Filed 9/9/26 P. v. Tribbey-Braggs 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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 , C104247
Plaintiff and Respondent,
(Super. Ct. No. 22FE001457)
v.
JAMIL AQUAN TRIBBEY-BRAGGS,
Defendant and Appellant.
In 2023, a jury found defendant Jamil Aquan Tribbey-Braggs guilty of sexual
penetration by force, assault with intent to commit rape and/or unlawful sexual
penetration, and possession of a firearm by a prohibited person. The trial court sentenced
defendant to 12 years eight months in prison. This court reversed the sentence and
remanded the matter to permit the trial court to exercise its discretion to impose full
consecutive or concurrent sentences under Penal Code section 667.6, subdivision (c). 1
(People v. Tribbey-Braggs (Oct. 28, 2024, C098974) [nonpub. opn.] (Tribbey-Braggs).)
On remand, the trial court resentenced defendant to the same aggregate term of 12 years
eight months in prison, however it imposed but stayed a court facilities assessment and
court operations assessment based on defendant’s inability to pay.
1 Undesignated statutory references are to the Penal Code.
1
On appeal from the judgment following resentencing, appointed counsel 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 (Wende).) Defendant filed a supplemental brief
arguing (1) there is insufficient evidence to support the trial court finding that he intended
to rape the victim, and (2) his trial counsel was ineffective in failing to call a retained
drug expert.
Regarding defendant’s first contention, this court already considered the issue and
reached a contrary conclusion in his prior appeal, and he may not relitigate the issue in
this appeal. As for his second contention, it is forfeited because he did not assert it in his
first appeal.
With regard to his request for Wende review, even if the analysis in People v.
Delgadillo (2022) 14 Cal.5th 216 applies in this context because this is not his first
appeal as of right, we have nevertheless exercised our discretion to independently review
the record. Based on that review, we will modify the judgment to strike the imposed but
stayed court facilities assessment and court operations assessment, and affirm the
judgment as modified.
I
After seeing the victim sleeping in the front passenger seat of a car parked near a
Goodwill store, defendant entered the car, hit the victim, and inserted his finger in her
vagina. Defendant left the car but returned minutes later, hit the victim again, and placed
his mouth on her exposed breast. At one point defendant held scissors to the victim’s
throat. Defendant retreated from the car but returned a third time with his hand in his
sweatshirt pocket. Defendant said he had a gun and threatened to shoot the victim if she
did not “let him do it.” When defendant left again, the victim called 911 and reported
that someone had just tried to rape her. Defendant returned to the car a fourth time but
the victim yelled at him and he ran away. When deputies arrested defendant, he was
carrying a handgun. (Tribbey-Braggs, supra, C098974.)
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A jury found defendant guilty of sexual penetration by force (§ 289,
subd. (a)(1) - count one), assault with intent to commit rape and/or unlawful sexual
penetration (§ 220 - count two), and possession of a firearm by a prohibited person
(§ 29800, subd. (a)(1) - count three). The trial court sentenced defendant to an aggregate
term of 12 years eight months in prison based on its understanding that section 667.6,
subdivision (c) required “full consecutive” sentences for the sexual offenses. It imposed
the upper term of eight years for the forcible sexual penetration; a consecutive middle
term of four years for the assault; and eight months (one third the midterm) for the
firearm possession. The trial court awarded defendant 596 days of presentence credit
(518 actual and 78 conduct) (§ 2933.1) and it imposed a $300 restitution fine (§ 1202.4)
and a $300 parole revocation fine (§ 1202.45). It also indicated that it was imposing a
court facilities assessment (Gov. Code, § 70373) and a court operations assessment
(§ 1465.8), but it did not orally specify amounts for the assessments. The probation
report had recommended a $90 court facilities assessment ($30 per conviction) and a
$120 court operations assessment ($40 per conviction), and the abstract of judgment
identified a $120 court facilities assessment and a $160 court operations assessment.
Defendant appealed, and this court reversed his sentence and remanded the matter
to permit the trial court to exercise its discretion to impose full consecutive or concurrent
sentences under section 667.6, subdivision (c).
At the resentencing hearing, defendant asked the trial court to exercise its
discretion under section 667.6, subdivision (c) to impose a middle term for the count one
forcible sexual penetration conviction, and concurrent terms on the remaining counts
based on his minimal criminal record; his education, training and programming; his
family support; his potential for employment upon release; and his childhood trauma.
The People countered that the trial court should reimpose the 12-year eight-month
sentence. The People recounted the circumstances of the attack and noted that defendant
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had three rule violations while incarcerated, including two for sexual contact during
visits.
The trial court reimposed the original sentence of 12 years eight months in prison,
consisting of the upper term of eight years on the count one sexual penetration
conviction, a consecutive middle term of four years on the count two assault conviction,
and a consecutive eight months (one third the middle term) on the count three firearm
possession conviction. The trial court imposed count two consecutive to count one,
finding that the crimes were committed against the same victim on separate occasions,
explaining that even though the entire encounter lasted 10 minutes, defendant left the car
and came back multiple times and had the opportunity to reflect on his actions before
choosing to continue his criminal activity.
The trial court indicated that it would reimpose the fines and assessments.
When defense counsel asked the trial court to stay the fines and assessments based on
defendant’s inability to pay, the trial court purported to impose but stay the assessments
but not the fines. It awarded defendant an additional 702 days of actual credit from the
time of his original sentencing to the date of resentencing. The abstract of judgment filed
after resentencing lists the same fines and assessments as the prior abstract of judgment.
II
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. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of
the right to file a supplemental brief within 30 days of the date of filing the opening brief.
Defendant filed a supplemental brief arguing (1) there is insufficient evidence to support
the trial court finding that he intended to rape the victim, and (2) his trial counsel was
ineffective in failing to call a retained drug expert.
Regarding defendant’s first contention, this court already considered the issue and
reached a contrary conclusion in Tribbey-Braggs, supra, C098974, specifically
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concluding that defendant’s “conduct and words [were] sufficient to support a finding
that he intended to rape the victim.” Defendant may not relitigate the issue in the present
appeal. (See People v. Gray (2005) 37 Cal. 4th 168, 196; People v. Webb (1986)
186 Cal.App.3d 401, 410.)
Defendant’s second contention is forfeited because he did not assert it in his first
appeal. (People v. Senior (1995) 33 Cal.App.4th 531, 538 [where a criminal defendant
could have raised an issue in a prior appeal, the appellate court need not entertain the
issue in a subsequent appeal absent a showing of justification for the delay].) In any
event, defendant does not identify the drug expert or explain what evidence or
information such a witness might have provided that would have resulted in a more
favorable outcome. (People v. Ledesma (1987) 43 Cal.3d 171, 216-218 [to establish
ineffective assistance of counsel, a defendant must show by a preponderance of the
evidence that his counsel’s representation fell below the standard of a competent
advocate and a reasonable probability exists that, but for counsel’s errors, the result
would have been different].)
In any event, we have independently reviewed the record, and based on that
review, we have determined that the trial court should not have stayed the court facilities
assessment (Gov. Code, § 70373) and a court operations assessment (§ 1465.8) based on
defendant’s inability to pay. Government Code section 70373, subdivision (a)(1)
provides that to ensure and maintain adequate funding for court facilities, an assessment
shall be imposed in the amount of $30 for each misdemeanor or felony conviction.
Section 1465.8, subdivision (a)(1) states that to assist in funding court operations, an
assessment of $40 shall be imposed on every conviction for a criminal offense except
parking offenses.
In People v. Kopp (2025) 19 Cal.5th 1, the California Supreme Court held that
if a defendant requests such consideration, a trial court must consider the defendant’s
inability to pay before imposing a court operations assessment under section 1465.8,
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subdivision (a)(1), or a court facilities assessment under Government Code
section 70373, subdivision (a)(1). (Kopp, at p. 30.) Here, however, the trial court at
resentencing purported to impose but stay the assessments based on inability to pay,
rather than waive them. Because there appears to be no basis to justify denying criminal
defendants a waiver of certain ancillary costs when civil litigants may receive such
a waiver (see Kopp, at p. 30), we will modify the judgment to strike the imposed but
stayed court facilities assessment and court operations assessment.
Finding no arguable error that would result in a disposition more favorable
to defendant, we will affirm the judgment as modified.
DISPOSITION
The judgment is modified to strike the imposed but stayed court facilities
assessment (Gov. Code, § 70373, subd. (a)(1)) and court operations assessment
(§ 1465.8, subd. (a)(1)). The judgment is affirmed as modified. The trial court shall
prepare an amended abstract of judgment reflecting the judgment as modified and
forward a copy to the Department of Corrections and Rehabilitation.
/S/
MAURO, J.
We concur:
/S/
HULL, Acting P. J.
/S/
ROBIE, J.
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