Filed 9/3/26 P. v. Nunez CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
THE PEOPLE, C103521
Plaintiff and Respondent,
(Super. Ct. No. 13F08143)
v.
ABELINO GONZALEZ NUNEZ,
Defendant and Appellant.
This is defendant Abelino Gonzalez Nunez’s second appeal. The trial court
originally sentenced Nunez to seven years to life plus 24 years eight months after a jury
found him guilty of attempted first degree murder (Pen. Code, §§ 664, 187)1 with a
firearm enhancement (§ 12022.53) and eight other charges, one of which included a
second firearm enhancement (§ 12022.5). In his first appeal, a different panel of this
court remanded for the trial court to consider exercising its discretion under the 2018
amendments to sections 12022.53 and 12022.5 to strike the firearm enhancements and to
correct the sentence on an omitted count. On remand, the court declined to exercise its
discretion to strike the firearm enhancements and failed to correct the sentence.
1 Undesignated statutory references are to the Penal Code.
1
In 2025, the trial court resentenced Nunez under section 1172.75 to seven years to
life plus 13 years eight months. In this second appeal, appointed counsel for Nunez
asked this court to review the record and determine whether there are any arguable issues
on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Our review of the record revealed
that the trial court failed to pronounce sentences on four counts before staying them under
section 654 and failed to impose the required fine on a fifth count, resulting in an
unauthorized sentence. The court also erred in reimposing several fees for the reasons
discussed below.
After ordering and considering supplemental briefing from the parties, we will
modify the judgment to vacate the erroneous fees. We also order a limited remand for
the trial court to pronounce sentences on the omitted counts before staying the sentences
as required to implement section 654, and to impose the required fine on the other count.
The modified judgment is otherwise affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
The facts of the underlying offenses are set forth in the unpublished opinion from
Nunez’s direct appeal, which we summarize here to provide context. (People v. Nunez
(Apr. 10, 2018, C083682) [nonpub. opn.] (Nunez).)2 In December 2013, Nunez, who had
been drinking steadily throughout the night at a nightclub, started arguing “with another
person [who] was drinking at the bar.” Nunez was escorted from the premises. The
security guard who escorted Nunez from the nightclub told the outside security guards
not to “let him back in the club. He’s too drunk.” (Ibid.)
2 The unpublished opinion in Nunez’s prior direct appeal is part of the appellate record
in this appeal. (Nunez, supra, C083682.) We cite to the opinion to summarize the
background facts of the case and do not rely on the facts set forth in the opinion to
resolve the issues raised in this appeal.
2
About 30 minutes later, Nunez drove up to the front of the nightclub in a red or
burgundy four-door Toyota. (Nunez, supra, C083682.) He motioned for one of the
security guards to come closer. Moving a few feet closer to Nunez’s car, the security
guard told Nunez to go home because he was “drunk.” As the security guard backed
away, Nunez picked up a gun from the passenger seat, pointed it at the security guard,
and fired. Nunez fired two more shots. (Ibid.)
At about the same time, two officers from the Sacramento Police Department,
driving separate patrol cars, heard two or three loud gunshots coming from the nightclub.
(Nunez, supra, C083682.) They saw multiple vehicles leaving the parking lot, including
Nunez’s red Toyota. As the officers drove toward the nightclub, a man flagged one of
them down, frantically waving at the officer. He pointed at Nunez’s car, which was still
at the light and said, “ ‘That’s him. That’s the guy.’ ” As the officers turned in the
direction of his car, Nunez sped off through the red light, down the street. (Ibid.) During
the pursuit, Nunez “drove on the wrong side of the road and drove toward oncoming
traffic with no lights on, eventually crashing his vehicle into a truck.” Nunez ran from
his car. The officers chased him, eventually catching and detaining him. At a field
showup the same night, the security guards identified Nunez as the shooter. (Ibid.) After
his arrest, Nunez offered a police officer money to let him go.
A jury found Nunez guilty of nine offenses and found two firearm enhancements
true: (1) attempted premeditated murder (§§ 664, 187; count one), with a personal use
and personal discharge of a firearm enhancement (§ 12022.53, subds. (b), (c)); (2) assault
with a semiautomatic firearm (§ 245, subd. (b); count two), with a personal use of a
firearm enhancement (§ 12022.5, subds. (a), (d)); (3) willful vehicular evasion of an
officer while driving in the wrong direction (Veh. Code, §§ 2800.1, 2800.4; count three);
(4) willful vehicular evasion of an officer while driving recklessly (Veh. Code,
§§ 2800.1, 2800.2; count four); (5) fleeing the scene of an accident with property damage
(Veh. Code, § 20002, subd. (a); count five); (6) driving while under the influence (Veh.
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Code, § 23152, subd. (a); count six); (7) driving with a blood-alcohol concentration of
0.15 percent (Veh. Code, §§ 23152, subd. (b), 23578; count seven); (8) bribing an
executive officer (§ 67; count eight); and (9) felon in possession of a firearm (§ 29800,
subd. (a)(1); count nine). The jury also found true the allegation that Nunez had served a
prison term for a prior felony conviction. (Former § 667.5, subd. (b).)
The trial court sentenced Nunez to an aggregate sentence of seven years to life,
plus a consecutive determinate term of 24 years eight months. (Nunez, supra, C083682.)
In sentencing Nunez, the court stayed count two, assault with a semiautomatic firearm;
count four, evading a peace officer; count seven, driving with a blood-alcohol
concentration of 0.15 percent; and count nine, felon in possession of a firearm, under
section 654 without orally pronouncing sentences for any of those counts. The court
imposed no “additional time for incarceration” for count six, driving under the influence.
Nunez’s sentence also included a one-year enhancement for a prior prison term and a 20-
year firearm enhancement as to count one. The court imposed the mandatory minimum
restitution fine of $300, along with a parole revocation fine in the same amount. The
court also imposed a $360 court operations fee (§ 1465.8, subd. (a)(1)), a $270 court
facilities fee3 (Gov. Code, § 70373), a $67.03 main jail classification fee (former Gov.
Code, § 29550.2), and a $367.81 main jail booking fee (former Gov. Code, § 29550.2).
Nunez timely appealed. (Nunez, supra, C083682.)
In Nunez’s first appeal, a different panel of this court remanded for the trial court
to exercise its discretion to strike the firearm enhancements. (Nunez, supra, C083682.)
In a footnote, the opinion also instructed the trial court to impose a sentence on Nunez’s
assault conviction and the firearm enhancement, something the court neglected to do
before staying execution of the sentence. (Ibid.) On remand, the trial court declined to
3 The court facilities fee is also referred to as the “criminal conviction assessment.”
(People v. Castillo (2010) 182 Cal.App.4th 1410, 1414.)
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exercise its discretion to strike the enhancements and did not impose a sentence on the
assault conviction.
In February 2024, the trial court received a list from the Department of
Corrections and Rehabilitation identifying individuals eligible for resentencing under
section 1172.75, which included Nunez. The court appointed counsel for Nunez and
requested briefing from the parties.
At the section 1172.75 resentencing hearing, the trial court struck the prior prison
term enhancement and reduced the firearm enhancement from 20 years to 10 years, for an
aggregate sentence of seven years to life plus 13 years eight months. It also reimposed
the same fines and fees from the original sentencing, including a $360 court operations
fee (§ 1465.8, subd. (a)(1)), a $270 court facilities fee (Gov. Code, § 70373), a $367.81
main jail booking fee (former Gov. Code, § 29550.2), and a $67.03 main jail
classification fee (former Gov. Code, § 29550.2), and stayed the fees based on Nunez’s
lack of ability to pay. As it did at the original sentencing, the court stayed the sentences
on counts two, four, seven, and nine, without orally pronouncing sentences on any of
those counts. The court also stated that it would impose no additional time on count six.
Nunez timely appealed.
DISCUSSION
Appointed counsel filed an opening brief setting forth the facts of the case and
asking this court to review the record and determine whether there are any arguable
issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Counsel advised Nunez of
the right to file a supplemental brief within 30 days of the date of filing the opening brief.
More than 30 days elapsed, and we received no communication from Nunez.
Our review of the record found several errors: (1) the trial court’s failure to orally
pronounce sentences on counts two (and its associated enhancement), four, seven, and
nine; (2) the trial court’s failure to select a fine as part of the sentence on count six; (3)
the court’s imposition of the $67.03 main jail classification fee (former Gov. Code,
5
§ 29550.2) and a $367.81 main jail booking fee (former Gov. Code, § 29550.2), both of
which were unenforceable and uncollectible when the court reimposed them; and (4) the
court’s imposition and stay of the $360 court operations fee (§ 1465.8) and the $270 court
facilities fee (Gov. Code, § 70373) despite its implied finding that Nunez lacked the
ability to pay them.
I
The Failure to Impose Sentence
We ordered the parties to file supplemental briefing addressing whether remand
was required in light of the (1) trial court’s failure to pronounce sentences on counts two,
four, seven, and nine; (2) whether the trial court’s failure to pronounce sentences on the
four counts identified resulted in an unauthorized sentence; and (3) if remand is required,
is resentencing limited to the sentencing errors for the four counts identified or is a full
resentencing necessary.
In their supplemental briefs the parties agree that the trial court’s failure to
pronounce sentences on those four counts resulted in an unauthorized sentence. The
parties’ arguments differ in that Nunez contends this court can correct the error on appeal
under section 1260 without remanding, whereas the People contend the matter “must be
remanded to the trial court” for a full resentencing. The People also contend that the trial
court erred by not imposing “any punishment on count [six],” and that remand is also
required for the court to impose a sentence and fine on that count.
When a trial court determines that section 654 applies, the court “must impose
sentence on every count but stay execution as necessary to implement section 654.”
(People v. Alford (2010) 180 Cal.App.4th 1463, 1472 (Alford).) This procedure also
applies “when one of the sentences pertains to a misdemeanor conviction.” (People v.
Mani (2022) 74 Cal.App.5th 343, 380.) The court’s failure to impose a sentence or its
decision to stay imposition of a sentence on a conviction subject to section 654 results in
an unauthorized sentence. (Alford, at p. 1472.)
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We agree with the parties that the trial court’s failure to impose sentences on count
two and its associated firearm enhancement, count four, count seven, and count nine
resulted in an unauthorized sentence. (Alford, supra, 180 Cal.App.4th at p. 1472.) As for
count six, the court stated that it was imposing “no additional time” on that count. We
construe the court’s reference to “no additional time” to mean no time in addition to the
time Nunez had already served. (See Evid. Code, § 664.)4 But even construing the
court’s statement as a sentence of time served, as the People point out, the statute also
required the court to impose “a fine of not less than three hundred ninety dollars ($390),
nor more than one thousand dollars ($1,000)” in addition to a term in custody. (Veh.
Code, § 23536, subd. (a).) The court’s failure to impose a fine on count six, therefore,
resulted in an unauthorized sentence as well. (Veh. Code, §§ 23536, subd. (a), 23600;
see People v. Anderson (2020) 9 Cal.5th 946, 962 [defining an unauthorized sentence as
one that cannot lawfully be imposed under any circumstances in a particular case].)
Having concluded that the trial court’s failure to impose sentences and to impose a
fine resulted in an unauthorized sentence, we also conclude that remand is required to
correct the errors. We have exercised our authority under section 1260 to modify
judgments in sentencing matters where remand would be futile or unnecessary because
the record “clearly indicated” how the trial court would exercise its sentencing discretion.
(People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896; Alford, supra, 180 Cal.App.4th
at p. 1473.) Here, the trial court did not impose sentences on counts two, four, seven, and
nine or the firearm enhancement associated with count two, or impose a fine on count six,
either at the original sentencing or at the section 1172.75 resentencing. Given the range
4 When Nunez was originally sentenced, he had 1,090 days of actual custody credit plus
163 days of conduct credit, for a total of 1,253 days. Therefore, at sentencing, his time in
custody had already exceeded the maximum six-month sentence for count six. (Veh.
Code, § 23536.)
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of sentencing options for the omitted counts and enhancement and the permissible range
of the fine on count six, the record does not clearly indicate what sentences or fine the
court would have imposed. Accordingly, remand is required. (People v. Gutierrez,
supra, 48 Cal.App.4th at p. 1896.)
The People contend that remand for a full resentencing is required because the
“invalidity of one component [of a sentence] infects the entire scheme,” and remanding
for a full resentencing “provide[s] the trial court with the opportunity to ‘rethink the
entire sentence to achieve its original and presumably unchanged goal.’ ” With this
point, we disagree.
Section 1260 grants appellate courts the authority to order limited remands for
further proceedings that may be appropriate under the circumstances. (People v. Wilson
(2024) 16 Cal.5th 874, 948-949.) In resentencing Nunez in 2025, the trial court
considered the relevant factors in formulating a sentence it deemed appropriate based on
his culpability, criminal history, and his risk of future dangerousness. The two limited
tasks on remand—imposing and staying sentences on the omitted counts that the court
had already indicated it intended to stay and imposing a fine on count six—will not alter
the overall sentencing scheme the trial court deemed appropriate such that resentencing
on all nine counts would be required. (See People v. Stevens (1988) 205 Cal.App.3d
1452, 1456 [“Correcting a sentencing error by excising only the flawed component of the
sentence from the aggregate term may be appropriate in some contexts where the
interests of justice and judicial economy do not require a restructuring of the entire
sentencing format .…”].) For these reasons, we order a limited remand.
II
The Fees
The trial court also erred in reimposing and staying several fees. First, after
making an implied finding that Nunez lacked the ability to pay, the court reimposed and
stayed the $360 court operations fee (§ 1465.8, subd. (a)(1)) and the $270 court facilities
8
fee (Gov. Code, § 70373). In People v. Kopp (2025) 19 Cal.5th 1 (Kopp), our Supreme
Court held that, “equal protection principles require a court, upon request, to consider a
defendant’s inability to pay before imposing a court operations assessment under Penal
Code section 1465.8, subdivision (a)(1) or a court facilities assessment under
Government Code section 70373, subdivision (a)(1).” (Id. at p. 30.) Neither of the
applicable statutes nor Kopp allows a trial court to impose then stay the court operations
fee or the court facilities fee after it finds a defendant indigent. Once it found Nunez
lacked the ability to pay, the court’s option was to not impose the fees. (Id. at pp. 30-31.)
Therefore, even though the trial court did not have the benefit of the decision in
Kopp at the time it reimposed the court operations fee and the court facilities fee, its order
reimposing these fees after finding Nunez lacked the ability to pay them violated his right
to equal protection. (Kopp, supra, 19 Cal.5th at pp. 30-31.) Accordingly, we vacate both
fees.
The trial court also erred in reimposing the $67.03 main jail classification fee and
the $367.81 main jail booking fee under former Government Code section 29550.2,
which the Legislature repealed. (Stats. 2020, ch. 92, § 25.) After July 1, 2021, the
unpaid balance of court imposed fees under several statutes, including former
Government Code section 29550.2, became “unenforceable and uncollectible.” (Gov.
Code, § 6111, subd. (a).) Any portion of a judgment imposing those costs must be
vacated. (Ibid.) Therefore, we vacate the $67.03 jail classification fee and the $367.81
jail booking fee the trial court reimposed under former Government Code section
29550.2.
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DISPOSITION
We modify the judgment to vacate the $360 court operations fee (§ 1465.8, subd.
(a)(1)), the $270 court facilities fee (Gov. Code, § 70373), the $67.03 jail classification
fee (former Gov. Code, § 29550.2), and the $367.81 jail booking fee (former Gov. Code,
§ 29550.2). We order a limited remand for the trial court to pronounce sentences on
count two and its associated firearm enhancement, count four, count seven, and count
nine, and to stay the necessary sentences under section 654. The court shall also impose
the fine on count six as required by Vehicle Code section 23536, subdivision (a). In all
other respects, the judgment is affirmed. The trial court is directed to prepare an
amended abstract of judgment reflecting these modifications and the proceedings on
remand and to forward a certified copy to the Department of Corrections and
Rehabilitation.
/s/
BOULWARE EURIE, J.
We concur:
/s/
HULL, Acting P. J.
/s/
ROBIE, J.
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