People v. Russell CA5

INTRODUCTION

Appellant and defendant Shane Leland Russell was convicted of several offenses for physically assaulting his girlfriend. On appeal, defendant contends the matter must be remanded for resentencing, and his defense attorney was prejudicially ineffective for failing to request an ability to pay hearing based on People v. Dueñas (2019) 30 Cal.App.5th 1157 when the court imposed the restitution fine and other fees. The parties agree the matter must be remanded for resentencing for the court to clarify how it calculated defendant’s total fixed term since it improperly imposed a “concurrent” term for a prior serious felony enhancement, whether it intended to dismiss the prior serious felony enhancement, if it dismissed the other prior conviction allegations, and correct other inconsistencies in the record. The parties also agree that on remand, defendant may challenge the trial court’s imposition of a restitution fine and other fees pursuant to Dueñas. We affirm defendant’s convictions, vacate the sentence, and remand accordingly.

FACTS

On May 9, 2019, defendant and K.S. had been in a dating relationship for six months and were living together. They argued because K.S.…