People v. Jones CA4/2 ( 2020 )

Filed 12/11/20 P. v. Jones CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E073637
v. (Super.Ct.No. RIF100567)
EARNEST LEE JONES, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed with directions.
Patricia A. Scott, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Lynne G.
McGinnis and Annie Featherman Fraser, Deputy Attorneys General, for Plaintiff and
Respondent.
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INTRODUCTION
A jury found defendant and appellant Earnest Lee Jones guilty of attempted
voluntary manslaughter (Pen. Code,1 §§ 664, 192, subd. (a), count 1), assault with a
semiautomatic firearm upon four different individuals (§ 245, subd. (b), counts 2, 4, 6, 7),
attempted murder (§§ 664, 187, count 3), and discharging a firearm at an occupied
vehicle (§ 246, count 5). The jury also found true various enhancement allegations as to
each count. The trial court sentenced defendant to an indeterminate term of 32 years to
life, plus a determinate prison term of 17 years. The case was remanded on two
occasions for resentencing, following two prior appeals.2
This third appeal arises from a resentencing hearing that was conducted after the
California Department of Corrections and Rehabilitation (CDCR) sent a letter to the trial
court, requesting it to determine if a correction in the sentence was required with regard
to the sentence on count 5. Defendant now contends that, in resentencing him, the court
erred: (1) in imposing the upper term on count 6; and (2) in imposing the term on count 4
concurrently, rather than staying it under section 654. The People concede these two
errors. However, the People raise a third issue, contending that the court erred in
resentencing defendant on count 5 based on the CDCR’s reason stated in its letter. We
1 All further statutory references will be to the Penal Code unless otherwise noted.
2 Defendant filed a request for this court to take judicial notice of our prior
opinions in case Nos. E034706 and E041222. (See People v. Jones (Dec. 17, 2004,
E034706) [nonpub. opn.] & People v. Jones (Feb. 27, 2009, E041222) [nonpub. opn.].)
By order filed on February 25, 2020, we granted that request.
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agree with the parties that the court erred in its sentencing on counts 4 and 6. In all other
respects, we affirm the judgment.
PROCEDURAL BACKGROUND
Defendant filed his first appeal in 2003 and contended that the trial court failed to
instruct the jury sua sponte with CALJIC No. 8.40, defining voluntary manslaughter. We
affirmed the judgment, but agreed with the People that the court had improperly struck or
stayed the imposition of an enhancement under former section 12022.53, subdivision (d),
on count 5. We thus remanded the matter for resentencing. (People v. Jones, supra,
E034706.)
At the resentencing hearing on May 12, 2005, the trial court imposed five years on
count 5, to run concurrent to count 6, and imposed 25 years to life on the former section
12022.53, subdivision (d) enhancement on count 5, to run consecutive to the sentence
imposed on count 3. (People v. Jones, supra, E041222.) It also imposed the upper term
of nine years on count 6 (the principal offense) and imposed the midterm of six years on
count 4 and stayed the term, pursuant to section 654, as it had previously. The total
sentence imposed was 57 years to life, plus a determinate term of 13 years.
In 2006, defendant appealed from his resentence. He argued that at the
resentencing hearing: (1) the trial court erred by imposing a consecutive enhancement of
25 years to life under former section 12022.53, subdivision (d), on count 5; (2) the court
erred under Cunningham v. California (2007) 549 U.S. 270, Blakely v. Washington
(2004) 542 U.S. 296, and Apprendi v. New Jersey (2000) 530 U.S. 466, in imposing the
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upper term as to count 6; and (3) on count 3, the court sentenced him to the indeterminate
term of life with a minimum parole eligibility of seven years, but then improperly added
the 25-year-to-life enhancement under former section 12022.53, subdivision (d). (People
v. Jones, supra, E041222.) We concluded that the court properly sentenced defendant on
count 3. As to count 6, we agreed that the court erred since it imposed the upper term
based on a fact other than a prior conviction, and the fact was not the result of a jury
finding; thus, we struck the upper term sentence on count 6 and remanded for
resentencing. (People v. Jones, supra, E041222.) As to count 5, we did not agree with
defendant’s claim. He relied upon People v. Mustafaa (1994) 22 Cal.App.4th 1305(Mustafaa) to argue that the trial court could not impose a consecutive enhancement
under former section 12022.53, subdivision (d), on count 5 since it imposed a concurrent
sentence on the underlying conviction. We stated that nothing in the statutory language
of former section 12022.53 barred the enhancement from being imposed consecutively on
a count that the court had ordered to run concurrent to the principal term. (People v.
Jones, supra, E041222, at *7-8.) We held that defendant’s reliance on Mustafaa was
misplaced since that case concerned the imposition of a gun use enhancement under
former section 12022.5, subdivision (a), not the enhancement under former section
12022.53, subdivision (d). (Jones, supra, E041222, at *9.)
The court held another resentencing hearing on June 4, 2009. It followed this
court’s guidance and resentenced defendant on count 6 to the midterm of six years.
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On or around May 6, 2019, the Correctional Case Records Manager from the
CDCR sent a letter to the court stating that the minute order dated May 12, 2005, and the
amended abstract of judgment dated May 17, 2005, reflected that the term on count 5 was
imposed concurrently, and the former section 12022.53, subdivision (d) enhancement on
count 5 was imposed consecutively to count 3. The letter stated that pursuant to
Mustafaa, supra, 22 Cal.App.4th 1305, it was inappropriate to impose a concurrent term
for an underlying offense and impose a consecutive term on the enhancement attached to
the underlying crime. The letter asked the court to determine if a correction was required
and noted that, when notified by the CDCR that an illegal sentence existed, the trial court
is entitled to reconsider all sentencing choices. (People v. Hill (1986) 185 Cal.App.3d
831, 834 (Hill).)
In response to the letter, the court held another resentencing hearing on July 31,
2019. At the outset, it noted for the record that it conducted a long chambers conference
with the parties about the “tortured sentencing history of this case.” The court stated the
attorneys believed that, in order to get closest to the original sentence without violating
any resentencing rules, the total sentence should be 16 years four months, plus 32 years
to life. Both the prosecutor and defense counsel confirmed the agreement. The court
proceeded to sentence defendant. It determined the principal term for the indeterminate
sentence would be count 3 and sentenced him to seven years to life on that count. For the
former section 12022.53, subdivision (d) enhancement on count 3, the court sentenced
him to an additional 25 years to life, consecutive, for a total term of 32 years to life. The
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court selected count 6 as the principal term for the determinate sentence and sentenced
defendant to the upper term of nine years, plus the middle term of four years consecutive
on the former section 12022.5, subdivision (a) enhancement, for a total of 13 years. On
count 2, the court imposed three years four months to run consecutive to the term in
count 6. On count 1, the court imposed six years but stayed it pursuant to section 654.
On count 4, it imposed a total of 10 years to run concurrent to all other terms. On count
5, the court imposed the midterm of five years, plus a consecutive 25 years to life on the
former section 12022.53, subdivision (d) enhancement “to run concurrent to all other
terms.” On count 7, the court imposed a total of 10 years to run concurrent to the other
terms. When the court asked the parties if there was anything further to discuss, both
counsel simply thanked the court.
DISCUSSION
I. Defendant’s Sentence on Count 6 Must Be Reduced to the Middle Term of Six Years
Defendant contends, and the People concede, that the court erroneously imposed
the upper term on count 6. We previously examined the nine-year prison term originally
imposed on count 6 in defendant’s second appeal and determined that because the trial
court imposed the upper term sentence based on a fact other than a prior conviction, and
the fact was not the result of a jury finding, the court erred in imposing the upper term.
We remanded the matter for resentencing. (People v. Jones, supra, E041222, at *12-14.)
At the second remand hearing on June 4, 2009, the court followed this court’s guidance
and resentenced defendant on count 6 to the midterm of six years. However, when the
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court resentenced defendant again at the last hearing on July 31, 2019, it reimposed the
original upper term of nine years on count 6. We agree with both parties that the court
erred in doing so, and the matter must be remanded once again to reimpose the midterm
of six years on count 6 in light of our prior ruling on this specific issue.
II. The Sentence on Count 4 Should Be Stayed
Defendant asserts that the sentence on count 4 has consistently been ordered to be
stayed pursuant to section 654, was not the subject of either of his prior appeals, and was
not the subject of the CDCR’s letter to the court. Thus, at the remand hearing on July 31,
2019, the court erred in imposing the sentence on count 4 and its attached enhancement to
be served concurrently, rather than ordering it to be stayed under section 654. The
People correctly concede the error. The court cited no reason for failing to stay the
sentence and its attached enhancement. In other words, there was no basis for making a
change in defendant’s sentence on count 4. We again agree with both parties that the
matter should be remanded for the court to stay the sentence and the attached
enhancement on count 4 pursuant to section 654.
III. The People Cannot Seek the Requested Relief
The People raise a new issue in their respondent’s brief that was not addressed in
defendant’s opening brief. The People argue that the trial court erred when it most
recently resentenced defendant and imposed a concurrent term for the former section
12022.53, subdivision (d) enhancement on count 5, in accordance with the CDCR letter.
The People claim the court was not authorized to impose the enhancement concurrently
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since this court already ruled in a prior appeal that the term was properly run
consecutively. Thus, the People request the matter be remanded for the trial court to
resentence defendant to the prior sentence he was given on June 4, 2009.
The People have forfeited their claim. “ ‘ “An appellate court will ordinarily not
consider procedural defects or erroneous rulings, in connection with relief sought or
defenses asserted, where an objection could have been, but was not, presented to the
lower court by some appropriate method . . . . The circumstances may involve such
intentional acts or acquiescence as to be appropriately classified under the headings of
estoppel or waiver.” ’ ” (People v. Saunders (1993) 5 Cal.4th 580, 589-590.) The record
here shows that the parties had a long conference in chambers about the “tortured
sentencing history” in this case, and they agreed that, “in order to get closest to the
original sentence without violating any of the rules for resentencing,” the total sentence
should be 32 years to life, plus 16 years four months.3 Thus, the People were clearly
aware of the sentence the court was going to impose. After the chambers conference, the
court proceeded to impose the agreed-upon sentence, which included imposing the term
on count 5 and the attached former section 12022.53, subdivision (d) enhancement
concurrent to the terms on the other counts. The court gave the parties an opportunity to
speak after it pronounced the sentence. The prosecutor affirmed that she had nothing
3 We note that the court “[was] entitled to rethink the entire sentence to achieve
its original and presumably unchanged goal.” (Hill, supra, 185 Cal.App.3d at p. 834.)
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further to say. Moreover, as defendant points out, the People apparently elected not to
appeal the sentence they now complain of.
Notwithstanding the waiver, the People’s argument has no merit. The People
contend the trial court’s sentence violated our prior opinion and was thus unauthorized,
but we disagree. In the instant case, when the court resentenced defendant, it stated:
“[On] Count 5, the Court imposes mid term of five years. And for the allegation pursuant
to 12022.5[3], subdivision (d), the Court imposes 25 years to life to run consecutive to
the term served in Count 5, but that to run concurrent to all other terms.” In our prior
opinion, we rejected defendant’s claim that the court could not impose a consecutive
enhancement under section 12022.53, subdivision (d), on count 5, because the court
imposed a concurrent sentence on the underlying conviction, and we said section
12202.53, subdivision (d), required the enhancement to run consecutively. (People v.
Jones, supra, E041222.) Here, the court sentenced defendant to five years on the
underlying charge and ran the enhancement consecutively for a total sentence on count 5
of 30 years to life, but then ran the entire sentence on count 5 concurrent to all other
terms. Our prior opinion did not say the entire sentence on count 5 could not be run
concurrent to any other terms. Thus, the current sentence does not contradict what we
previously said.
Because the People have forfeited their claim, and the current sentence does not
violate our prior opinion, we conclude that the People cannot seek to have defendant
resentenced on count 5 as requested.
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DISPOSITION
The matter is remanded with directions for the trial court to sentence defendant to
the middle term of six years on count 6 and to stay the sentence and enhancement on
count 4 pursuant to section 654. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J.
We concur:
RAMIREZ
P. J.
MILLER
J.
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