People v. Massey CA1/5 ( 2023 )

Filed 1/20/23 P. v. Massey CA1/5
Opinion following rehearing
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
A163744
v.
GERALD MASSEY, (Contra Costa County
Super. Ct. No. 51408889)
Defendant and Appellant.
In November 2014, pursuant to a negotiated disposition, defendant and
appellant Gerald Massey (appellant) pleaded guilty to gross vehicular
manslaughter (Pen. Code, § 191.5, subd. (d))1 and driving under the influence
(DUI) with two prior convictions (Veh. Code, §§ 23153, subd. (a), 23566,
subd. (b)). Appellant also admitted a great bodily injury (GBI) enhancement
(§ 12022.7, subd. (a)) associated with the DUI charge. Pursuant to the plea
bargain, the trial court sentenced appellant to prison for a term of 15 years to
life on the manslaughter charge. The trial court stayed a seven-year term on
the DUI charge and the GBI enhancement under section 654.
All section references are to the Penal Code unless otherwise
1
indicated.
1
In November 2014, two abstracts of judgment were filed, one for the
determinate sentence and one for the indeterminate sentence. The
determinate sentence abstract on page one properly indicates that the seven-
year term on the DUI charge and enhancement was stayed under section 654,
but on page two the abstract erroneously states the stays were under
“PC 664.” The indeterminate sentence abstract on the first page erroneously
indicates with an “X” that the 15-years-to-life term is a consecutive term.
In August 2020, appellant filed a petition for resentencing under
section 1170.91, subdivision (b). Section 1170.91, subdivision (a) directs
sentencing courts to consider as mitigating factors certain conditions suffered
by defendants who are military veterans, and subdivision (b) authorizes the
filing of resentencing petitions. The trial court denied the petition.
In the present appeal, appellant initially conceded the trial court
properly denied his petition on the ground that section 1170.91 does not
apply to indeterminate sentences. (See People v. Estrada (2020)
58 Cal.App.5th 839, 842–843 (Estrada).) Nevertheless, he requested that this
court direct the trial court to correct the November 2014 abstracts of
judgment because the court below was under the misimpression that
appellant had been sentenced to seven years on the DUI charge and GBI
enhancement, plus a consecutive term of 15 years to life on the manslaughter
charge. On December 9, 2022, this court filed a decision affirming denial of
the petition for resentencing but directing the trial court to correct the
abstracts of judgment.
On December 21, 2022, appellant filed a petition for rehearing. He
pointed out that the Legislature had enacted Senate Bill No. 1209 (2021-2022
Reg. Sess.) (SB 1209), which amended section 1170.91, effective January 1,
2023. As relevant here, the amendment eliminated a reference to
2
section 1170, which reference was the basis for the Estrada court’s conclusion
that resentencing under section 1170.91 did not apply to indeterminate
terms. (Estrada, supra, 58 Cal.App.5th at pp. 842–843.)
Respondent, in its answer to appellant’s petition for rehearing, agreed
that SB 1209 removed the categorical bar to resentencing identified by the
Estrada court. Respondent also acknowledged SB 1209 removed a second
categorical bar to relief identified by decisions concluding that defendants
could not obtain relief from stipulated sentences under section 1170.91. (See,
e.g., People v. King (2020) 52 Cal.App.5th 783, 791.) Respondent agreed the
present case should be remanded for a new resentencing hearing under the
current version of section 1170.91. We will so order.2
We also again direct the trial court to correct the November 2014
abstracts of judgment to reflect the sentence that was actually imposed.
Respondent suggested the following corrections: (1) in the abstract of
judgment for the determinate term, change two improper references to
“PC 664” to “PC 654;” and (2) in the abstract of judgment for the
indeterminate term, remove the “X” mark indicating the sentence is
“consecutive.” This court will direct the trial court to make the corrections
suggested by respondent, in addition to conducting a new resentencing
hearing.
2 Appellant asks this court to direct the trial court to “once again
appoint counsel, who can assist [appellant] in preparing a new
section 1170.91 petition that is not skeletal, like the original petition, but
rather sets forth all facts concerning the offense and [appellant’s] subsequent
rehabilitation, which weigh in favor of resentencing.” That is a matter
properly considered by the trial court in the first instance.
3
DISPOSITION
The trial court’s order denying appellant’s petition for resentencing is
reversed and the court is directed to conduct a resentencing hearing pursuant
to section 1170.91. On remand, the court may consider appointment of
counsel to assist in preparation of an amended petition prior to conducting
the resentencing hearing. The trial court is also directed to, prior to
conducting the resentencing hearing, (1) correct the November 2014 abstract
of judgment of the determinate sentence by changing the two references to
“PC 664” on the second page to “PC 654,” and (2) correct the November 2014
abstract of judgment of the indeterminate sentence by removing the “X” mark
on the first page indicating that the sentence is “consecutive.”
4
SIMONS, J.
We concur.
JACKSON, P. J.
WISEMAN, J.*
(A163744)
* Retired Associate Justice of the Court of Appeal, Fifth Appellate
District, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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