

constituted unconstitutional ineffectiveness.
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sentencing. The Attorney General agrees. Woods was arrested 

on November 4, 2017, and sentenced on April 10, 2018. The 

trial court is to correct the abstract of judgment to reflect 158 

actual days and 23 good conduct days for a total of 181 days of 

presentence credit.

DISPOSITION

We modify the judgment (1) to strike Woods’s one-year 

prior prison term enhancement, (2) to order the restitution fine 

and all court assessments stayed, and (3) to award Woods one 

additional day of presentence custody credit. The trial court 

is to prepare an amended abstract of judgment and to forward 

a certified copy to the California Department of Corrections 

and Rehabilitation.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EGERTON, J.

We concur:

EDMON, P. J.

DHANIDINA, J.