Opinion
H043005
04-25-2017
THE PEOPLE, Plaintiff and Respondent, v. RICHARD CARLTON DAVIDSON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Benito County Super. Ct. No. CR1000879)
Defendant Richard Carlton Davidson appeals from the judgment entered after remand for resentencing by this court. In part, the trial court resentenced defendant to a term of 25 years to life for his conviction of felony child abuse (Pen. Code, § 273a, subd. (a)). On appeal, he argues that because he was resentenced after the effective date of the Three Strikes Reform Act (the Act), the Act applies prospectively to him. Thus, he insists the 25-year-to-life sentence for his conviction of section 273a, subdivision (a) is unauthorized because it is not a serious or violent felony under the Act. Defendant also argues the trial court erred in calculating the court security fee imposed under section 1465.8 and the court facilities assessment imposed under Government Code section 70373. We reject defendant's argument that he is entitled to resentencing under the Act but agree that the trial court erred in calculating his fees. We modify the judgment to reflect the correct amount of fees and affirm.
Unspecified statutory references are to the Penal Code.
BACKGROUND
We take the facts of defendant's conviction from our opinion in his prior appeal, People v. Davidson (Feb. 9, 2015, H037751 [nonpub. opn.]), and from the record in that appeal, of which we have taken judicial notice. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)
1. The Underlying Offense
"On May 20, 2010, the San Benito County District Attorney's office filed a complaint charging defendant with a count of felony child abuse of Amber V. (§ 273a, subd. (a); count 1), two counts of felony aggravated assault of Amber V. (former § 245, subd. (a)(1); counts 2 & 3), two counts of felony aggravated assault of Shawn Little (former § 245, subd. (a)(1); counts 4 & 5), a count of felony vandalism of Little's truck (§ 594, subd. (a); count 6), and a count of misdemeanor vandalism of Vanessa Valdez's car (ibid.; count 7). The complaint also alleged defendant had served three prior prison terms (§ 667.5, subd. (b)) and had suffered two prior strike convictions (§§ 667, subds. (b)-(i)).
"Trial began on July 11, 2011. On July 12, 2011, the trial court reduced count 6 to a misdemeanor."
2. Conviction, Sentencing, and Direct Appeal
"On July 14, 2011, the jury returned guilty verdicts on count 1 (felony child abuse), count 2 (aggravated assault of Amber V.), count 3 (aggravated assault of Amber V.), count 6 (misdemeanor vandalism of Little's truck), and count 7 (misdemeanor vandalism of Valdez's car), and a not guilty verdict on counts 4 and 5 (aggravated assault of Little). The trial court found true the allegations that defendant had suffered two prior strike convictions (§ 667, subds. (b)-(i)) and served three prior prison terms (§ 667.5, subd. (b)) after a bifurcated bench trial.
"On December 9, 2011, the court sentenced defendant to a term in prison of 25 years to life plus 13 years each for counts 1, 2, and 3. The sentences for counts 2 and 3 were stayed pursuant to section 654. The court also imposed a term of 25 years to life plus 13 years for count 6 (misdemeanor vandalism), to be served consecutively to the term imposed on count 1. For count 7, the court imposed a term of one year in county jail to be served concurrently with defendant's aggregate indeterminate term of 50 years to life plus a determinate term of 26 years.
"Defendant was awarded 486 days of presentence credit consisting of 405 actual days and 81 days conduct credit. The court also imposed various fines and fees, including an $800 restitution fine pursuant to section 1202.4, subdivision (b), with a matching $800 parole revocation fine (§ 1202.45) that was imposed but suspended. Defendant appealed." (Fn. omitted.)
On appeal, this court reversed and remanded the judgment for resentencing. We directed the trial court to resentence defendant for his conviction for misdemeanor vandalism (§ 594, subd. (a)(1); count 6) for a term not to exceed the statutory maximum of one year in county jail, vacate his conviction for assault by means likely to produce great bodily injury (§ 245, subd. (a)(1); count 3), stay the sentence for misdemeanor vandalism (§ 594, subd. (a)(1); count 7), reconsider the amount of defendant's restitution fine (§ 1202.4, subd. (b)) and parole revocation fine (§ 1202.45), strike the security fee and criminal conviction assessment imposed for count 3, and award defendant a total of 202 days conduct credit.
3. The Resentencing
On September 16, 2015, the trial court resentenced defendant to an indeterminate term of 25 years to life in prison for his conviction of child abuse (§ 273a, count 1), imposed and stayed terms of 25 years to life for defendant's convictions in counts 2 and 3 (felony aggravated assault, former § 245, subd. (a)(1)) under section 654, imposed a one-year concurrent jail sentence for defendant's conviction of vandalism (§ 594, subd. (a)) in count 6, imposed and stayed a one-year jail sentence for defendant's conviction of vandalism (§ 594, subd. (a)) in count 7 under section 654, and imposed an additional 13-year determinate term for defendant's serious felony and prison priors. The court awarded defendant a total of 486 days of presentence credits, composed of 405 days of actual credit and 81 days of conduct credit.
On November 9, 2015, defendant appealed, arguing the trial court failed to vacate the conviction on count 3 as directed by this court on remand and erred when calculating his presentence conduct credits. On January 19, 2016, the trial court vacated and struck the sentence imposed on count 3 and directed the clerk to prepare an amended abstract of judgment. The amended abstract of judgment reflected defendant was awarded a total of 1,580 days of presentence credits, based on 1,378 days of actual credit and 202 days of conduct credit.
DISCUSSION
On appeal, defendant argues the 25-year-to-life sentence imposed for his conviction of child abuse (§ 273 a, subd. (a)) is unauthorized, because he was entitled to be resentenced as a second strike offender according to the provisions of the Act. He also argues the trial court erroneously imposed an excessive court security fee under section 1465.8 and an excessive criminal conviction assessment under Government Code section 70373.
1. Application of the Act
a. Overview
Defendant was originally sentenced in 2011. In 2012, while defendant's appeal was pending, voters passed the Act, which amended sections 667 and 1170.12 and added section 1170.126. (People v. Yearwood (2013) 213 Cal.App.4th 161, 170 (Yearwood).) Under the Act, many third strike offenders whose current offenses are not serious or violent felonies are no longer required to be sentenced to an indeterminate life term. (§ 1170.12, subd. (c)(2)(A).) Instead, qualifying defendants are sentenced as second strike offenders and receive a term equal to "twice the term otherwise provided as punishment for the current felony conviction." (Id., subd. (c)(1).) Certain defendants do not qualify for this ameliorative change, such as those defendants who used a firearm, were armed with a firearm or deadly weapon, or intended to cause great bodily injury to another person during the commission of the current offense. (Id., subd. (c)(2)(C)(iii).) The Act took effect on November 7, 2012. (People v. Conley (2016) 63 Cal.4th 646, 652 (Conley).)
b. The Act Does Not Apply to Defendant
Defendant was resentenced following this court's remand in 2015, long after the effective date of the Act. Thus, he argues the Act applies to him, and the trial court's sentence of 25 years to life for his conviction of child abuse (§ 273a) constituted an unauthorized sentence. He claims that he should have been sentenced as a second strike offender under section 1170.12, subdivision (c)(2)(C). We disagree. In order to obtain relief, defendant must file a petition for recall of his sentence in the trial court under section 1170.126, subdivision (b).
The Act specifically set forth a procedure for "persons presently serving an indeterminate term of imprisonment" under the former Three Strikes law to seek resentencing under the revised version of the Three Strikes law. (§ 1170.126, subd. (a).) Those presently serving an indeterminate term of imprisonment can petition the court for resentencing within two years of the effective date of the Act, or at a later date upon a showing of good cause. (§ 1170.126, subd. (b).) If a defendant is deemed eligible for resentencing as set forth under section 1170.126, subdivision (e), the trial court shall resentence him or her unless it determines that resentencing would pose an unreasonable risk of danger to public safety. (§ 1170.126, subd. (f).)
It is undisputed that when the Act went into effect, defendant had already been sentenced and was serving an indeterminate term of imprisonment under the former Three Strikes law. The fact that this court reversed his original conviction and remanded the matter for resentencing did not change his status.
Defendant argues that under In re Fritz (1918) 179 Cal. 415, 417 and People v. Chew (1985) 172 Cal.App.3d 45, 51, disapproved of on other grounds in People v. Buckhalter (2001) 26 Cal.4th 20, 40 (Buckhalter), he was not presently serving an indeterminate term of imprisonment when the Act went into effect. He claims that when a judgment is reversed on appeal, the original judgment is considered null and the subsequent "valid judgment . . . speak[s] from the date of its rendition." (In re Fritz, supra, at p. 417.)
We are unconvinced by defendant's reliance on In re Fritz. In Buckhalter, our Supreme Court concluded that a remand for resentencing does not render an original sentence void ab initio. (Buckhalter, supra, 26 Cal.4th at p. 36.) There, the defendant had argued that the appellate court's remand of his sentence necessarily required vacating his original sentence, "thus restor[ing him] to the same position as if he had never been sentenced at all." (Id. at p. 34.) The Buckhalter court not only rejected this argument but also noted that "an appellate remand solely for correction of a sentence already in progress does not remove a prisoner from the Director's custody or restore the prisoner to presentence status." (Id. at p. 33.) "[O]nce sentenced, committed to prison, and delivered to the Director's custody, a felon remains in that status, serving a term of imprisonment, until lawfully released . . . ." (Ibid.)
We acknowledge that Buckhalter dealt with the application of statutes awarding presentence credits, which is a separate issue than the one presented here. Nonetheless, we find the logic employed in Buckhalter holds. Our reversal and remand of defendant's original judgment of conviction did not alter his status on the effective date of the Act, granting him presentence status. It also did not "unsentence" defendant. It follows that at the time the Act went into effect, he was presently serving an indeterminate term of life in prison. Moreover, he remained serving a term of imprisonment when the trial court resentenced him following his appeal, because he was never released from custody.
Thus, defendant's reliance on the dicta in Yearwood, supra, 213 Cal.App.4th 161 is not well grounded. In Yearwood, the appellate court remarked that "[i]t is undisputed that if appellant had been sentenced for the marijuana possession conviction after the effective date of the Act, an indeterminate life sentence would not have been imposed." (Id. at p. 168.) Unlike the hypothetical situation contemplated in Yearwood, defendant was already sentenced and was serving an indeterminate life sentence when the Act went into effect.
For the same reason, we must also reject defendant's inapt analogy to cases concerning the prospective application of Proposition 36, the Substance Abuse and Crime Prevention Act of 2000. Defendant argues that Proposition 36 was held to apply prospectively to persons who had not yet been sentenced, citing to People v. Floyd (2003) 31 Cal.4th 179 and In re DeLong (2001) 93 Cal.App.4th 562. Thus, he claims that under the same rationale set forth in Floyd and DeLong, the Act applies prospectively to him. However, these cases are not instructive, because defendant had already been sentenced and was presently serving an indeterminate term under the former Three Strikes law.
Here, defendant falls under the category of defendants who were sentenced under the former Three Strikes law before the enactment of the Act, but whose judgments were not yet final as of that date. Our Supreme Court decided in Conley, supra, 63 Cal.4th 646 that these defendants are not entitled to automatic resentencing but instead may file a petition for recall of resentence as provided under section 1170.126. (Conley, supra, at p. 651.) Thus, the Act does not apply to him.
We acknowledge that Conley did not directly address the factual scenario raised here. In Conley, the defendant had been sentenced to an indeterminate life term under the former Three Strikes law, but his sentence was not yet final when the Act went into effect. (Conley, supra, 63 Cal.4th at p. 651.) Here, defendant was sentenced to an indeterminate life term, and his sentence was ultimately reversed and remanded by this court on appeal after the enactment of the Act. Nonetheless, we find the rationale for prospective application of the Act set forth in Conley equally applicable to defendant's case.
In part, Conley noted that the Act did more than simply reduce criminal penalties and acknowledge that "sentences under the prior version of the Three Strikes law were excessive." (Conley, supra, 63 Cal.4th at p. 658.) "[V]oters were motivated by other purposes as well, including the protection of public safety. The ballot materials explained that 'dangerous criminals are being released early from prison because jails are overcrowded with nonviolent offenders who pose no risk to the public.' [Citation.] Voters were told the . . . Act would protect public safety by 'prevent[ing] dangerous criminals from being released early' [citation] and would have no effect on 'truly dangerous criminals.' " (Ibid.)
To achieve a balance between mitigating punishment for those defendants that had already been sentenced and protecting public safety, the Act established that resentencing is subject to the trial court's evaluation of whether a defendant would pose an unreasonable risk of danger to public safety. (Conley, supra, 63 Cal.4th at p. 658.) For those defendants who had not yet been sentenced, the Act created certain disqualifying factors—which must be pled and proven—that prevent otherwise eligible third strike defendants from receiving a second strike sentence. (Id. at p. 659; § 1170.12, subd. (c)(2)(C).)
The inclusion of these disqualifying factors creates issues with defendant's request for automatic resentencing. As explained in Conley, "[i]n cases arising after [the Act's] effective date, operation of the pleading-and-proof requirements is straightforward enough. But for defendants who have already been tried and sentenced, the matter would be considerably more complicated. Before the . . . Act, prosecutors may have had no reason to plead and prove the new disqualifying factors in a particular case." (Conley, supra, 63 Cal.4th at p. 659.) The court then opined that if defendants like Conley were entitled to automatic resentencing, either (1) resentencing would occur solely on the trial court record, thereby depriving the prosecution of the opportunity to plead and prove the presence of the disqualifying factors outlined in the Act, or (2) trial courts would have to permit "mini-trials" for the sole purpose of determining whether a disqualifying factor exists. (Id. at p. 660.)
Conley questioned whether a system of mini-trials was contemplated by voters when "no provision of the Act contains any affirmative indication to that effect." (Conley, supra, 63 Cal.4th at p. 660.) Thus, the court found it "difficult to escape the conclusion that the Act does not address the complexities involved in applying the pleading-and-proof requirements to previously sentenced defendants precisely because the electorate did not contemplate that these provisions would apply. Rather, voters intended for previously sentenced defendants to seek relief under section 1170.126, which contains no comparable pleading-and-proof requirements." (Id. at pp. 660-661.)
Defendant's own arguments on appeal raise the pleading-and-proof issue discussed in Conley. In arguing he is entitled to be sentenced under the Act, he notes there is evidence in the record that he personally used a deadly weapon during the commission of the offense, which is one of the disqualifying factors set forth under section 1170.12, subdivision (c)(2)(C). He then argues that despite this evidence, the prosecution did not plead and prove this element. Thus, he insists evidence he personally used a deadly weapon cannot be used to preclude application of the Act. This is the exact complexity that persuaded the California Supreme Court to conclude the Act is inapplicable to defendants whose sentences were not yet final when the Act went into effect.
Agreeing with defendant's request for automatic resentencing puts him in the position of receiving a second strike sentence without the prosecution having the opportunity to plead and prove a disqualifying factor or having the trial court determine whether he poses an unreasonable risk of danger to public safety (§ 1170.126, subd. (f)). It would also create an illogical scenario where those defendants whose sentences were not yet final at the time the Act went into effect would be entitled to automatic resentencing if an appellate court reverses and remands the matter for resentencing, while those defendants whose judgments are affirmed on appeal would not. Application of the Act should not hinge on an appellate court's reversal.
Based on the foregoing, we conclude defendant is not entitled to automatic resentencing under the Act. However, he may file a petition for resentencing under section 1170.126, subdivision (f).
2. Fees
In January 2016, when the trial court corrected defendant's sentence and amended the abstract of judgment, the court imposed a court security fee of $200 under section 1465.8 and a court facilities assessment of $150 under Government Code section 70373. Defendant and the People agree the trial court erred in calculating these fees.
Section 1465.8 requires a trial court to impose a $40 assessment for every criminal conviction. Government Code section 70373 requires a trial court to impose a $30 assessment for every criminal conviction. Defendant was convicted of four criminal offenses: child abuse in count 1, aggravated assault in count 2, and two misdemeanor vandalism convictions in counts 6 and 7. Thus, the trial court should have imposed a $160 court security fee under section 1465.8 and a $120 criminal conviction assessment under Government Code section 70373. We therefore modify the judgment to reflect the correct amount of fees.
DISPOSITION
The judgment is modified to reflect imposition of a $160 court security assessment (Pen. Code, § 1465.8) and a $120 court facilities assessment (Gov. Code, § 70373). As modified, the judgment is affirmed.
/s/_________
Premo, J.
WE CONCUR: /s/_________
Rushing, P.J. /s/_________
Grover, J.