People v. Vasquez CA5

Filed 10/28/26 P. v. Vasquez CA5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT THE PEOPLE, Consolidated Cases Nos. Plaintiff and Respondent, F090349, F090362 v. (Super. Ct. Nos. BF154379A, BF144586B) TONY VASQUEZ, Defendant and Appellant. OPINION THE COURT * APPEAL from a judgment of the Superior Court of Kern County. Charles R. Brehmer, Judge. Scott Concklin, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Kimberley A. Donohue, Assistant Attorney General, Christopher J. Rench and Jessica A. Eros, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo- * Before Detjen, Acting P. J., Meehan, J. and Snauffer, J.  INTRODUCTION Defendant Tony Vasquez appeals from a judgment entered following resentencing pursuant to Penal Code 1 section 1172.75 in Kern County Superior Court cases Nos. BF154379A and BF144586B. Defendant contends the court’s true finding on his prior conviction allegation in case No. BF154379A is unauthorized pursuant to People v. Fletcher (2025) 18 Cal.5th 576, 583 (Fletcher). He additionally argues his restitution fines must be vacated as expired pursuant to section 1465.9, subdivision (d), and fees imposed pursuant to Health and Safety Code sections 11372.5 and 11372.7 in case No. BF144586B must be vacated as unauthorized. He also argues the abstracts of judgment and sentencing minute orders must be corrected to conform to the oral pronouncement and to correct certain errors. We vacate the true finding on the strike allegation. We also vacate the restitution fines and the fees imposed pursuant to Health and Safety Code sections 11372.5 and 11372.7. These reversals will necessitate resentencing on remand and therefore moot defendant’s request for corrections to the abstracts of judgment and sentencing minute orders. We remand for further proceedings, which may include retrial of the strike allegation and/or further resentencing consistent with this opinion. In all other respects, the judgments are affirmed. BACKGROUND I. Original Convictions and Sentencing A. Case No. BF144586B On November 8, 2012, the Kern County District Attorney charged defendant by information with receiving stolen property (§ 496, subd. (a); count 1), possession of counterfeit currency (§ 476; count 2), and active participation in a criminal street gang 1 Undesignated statutory references are to the Penal Code. 2. (§ 186.22, subd. (a); count 3). Prior conviction allegations were alleged. It appears counts 1 and 3 subsequently were set aside pursuant to section 995. On December 27, 2012, defendant entered a plea of no contest to count 2. The court struck the prior conviction allegations as to count 2. On April 16, 2013, imposition of sentence was suspended and defendant was placed on formal probation for a three-year term. The court imposed a restitution fine of $280 (§ 1202.4, subd. (b)), and a probation revocation fine, suspended, in the same amount (§ 1202.44). Defendant was ordered to pay a $40 court security fee (§ 1465.8), a $30 criminal conviction assessment (Gov. Code, § 70373), and $40 per month for supervision costs. He was awarded 104 days of custody credits, including 52 days of actual custody credits. B. Case No. BF154379A “In 2015, a jury convicted defendant of first degree premeditated murder (§ 187, subd. (a); count 1), attempted premeditated murder (§§ 187, subd. (a), 664; count 2), two counts of discharging a firearm at an occupied motor vehicle (§ 246; counts 3 & 5), being a felon in possession of a firearm (§ 29800, subd. (a)(1); count 4), and criminal threats (§ 422; count 9).[ 2] The jury found true a special circumstance allegation to count 1, firearm enhancements to counts 1 through 5, and a great bodily injury enhancement to count 2. In bifurcated proceedings, the court found true a prior strike conviction (§§ 667, subds. (c)–(j), 1170.12, subds. (a)–(e)), a prior serious felony conviction (§ 667, subd. (a)), and that defendant had suffered three prior prison terms (§ 667.5, former subd. (b)). (People v. Vasquez (Feb. 6, 2018, F071302) [nonpub. opn.] (Vasquez).) “ ‘Defendant was sentenced to (1) life without the possibility of parole (LWOP), plus 25 years to life for firearm discharge proximately causing death, five years for the 2 “The jury acquitted defendant on counts 6 through 8.” 3. prior serious felony conviction, and two years for two prior prison terms,[ 3] on count 1; (2) a consecutive 14 years to life, plus 25 years to life for firearm discharge proximately causing great bodily injury, five years for the prior serious felony conviction, and two years for two prior prison terms (see ante, fn. [3]), on count 2[ 4]; and (3) a consecutive six years, plus five years for the prior serious felony conviction and two years for two prior prison terms (see ante, fn. [3]), on count 9. The court stayed execution of punishment on counts 3 through 5 pursuant to section 654.’ (Vasquez, supra, F071302.) In addition, the court imposed a $40 court security fee[ 5] (§ 1465.8) and $30 criminal conviction assessment (Gov. Code, § 70373) on each count, as well as a $300 restitution fine (§ 1202.4, subd. (b)) and a $300 parole revocation fine (§ 1202.45). “At the time of the original sentencing, the court also imposed sentence [relating to] defendant’s violation of the terms of his probation in … case No. BF144586B. In that case, the court imposed a concurrent upper[-]term sentence of three years. The court also orally imposed a $40 court security fee and $30 criminal conviction assessment, other fees and assessments [described further below] under Health and Safety Code sections 11372.5 and 11372.7, a $280 restitution fine, and a $280 [probation] revocation fine. Defendant was noted to have 383 days of actual credit in that case. “The original abstract of judgment reflect[ed] an aggregate court security fee of $240, an aggregate criminal conviction assessment of $180, a $300 restitution fine, and a 3 “ ‘Because the prior serious felony enhancement and the third prior prison term enhancement were based on the same offense, the court did not impose the latter. (See People v. Perez (2011) 195 Cal.App.4th 801, 805.)’ ” 4 “ ‘Pursuant to California Rules of Court, rule 4.447, the court stayed execution of the remaining enhancements on count 2.’ ” 5 “At the time of defendant’s conviction, section 1465.8 provided, as it does now, for a court operations assessment, rather than a court security fee. We nonetheless refer to this as a court security fee to reflect the language used by the court and in the abstracts of judgment.” 4. $300 parole revocation fine. Additionally, the original abstract of judgment reflect[ed] 315 days of actual credit for time served in the instant case, and 383 days actual credit for time served in case No. BF144586B. “On appeal, this court affirmed. (Vasquez, supra, F071302.)” (People v. Vasquez (May 5, 2025, F086742) [nonpub. opn.].) II. Petition for Resentencing “In 2023, defendant filed a form petition for resentencing pursuant to section 1172.75. He asked the court to dismiss the prior serious felony and prior prison term enhancements, and to reduce the sentence on count 9 to a middle[-]term sentence of four years. At the resentencing hearing, he also asked the court to impose reduced firearm enhancements pursuant to section 12022.5, in lieu of the original enhancements imposed pursuant to section 12022.53, subdivision (d). “The court declined to reduce the firearm enhancements but struck the prior serious felony and prior prison term enhancements. Defendant was resentenced to (1) a term of life without the possibility of parole on count 1, plus 25 years to life for the firearm enhancement to that count; (2) a consecutive term of life with the possibility [of] parole with a minimum term of 14 years on count 2, plus an additional term of 25 years to life for the firearm enhancement to that count; and (3) a consecutive middle[-]term sentence of four years on count 9. Sentence on the remaining counts and enhancements was imposed and stayed pursuant to section 654. “Additionally, in its oral pronouncement of judgment, the court granted defendant’s request to convert fines and fees to time in custody. For each count, the $40 court security fee and $30 criminal conviction assessment were ‘converted to one day in custody, to run concurrent.’ The court also stated, ‘The fine pursuant to … section 1202.4[, subdivision ](b) is converted to three days in custody, to run concurrent.’ The sentencing minute order states, for the court security fee and criminal conviction assessment to each count, ‘defendant to serve 1 days in custody in lieu of balance of 5. fine.’ (Capitalization omitted.) The sentencing minute order states the court imposed a $300 restitution fine but does not state that this fine was converted to concurrent time. Meanwhile, the abstract of judgment reflects the court imposed a $280 court security fee, a $210 criminal conviction assessment, a $300 restitution fine, and a $300 parole revocation fine (§ 1202.45). The abstract includes the notation, ‘time in lieu of all fines and fees.’ The court determined defendant had accrued 3,390 days of actual custody credits, which were duly noted on the amended abstract of judgment. “Although not addressed at the resentencing hearing or in the sentencing minute order, the amended abstract of judgment once again included the sentence in the probation violation case, case No. BF144586B. In the amended abstract of judgment, the actual custody credits for case No. BF144586B remained unchanged from the prior award of 383 days.” (People v. Vasquez, supra, F086742, fn. omitted.) III. Resentencing Appeal On appeal, we held defendant did not receive the full resentencing to which he was entitled in case No. BF144586B. Accordingly, we vacated the newly imposed sentence and remanded for further proceedings, noting that any resentencing that occurred on remand must include resentencing in case No. BF144586B. We additionally noted that section 1172.75 does not provide a process for a defendant to petition for resentencing, and we therefore required the court to assure itself on remand that it had jurisdiction to proceed with resentencing. (People v. Vasquez, supra, F086742.) IV. Resentencing on Remand Defendant was resentenced on August 14, 2025. In case No. BF154379A, he was sentenced on count 1 to a term of life without the possibility of parole, plus 25 years to life for the firearm enhancement; on count 2 to a consecutive term of 14 years to life, plus 25 years to life for the firearm enhancement; and on count 9 to a consecutive four-year term. Sentence on the remaining counts and enhancements was imposed and stayed pursuant to section 654. In case No. BF144586B, probation was revoked and defendant’s 6. three-year sentence was imposed, concurrent with the sentence in case No. BF154379A. Defendant’s custody credits were updated. The court imposed fines and fees as further discussed below and converted the fines and fines to concurrent custody time in both cases. DISCUSSION I. Jurisdiction To Resentence Section 1172.75 does not provide for a petition process to seek resentencing. Rather, the court’s jurisdiction to resentence pursuant to section 1172.75 is triggered by certain notice procedures initiated by the Department of Corrections and Rehabilitation. (§ 1172.75, subds. (b), (c).) In defendant’s prior appeal, we noted that the record did not reflect whether the court received such notice, and we therefore required the court to assure itself on remand that it had jurisdiction to resentence defendant. (People v. Vasquez, supra, F086742.) On remand, the prosecutor conceded the court had jurisdiction to proceed with resentencing. Defense counsel represented that the notice procedures set forth in section 1172.75, subdivision (b) were complied with: “[Defendant] is on the list from [the Department of Corrections and Rehabilitation]. And initially when the statute changed there was an agreement between the [c]ourt, the public defender’s office and the [District Attorney] for the public defender to go forward with resentencing. [¶] … And we’ve resolved issues regarding this by showing [defendant] was, in fact, on the [Department of Corrections and Rehabilitation] list. I didn’t bring the … list today, but I know the [c]ourt received it because the judge … at the time … had the list and after September or October set hearing dates.” The court accepted this representation and found it had jurisdiction. The parties agree the court had jurisdiction. Based on the court’s acceptance of defense counsel’s representation regarding the notice requirements, we agree the jurisdictional requirements of section 1172.75 were satisfied. 7. II. The True Finding on the Prior Strike Allegation Must Be Vacated Defendant contends his second-strike sentence is invalid in light of Fletcher, supra, 18 Cal.5th 576. The People agree. 6 We accept the People’s concession and vacate the court’s true finding on the prior strike allegation. We remand for further proceedings, which may include retrial on the allegation and/or resentencing. A. Additional Background In 2015, in case No. BF154379A, the trial court found defendant had a prior conviction for violation of Health and Safety Code section 11379, subdivision (a) with either a substantive gang offense or gang enhancement pursuant to section 186.22, 7 which constituted a prior strike pursuant to the Three Strikes law (§§ 667, subds. (c)–(j), 1170.12, subds. (a)–(e)), and also constituted a prior serious felony conviction (§ 667, subd. (a)). Based on the prior strike, defendant’s middle-term sentences on counts 3, 4, 5, and 9 were doubled pursuant to section 667, subdivision (e). As for his indeterminate sentence on count 2, the minimum parole eligibility date also was doubled pursuant to section 667, subdivision (e). 6 The People also concede that the same reasoning extends to the true finding on defendant’s prior serious felony enhancement. However, it appears this finding was struck at the prior resentencing in 2023. It was not reimposed at resentencing in 2025. We therefore do not further address the prior serious felony enhancement. 7 The information suggests defendant suffered one prior conviction for a violation of both Health and Safety Code section 11379, subdivision (a) and section 186.22, subdivision (a)(1), active participation in a criminal street gang, which would constitute two separate offenses. However, the probation officer’s report suggests this was a single conviction for violation of Health and Safety Code section 11379, subdivision (a), with a gang enhancement pursuant to section 186.22, former subdivision (b)(1). The record on appeal does not contain the records relied on by the trial court to find the prior conviction allegation true and the precise nature of the prior conviction is therefore unclear. The distinction does not alter our analysis. 8.  B. Analysis Standing alone, a violation of Health and Safety Code section 11379, subdivision (a) is not considered a serious felony or strike. (§ 1192.7, subd. (c); see §§ 667, subd. (d)(1), 1170.12, subd. (b)(1).) However, pursuant to the Three Strikes law, a felony offense that “would also constitute a felony violation of [s]ection 186.22” qualifies as a strike. (§ 1192.7, subd. (c)(28); see §§ 667, subd. (d)(1), 1170.12, subd. (b)(1).) Gang- enhanced felonies (see § 186.22, subd. (b)(1)) also qualify as strikes. (People v. Briceno (2004) 34 Cal.4th 451, 462.) Effective January 1, 2022, Assembly Bill No. 333 (2021–2022 Reg. Sess.) (Assembly Bill No. 333) amended section 186.22 in significant ways. (People v. Tran (2022) 13 Cal.5th 1169, 1206.) “Among other things, Assembly Bill [No.] 333 changed the elements of gang offenses and enhancements by narrowing the definitions of ‘criminal street gang,’ ‘pattern of criminal activity,’ and ‘what it means for an offense to have commonly benefitted a street gang.’ ” (Fletcher, supra, 18 Cal.5th at p. 583.) Our Supreme Court has held that “Assembly Bill [No.] 333 is ameliorative legislation that applies to nonfinal judgments under the rule of In re Estrada (1965) 63 Cal.2d 740.” (Fletcher, at p. 583.) Our Supreme Court further held in Fletcher that, “where a defendant has suffered a conviction under the prior version of section 186.22, Assembly Bill [No.] 333 applies to the determination of whether the conviction qualifies as a prior serious felony conviction under subdivision (c)(28) of section 1192.7 for purposes of the Three Strikes law and prior serious felony enhancements.” (Fletcher, supra, 18 Cal.5th at p. 583.) Thus, pursuant to Fletcher, “the current law applicable to this nonfinal proceeding includes Assembly Bill [No.] 333’s redefinition of the elements of gang offenses and enhancements under section 186.22.” (Id. at p. 607.) Here, defendant’s prior conviction for either active participation in a criminal street gang or a gang-enhanced violation of Health and Safety Code section 11379, 9. subdivision (a) was obtained in 2002. Nothing in the record suggests defendant’s prior conviction “was obtained under Assembly Bill [No.] 333’s more stringent requirements.” (Fletcher, supra, 18 Cal.5th at p. 607.) Accordingly, the record fails to establish the elements of the alleged prior strike under the current law. Accordingly, as in Fletcher, the appropriate remedy is vacatur of the true finding on the strike allegation and remand for further proceedings, which may include retrial on the allegation. (Fletcher, at pp. 607–608.) III. The Restitution Fines Must Be Vacated Defendant contends the court erred in converting unpaid restitution fines to time served and instead should have vacated the restitution fines pursuant to section 1465.9, subdivision (d). The People agree, as do we. A. Additional Background At defendant’s 2013 sentencing in case No. BF144586B, the court imposed a $280 restitution fine pursuant to section 1202.4, subdivision (b). At defendant’s 2015 sentencing in case No. BF154379A, defendant was ordered to pay a $300 restitution fine. At the 2025 resentencing hearing, the court noted the unpaid balance of the restitution fine in case No. BF144586B and converted the fines in both cases to time served. The court did not expressly address the restitution fine amount in case No. BF154379A but included both restitution fines in the abstract of judgment. B. Analysis Effective January 1, 2025, section 1465.9, subdivision (d) provides: “Upon the expiration of 10 years after the date of imposition of a restitution fine pursuant to [s]ection 1202.4, the balance, including any collection fees, shall be unenforceable and uncollectible and any portion of a judgment imposing those fines shall be vacated.” “Section 1465.9’s plain language evinces a legislative intent to finally, and conclusively, eliminate restitution fines under section 1202.4, subdivision (b) after 10 years.” (People v. Salstrom (2025) 117 Cal.App.5th 596, 600, review granted Mar. 11, 10. 2026, S295038.) Resentencing does not restart section 1465.9’s “10-year clock.” (Salstrom, at p. 600.) Because both restitution fines in this case were first imposed more than 10 years ago, the remaining unpaid balance is “unenforceable and uncollectible,” and the portion of the judgment imposing those fines must be vacated. (§ 1465.9, subd. (d).) IV. The Crime Lab and Drug Program Fees Must Be Vacated Defendant argues the court erred in orally imposing crime lab and drug program fees that were not previously imposed and are unauthorized. The People agree, as do we. A. Additional Background When defendant first was sentenced in case No. BF144586B on April 16, 2013, it appears that fees under Health and Safety Code sections 11372.5 and 11372.7 were not imposed. However, the probation officer’s report in case No. BF154379A, filed on February 18, 2015, in relation to the original sentencing in case No. BF154379A, stated that such fees previously were ordered in case No. BF144586B and recommended they be reimposed. Although these fees are not described in the sentencing minute order or abstract of judgment, the court orally imposed these fees at the February 18, 2015 sentencing hearing. (People v. Vasquez, supra, F086742.) It does not appear the fees were reimposed at the 2023 resentencing. (Ibid.) An updated probation officer’s report was prepared on August 1, 2025. The report recommended that, in case No. BF144586B, defendant be required to pay fees pursuant to Health and Safety Code sections 11372.5 and 11372.7, “as previously ordered on April 16, 2013.” At the August 14, 2025 resentencing, the trial court stated that it originally imposed fees under Health and Safety Code sections 11372.5 and 11372.7 at the April 16, 2013 sentencing in case No. BF144586B. The court then orally reimposed these fees at the August 14, 2025 resentencing. The fees also are included in the court’s sentencing minute order. 11.  B. Analysis The fees imposed pursuant to Health and Safety Code sections 11372.5 and 11372.7 are unauthorized and must be vacated. 8 The criminal laboratory analysis fee applies to “[e]very person who is convicted of a violation of [s]ection 11350, 11351, 11351.5, 11352, 11355, 11358, 11359, 11361, 11363, 11364, 11368, 11375, 11377, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380, 11380.5, 11382, 11383, 11390, 11391, or 11550 or subdivision (a) or (c) of [s]ection 11357, or subdivision (a) of [s]ection 11360 of this code, or [s]ection 4230 of the Business and Professions Code .…” (Health & Saf. Code, § 11372.5, subd. (a).) “The only offenses for which the criminal laboratory analysis fee may be imposed are those listed or enumerated in Health and Safety Code section 11372.5, subdivision (a).” (People v. Myles (2016) 6 Cal.App.5th 1158, 1160.) Defendant was convicted in case No. BF144586B of possessing counterfeit currency in violation of section 476. This is not a qualifying offense for imposition of the criminal laboratory analysis fee. The fee must be vacated. The drug program fee applies to each person who is convicted of a violation of the Health and Safety Code. (Health & Saf. Code, § 11372.7, subd. (a).) Defendant was not convicted of a Health and Safety Code violation in case No. BF144586B. Because defendant did not suffer a qualifying conviction, the fee must be vacated. 8 The People also assert the court lacked authority to impose these fees upon revocation of probation, having not imposed them when it originally imposed sentence in April 2013. We resolve this claim on another ground and therefore do not reach this contention, particularly given that (1) we do not have a complete record of the initial sentencing proceedings in case No. BF144586B, and (2) the court’s sentencing minute orders and abstracts of judgment have rarely conformed to the court’s oral pronouncements in this case. 12. V. Conformance to the Oral Pronouncement of Judgment Defendant contends the abstract of judgment and sentencing minute order must be corrected to conform to the oral pronouncement of judgment, which included the court’s pronouncement that all fines and fees were converted to concurrent time. The People agree the abstract of judgment should conform to the oral pronouncement of judgment but also assert that defendant’s court security fees and court operations assessments are not capable of being converted to custody time pursuant to section 2900.5.9 Defendant asserts the court had authority to eliminate these fees as a matter of due process based on his inability to pay. Our vacatur of the true finding on the strike allegation requires that the court once again conduct resentencing on remand, thus mooting defendant’s claim that the abstract of judgment and sentencing minute order do not conform to the oral pronouncement of judgment. The parties may address their disagreements regarding the propriety of converting fees to time in custody on remand and, to the extent defendant wishes the court to consider his ability to pay fines or fees, he may so request. (People v. Kopp, supra, 19 Cal.5th at p. 30.) The trial court is directed to take care to ensure that any abstract of judgment or sentencing minute order entered on remand conforms to the oral pronouncement of judgment, in particular with respect to the disposition of fines and fees. 9 The People assert the only fine or fee to which section 2900.5 would apply “is the $300 probation revocation fee under section 1202.45.” (Italics added.) However, the court imposed a $280 probation revocation fine pursuant to section 1202.44, and a $300 parole revocation fine pursuant to section 1202.45. The latter fine was suspended unless defendant’s parole was revoked. (§ 1202.45, subd. (c).) Neither party addresses the propriety of the court converting this suspended fine to custody credits before it has been imposed and executed. To the extent defendant wishes the court to consider his inability to pay either fine on remand, he may so request. (People v. Kopp (2025) 19 Cal.5th 1, 30.) 13. VI. Other Corrections to the Abstract of Judgment Defendant asserts the abstract of judgment must be corrected in the following respects: (1) the recipients of direct victim restitution should be named in the abstract of judgment, (2) box 9b indicating “[v]ictim’s name(s) in probation officer’s report” was erroneously checked, and (3) the field indicating computation of conduct credits pursuant to section 2933.1 in box 16B was erroneously checked. The People concede the corrections are appropriate. However, in light of our disposition, the issue is moot. Defendant may bring these matters to the court’s attention on remand. DISPOSITION The true finding on the strike allegation in case No. BF154379A is vacated pursuant to Fletcher, supra, 18 Cal.5th at page 583. The restitution fines in cases Nos. BF154379A and BF144586B are vacated as expired pursuant to section 1465.9, subdivision (d). Fees imposed pursuant to Health and Safety Code sections 11372.5 and 11372.7 in case No. BF144586B are vacated as unauthorized. The matter is remanded for further proceedings, which may include retrial of the strike allegation and/or further resentencing consistent with this opinion. At the conclusion of such further proceedings, the court shall ensure that the amended abstracts of judgment and sentencing minute orders conform to the court’s oral pronouncement of judgment. In all other respects, the judgments are affirmed. 14.