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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent

,

v.

K EVIN D ONALD WOODS,

Defendant and Appellant

. B 297545

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 Ka tz
, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________2 In 2018 a jury convicted defendant and appellant Kevin
D onald 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 s entenced 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).
T his second appeal follow s 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 s hould 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 w ith 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 assa ult, plus three years for the infliction of great bodily3

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 m eantime, on February 27, 2019, Woods’s court

appointed 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 sho uld 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

n oted 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. Due 

### ñ as (2019) 30 Cal.App.5 th 1157 ( Due 

### ñ as ) . The prosecutor said the People “subm it[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
mandator y, 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 assessmen t 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 s erved 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.5 th 337, 340

- 341.) The amended statute applies to defendant s whose cases are not yet final. ( Lopez

, at p p

. 341

- 342; People v. Gastelum (2020) 45 Cal.App.5 th 757,
772

- 773. ) Woods’s prison prior was not for a sexually violent offense. Accordingly, we order it stricken.5



### 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, t he April 12, 2018 abstract of judgmen t 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 Due ñ as 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.”
Due ñ as 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. ( Due ñ as , supra , 30 Cal.App.5th at p. 1164.) We agree with other
courts that have concluded Due ñ as was wrongly decided.6



### (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 (2 020)
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 Due ñ as , 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.4 th 680, 729 .) Accordingly, a failure to object to the $400 fine forfeited the claim on appeal. ( People v. Frandsen (2019) 33 Cal.App.5 th 112 6 , 1154.) For the same reason, we need not address Woods’s argument that his counsel’s failure to object constituted unconstitutional ineffecti veness.7

sentencing. The Attorney General agrees. Woods was arrested on November 4, 201 7 , 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 enhan cement, (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.