People v. Tribbey-Braggs CA3

Opinion

Filed 9/9/26 P. v. Tribbey-Braggs CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.)

2 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 3 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 4 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, 5 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.