Unreported / Non-Citable
Background
Tony Vasquez appealed from an August 14, 2025 resentencing in two Kern County cases. In BF144586B, he was charged by information on November 8, 2012, and pleaded no contest on December 27, 2012, to possessing counterfeit currency; on April 16, 2013, the court suspended sentence, granted formal probation, and imposed a $280 restitution fine, a suspended $280 probation revocation fine, a $40 court security fee, a $30 criminal conviction assessment, and monthly supervision costs. In BF154379A, a 2015 jury convicted him of first degree premeditated murder, attempted premeditated murder, discharging a firearm at an occupied motor vehicle (counts 3 and 5), being a felon in possession of a firearm, and criminal threats, and found true a special circumstance, firearm enhancements, and a great bodily injury enhancement; in bifurcated proceedings the court found true a prior strike, a prior serious felony, and prior prison terms.
In 2023 Vasquez sought resentencing under Penal Code section 1172.75. The court struck the prior serious felony and prison-term enhancements but kept the firearm enhancements. In a prior appeal, the Fifth District held he had not received the full resentencing required in BF144586B, vacated the new sentence, and told the court to confirm jurisdiction because section 1172.75 proceeds through Department of Corrections and Rehabilitation notice procedures rather than a defendant petition. On remand in 2025, the court accepted counsel's representation that the notice procedures were satisfied, and the appellate court agreed jurisdiction existed.
This appeal challenged the continuing strike finding, the conversion of unpaid restitution fines into custody time, the reimposed crime-laboratory and drug-program fees in BF144586B, and corrections to the abstracts of judgment and sentencing minute orders. The People conceded the strike, restitution-fine, and fee challenges and agreed the abstract corrections were appropriate.
The Court’s Holding
The court vacated the true finding on the prior strike allegation under People v. Fletcher. A Health and Safety Code section 11379 conviction alone is not a serious felony or strike, though a qualifying gang offense or gang-enhanced felony can qualify. Assembly Bill No. 333 narrowed the definitions governing gang offenses and enhancements, and Fletcher makes those changes applicable when assessing a prior conviction in a nonfinal Three Strikes proceeding. Vasquez's prior conviction dated from 2002, and nothing showed it was obtained under the amended law's more stringent requirements, so the record failed to establish the elements of a strike under current law. The remedy was vacatur and remand for proceedings that may include retrial of the allegation and further resentencing.
The court next held that both restitution fines must be vacated under section 1465.9, subdivision (d). That provision makes the unpaid balance of a section 1202.4 restitution fine unenforceable and uncollectible ten years after imposition and requires vacatur of the corresponding judgment portion; resentencing does not restart the ten-year clock. Because the $280 and $300 fines were first imposed in 2013 and 2015, their remaining balances had to be vacated rather than converted into custody time.
The crime-laboratory and drug-program fees in BF144586B were also unauthorized and must be vacated: the laboratory fee is limited to enumerated offenses and counterfeit-currency possession under section 476 is not among them, and the drug-program fee requires a Health and Safety Code conviction, which Vasquez did not have in that case. The court did not reach the separate argument that the fees could not first be imposed upon probation revocation. It treated the requested document corrections as moot because the strike vacatur requires resentencing, while directing the trial court to ensure future abstracts and minute orders conform to the oral pronouncement. In all other respects, the judgments were affirmed.
Key Takeaways
- A pre-Assembly Bill 333 gang-related conviction cannot support a prior-strike finding in a nonfinal case unless the record establishes the conviction's elements under current law.
- Vacatur of the strike finding permits retrial of that allegation on remand rather than automatically barring the prosecution from pursuing it again.
- Resentencing does not restart section 1465.9's ten-year period for enforcing a restitution fine.
- Counterfeit-currency possession is not an enumerated offense supporting the criminal laboratory analysis fee, and the drug-program fee requires a qualifying Health and Safety Code conviction.
- The court left ability-to-pay requests and disputes over converting other fines or fees into custody time for the parties and trial court to address on remand.
Why It Matters
The decision applies Fletcher's retroactivity holding directly to a prior conviction used to increase a sentence, emphasizing that the historical existence of a gang-related conviction is not enough when the record does not establish compliance with Assembly Bill 333's current elements. It also reinforces that expired restitution fines must be vacated, not merely satisfied through a custody-time conversion at resentencing.
The remand is limited but consequential: the prosecution may retry the strike allegation, and the trial court may conduct further resentencing consistent with the opinion. The court did not resolve every financial or record-correction dispute, instead requiring accurate future sentencing documents and leaving the parties to raise remaining fee, custody-credit, restitution-recipient, and conduct-credit issues in the trial court.