People v. Whicker CA2/5 ( 2021 )


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  • Filed 9/17/21 P. v. Whicker CA2/5
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
    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    has not been certified for publication or ordered published for purposes of rule 8.1115.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
    SECOND APPELLATE DISTRICT
    DIVISION FIVE
    THE PEOPLE,                                                 B307526
    Plaintiff and Respondent,                         (Los Angeles County
    Super. Ct. No. MA058071)
    v.
    STACEY JEROME WHICKER,
    Defendant and Appellant.
    APPEAL from a judgment of the Superior Court of Los
    Angeles County, Daviann L. Mitchell, Judge. Modified and
    affirmed.
    Thomas Owen, under appointment by the Court of Appeal,
    for Defendant and Appellant.
    Xavier Becerra, Attorney General, Lance E. Winters, Chief
    Assistant Attorney General, Susan Sullivan Pithey, Assistant
    Attorney General, Steven D. Matthews and Gary A. Lieberman,
    Deputy Attorneys General, for Plaintiff and Respondent.
    ____________________________
    In 2014, the trial court sentenced defendant and appellant
    Stacey Jerome Whicker to a lengthy prison term. In 2020, the
    court was advised that the sentence was unauthorized and
    accordingly resentenced defendant. Defendant timely appeals,
    arguing that in resentencing defendant, the trial court erred in
    not striking his prior prison term enhancement (Pen. Code,
    § 667.5, subd. (b)) due to an intervening change in the law.1 The
    Attorney General agrees that the new law applies to nonfinal
    convictions, but argues the resentencing did not render the
    previously final judgment nonfinal. We conclude that the
    resentencing reopened the finality of the judgment and defendant
    is therefore entitled to the benefit of the new law. We also
    observe the resentencing itself was erroneous in one respect and
    must be corrected. We modify the sentence to correct these errors
    and otherwise affirm.
    FACTUAL AND PROCEDURAL BACKGROUND
    As this appeal involves only sentencing issues, we omit any
    discussion of the facts of defendant’s crimes.
    In 2013, an information charged defendant with seven
    counts, all committed on December 1, 2012. Also alleged were a
    number of enhancement allegations, including two prior prison
    term enhancements. In 2014, he was convicted as charged and
    admitted the prior prison terms.2
    1       All undesignated statutory references are to the Penal
    Code.
    2     On defendant’s motion, we have taken judicial notice of the
    opinion in defendant’s prior appeal. (People v. Whicker (Aug. 7,
    2015, B255716) [nonpub. opn.].)
    2
    On April 16, 2014, the court sentenced defendant. In 2015,
    a prior panel of this division ordered his sentence modified.
    (People v. Whicker, supra, B255716.) The sentence, as modified,
    was as follows: A base term of 25 years to life (as a third strike
    sentence) for one count of assault with a firearm (Pen. Code,
    §§ 245, subd. (a)(2), 1170.12), enhanced with 10 years for use of a
    firearm (Pen. Code, § 12022.5, subd. (a)), 5 years for a prior
    serious felony (Pen. Code, § 667, subd. (a)), and 1 year for a prior
    prison term3 (Pen. Code, § 667.5, subd. (b)), resulting in a term of
    25 to life, plus 16 years on that count. For a second count of
    assault with a firearm, the court imposed a consecutive term of
    25 years to life plus 15 years (identical to count one, with the
    exception of the prior prison term enhancement); for felon in
    possession of a firearm (Pen. Code, § 29800, subd. (a)(1)),
    defendant was sentenced to 16 months (1/3 the midterm
    doubled); for possession for sale of cocaine (Health & Saf. Code,
    § 11351), defendant was sentenced to 2 years (1/3 the midterm
    doubled); and for possession for sale of cocaine base (Health &
    Saf. Code, § 11351.5) defendant was sentenced to 2 years (1/3 the
    midterm doubled). Sentences on two counts were stayed (Pen.
    Code, § 654). The total sentence was 50 years to life plus 36
    years and 4 months.
    Several years later, on June 15, 2020, the Department of
    Corrections and Rehabilitation wrote the trial court, pointing out
    what it believed to be two additional errors in defendant’s
    sentence. First, as to possession for sale of cocaine base, the trial
    court had used the sentencing triad which became effective in
    3     Although defendant had admitted two prior prison terms,
    the court imposed only a single enhancement.
    3
    2015 (2, 3, or 4 years); the triad effective when the crime was
    committed in 2012 was 3, 4, or 5 years.4 Second, the trial court
    had sentenced all determinate terms consecutively at one-third
    the midterm; the court had failed to designate one of the
    determinate terms as the principal term and impose either fully
    consecutive or fully concurrent sentences. (See Cal. Rules of
    Court, rule 4.451(a).)
    Upon receiving the letter, the court set the matter for
    “correction of the sentence.” On September 3, 2020, a hearing
    was held, with defendant, his counsel, and the district attorney
    present. The court changed defendant’s sentence, nunc pro tunc
    to the initial date of sentencing. The trial court repeatedly used
    the word “resentence” to describe the action it was taking. The
    court restated the indeterminate terms – including the one-year
    prior prison term enhancement – and modified the determinate
    term. Consistent with the Department’s letter, the court selected
    possession for sale of cocaine base as the principal determinate
    term, imposing the full middle term of 4 years (under the statute
    effective in 2012), doubled to 8 years, with the other two
    determinate terms (2 years and 16 months) remaining as before.
    4     When defendant was originally sentenced in 2014, the trial
    court apparently used the triad which would not become effective
    until 2015. While this may have been premature at the time of
    the 2014 sentencing, defendant’s case was on appeal when the
    new law went into effect, and he was therefore entitled to its
    benefit, as we discuss below. By the time the Department of
    Corrections raised the issue in 2020, the fact that the trial court
    had used the 2015 triad was not error. Neither the trial court,
    nor the parties, recognized the Department of Corrections was
    leading them astray.
    4
    Defendant’s final sentence consisted of 50 years to life plus 42
    years 4 months in prison.
    Defendant filed a timely notice of appeal.
    DISCUSSION
    1.     The Prior Prison Term Enhancement Was Improper
    The sole issue raised by defendant on appeal is whether his
    sentence was lawfully enhanced by the one-year prior prison
    term. Effective January 1, 2020, Senate Bill No. 136 (Stats.
    2019, ch. 590, § 1) amended section 667.5, subdivision (b) to
    eliminate the one-year enhancement for prison priors for
    nonsexually violent prior offenses. (People v. Shaw (2020)
    
    56 Cal.App.5th 582
    , 588.) It is undisputed that defendant’s prior
    prison terms were for nonsexually violent offenses. It is also
    undisputed that Senate Bill No. 136 applies retroactively to
    nonfinal judgments, under In re Estrada (1965) 
    63 Cal.2d 740
    ,
    745. (Shaw, at p. 588; see People v. Esquivel (2021) 
    11 Cal.5th 671
    , ___, fn. 1 [
    2021 WL 2461206
    , *1, fn. 1].)
    “When new legislation reduces the punishment for an
    offense, we presume that the legislation applies to all cases not
    yet final as of the legislation’s effective date.” (People v. Esquivel,
    supra, 11 Cal.5th at p. ___ [
    2021 WL 2461206
    , *1].) However,
    finality “is not a binary concept and judgments can be final for
    some purposes but not others.” (People v. Lopez (2020)
    
    56 Cal.App.5th 835
    , 847, review granted Jan. 27, 2021, S265936.)
    “A judgment becomes final when the availability of an appeal and
    the time for filing a petition for certiorari with the United States
    Supreme Court have expired. [Citation.]” (People v. Buycks
    (2018) 
    5 Cal.5th 857
    , 876, fn. 5.) Here, defendant’s judgment
    initially became final long before the 2020 resentencing. The
    issue is whether the resentencing on September 3, 2020, had the
    5
    effect of rendering his judgment nonfinal for the purposes of
    retroactivity.
    Defendant was resentenced in 2020 because his initial
    sentence was illegal. (See People v. Reyes (1989) 
    212 Cal.App.3d 852
    , 857 [an illegal sentence may be corrected at any time].) In
    determining whether defendant’s new sentence results in a new
    finality date, we look to resentencing cases under section 1170,
    subdivision (d)(1). That subdivision, which permits the trial
    court to recall and resentence the defendant on its own motion
    within 120 days of commitment, or at any time upon the
    recommendation of correctional officials, is analogous.5 This
    court has previously held that recall and resentencing under
    section 1170, subdivision (d)(1) renders the sentence nonfinal for
    the purposes of retroactivity. (People v. Hwang (2021)
    
    60 Cal.App.5th 358
    , 366, review granted Apr. 14, 2021, S267274
    [resentencing permitted defendant to be eligible for Proposition
    5      Section 1170, subdivision (d)(1) provides, in pertinent part,
    “When a defendant subject to this section or subdivision (b) of
    Section 1168 has been sentenced to be imprisoned in the state
    prison or a county jail pursuant to subdivision (h) and has been
    committed to the custody of the secretary or the county
    correctional administrator, the court may, within 120 days of the
    date of commitment on its own motion, or at any time upon the
    recommendation of the secretary or the Board of Parole Hearings
    in the case of state prison inmates, the county correctional
    administrator in the case of county jail inmates, or the district
    attorney of the county in which the defendant was sentenced,
    recall the sentence and commitment previously ordered and
    resentence the defendant in the same manner as if they had not
    previously been sentenced, provided the new sentence, if any, is
    no greater than the initial sentence.”
    6
    36 juvenile adjudication]; see also People v. Lopez, supra,
    56 Cal.App.5th at p. 845. Contra People v. Federico (2020)
    
    50 Cal.App.5th 318
    , 326-327, review granted Aug. 26, 2020,
    S263082.) “Because a resentencing under section 1170,
    subdivision (d)(1) replaces the original sentence, the original
    sentence is no longer operative, and the finality of the original
    sentence is no longer material. The only sentence that matters
    after resentencing under section 1170, subdivision (d)(1) is the
    new sentence, which is not final because a resentenced defendant
    can still obtain review from the California Supreme Court or the
    United States Supreme Court.” (Lopez, at p. 845.)
    Although defendant was resentenced because his original
    sentence was illegal, and not under the permissive section 1170,
    subdivision (d)(1), that distinction is immaterial.6 Defendant’s
    new sentence replaced his original, illegal sentence, and the
    previous “finality” of the original sentence became immaterial.
    (See also People v. Walker (2021) 
    67 Cal.App.5th 198
     [when a
    court is conducting a resentencing on remand, it is required to
    correct a different part of the sentence that has become incorrect
    by the time of resentencing]; People v. Hill (1986) 
    185 Cal.App.3d 6
        In its respondent’s brief, the Attorney General pointed out
    that defendant “was not resentenced under section 1170,
    subdivision (d)(1), but pursuant to the ‘well-settled rule of law
    that an illegal sentence may be corrected at any time, even if the
    new sentence is more severe than the original sentence.’
    [Citation.]” However, the prosecution makes no argument as to
    why we should treat resentencing for illegality any differently for
    purposes of retroactivity. Instead, the prosecution simply relies
    on People v. Federico, supra, 
    50 Cal.App.5th 318
    , the case which
    this division refused to follow in People v. Hwang, supra,
    60 Cal.App.5th at page 543.
    7
    831, 834, 836 [when the trial court resentences the defendant due
    to an illegal sentence, the court may reconsider all sentencing
    choices; the original illegal sentence is void and the court may
    rethink the entire sentence].) The only sentence that matters
    after resentencing for illegality is the new sentence, which is not
    final because the resentenced defendant may still obtain
    appellate review.7
    7      We are also guided by our Supreme Court’s recent opinion
    in People v. Esquivel, supra, 
    11 Cal.5th 671
     [
    2021 WL 2461206
    ].
    The high court had previously held that, where a defendant is
    placed on probation with imposition of sentence suspended, the
    sentence is not yet final if the defendant may still obtain direct
    review of an order revoking probation and imposing sentence.
    (People v. McKenzie (2020) 
    9 Cal.5th 40
    , 46.) In Esquivel, it held
    that the same rule applies if the defendant is place on probation
    with the prison sentence imposed but execution suspended.
    (Esquivel, at p. ___ [
    2021 WL 2461206
    , at *1].) In considering the
    presumed legislative intent of Senate Bill 136, the court stated,
    “We see no persuasive reason to presume that the Legislature
    would wish to extend the benefit of ameliorative legislation to
    suspended-imposition defendants whose probation is revoked (per
    McKenzie), but not to suspended-execution defendants whose
    probation is revoked. Accordingly, we conclude that legislation
    ameliorating punishment presumptively applies to suspended
    execution cases pending on appeal from an order causing a
    previously imposed sentence to take effect.” (Id. at p. ___ [
    2021 WL 2461206
     at p. *6].) The present sentencing does not involve
    either type of probationary sentence discussed in Esquivel.
    Nevertheless, we see no reason why the Legislature would “wish
    to extend the benefit” of Senate Bill No. 136 to defendants who
    are resentenced under section 1170, subdivision (d)(1), but not to
    defendants who are resentenced following a late-discovered
    illegal sentence.
    8
    Defendant’s resentencing reopened the issue of finality and
    rendered him eligible for relief under Senate Bill No. 136. We
    modify defendant’s sentence accordingly.
    2.     The Term for Possession for Sale of Cocaine Base Was
    Erroneous
    We asked the parties for further briefing on whether the
    term imposed for possession for sale of cocaine base (Health &
    Saf. Code, § 11351.5) on resentencing was erroneous. In 2012,
    when defendant committed the offense the sentencing triad was
    3, 4 or 5 years. The statute was amended effective 2015,
    reducing the triad to 2, 3, or 4 years. (Stats. 2014, ch. 749, § 3.)
    When the amendment went into effect in 2015, defendant’s case
    was pending on appeal. He was therefore entitled to the benefit
    of the statutory reduction in punishment. (See People v. Keith
    (2015) 
    235 Cal.App.4th 983
    , 985.) Both parties agree the
    sentence should be recalculated.
    To recap, in 2020, when the court corrected the sentence to
    impose a principal determinate term of the middle term on this
    offense doubled, the sentence should have been three years,
    doubled to six; not four years, doubled to eight. We make the
    necessary modification in our Disposition.
    DISPOSITION
    The judgment is modified as follows: (1) as to count 7,
    possession of cocaine base, defendant’s sentence is modified from
    8 years (4 years doubled) to 6 years (3 years doubled); and (2) as
    to count 1, assault with a firearm, the one-year prior prison term
    under section 667.5, subdivision (b) is stricken. The trial court is
    directed to prepare a new abstract of judgment reflecting these
    changes. The clerk shall forward the new abstract to the
    9
    Department of Corrections. As modified, the judgment is
    affirmed.
    RUBIN, P. J.
    WE CONCUR:
    BAKER, J.
    MOOR, J.
    10
    

Document Info

Docket Number: B307526

Filed Date: 9/17/2021

Precedential Status: Non-Precedential

Modified Date: 9/17/2021