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Filed 2/8/21 P. v. Brooks CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(El Dorado)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

CEDRIC LEE BROOKS,

Defendant and Appellant.

C089520

(Super. Ct. No. P18CRF0464)

Defendant Cedric Lee Brooks was convicted by jury of possession of a controlled 

substance, i.e., methamphetamine, for sale. In a bifurcated proceeding, the trial court 

found defendant was previously convicted of a strike offense within the meaning of the 

three strikes law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12)1 and also served four prior 

prison terms (§ 667.5, former subd. (b)). Following an unsuccessful motion to strike 

1 Undesignated statutory references are to the Penal Code.
2

defendant’s prior strike conviction pursuant to People v. Superior Court (Romero) (1996) 

13 Cal.4th 497 (Romero), the trial court sentenced him to serve eight years in state prison.

On appeal, defendant contends: (1) the evidence is insufficient to establish he 

possessed the methamphetamine with the intent to sell; (2) the trial court prejudicially 

abused its discretion by admitting evidence of two prior convictions under Evidence 

Code section 1101, subdivision (b); (3) the trial court also abused its discretion by (A) 

declining to strike defendant’s prior strike conviction under Romero, and (B) imposing an

upper term sentence; (4) the trial court violated section 1203.1b and defendant’s 

constitutional right to due process by imposing a fee for the cost of the probation report 

after staying the minimum restitution fine and other mandatory fees due to defendant’s 

inability to pay; and (5) we must remand the matter to the trial court with directions to 

strike all of defendant’s one-year prior prison term enhancements because Senate Bill No. 

136 (2019-2020 Reg. Sess.) (Senate Bill 136), which became effective January 1, 2020,

and eliminates such enhancements for defendant’s crimes, applies retroactively to cases 

not yet final on appeal.

Agreeing with the latter contention, we shall modify the judgment to strike each of 

defendant’s one-year prior prison term enhancements.2 We also agree the trial court 

violated section 1203.1b by imposing the probation report fee after finding an inability to 

pay and shall also modify the judgment to strike that fee. Defendant’s remaining 

contentions lack merit or are forfeited. The evidence is more than sufficient to support 

the jury’s finding defendant possessed the methamphetamine for sale. The trial court did 

2

In light of this conclusion, we need not address defendant’s assertion the trial court 

erred in staying rather than striking two of these enhancements. We also grant 

defendant’s request for judicial notice of certain legislative history materials pertaining to 

the passage of Senate Bill 136. Although we need not resort to these materials in this 

case, granting judicial notice is nevertheless proper. (Kaufman & Broad Communities, 

Inc. v. Performance Plastering, Inc. (2005) 133 Cal.App.4th 26, 30.)
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not abuse its discretion by either admitting evidence of two prior narcotics convictions or

declining to strike defendant’s prior strike conviction under Romero. Finally, defendant 

has forfeited his challenge to the trial court’s selection of the upper term. We shall 

therefore affirm the modified judgment. 

FACTS

During the early morning hours of December 9, 2018, while on patrol in the town 

of El Dorado Hills, a sheriff’s deputy spotted two individuals seated in a car that was 

parked in a movie theater parking lot. The deputy made contact with both the driver and

defendant, who was seated in the front passenger seat.

Defendant was on postrelease community supervision (PRCS) following his 

release from custody for a 2016 narcotics conviction, the details of which will be set forth 

later in the opinion. He was directed to step out of the car. Following a patdown search 

that uncovered no evidence, defendant was directed to sit on a curb while the deputy 

searched the front passenger compartment. As the deputy began this search, defendant 

spontaneously stated that he was a drug user and that a straw on the ground outside the 

front passenger door belonged to him. The straw had been cut to about four inches in 

length. Having previously seen similar straws, the deputy explained they are commonly 

used to consume narcotics.

Continuing with the search of the passenger compartment, the deputy found a 

clear plastic bag containing a “single large shard” of a “white crystalline substance” 

under the front passenger seat. The deputy recognized the substance as 

methamphetamine, but found it to be “relatively unusual” to find it in “one large chunk or 

shard.” A presumptive field test corroborated the deputy’s suspicion that the substance 

was methamphetamine.
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The deputy placed defendant under arrest and advised him of his Miranda rights.3 

Defendant acknowledged he understood the advisement and then repeated that he was a 

drug user and asked to provide a urine sample. However, because the deputy did not see 

any signs of defendant being under the influence of a controlled substance, he did not 

oblige defendant’s request.

Subsequent lab testing confirmed the substance seized from beneath the front 

passenger seat was methamphetamine. The shard weighed about 16.6 grams. 

Defendant’s cell phone was also found in the passenger compartment. A picture of the 

shard of methamphetamine, taken three days before defendant’s arrest, was saved on the 

phone. Certain text messages sent and received during the week before defendant’s arrest 

indicated defendant was involved in buying and selling drugs. In one of these messages, 

sent about a week before his arrest, defendant’s cell phone messaged someone identified 

as “Brandon,” asking him about buying “some drugs to resell to . . . a neighbor of his up 

the street.” In another message, sent the day before his arrest, defendant’s phone 

messaged a “Josh Weed” about buying some “powder,” which is “a common reference to 

narcotics.”

Based on the quantity of methamphetamine recovered, “roughly 165 doses,” and 

the fact that it was in the form of one “bulk amount” not typically possessed by simple 

users of the substance, a narcotics detective testified to his opinion that the shard of 

methamphetamine was possessed by defendant for purposes of sale. The detective 

explained his opinion was also based on the “one or two messages” on defendant’s cell 

phone that were “indicative of sales” and the photo of the shard of methamphetamine that 

was also found on defendant’s cell phone. With respect to the photo, the detective 

3 Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694].
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explained such a photo is often used by drug dealers “to market their drugs to their 

clientele.”

Finally, as previously indicated, the jury learned defendant was convicted of 

possession of narcotics for sale in 2008 and 2016. We describe these offenses in the 

discussion portion of the opinion, to which we now turn.

DISCUSSION

I

Sufficiency of the Evidence

Defendant contends the evidence is insufficient to establish he possessed the 

methamphetamine in this case with the intent to sell the substance. We disagree.

The standard of review is well-settled: “When reviewing a challenge to the 

sufficiency of the evidence, we ask ‘ “whether, after viewing the evidence in the light 

most favorable to the prosecution, any rational trier of fact could have found the essential 

elements of the crime beyond a reasonable doubt.” ’ [Citation.] Because the sufficiency 

of the evidence is ultimately a legal question, we must examine the record independently 

for ‘ “substantial evidence—that is, evidence which is reasonable, credible, and of solid 

value” ’ that would support a finding beyond a reasonable doubt. [Citation.]” (People v.

Banks (2015) 61 Cal.4th 788, 804.)

“ ‘Unlawful possession of a controlled substance for sale requires proof the 

defendant possessed the contraband with the intent of selling it and with knowledge of 

both its presence and illegal character. [Citation.]’ [Citations.] Intent to sell may be 

established by circumstantial evidence. [Citation.]” (People v. Harris (2000) 83 

Cal.App.4th 371, 374 (Harris).) 

Defendant possessed a “large shard” of methamphetamine weighing about 16.6 

grams, the equivalent of “roughly 165 doses.” A narcotics detective testified simple 

users of the substance typically do not possess methamphetamine in such a large quantity 

or in bulk form, causing him to form the opinion defendant possessed the substance with 
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the intent to sell. Also informing the detective’s opinion was the fact that defendant had 

text messages on his cell phone that were “indicative of sales,” and also had a photo of 

the shard of methamphetamine saved to the phone, commonly used by drug dealers for 

marketing purposes.

We conclude the foregoing facts provided substantial support for the detective’s 

opinion that defendant possessed the methamphetamine for sale. “ ‘In cases involving 

possession of marijuana or [methamphetamine], experienced officers may give their 

opinion that the narcotics are held for purposes of sale based upon such matters as the 

quantity, packaging and normal use of an individual; on the basis of such testimony 

convictions of possession for purpose of sale have been upheld. [Citations.]’ [Citation.] 

Thereafter, it is for the jury to credit such opinion or reject it.” (Harris, supra, 83 

Cal.App.4th at pp. 374-375.) 

Finally, we note additional evidence of defendant’s intent to sell came in the form 

of two prior convictions for possession of methamphetamine for purposes of sale. We 

describe these offenses, and their similarity with the current offense, immediately below.

II

Prior Crimes Evidence

Defendant also claims the trial court prejudicially abused its discretion by 

admitting evidence of two prior narcotics convictions under Evidence Code section 1101, 

subdivision (b). He is mistaken.

A.

Additional Background

The prosecution moved in limine to admit evidence of three prior narcotics 

convictions under Evidence Code section 1101, subdivision (b), to prove defendant’s 

modus operandi, motive, intent to sell, and knowledge of the presence and illegal 

character of the shard of methamphetamine found under the passenger seat. The trial 
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court ultimately allowed evidence of two of these prior convictions, one in 2008 and one 

in 2016.

The relevant facts underlying the 2008 conviction are as follows. A Stockton 

police officer pulled over a car being driven by defendant. A subsequent search of 

defendant uncovered a white paper towel that was concealed in the front portion of his 

waistband. Inside the paper towel were six coin-sized plastic bags, each containing about 

a quarter of a gram of methamphetamine. As in this case, after the officer placed 

defendant under arrest and advised him of his rights under Miranda, defendant said he 

was a user of methamphetamine but did not display any signs of being under the 

influence. Defendant also said he planned to smoke the substance, but the officer found 

no pipe or other smoking device in his possession. Defendant also possessed about $362 

in cash.

The relevant facts underlying the 2016 conviction are as follows. An El Dorado 

County sheriff’s deputy made contact with defendant in the gaming area of Red Hawk 

Casino. As defendant turned to allow the deputy to perform a patdown search, defendant 

pulled a plastic bag out of his front pants pocket and threw it on the floor. The search 

uncovered no evidence, but another deputy retrieved the plastic bag from the casino floor. 

The bag contained over 16 grams of methamphetamine. After defendant was placed in 

the back of a patrol car, he spontaneously stated he did not use methamphetamine. 

Defendant also possessed about $1,400 in cash.

At the hearing on the prosecution’s motion to admit this evidence, defense counsel

argued the prior offenses were too dissimilar to the present offense to be admissible under 

Evidence Code section 1101, subdivision (b). Counsel pointed out both prior offenses 

had “cash involved to some extent” while the present offense did not. Counsel also 

argued defendant’s girlfriend was in the car during the 2008 offense, whereas the driver 

of the car in this case was “a relative stranger.” Counsel argued: “So what the People are 

trying to say is even though propensity evidence is barred, the way in which my client 
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behaves is so similar each time, he has this way of selling that’s so unique that they need 

to bring in these priors. If they relied on his statements, he says he uses drugs. That --

here is the only time we actually see indicia of use is the blue [straw] that’s not present in 

the other cases. [¶] So this case, these facts are different. The argument the People will 

be making to get a conviction will be different. The People will be saying that there has 

to be a conviction because no one should reasonably have this much methamphetamine 

for personal use. That’s fine. It’s a very different argument than what they would have 

made in prior cases saying the combination of some methamphetamine, plus some text 

messages, plus some money means personal use is not possible. But it’s just a different 

mode of operation and it then becomes just propensity evidence . . . .”

In response, the prosecutor first pointed out the evidence in the present case would 

include text messages indicative of sales. The prosecutor then argued admission of 

evidence of the prior crimes was not sought solely to prove modus operandi, but was also 

sought to prove defendant possessed the intent to sell the methamphetamine and 

possessed knowledge of its character as a controlled substance. The prosecutor argued 

the prior offenses were similar enough to the present offense for these purposes. Finally, 

with respect to modus operandi, the prosecutor argued, “obviously there has to be some 

unique similarity between the prior cases and in this case. And what I would say is in 

each of the . . . prior convictions that the People seek to admit, the Defendant possesses 

relatively small quantities of drugs . . . and relatively no indicia of sales. And when 

confronted by law enforcement, he claims to be an addict. [¶] In this case, it’s the exact 

same modus operandi. He was caught with a relatively small amount of drugs, 16 grams. 

We’re not talking about 5, 10, 15 ounces -- or pounds of drugs, and relatively no indicia 

of sales in the car, other than a phone which was later found to contain sales texts. So 

when confronted by law enforcement, he again claims he’s an addict . . . . [¶] Moreover, 

he hides the drugs, particularly in the [2016] conviction at Red Hawk Casino. He tossed 

the drugs on the ground when he was caught at the slot machines. In this case, he hid the 
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drugs underneath the passenger’s seat of a vehicle. In the 2008 case, he hid the drugs in 

his waistband in a paper towel.”

The trial court ruled the 2008 and 2016 convictions were admissible under 

Evidence Code sections 1101, subdivision (b) and 352, to prove defendant possessed the 

intent to sell the methamphetamine in this case, and also knew of its presence and illegal 

character.

B.

Analysis

With certain exceptions, “evidence of a person’s character or a trait of his or her 

character (whether in the form of an opinion, evidence of reputation, or evidence of 

specific instances of his or her conduct) is inadmissible when offered to prove his or her 

conduct on a specified occasion.” (Evid. Code, § 1101, subd. (a).) One such exception is 

found in subdivision (b) of this section, which provides: “Nothing in this section 

prohibits the admission of evidence that a person committed a crime, civil wrong, or 

other act when relevant to prove some fact (such as . . . intent, . . . knowledge, . . .) other 

than his or her disposition to commit such an act.” (Id., subd. (b).) We review the trial 

court’s admission of other crimes evidence for abuse of discretion. (People v. Lindberg

(2008) 45 Cal.4th 1, 25.)

“In prosecutions for drug offenses, evidence of prior drug use and prior drug 

convictions is generally admissible under Evidence Code section 1101, subdivision (b), 

to establish that the drugs were possessed for sale rather than for personal use and to 

prove knowledge of the narcotic nature of the drugs.” (People v. Williams (2009) 170 

Cal.App.4th 587, 607.) This general rule applies here.

When defendant was detained by law enforcement in the movie theater parking 

lot, as the sheriff’s deputy began searching the passenger compartment of the car, 

defendant stated he was a drug user. He repeated this assertion when the deputy found 

the methamphetamine under the passenger seat. The car did not belong to him. It 
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belonged to the driver of the vehicle. Based on these facts, the defense argued reasonable 

doubt existed with respect to whether the methamphetamine was possessed by the driver 

rather than defendant, and even if it was in defendant’s possession, reasonable doubt 

existed with respect to whether he possessed it for personal use rather than for purposes 

of sale. As previously explained, the prosecution was required to prove defendant 

possessed the methamphetamine with the intent to sell it and with knowledge of its 

presence and illegal character. (Harris, supra, 83 Cal.App.4th at p. 374.) The challenged 

evidence of defendant’s prior narcotics convictions was properly admitted to establish 

such intent and knowledge. 

Nevertheless, defendant argues the prior offenses were not “sufficiently similar” to 

the present offense to be admissible for these purposes. We disagree. 

“The least degree of similarity (between the uncharged act and the charged 

offense) is required in order to prove intent. [Citation.] ‘[T]he recurrence of a similar 

result . . . tends (increasingly with each instance) to negative accident or inadvertence or 

self-defense or good faith or other innocent mental state, and tends to establish 

(provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, 

intent accompanying such an act . . . .’ [Citation.] In order to be admissible to prove 

intent, the uncharged misconduct must be sufficiently similar to support the inference that 

the defendant ‘ “probably harbor[ed] the same intent in each instance.” [Citations.]’ 

[Citation.]” (People v. Ewoldt (1994) 7 Cal.4th 380, 402.) “Likewise, to establish 

knowledge when that element is akin to absence of mistake, the uncharged events must 

be sufficiently similar to the circumstances of the charged offense to support the 

inference that what defendant learned from the prior experience provided the relevant 

knowledge in the current offense.” (People v. Hendrix (2013) 214 Cal.App.4th 216, 242-

243.) 

Here, in both the present offense and the prior offenses, defendant possessed more 

methamphetamine than a simple user of the substance would typically possess and 
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attempted to conceal the substance. In the present offense, the shard of 

methamphetamine was concealed under the passenger seat of the car. In the 2008 

conviction, six small bags of the substance were concealed in a paper towel in his 

waistband. In the 2016 conviction, defendant threw a larger bag of methamphetamine, 

similar in size to the shard in this case, on the casino floor when contacted by law 

enforcement. Moreover, in both the current offense and the 2008 conviction, when the 

drugs were discovered, defendant claimed to be a user but did not display any signs of 

being under the influence.

We conclude both of these prior offenses are sufficiently similar to the present 

offense to support the inference defendant knew of the presence of the methamphetamine 

under the passenger seat, knew it was a controlled substance, and probably harbored the 

same intent in this case that he harbored in the prior cases, i.e., the intent to sell the 

substance. (See People v. Williams, supra, 170 Cal.App.4th at p. 607.) 

This conclusion does not end our inquiry, however. “Even if evidence of other 

crimes is relevant under a theory of admissibility that does not rely on proving 

disposition, it can be highly prejudicial. ‘Regardless of its probative value, evidence of 

other crimes always involves the risk of serious prejudice. . . .’ [Citation.] Therefore, the 

law places other restrictions on its admissibility.” (People v. Thompson (1980) 27 Cal.3d 

303, 318.) Relevant here, Evidence Code section 352 provides for the exclusion of 

otherwise admissible evidence if its probative value is “substantially outweighed by the 

probability that its admission [would] . . . create substantial danger of undue prejudice, of 

confusing the issues, or of misleading the jury.” “Since ‘substantial prejudicial effect [is] 

inherent in [other crimes] evidence,’ uncharged offenses are admissible only if they have 

substantial probative value.” (Thompson, at p. 318, fn. omitted.) 

There was no abuse of discretion. The challenged evidence had substantial 

probative value with respect to whether defendant possessed the requisite knowledge and 

intent. The prosecution presented the evidence through the brief testimony of two 
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witnesses. Finally, the trial court instructed the jury regarding the limited purposes for 

which the prior crimes evidence was admitted, thereby “eliminat[ing] any danger ‘of 

confusing the issues, or of misleading the jury.’ [Citation.] We presume the jury 

followed these instructions. [Citation.]” (People v. Lindberg, supra, 45 Cal.4th at 

pp. 25-26 [no abuse of discretion where evidence had substantial probative value, 

prosecution kept its presentation brief so it would be neither cumulative nor excessive, 

and trial court provided limiting instruction].) 

The trial court did not abuse its discretion in admitting the challenged evidence of 

defendant’s 2008 and 2016 narcotics convictions. 

III

Sentencing Discretion

Defendant further asserts the trial court abused its discretion by (A) declining to 

strike his prior strike conviction under Romero, and (B) imposing an upper term sentence. 

Not so. 

A.

Denial of Defendant’s Romero Motion

Section 1385, subdivision (a) provides that a “judge or magistrate may, either of 

his or her own motion or upon the application of the prosecuting attorney, and in 

furtherance of justice, order an action to be dismissed.” In Romero, our Supreme Court 

held a trial court may utilize section 1385, subdivision (a) to strike or vacate a prior strike 

conviction for purposes of sentencing under the three strikes law, “subject, however, to 

strict compliance with the provisions of section 1385 and to review for abuse of 

discretion.” (Romero, supra, 13 Cal.4th at p. 504.) Similarly, a trial court’s “failure to 

dismiss or strike a prior conviction allegation is subject to review under the deferential 

abuse of discretion standard.” (People v. Carmony (2004) 33 Cal.4th 367, 374 

(Carmony).) 
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“In reviewing for abuse of discretion, we are guided by two fundamental precepts. 

First, ‘ “[t]he burden is on the party attacking the sentence to clearly show that the 

sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a 

showing, the trial court is presumed to have acted to achieve legitimate sentencing 

objectives, and its discretionary determination to impose a particular sentence will not be 

set aside on review.” ’ [Citation.] Second, a ‘ “decision will not be reversed 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.’ ” ’ 

[Citations.] Taken together, these precepts establish that a trial court does not abuse its 

discretion unless its decision is so irrational or arbitrary that no reasonable person could 

agree with it.” (Carmony, supra, 33 Cal.4th at pp. 376-377.) 

We are also mindful that “ ‘the Three Strikes law does not offer a discretionary 

sentencing choice, as do other sentencing laws, but establishes a sentencing requirement 

to be applied in every case where the defendant has at least one qualifying strike, unless 

the sentencing court “conclud[es] that an exception to the scheme should be made 

because, for articulable reasons which can withstand scrutiny for abuse, this defendant 

should be treated as though he actually fell outside the Three Strikes scheme.” ’ 

[Citation.]” (Carmony, supra, 33 Cal.4th at p. 377.) “[T]he court in question must 

consider whether, in light of the nature and circumstances of his present felonies and 

prior serious and/or violent felony convictions, and the particulars of his background, 

character, and prospects, the defendant may be deemed outside the scheme’s spirit, in 

whole or in part, and hence should be treated as though he had not previously been 

convicted of one or more serious and/or violent felonies.” (People v. Williams (1998) 17 

Cal.4th 148, 161 (Williams).) Thus, the three strikes law “creates a strong presumption

that any sentence that conforms to these sentencing norms is both rational and proper.” 

(Carmony, at p. 378, italics added.) This presumption will be rebutted only in an 

“extraordinary case―where the relevant factors described in Williams, supra, 17 Cal.4th 
14

148, manifestly support the striking of a prior conviction and no reasonable minds could 

differ.” (Ibid.) 

Here, after hearing argument from counsel, the trial court provided a brief 

description of the foregoing standard for ruling on a Romero motion and indicated it had 

read and considered defendant’s motion, the prosecution’s opposition, as well as various 

supplemental materials filed by defendant. The trial court then provided an overview of 

defendant’s criminal history, beginning in 2005 with the strike conviction for robbery, for 

which defendant was sentenced to two years in state prison. Defendant was then 

convicted of making or passing fictitious checks in 2007, possession of a controlled 

substance for sale in 2008, transportation for sale of a controlled substance in 2013, and 

possession of a controlled substance for sale in 2016. Sentenced to nine years in state 

prison for the latter conviction, defendant was given early release due to changes in the 

law and committed the present offense, also possession of a controlled substance for sale, 

while on PRCS. The trial court noted defendant has “done well while he was in prison,” 

but did not find that to be significant because “[o]ne would expect that he wouldn’t have 

any violations of the law while he is in custody.” However, when released on parole or 

PRCS, “he has not always been successful in completing either.”

The trial court then explained that defendant was “in his mid [thirties]” and “still a 

relatively young man,” but also noted “he has been adamant . . . that it is not drug use that 

has led him to these drug convictions but rather [the] dealing of drugs.” Noting the age 

of the strike offense, the trial court explained that would be significant had defendant 

“kept himself free of custody and offenses, something unfortunately he has not been able 

to do.” Finally, the trial court weighed the factors in aggravation against the factors in 

mitigation and found the aggravating factors far outweighed those in mitigation. Indeed, 

the trial court found only one factor in mitigation, i.e., defendant appeared to have been 

motivated to sell drugs by a desire to provide for his family. Based on all of this, the trial 

court concluded defendant did not fall outside the spirit of the three strikes law.
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Defendant argues the trial court abused its discretion in declining to strike his prior 

strike conviction because the present offense was “a non-serious, nonviolent felony” and, 

as the trial court noted, “it appeared [defendant] had been motivated to commit the 

offense in an effort to provide for his family.” Defendant also points to “character letters, 

reflecting he had community support to assist him in becoming a productive member of 

society.” Even accepting defendant’s characterization of the present offense, his 

motivation for committing it, and the content of the character letters, these factors do not

outweigh the numerous factors weighing against a determination that defendant fell 

outside the spirit of the three strikes law, either “in whole or in part.” (Williams, supra, 

17 Cal.4th at p. 161.) This is not a case in which “the relevant factors described in

Williams” so “manifestly support the striking of a prior conviction [that] no reasonable 

minds could differ.” (Carmony, supra, 33 Cal.4th at p. 378.) 

Nor are we persuaded by defendant’s assertion that Propositions 36, 47, and 57 

somehow combine to make the trial court’s denial of his Romero motion an abuse of 

discretion. Proposition 36 “diluted the three strikes law by reserving the life sentence for 

cases where the current crime is a serious or violent felony or the prosecution has pled 

and proved an enumerated disqualifying factor.” (People v. Yearwood (2013) 213 

Cal.App.4th 161, 167.) Because this is not a third strike case in which defendant was 

sentenced to a life term, Proposition 36 does not apply. “Proposition 47 reclassified as

misdemeanors certain drug- and theft-related offenses that previously were felonies or 

wobblers,” such as simple possession of a controlled substance, and “also added a 

provision allowing felony offenders ‘serving a sentence for a conviction’ for offenses 

now reclassified as misdemeanors to petition to have their sentences recalled and to be 

resentenced.” (People v. Valencia (2017) 3 Cal.5th 347, 355.) Because possession of a 

controlled substance for sale (Health & Saf. Code, § 11378) was not reclassified by 

Proposition 47 (see § 1170.18, subd. (a)), this enactment is also inapplicable to 

defendant’s case. 
16

Finally, the portion of Proposition 57 relied upon by defendant in this case 

amended the California Constitution to add article I, section 32, providing “[a]ny person 

convicted of a nonviolent felony offense and sentenced to state prison shall be eligible for 

parole consideration after completing the full term for his or her primary offense” and 

also providing the Department of Corrections and Rehabilitation with additional 

“authority to award credits earned for good behavior and approved rehabilitative or 

educational achievements.” (Cal. Const., art. I, § 32, subd. (a); Levenson & Ricciardulli, 

Cal. Criminal Procedure (The Rutter Group 2020) Parole, § 31:7, pp. 31-12 to 31-15.) 

This constitutional provision has nothing to do with whether a trial court should strike a 

prior strike conviction for purposes of sentencing under Romero. 

Although we agree with defendant’s general observation that the cited 

propositions reflect “a changed mindset from the draconian and stiff penalties for the 

non-violent recidivist,” neither individually nor combined do they make the trial court’s 

exercise of discretion on defendant’s Romero motion an abuse of discretion. We 

conclude there was no such abuse in this case. 

B.

Selection of the Upper Term

Defendant does not provide a separate argument regarding the propriety of 

selecting the upper term sentence. Instead, as the Attorney General accurately observes, 

he “summarily merges his complaint about the upper term with his Romero motion 

argument without explaining how the trial court purportedly erred in finding an 

aggravating circumstance needed for the upper term.” For this reason, we consider the 

point forfeited for failure to raise the issue under a separate heading or provide reasoned 

argument and citation to relevant authority. (See Cal. Rules of Court, rule 

8.204(a)(1)(B); Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 

1830, fn. 4 [an appellant must present each point separately in its opening brief, showing 

the nature of the question to be presented and the point to be made; failure to do so may 
17

be deemed a forfeiture of the argument]; Salas v. Department of Transportation (2011) 

198 Cal.App.4th 1058, 1074 [contentions not supported by reasoned argument and 

authority are forfeited].) 

IV

Imposition of the Probation Report Fee

Defendant additionally contends that the trial court violated both section 1203.1b 

and his constitutional right to due process by imposing a fee for the cost of the probation 

report after staying the minimum restitution fine and other mandatory fees under People 

v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), which held “due process of law 

requires the trial court to conduct an ability to pay hearing and ascertain a defendant’s 

present ability to pay before it imposes court facilities and court operations assessments.” 

(Id. at p. 1164.) We conclude imposition of the probation report fee violated section 

1203.1b and decline to address defendant’s due process argument under Dueñas. 

A.

Additional Background

The probation report notes defendant was working as a residential painter at the 

time of the current offense, making $900 per month. The report further notes: “The 

defendant was provided a Financial Statement in order to assess the defendant’s ability to 

pay, and the application of the sliding scale payment schedule, based on the 2018 Federal 

Poverty Guidelines, was used. Therefore, it is respectfully recommended the defendant 

be ordered to pay $109.50 for the cost of the Probation Report.”

During the sentencing hearing, defense counsel asked the trial court to “strike” or 

“stay any fines in [defendant’s] case” under Dueñas and “some of the other cases that 

have subsequently come out” because “there has not been a showing by the People of 

[defendant’s] ability to pay, not that they could prove that, he’s in custody, and going to 

be in custody for a while, so he doesn’t really have the ability to pay.” The prosecution 

declined to be heard on the matter.
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The trial court ruled as follows: “The Court will impose the minimum restitution 

fine pursuant to [section] 1202.4 of $300 and stay that restitution fine until there is a 

showing that Mr. Brooks has the ability to pay that. [¶] Further, the Court would impose 

the additional $300 restitution fine fee pursuant to [section] 1202.45 and stay that 

pending successful completion of your parole or [PRCS]. [¶] That means that if you’re 

successful on your release, Mr. Brooks, that additional fine would not be due and payable 

to the court, sir. [¶] In addition, the Court would impose the cost of the probation report 

in the amount of $109.50. That’s pursuant to . . . [section 1203.1b]. The Court will not 

stay that. That is ordered and is not covered under [Dueñas]. [¶] The Court would 

impose the Court operations fee of $40, the critical needs assessment fee of $30 and stay 

that as well pending a showing of ability to pay.”

B.

Analysis

As relevant here, section 1203.1b provides: “In any case in which a defendant is 

convicted of an offense and is the subject of any . . . presentence investigation and report, 

whether or not probation supervision is ordered by the court, . . . the probation officer, or 

the officer’s authorized representative, taking into account any amount that the defendant 

is ordered to pay in fines, assessments, and restitution, shall make a determination of the 

ability of the defendant to pay all or a portion of the reasonable cost of . . . preparing any 

presentence report . . . . The court shall order the defendant to appear before the 

probation officer, or the officer’s authorized representative, to make an inquiry into the 

ability of the defendant to pay all or a portion of these costs. The probation officer, or the 

officer’s authorized representative, shall determine the amount of payment and the 

manner in which the payments shall be made to the county, based upon the defendant’s 

ability to pay. The probation officer shall inform the defendant that the defendant is 

entitled to a hearing, that includes the right to counsel, in which the court shall make a 

determination of the defendant’s ability to pay and the payment amount. The defendant 
19

must waive the right to a determination by the court of the defendant’s ability to pay and 

the payment amount by a knowing and intelligent waiver.” (§ 1203.1b, subd. (a).) 

“Where the defendant does not waive the right to a judicial determination, the 

probation officer ‘shall refer the matter to the court for the scheduling of a hearing to 

determine the amount of payment and the manner in which the payments shall be made’

and at that time ‘[t]he court shall order the defendant to pay the reasonable costs if it 

determines that the defendant has the ability to pay those costs based on the report of the 

probation officer, or his or her authorized representative.’ (§ 1203.1b, subd. (b).)” 

(People v. Neal (2018) 29 Cal.App.5th 820, 825.) 

Here, the probation officer made the initial determination of defendant’s ability to 

pay $109.50 for the costs of the probation report, as provided in section 1203.1b, 

subdivision (a). Although there is no indication in the record that the probation officer 

informed defendant of his right to a hearing before the trial court at which the court 

would make the ultimate determination of his ability to pay, such a hearing was held, 

defendant was represented by counsel, and counsel objected to the imposition of “any 

fine” under Dueñas because “there has not been a showing by the People of [defendant’s] 

ability to pay.” The probation report fee authorized by section 1203.1b is not a “fine,” 

but the trial court apparently understood counsel’s objection to cover this fee because it 

addressed the probation report fee in its ruling. That ruling, however, did not conclude 

defendant possessed the ability to pay the probation report fee. Instead, undoubtedly 

because counsel’s specific objection was made under Dueñas, and not under the statutory 

requirements of section 1203.1b, the trial court simply ruled the Dueñas decision did not 

apply to the probation report fee.

We therefore have a situation in which defendant’s trial counsel can be understood 

to have objected to all fines and fees based on defendant’s inability to pay, but did so 

under Dueñas, i.e., based on principles of due process, not based on the statutory 

requirements of section 1203.1b. For this reason, the Attorney General argues the 
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statutory claim is forfeited. We might agree except for the fact that the trial court’s ruling 

impliedly finds defendant did not have an ability to pay the probation report fee. Indeed, 

the trial court explicitly found the prosecution had not demonstrated defendant possessed

an ability to pay the lesser mandatory assessments of $40 and $30 under section 1465.8 

and Government Code section 70373, respectively. Although the forfeiture doctrine 

applies to claims that a fine or fee was improperly imposed, not because it was 

unauthorized by statute, but because the trial court failed to find an ability to pay (People 

v. McCullough (2013) 56 Cal.4th 589, 599 [booking fee]; People v. Crittle (2007) 154 

Cal.App.4th 368, 371 [crime prevention fee]; People v. Valtakis (2003) 105 Cal.App.4th 

1066, 1072 [probation fee]), in this case, the trial court imposed the probation report fee 

after impliedly finding an inability to pay the fee. 

Section 1203.1b plainly does not authorize imposition of the probation report fee 

in these circumstances. We shall modify the judgment to strike this fee. 

V

Retroactive Application of Senate Bill 136

Finally, we also agree, as does the Attorney General, that defendant’s prior prison

term enhancements must be stricken because Senate Bill 136, which became effective 

January 1, 2020, and eliminates such enhancements for defendant’s crimes, applies 

retroactively to cases not yet final on appeal. 

Senate Bill 136 amended section 667.5, subdivision (b), to remove the one-year 

enhancement for prior prison terms, except when the offense underlying the prior prison 

term was a sexually violent offense. (See § 667.5, subd. (b).) Because Senate Bill 136

reduces sentences for a crime it applies retroactively to convictions not final on appeal 

absent evidence of a contrary legislative intent. (See People v. Brown (2012) 54 Cal.4th 

314, 323-324; In re Estrada (1965) 63 Cal.2d 740, 745.) The enactment therefore applies 

to this case. 
21

The offenses underlying defendant’s prior prison terms were not sexually violent 

offenses. Accordingly, the prior prison term enhancements cannot stand. We shall 

modify the judgment to strike each of defendant’s four one-year prior prison term 

enhancements. 

DISPOSITION

The judgment is modified to strike the probation report fee and each of 

defendant’s one-year prior prison term enhancements. As modified, the judgment is 

affirmed. The trial court is directed to prepare an amended abstract of judgment 

reflecting the modification and to forward a certified copy thereof to the Department of 

Corrections and Rehabilitation. 

 /s/

HOCH, J.

We concur:

 /s/

HULL, Acting P. J.

 /s/

KRAUSE, J.