People v. Butler CA4/2, E072955

Dupree Butler was convicted by jury of attempted voluntary manslaughter (lesser included attempted murder), assault with a deadly weapon, domestic violence with prior, criminal threats, two violations of a protective order, obstructing use of a wireless device, and stalking with a prior domestic-violence conviction; great-bodily-injury enhancements were found true on several counts.
The trial court sentenced Butler to 16 years in state prison, which included three 1-year prior-prison-term enhancements under Penal Code §667.5(b), and imposed $11,074.58 in fines/fees (including a $10,000 restitution fine and assessments).
Senate Bill No. 136 (effective Jan. 1, 2020) amended §667.5(b) to largely eliminate one-year prior prison-term enhancements except for certain sexually violent felonies; Butler’s priors were not sexually violent.
Butler argued on appeal the prior-prison enhancements must be stricken under SB 136 and that the court erred by imposing fines/fees without an ability-to-pay hearing under People v. Dueñas (2019). The People conceded the SB 136 point but disputed the other issues.
The Court of Appeal struck the three §667.5(b) enhancements, reversed the fines/fees order and remanded for (1) resentencing to allow reconsideration of concurrent/consecutive components and (2) an ability-to-pay hearing on fines/fees; the judgment was otherwise affirmed and the clerk directed to amend the abstract of judgment.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether SB 136 requires striking Butler’s three one-year prior prison-term enhancements under §667.5(b)	People conceded SB 136 applies and the enhancements do not survive the amendment, but urged remand for resentencing because the trial court did not impose the absolute maximum	Enhancements unlawful under amended §667.5(b); strike them and remand for resentencing	Enhancements must be stricken; remand for full resentencing so court can reconsider aggregate sentence (concurrent vs consecutive)
Whether fines and assessments may be imposed without an ability-to-pay hearing (Dueñas issue)	People argued Dueñas was wrongly decided and any error was harmless because fines could be collected from prison wages or postrelease employment	Butler argued Dueñas requires a hearing before imposing mandatory fines/fees when ability to pay is not established	Reversed fines/fees; remand for an ability-to-pay hearing. Stay restitution fine (and attendant parole-revocation fine) unless People prove present ability to pay. If defendant shows inability, fees must not be imposed; if not, court may impose them
Whether the abstract of judgment should be corrected to reflect the court’s nunc pro tunc fee adjustment	People conceded the abstract should be corrected	Butler sought correction of court-operations assessment from $380 to $320	Clerk ordered to prepare an amended abstract of judgment and forward it to CDCR

People v. Dueñas, 30 Cal.App.5th 1157 (2019) (held trial court must consider defendant’s ability to pay before imposing certain fines/fees; failure may violate due process)
People v. Buycks, 5 Cal.5th 857 (2018) (remand for resentencing generally required when part of sentence is stricken unless maximum term already imposed)
People v. Brown, 54 Cal.4th 314 (2012) (presumption that ameliorative sentencing changes apply to judgments not yet final)
In re Estrada, 63 Cal.2d 740 (1965) (ameliorative statutory amendments generally apply retroactively to nonfinal judgments)
People v. Hill, 185 Cal.App.3d 831 (1986) (aggregate prison term components are interdependent; remand permits reconsideration of all sentencing choices)
People v. Taylor, 43 Cal.App.5th 390 (2019) (reversed fees where record did not show harmlessness of Dueñas error; remand for ability-to-pay determination)
People v. Kopp, 38 Cal.App.5th 47 (2019) (alternative analysis contesting Dueñas; raised question whether excessive-fines clause approach should apply)