Filed 10/30/26 P. v. Hayes CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B345142
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA085671)
v.
CHRISTOPHER HAYES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Kathleen Blanchard, Judge. Judgment of
conviction affirmed; sentence vacated and remanded for
resentencing.
Leonard J. Klaif, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Scott A. Taryle, David E. Madeo and Blythe J.
Leszkay, Deputy Attorneys General, for Plaintiff and
Respondent.
__________________________________
Christopher Hayes appeals from a judgment of conviction,
challenging his sentence. We resolve this appeal by
memorandum opinion because his contentions of sentencing error
“raise no substantial issues of law or fact.” (Cal. Stds. Jud.
Admin., § 8.1.)
On January 31, 2025, a jury found Hayes guilty of six
offenses, which he committed while in state prison serving a
sentence in another matter: aggravated battery, committed by
“gassing” upon a peace officer and employee (Pen. Code,1
§ 4501.1, subd. (a); count 1);2 custodial possession of a weapon
(§ 4502, subd. (a); count 2); and four counts of assault with a
deadly weapon while confined in state prison (§ 4501, subd. (a);
counts 3-6). Counts 1 and 3 through 6 each involve a different
victim.
Immediately after the guilty verdicts were returned, Hayes
was tried by the same jury on prior conviction allegations alleged
in the information. The jury heard testimony from a peace
officer/investigator employed by the California Department of
Corrections and Rehabilitation (CDCR), and the court admitted
into evidence a packet of documents from CDCR, including
Hayes’s rap sheet, offender personal profile, and sentence data
1 Undesignated statutory references are to the Penal Code.
2 Section 4501.1, subdivision (b), defines “ ‘gassing’ ” as
“intentionally placing or throwing, or causing to be placed or
thrown, upon the person of another, any human excrement or
other bodily fluids or bodily substances or any mixture containing
human excrement or other bodily fluids or bodily substances that
results in actual contact with the person’s skin or membranes.”
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sheet. On February 3, 2025, the jury found to be true allegations
that Hayes had six prior felony convictions, including a June 29,
2018 conviction in case number MA066467 for a violation of
section 245, subdivision (a)(3), “assault upon the person of
another with a machinegun.” The jury also found to be true a
number of allegations alleged under California Rules of Court,
rule 4.421, including that Hayes was a prisoner serving a state
prison sentence at the time he committed these offenses, and that
Hayes “has been convicted of crimes for which consecutive
sentences could be imposed but for which concurrent sentences
are being imposed.”
On February 5, 2025, the court sentenced Hayes. The court
denied his request to strike five of his six prior felony convictions
and impose a second strike sentence rather than a third strike
sentence under the “Three Strikes” law (§§ 667, subds. (b)-(j),
1170.12, subds. (a)-(d)), finding it would not be in furtherance of
justice to grant the request. The court sentenced Hayes to 50
years to life in state prison as a third strike offender: 25 years to
life on count 1, the violation of section 4501.1, subdivision (a)
(aggravated battery upon a peace officer by gassing), plus a
consecutive term of 25 years to life on count 3, one of the four
violations of section 4501, subdivision (a) (assault with a deadly
weapon while confined in prison). The court imposed concurrent
terms of 25 years to life on each of counts 4 through 6 and stayed
a six-year term on count 2 for the violation of section 4502,
subdivision (a), custodial possession of a weapon (the middle term
of three years, doubled to six years).
Defense counsel argued Hayes did not have the ability to
pay a $500 restitution fine (Pen. Code, § 1202.4, subd. (b)), $240
in court operations assessments (Pen. Code, § 1465.8, subd.
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(a)(1)), and $180 in court facilities assessments (Gov. Code,
§ 70373) that the court imposed at sentencing, arguing, “[H]e’s
indigent, and he is incarcerated, and I don’t believe under the
circumstances he can” pay. The court stated that if Hayes could
provide information at a later date showing that he could not pay
the fine and assessments out of prison wages because he was
using prison wages to pay fines and fees in another case, the
court would consider such information. The record before us does
not indicate that Hayes provided evidence to the court regarding
his inability to pay the fine and assessments.
In this appeal, Hayes contends his sentence of 25 years to
life on count 1 is unauthorized because aggravated battery upon
a peace officer by gassing, in violation of section 4501.1, is not a
serious or violent felony, and therefore the court could not impose
a third strike sentence of 25 years to life on this count. Section
667, subdivision (e)(2)(C) provides that where the current offense
is not a serious or violent felony as defined in section 1192.7,
subdivision (c), or section 667.5, subdivision (c), and the
defendant has two or more prior serious or violent felony
convictions that have been pleaded and proven, the defendant
shall be sentenced to twice the term for the current offense. This
rule is subject to certain exceptions that do not apply here.
(§ 667, subd. (e)(2)(C)(i)-(iv)(VIII).) Aggravated battery, the
current offense in count 1, is not listed as a serious felony
(§ 1192.7, subd. (c)) or a violent felony (§ 667.5, subd. (c)).
In the respondent’s brief, the Attorney General points to
section 1192.7, subdivision (c)(12), which defines the crime of
“assault by a life prisoner on a noninmate” as a serious felony.
The Attorney General argues, “Appellant was convicted in count
1 of assault by gassing because he threw a urine-filled container
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at a correctional officer. Appellant is a life prisoner with six prior
strike convictions, and the target of his assault, Lieutenant Lee,
was a noninmate. Accordingly, appellant’s conviction in count 1
qualified as a serious offense under the Three Strikes law and
required an indeterminate third-strike sentence.” (Italics added.)
Pursuant to Government Code section 68081, we requested
the parties file supplemental briefing on several issues we
enumerated, including the following: “Assuming that aggravated
battery by gassing upon a peace officer, if committed by a life
prisoner, constitutes an assault by a life prisoner on a noninmate
[within the meaning of § 1192.7, subd. (c)(12)], in order for the
court to sentence appellant as a third strike offender on the
aggravated battery by gassing count, was the jury required to
make express findings that appellant was a life prisoner and that
he committed an assault?” In the supplemental briefing, the
Attorney General “concedes” that “without a jury finding that
[Hayes] was a life prisoner, this [c]ourt cannot rely on section
1192.7, subdivision (c)(12) as a basis for upholding [Hayes]’s third
strike sentence on count 1. The [Attorney General] therefore
withdraws that argument asserted in the respondent’s brief.”
(See In re Cabrera (2023) 14 Cal.5th 476, 482, 489, 492 [where
the jury found the defendant inflicted serious bodily injury in the
commission of a battery and related offenses, the sentencing
court’s finding that the defendant inflicted great bodily injury for
purposes of finding the defendant’s current convictions were
serious felonies and increasing punishment by five years under
section 667, subd. (a)(1), the court violated the defendant’s “Sixth
Amendment jury trial rights” under Apprendi v. New Jersey
(2000) 530 U.S. 466].) We accept the Attorney General’s
concession of error.
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Alternatively, the Attorney General argues that one of the
exceptions requiring a court to impose an indeterminate life term
when the current offense is not a serious or violent felony applies
here: that the defendant has a prior conviction for assault with a
machinegun on a peace officer or firefighter under section 245,
subdivision (d)(3). (§ 667, subd. (e)(2)(C)(iv)(VI).) The Attorney
General asserts that Hayes sustained a prior conviction for a
violation of section 245, subdivision (d)(3), in case number
MA066467. There is no evidence in the record supporting this
assertion. Hayes’s rap sheet states that he was convicted in case
number MA066467 of, among other offenses, a violation of section
245, subdivision (a)(3), “assault upon the person of another with a
machinegun,” an offense that does not fall within the exception
set forth in section 667, subdivision (e)(2)(C)(iv). The CDCR
employee, who testified at the trial on the prior conviction
allegations, stated that Hayes was convicted of “assault with a
machine gun,” and did not indicate the offense was committed
against a peace officer or firefighter. The jury found to be true
the allegation that Hayes was convicted in case number
MA066467 of a violation of section 243, subdivision (a)(3), not a
violation of section 243, subdivision (d)(3), the offense listed in
the exception.
The Attorney General relies on the following allegation in
the information: “Furthermore, one of the prior serious and/or
violent felony convictions suffered by the defendant, and
enumerated above, was assault with a machine gun on a peace
officer or firefighter, as defined in Penal Code section 245(d)(3),
thus subjecting the defendant to sentencing pursuant to the
provisions of Penal Code sections 667(b)-(j) and 1170.12.” (Italics
added.) However, the relevant prior serious conviction
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“enumerated above” in the information was listed specifically as a
violation of section 243, subdivision (a)(3), not subdivision (d)(3).
There was no evidence placed before the jury that Hayes had a
prior conviction for a violation of section 245, subdivision (d)(3),
and the jury did not find that he did. For the exception to apply,
the prosecution must plead and prove the qualifying prior
conviction. (§ 667, subd. (e)(2)(C).)
Because the court was not authorized to impose a sentence
of 25 years to life on count 1, we vacate Hayes’s sentence and
remand the matter for a full resentencing. (See People v. Buycks
(2018) 5 Cal.5th 857, 893 [“when part of a sentence is stricken on
review, on remand for resentencing ‘a full resentencing as to all
counts is appropriate, so the trial court can exercise its
sentencing discretion in light of the changed circumstances’ ”].)
We need not address Hayes’s contention that the court erred
when it declined to make a finding, upon his request, that he was
unable to pay the restitution fine and court assessments. To the
extent Hayes has evidence of his inability to pay, he may present
it at the new sentencing hearing. (See People v. Kopp (2025) 19
Cal.5th 1, 9, 23-24 [“upon request, a court must consider a
defendant’s inability to pay before imposing a court operations
assessment (Pen. Code, § 1465.8, subd. (a)(1)) or a court facilities
assessment (Gov. Code, § 70373, subd. (a)(1)),” and a defendant
may “contest his inability to pay the amount [of a restitution fine]
exceeding the statutory minimum”].)
DISPOSITION
The sentence is vacated and the matter is remanded for a
full resentencing. Upon resentencing, the superior court is
directed to prepare an amended abstract of judgment and
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forward it to CDCR. In all other respects, the judgment is
affirmed.
NOT TO BE PUBLISHED
M. KIM, J.
We concur:
ROTHSCHILD, P. J.
BENDIX, J.
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