People v. Sessing CA2/6 ( 2022 )

Filed 7/28/22 P. v. Sessing CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
THE PEOPLE, 2d Crim. No. B314363
(Super. Ct. No. 2005009634)
Plaintiff and Respondent, (Ventura County)
v.
NATHAN GREGORY
SESSING,
Defendant and Appellant.
Nathan Gregory Sessing appeals following his resentencing
on charges of special-circumstance felony murder (Pen, Code,1 §§
187, subd. (a), 188, 190.2), two counts of residential burglary
(§ 459), and assault with a deadly weapon (§ 245, subd. (a)(1)).
Sessing also admitted using a deadly weapon in committing the
murder, i.e., a bat and a knife (§ 12022, subd. (b)(1)), and the jury
found true an allegation that he personally inflicted great bodily
injury on the assault victim (§ 12022.7).
All statutory references are to the Penal Code unless
1
otherwise stated.
Sessing, who committed his crimes in 2006 shortly before
he turned 18, was initially sentenced to life in state prison
without the possibility of parole plus a determinate term of 8
years and 4 months. We subsequently affirmed his conviction on
appeal. In 2017, he filed a habeas petition in this court
requesting resentencing pursuant to Miller v. Alabama (2012)
567 U.S. 460 [183 L.Ed.2d 407], which established the
punishment for crimes committed when an individual is under
the age of 18 must include a possibility of parole. We issued an
order to show cause returnable to the trial court.
In 2018, while Sessing’s resentencing was pending, he filed
a habeas petition in the trial court seeking a juvenile court
transfer hearing pursuant to Proposition 57. The trial court
granted the petition, conditionally reversed Sessing’s convictions,
and referred the matter to the juvenile court for a transfer
hearing. Following a March 5, 2020 transfer hearing, the
juvenile court found it would have transferred Sessing to adult
criminal court and accordingly reinstated his convictions.
Sessing filed a habeas petition in the trial court challenging the
juvenile court’s transfer decision. After that petition was denied,
Sessing filed a habeas petition in this court. We summarily
denied the petition, and the California Supreme Court denied
Sessing’s petition for review.
In July 2021, the trial court resentenced Sessing to 25
years to life on the murder charge plus a one-year enhancement
for the weapon use allegation, plus a consecutive term of 8 years
and 4 months for the assault and burglary charges. Sessing
timely filed a notice of appeal from the resentencing order.
We appointed counsel to represent Sessing in this appeal.
After counsel’s examination of the record, he filed a brief raising
no issues as contemplated in People v. Serrano (2012) 211
2
Cal.App.4th 496, 501 (Serrano). Accordingly, we proceed with
this appeal pursuant to the standards set forth in Serrano.
We notified Sessing of his right to submit supplemental
briefing on his own behalf. Sessing subsequently submitted a
brief contending (1) the juvenile court’s March 5, 2020 transfer
order is an appealable order that may be properly challenged in
these proceedings; (2) he is entitled to conduct credits under
California Code of Regulations, Title 15, sections 3043.2 through
3043.5; and (3) he is entitled to a remand for resentencing in light
of Assembly Bill No. 124 (AB 124) and Senate Bill No. 567 (SB
567), which went into effect while this appeal was pending.2
None of the claims raised in Sessing’s supplemental brief
present an arguable issue for review. When the juvenile court’s
transfer order was entered in March 2020, there was no statutory
right to appeal from that order; instead, appellate review had to
be obtained by petition for extraordinary writ. (Cal. Rules of
Court, rule 5.770(g).) Sessing timely sought and obtained such
review. Effective January 1, 2022, Welfare and Institutions Code
section 801 was amended to provide in relevant part that juvenile
court transfer orders “shall be subject to immediate appellate
review if a notice of appeal is filed within 30 days of the order
transferring the minor to a court of criminal jurisdiction.” (Id.,
subdivision (a).)
Sessing is not entitled to the benefit of this new statute.
Among other things, it has been over two years since the
challenged transfer order was issued. Moreover, Sessing fails to
demonstrate that he is entitled to direct appellate review of that
order as a matter of equal protection or other constitutional right.
In any event, in denying Sessing’s writ petition the trial court
2Sessing also raised the first two claims in habeas
petitions, which we deny in separate orders.
3
correctly found that “[t]he record reflects ample evidence
supporting the [juvenile] court’s transfer order.”
Sessing also fails to present an arguable issue regarding
his entitlement to conduct credits. Pursuant to Section 3051,
subdivision (b)(3), Sessing will be eligible for parole during his
25th year of incarceration.3 On January 1, 2022, Title 15, section
3043.5 of the California Code of Regulations was amended to
provide that any award of educational merit credit (ranging from
90 to 180 days) shall be applied to advance an inmate’s youth
parole eligible date. As Sessing notes, the other sections relating
to conduct credits available to inmates sentenced to
indeterminate terms were not so amended. He claims that
depriving him of these additional credits constitutes a violation of
his equal protection rights.
The trial court made clear, however, that it only awarded
Sessing actual custody credits and ordered the California
Department of Corrections and Rehabilitation (CDCR) to
calculate conduct credits. Moreover, all of the credits to which
Sessing refers are subject to forfeiture for various rules
violations. (Cal. Code Regs., tit. 15, §§ 3043.2, subd. (d), 3043.3,
subd. (h), 3043.4, subd. (i), 3043.5, subd. (f), 3043.6, subd. (d).) It
is for the CDCR to decide in the first instance the conduct credits,
if any, to which Sessing is entitled.
3 Section 3051, subdivision (b)(3) states: “A person who was
convicted of a controlling offense that was committed when the
person was 25 years of age or younger and for which the sentence
is a life term of 25 years to life shall be eligible for release on
parole at a youth offender parole hearing during the person’s
25th year of incarceration. The youth parole eligible date for a
person eligible for a youth offender parole hearing . . . shall be the
first day of the person’s 25th year of incarceration.”
4
Finally, we reject Sessing’s claim that he is entitled to
resentencing in light of AB 124 and SB 567, both of which went
into effect on January 1, 2022. As relevant here, AB 124 creates
a presumption that the trial court will impose the low term under
enumerated circumstances, such as when the perpetrator was
under the age of 25 and their youth was a contributing factor in
their commission of the offense. (Stats. 2021, ch. 695, § 5.3;
§ 1170, subd. (b)(6)(8).) The low term need not be imposed,
however, if “the court finds that the aggravating circumstances
outweigh the mitigating circumstances [and] that imposition of
the lower term would be contrary to the interests of justice.”
(§ 1170, subd. (b)(6).) SB 567, as relevant here, limits the court’s
ability to impose an upper term sentence unless it is based on
aggravating circumstances that have been either stipulated to by
the defendant or found true beyond a reasonable doubt in a jury
or court trial. (§ 1170, subd. (b)(1) & (2).)
These recent statutory changes apply retroactively to this
case. (See, e.g., People v. Garcia (2022) 76 Cal.App.5th 887, 902;
People v. Flores (2022) 75 Cal.App.5th 495, 520.) We conclude,
however, that a remand for resentencing is not required. “‘[I]f a
reviewing court concludes, beyond a reasonable doubt, that the
jury, applying the beyond-a-reasonable-doubt standard,
unquestionably would have found true at least a single
aggravating circumstance had it been submitted to the jury,’ the
error is harmless.” (Flores, at p. 521 [holding error in imposing
upper term following enactment of Senate Bill No. 567 harmless
beyond a reasonable doubt]; see also People v. Osband (1996) 13
Cal.4th 622, 728 [single aggravating factor is sufficient to support
an upper term].)
In imposing the upper term on the assault count, the court
found “the crime involves great violence at a high degree of
cruelty, viciousness and callousness under Rule 4.421. Court
5
finds no mitigating circumstances.” In light of the evidence, any
reasonable trier of fact would have found this aggravating
circumstance true beyond a reasonable doubt. As to the middle
term imposed on the burglary counts, it is also clear the court
would have found “that the aggravating circumstances outweigh
the mitigating circumstances [and] that imposition of the lower
term would be contrary to the interests of justice.” (§ 1170, subd.
(b)(6).)
Because Sessing’s supplemental brief does not present an
arguable issue on appeal from the trial court’s June 22, 2021
resentencing order, we dismiss the appeal as abandoned. (People
v. Serrano, supra, 211 Cal.App.4th at pp. 503-504.)
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P.J.
YEGAN, J.
6
Paul W. Baelly, Judge
Superior Court County of Ventura
______________________________
Richard B. Lennon, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.