Opinion
A162706
06-29-2022
THE PEOPLE, Plaintiff and Respondent, v. LAMONT DEAN, Defendant and Appellant.
NOT TO BE PUBLISHED
(Mendocino County Super. Ct. Nos. SCUKCRCR2036556-01, SCUKCRCR2037103-1)
BROWN, J.
Lamont Dean appeals following his conviction for assault with intent to commit rape (Pen. Code, § 220, subd. (a)(1)) and one prior strike allegation (§§ 667, subds. (b)-(i), 1170.12). The trial court sentenced him to 12 years in prison and imposed various fines and fees. Dean challenges certain of the fines and fees. He also argues that he is entitled to resentencing due to a recent statutory amendment that he contends applies retroactively to his case. We agree that remand is necessary for resentencing due to the recent change in the law, so we need not reach his arguments relating to the fines and fees.
Undesignated statutory references are to the Penal Code.
BACKGROUND
Dean met E.L. in the parking lot of a motel in Ukiah where they both were staying in June 2020. Dean brought various drugs to E.L.'s room including something he called "yellow." E.L. smoked the yellow off of a piece of foil using a metal straw. After E.L. took three hits of yellow, she passed out. The yellow might have been fentanyl.
We refer to the victim and witnesses by their initials or first name and last initial out of respect for their privacy. (Cal. Rules of Court, rule 8.90(b)(4), (b)(10); Advisory Com. com., Cal. Rules of Court, rule 8.90.)
While E.L. was passed out, Brittany D. came to E.L.'s room. When she arrived, Dean's pants were around his ankles and his penis was exposed and erect. E.L. was lying on the bed, turning blue and barely breathing. She was wearing a dress and no underwear, and her dress was raised, exposing her bottom half. Another witness, Linda R., recalled that foam was coming from E.L.'s mouth. Brittany D. administered Narcan, which is a drug used to counter overdoses of fentanyl and other drugs, to E.L.
Before trial, Dean admitted that he had been convicted of assault with a deadly weapon (§ 245, subd. (a)(1)) in November 1999, which constituted a prior strike for sentencing purposes. After a five-day trial, the jury found Dean guilty.
Assault with intent to commit rape carries a sentence of two, four, or six years, and the court sentenced Dean to the upper term. (§ 220, subd. (a)(1).) For aggravating factors relating to the offense, the court found that Dean's offense was more dangerous than others of the same kind and E.L. was particularly vulnerable because Dean gave E.L. so much fentanyl that she almost died. The court found this went beyond the mere intoxication that was an element of the offense of assault with intent to commit rape of an intoxicated person. For aggravating factors relating to Dean, the court noted that Dean had five prior felony convictions, which included some violent felonies and a prior prison term, and had violated terms of probation and parole numerous times. For mitigating factors, the court was reluctant to find that Dean's use of an opiate at the time of the offense was a mitigating factor, since Dean denied using the drugs he gave E.L. and the drugs were a tool he used to effectuate his crime. But the court concluded that even if it considered Dean's drug use a mitigating factor, the aggravating factors substantially outweighed the mitigating factor.
Although the information and verdict form referred to assault with intent to commit rape, the jury was also instructed on assault with intent to commit rape of an intoxicated person.
After selecting the upper term of six years, the court doubled it based on the prior strike that Dean had admitted, for a sentence of 12 years in prison. The court also sentenced Dean to an additional year, consecutive to the 12 years, for a later unrelated offense of smuggling fentanyl into the jail. Dean's total sentence was therefore 13 years.
The court also imposed various fines and fees. For Dean's assault conviction, the court imposed a restitution fine under section 1202.4, subdivision (b) of $3,600. It imposed a pre-sentence investigation fee of $412 under former section 1203.1b and a fee of $300 under section 290.3. The court also imposed a parole revocation restitution fine of $3,600 under section 1202.45, which was suspended unless parole was later granted and revoked.
DISCUSSION
When the trial court sentenced Dean, former section 1170, subdivision (b) (§ 1170(b)) stated, "When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court." Then as now, subdivision (a)(3) of section 1170 required trial courts to apply Judicial Council sentencing rules. One of those rules allowed trial courts to "consider circumstances in aggravation or mitigation, and any other factor reasonably related to the sentencing decision." (Cal. Rules of Court, former rule 4.420(b).) "An aggravating circumstance is a fact that makes the offense 'distinctively worse than the ordinary.'" (People v. Black (2007) 41 Cal.4th 799, 817.) Trial courts could "consider the record in the case, the probation officer's report, other reports, . . . and statements in aggravation or mitigation submitted by the prosecution, the defendant, or the victim, or the family of the victim if the victim is deceased, and any further evidence introduced at the sentencing hearing." (Former § 1170(b).)
After Dean filed his notice of appeal but before he filed his opening brief, the Legislature amended section 1170. (Stats. 2021, ch. 731, §§ 1.3, 3, subd. (c), eff. Jan. 1, 2022.) As modified by Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill 567), section 1170(b) now provides, as relevant here, "(1) When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term, except as otherwise provided in paragraph(2) [sic]. [¶] (2) The court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term, and the facts underlying those circumstances have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial. . . . [¶] (3) Notwithstanding paragraphs (1) and (2), the court may consider the defendant's prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury. This paragraph does not apply to enhancements imposed on prior convictions."
Dean argues that Senate Bill 567 applies to his case retroactively and requires us to remand his case to the trial court for resentencing in accordance with the new law. The People concede that Senate Bill 567 is an ameliorative change in the law that applies retroactively to Dean's case. We agree. (People v. Lopez (2022) 78 Cal.App.5th 459, 461, 465 (Lopez).)
While the People concede that Senate Bill 567 applies retroactively, they contend remand for resentencing is unnecessary. They assert that the trial court made clear its intent to punish Dean to the fullest extent. The People note that the trial court was aware at sentencing that Dean had committed a subsequent offense by smuggling fentanyl into the jail. They also argue that they could bring certified records to establish that Dean had previously been convicted of four felonies and four misdemeanors. They contend this record demonstrates that resentencing would not produce a different result.
The People also point out that Dean admitted the prior strike that doubled his sentence, so it was proven true beyond a reasonable doubt. Remand is not necessary for resentencing on the prior strike enhancement. Resentencing is only required when a court imposes one of three possible terms governed by section 1170(b), and the doubling here was the result of an enhancement under sections 667 and 1170.12. Dean's admission of the prior strike is thus irrelevant.
The People's review of the aggravating factors in this case is inaccurate and incomplete. The People may be correct that they could easily provide certified copies to prove Dean's criminal record of felonies, which the trial court cited as aggravating factors. It is possible they could also easily prove Dean's unsatisfactory performance on probation or parole, on which the trial court also relied, although they do not mention it and section 1170(b) does not contain an explicit exception from the jury trial requirement for such evidence. But the trial court did not say it was relying on Dean's subsequent offense of smuggling fentanyl into the jail to support imposition of the upper term, and subsequent offenses are not listed in rule 4.421 of the California Rules of Court, which the trial court applied. Dean's subsequent offense therefore does not support the People's argument.
The People also do not mention the aggravating factors the court found relating to the offense, which were that E.L. was particularly vulnerable and Dean's offense was more dangerous than others of its kind because of the level of E.L.'s intoxication. The People's silence regarding these factors is a tacit concession that the trial court could not consider these factors without jury findings or a stipulation from Dean to support them.
The People's argument therefore amounts to a contention that the trial court would clearly impose the upper term on remand based only on Dean's history of convictions and unsatisfactory performance on probation and parole, without considering any of the factors relating to the offense on which it previously relied. We are not convinced.
Contrary to the People's assertion, the trial court here did not state an intent to punish Dean to the fullest extent possible. Rather, the trial court balanced the aggravating factors it found against one possible mitigating factor. As in Lopez, a recent case in which a Court of Appeal remanded for resentencing after Senate Bill 567, "[t]he trial court offered no indication that it would have selected an upper term sentence even if only a single aggravating factor or some subset of permissible factors were present." (Lopez, supra, 78 Cal.App.5th at p. 468.) After Senate Bill 567, Dean's sentence will still be doubled because of his prior strike, which substantially increases Dean's punishment. In light of Senate Bill 567's policy change creating a presumption favoring the middle term and the few aggravating factors on which a sentencing court may now rely without jury findings or a stipulation, it is reasonably probable that the trial court could decide that the middle term sentence of 4 years, doubled to 8 years based on Dean's prior strike, would be appropriate, rather than the 12 years it originally imposed. This reasonable probability of a different sentence is sufficient to require us to remand this case. (Lopez, at p. 468.)
We will therefore remand to give the trial court a chance to exercise its discretion based on the newly amended statute. On remand, the People may also decide whether to proceed on the current record, request admission of certified records of prior convictions, and/or seek jury findings regarding any aggravating factors for which Senate Bill 567 requires such findings. (Lopez, supra, 78 Cal.App.5th at p. 468.) Our conclusion that remand for resentencing is necessary is not meant to imply anything about the appropriate sentence for Dean's offense; the trial court remains free to impose whatever sentence its finds appropriate.
Because we will remand for resentencing under Senate Bill 567, we need not address Dean's arguments that the fine under former section 1203.1b must be vacated because that statute has since been repealed and that the trial court erred in imposing various fines without inquiring into his ability to pay. Dean will receive a full resentencing on all counts at which the trial court may consider anew the imposition of fines. (Cf. People v. Buycks (2018) 5 Cal.5th 857, 893 ["when part of a sentence is stricken on review, on remand for resentencing 'a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances' "].) Dean may therefore raise any arguments relating to the fines during resentencing proceedings on remand.
DISPOSITION
The judgment is reversed, and the matter is remanded for resentencing. In all other respects, the judgment is affirmed.
WE CONCUR: POLLAK, P. J., NADLER, J. [*]
[*] Judge of the Superior Court of California, County of Sonoma, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.