People v. Solomon CA2/5, B299423

Background

Defendant Donte Solomon was convicted by a jury of second degree murder, attempted murder, shooting at an inhabited dwelling, and felon in possession of a firearm; special allegations that he personally used and intentionally discharged a firearm (causing death) were found true.
He admitted multiple prior convictions and was sentenced to 55 years to life plus 34 years; the court also imposed a $120 court facilities assessment, a $160 court operations assessment, and a $300 restitution fine.
Factual dispute: at night outside the victim Donniesha Gregory’s apartment defendant confronted Gregory and a man identified as R.P.; an exchange at the window ended with Gregory fatally shot. Defendant testified he was fearful of R.P., fired one warning shot when R.P. displayed a silver object, and a second shot discharged accidentally. Prosecution presented evidence of an argument and defendant’s shouted gang-related epithets.
On appeal Solomon argued (1) the trial court should have instructed the jury on heat-of-passion voluntary manslaughter as a lesser included offense; (2) the court imposed fines/assessments without an ability-to-pay hearing in violation of Dueñas and thus his due process/excessive fines rights (or counsel was ineffective for failing to object); and (3) his section 667.5(b) one-year prior-prison-term enhancements must be stricken under Senate Bill 136.
The Court of Appeal affirmed the convictions, rejected the manslaughter and ability-to-pay/ineffective-assistance claims, but—consistent with SB 136 retroactivity—ordered the section 667.5(b) one-year enhancements stricken and directed amendment of the abstract of judgment.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Failure to instruct on heat-of-passion voluntary manslaughter	No instruction required because evidence did not substantially support heat-of-passion theory	Defendant argued jealousy and seeing his romantic partner with a rival provoked a heat-of-passion killing	Rejected. No substantial evidence of the subjective loss of control: defendant knew of the relationship, testified he was not enraged, and said shots were warning/accidental. Instruction not required.
Imposition of assessments and restitution fine without an ability-to-pay hearing	Forfeited because defendant did not object at sentencing	Dueñas requires an ability-to-pay hearing; alternatively counsel was ineffective for not objecting	Forfeiture applies. Ineffective-assistance claim denied: record silent on counsel’s reasons and there are plausible tactical explanations (e.g., probation report indicated ability to pay).
Validity of section 667.5(b) one-year enhancements after SB 136	SB 136 retroactively eliminated one-year enhancements except for prior sexually violent offenses; enhancements no longer authorized	Defendant sought strike of five one-year enhancements because none arose from sexually violent offenses	AG conceded and court agreed: strike the section 667.5(b) enhancements and amend abstract of judgment.

Key Cases Cited

People v. Breverman, 19 Cal.4th 142 (trial courts must instruct on lesser included offenses only when substantial evidence supports them)
People v. Moye, 47 Cal.4th 537 (defining objective and subjective elements of heat-of-passion voluntary manslaughter)
People v. Dueñas, 30 Cal.App.5th 1157 (trial court must conduct ability-to-pay hearing before imposing certain assessments and executing restitution fines)
Strickland v. Washington, 466 U.S. 668 (ineffective-assistance-of-counsel two-part test)
In re Estrada, 63 Cal.2d 740 (statutory ameliorative changes apply retroactively unless Legislature indicates otherwise)