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remanding for full resentencing despite "not reversing any of [the defendant's convictions or ruling that a portion of his sentence is invalid"].
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A160328
05-24-2022
The PEOPLE, Plaintiff and Respondent, v. Leonard Charles JONES, Defendant and Appellant.
Law Offices of Shannon Chase and Shannon Chase, Pleasanton, by appointment of the Court of Appeal Under the First District Appellate Project's Independent Case System, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Bruce L. Ortega and René A. Chacón, Deputy Attorneys General, for Plaintiff and Respondent.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts I.A.3., I.B., II.A., and II.B.
Law Offices of Shannon Chase and Shannon Chase, Pleasanton, by appointment of the Court of Appeal Under the First District Appellate Project's Independent Case System, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Bruce L. Ortega and René A. Chacón, Deputy Attorneys General, for Plaintiff and Respondent.
STREETER, Acting P. J. A jury convicted defendant Leonard Jones of attempted murder and related charges and enhancements. The trial court sentenced him to 59 years in prison. On appeal, Jones argues (1) a jury instruction on eyewitness identification evidence rendered his trial fundamentally unfair in violation of due process, (2) the court erred by denying his Pitchess motion to discover information in police personnel files, and (3) the case should be remanded for resentencing. The Attorney General agrees a remand for resentencing is required in light of legislation that took effect after Jones's sentencing hearing. In the unpublished portion of this opinion, we reject Jones's challenges to his convictions. But as we explain in the published portion of the opinion, we agree with the parties as to the impact of the new legislation. We therefore will remand for resentencing.
Pitchess v. Superior Court (1974) 11 Cal.3d 531, 113 Cal.Rptr. 897, 522 P.2d 305.
I. BACKGROUND
The charges against Jones arose from a shooting that took place in the parking lot of a San Leandro apartment complex on the evening of June 16, 2013. Jones's defense at trial was that he was misidentified and was not the shooter.
A. The Prosecution's Case
1. Background: Events Prior to the Shooting
In 2013, 16-year-old P.T. lived in the complex with her aunt. Jones's sister, Lyndetta Jones, also lived in the complex, and Jones sometimes visited the property.
P.T. testified she had two interactions with Jones at the apartment complex prior to the date of the shooting. On the first occasion, Jones approached P.T. in the parking lot and asked for her name. Because P.T. did not know Jones and was not interested in him, she gave him a fake name, "Nancy."
On the second occasion, which was about a week before the shooting, Jones tried to ask P.T. out. She told him to leave her alone and that she had a boyfriend. Jones persisted, and he and P.T. began cursing at each other. Jones then pulled out a gun, pointed it at P.T., and told her she should not curse at him or she would see what happens.
2. The Shooting
On June 16, 2013, around 9:00 p.m., 22-year-old Gbessaykai Massaquoi was with P.T. in his two-door Honda Civic hatchback at the San Leandro Marina. Massaquoi was smoking marijuana. P.T. and Massaquoi were friends.
Massaquoi then drove to Hayward and picked up three other friends, 22-year-old Najeem Mirzada, 21-year-old Sandip Prasad, and 18-year-old Cedric Sallie. P.T. sat in the front passenger seat, and Massaquoi's three other friends sat in back. Massaquoi drove the group back to San Leandro to drop P.T. off at her home. He dropped her off at a liquor store near the apartment complex, rather than at the complex. Massaquoi testified that he dropped P.T. off there only because it was convenient and because P.T. told him to. P.T. testified Massaquoi dropped her off there so that her aunt would not see her hanging out with an adult man.
After P.T. got out of the car, Massaquoi saw a man walking quickly behind her while holding a paper bag that appeared to contain a bottled drink. Massaquoi described this male as a fit Black man, five feet nine inches to five feet 10 inches tall, with short hair, and wearing a white shirt and white pants. Cedric Sallie described the man as Black, six feet tall with short hair, and no facial hair, and weighing 160 to 170 pounds. Sandip Prasad, who had moved to the front seat when P.T. got out of the car, described the African-American man following P.T. as 25 to 30 years old, six feet tall and 160 pounds, with short curly hair, and wearing a white tank top with dark jeans. Najeem Mirzada described the fit man following P.T. as Black, about six feet to six feet two inches tall, with short hair and in his mid-20's, and wearing a white shirt and light-colored baggie jeans.
P.T. testified Jones was the man following her. Jones came up from behind her and got close to her side, about a foot away, and tried talking to her. However, given what had happened between them previously, P.T. was nervous, scared, walking fast, and not paying attention to Jones's words. P.T. had testified at the preliminary hearing that Jones walked behind her.
Massaquoi never saw P.T. turn around and look at the man. Massaquoi testified that the man started out about 14 feet behind P.T., and eventually closed the gap to about six to seven feet.
Because Massaquoi believed the man was following P.T., he made a U-turn and drove into the apartment complex parking lot, stopping next to P.T. and asking her if she was okay. Massaquoi testified that P.T. looked scared and did not reply as she kept walking. P.T. testified that she replied " ‘yes’ " to Massaquoi's request that she call him after she got to her apartment.
After P.T. walked out of view, the man who had been following her pulled out a black gun, approached the Honda, and asked if they had a problem. Massaquoi's window was halfway down, and he responded he was " ‘just trying to make sure if she's okay.’ " The man replied, " ‘Oh, yeah I know Nancy,’ " and told them to "bounce" or leave, in an angry tone. Massaquoi put the car in reverse and heard five to six gunshots. A bullet shattered the car window, and Massaquoi was hit in the ankle and forearm. Massaquoi was able to drive to a gas station, where he and Prasad switched seats. Prasad then drove to a hospital. A resident of the complex, Olayo Maradiaga, arrived home and was outside his apartment when he saw a Black man arguing with people in a car. The man fired three or four shots at the car and ran away. Maradiaga told officers he would not be able to identify the shooter because he had been very far away (about 60 meters) and it was already nighttime.
Heather Tackett, the property manager for the apartment complex and a resident there, was in her apartment on the evening of June 16, 2013, and heard gunshots outside. She called 911 and looked out through the blinds on her living room window. She saw someone running through the parking lot. Tackett recognized the man as the brother of resident Lyndetta Jones (although she did not know his name). Tackett had interacted with him on about five occasions. Tackett told the 911 operator that she saw a man who " ‘looked like’ " the brother of one of her residents. 3. The Lineups and Witness Identifications
See footnote *, ante
See footnote *, ante
C. Procedural Background: The Charges, Verdicts, and Sentence
An information filed in October 2014 charged Jones with four counts of attempted murder (counts 1–4; Pen. Code, §§ 187, subd. (a), 664 ), i.e., one count pertaining to each of the four people in the car at the time of the shooting—Massaquoi, Sallie, Prasad, and Mirzada. The information also charged Jones with four counts of assault with a semiautomatic firearm (counts 5–8; § 245, subd. (b)) (as to the same four people), one count of shooting at an occupied vehicle (count 9; § 246), and one count of being a felon in possession of a firearm (count 10; § 29800, subd. (a)(1)). The information alleged as to the attempted murder counts that Jones personally used and intentionally discharged a firearm (§§ 12022.5, subd. (a), 12022.53, subds. (b), (c)), and as to the assault charges that he personally used a firearm (§ 12022.5, subd. (a)). The information alleged Jones had a prior serious felony conviction (§ 667, subd. (a)(1))—a 2004 conviction for carjacking—that qualified as a "strike" (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1)), and for which he had served a prison term (§ 667.5, former subd. (b)). In February 2016, the jury found Jones guilty of the attempted murder of Massaquoi as charged in count 1 and found true the associated firearm enhancements. The jury found Jones not guilty of the attempted murders of Sallie, Prasad, and Mirzada as charged in counts 2 through 4. The jury found Jones guilty of all four counts of assault with a semiautomatic firearm (counts 5 through 8) and the firearm enhancements for those counts, as well as the count 9 charge of shooting at an occupied vehicle and the count 10 charge of being a felon in possession of a firearm. Jones waived his right to a jury trial on the prior conviction allegation, and the court found the allegation true. The record does not reflect that the court addressed the prior prison term enhancement allegation.
Undesignated statutory references are to the Penal Code.
On December 16, 2019, nearly four years after the jury verdict, Jones, now represented by a different attorney, filed a motion for new trial. On February 28, 2020, the court denied the motion for new trial and sentenced Jones to 56 years in prison, with credit for 2,398 days of actual time served, plus additional conduct credit. Jones appealed.
In April 2020, the court filed amended minutes and an amended abstract of judgment revising its sentencing calculations and reflecting that it had sentenced Jones to 59 years in prison, determined as follows: On the count 1 attempted murder conviction ( §§ 187, subd. (a), 664 ), the court imposed the upper term of nine years, doubled to 18 years because of Jones's prior strike ( §§ 667, subd. (e)(1), 1170.12, subd. (c)(1) ). As to its selection of the upper term for count 1, the court had identified several aggravating factors at the February 2020 sentencing hearing: (1) the crime involved great violence and the threat of great bodily harm; (2) Jones used a weapon during the commission of the crime; (3) the victim (Massaquoi) was particularly vulnerable; (4) Jones had engaged in violent conduct and posed a serious danger to society; (5) he had served a prior prison term; and (6) he was on parole when he committed the present crime. The court stated there were no factors in mitigation. The court imposed a consecutive 20-year term for the count 1 enhancement that during the commission of the attempted murder Jones personally and intentionally discharged a firearm ( § 12022.53, subd. (c) ). As to the convictions in counts 6 through 8 for assault with a semiautomatic firearm, the court imposed consecutive terms of four years each ( § 245, subd. (b) ) (one-third of the middle term, doubled due to the prior strike), with consecutive terms of 16 months (one-third of the middle term) on the attendant gun-use enhancements ( § 12022.5, subd. (a) ). The court imposed a consecutive five-year term for Jones's prior serious felony conviction ( § 667, subd. (a)(1) ). As to the remaining counts of conviction (counts 5, 9, and 10), the court imposed middle terms but stayed them pursuant to section 654.
The minute order and abstract of judgment incorrectly state this five-year term was imposed pursuant to section 667.5, subdivision (b) ; the five-year term for a prior serious felony conviction is authorized by section 667, subdivision (a)(1). We will direct that, if the superior court again imposes this five-year term on resentencing, the abstract of judgment should reflect that the basis for the term is section 667, subdivision (a)(1).
As noted, the information did also allege that Jones had served a prior prison term , which would have triggered a one-year enhancement under section 667.5, former subdivision (b). That enhancement was not imposed here, and the prior prison term Jones served for his 2004 carjacking conviction no longer provided a basis for a section 667.5, subdivision (b) one-year term by the time of Jones's February 2020 sentencing. (See § 667.5, subd. (b), as amended by Stats. 2019, ch. 590, § 1 [authorizing additional one-year term only where defendant's prior prison term was for a sexually violent offense].)
II. DISCUSSION
See footnote *, ante
C. The Need for a Remand for Resentencing
Jones argues in his opening brief that we should remand for resentencing because two recent legislative enactments—Senate Bill No. 620 and Senate Bill No. 1393 (which took effect in 2018 and 2019, respectively)—confer discretion on the trial court to strike the firearm and prior serious felony enhancements it imposed at sentencing in 2020. In a supplemental brief, Jones contends a remand for resentencing is also necessary in light of more recent legislation that took effect on January 1, 2022, and modified applicable sentencing statutes, specifically sections 1170, subdivision (b), and 654. The Attorney General agrees the latter set of legislative enactments—Senate Bill No. 567 and Assembly Bill No. 518—apply retroactively and that this court should remand for resentencing. We conclude that, because of the postsentencing changes in the law effected by Senate Bill No. 567 (2021–2022 Reg. Sess.) (Senate Bill 567) and Assembly Bill No. 518 (2021–2022 Reg. Sess.) (Assembly Bill 518), a remand for a full resentencing is necessary. At that resentencing, Jones may present arguments as to any sentencing issue, including as to whether the firearm and prior serious felony enhancements should be imposed. We therefore need not address the parties’ contentions as to whether the earlier enactments that specifically pertain to enhancements (Senate Bill 620 and Senate Bill 1393, both of which took effect before Jones was sentenced) would themselves provide a basis for a remand for resentencing.
Senate Bill No. 620 (2017–2018 Reg. Sess.) (Senate Bill 620), which took effect on January 1, 2018, amended sections 12022.5 and 12022.53 to provide that a sentencing court has discretion to strike or dismiss the firearm enhancements authorized by those sections. (§§ 12022.5, subd. (c), 12022.53, subd. (h) ; Stats. 2017, ch. 682, §§ 1, 2 ; see People v. Woods (2018) 19 Cal.App.5th 1080, 1090, 228 Cal.Rptr.3d 318.) Senate Bill No. 1393 (2017–2018 Reg. Sess.) (Senate Bill 1393) became effective a year later, on January 1, 2019, and amended sections 667, subdivision (a), and 1385, subdivision (b), to give a trial court the authority to strike or dismiss a prior serious felony enhancement. (Stats. 2018, ch. 1013, §§ 1, 2 ; see People v. Stamps (2020) 9 Cal.5th 685, 702, 264 Cal.Rptr.3d 769, 467 P.3d 168.)
Turning to the more recent legislation, Senate Bill 567 amended section 1170, subdivision (b), to specify that, when a sentencing court chooses a term from a statutory triad, the chosen term shall not exceed the middle term, unless the facts supporting the aggravating circumstances are (1) established by the defendant's stipulation to them, (2) proven to a jury (or to a court, if jury is waived) beyond a reasonable doubt, or (3) based on prior convictions evidenced by a certified record of conviction. (Stats. 2021, ch. 731, §§ 1.3, 3(c), adding § 1170, subd. (b)(1)–(3), by amendment.) Jones contends the court imposed the upper term for count 1 based on grounds that do not meet these requirements. Senate Bill 567 also added a provision that requires the court to impose the low term if the defendant's psychological, physical, or childhood trauma was a contributing factor in the commission of the offense, "unless the court finds that the aggravating circumstances outweigh the mitigating circumstances [so] that imposition of the lower term would be contrary to the interests of justice." (Stats. 2021, ch. 731, §§ 1.3, 3(c), adding § 1170, subd. (b)(6), by amendment.) As to this latter provision, Jones states in his supplemental brief that a probation report refers to statements by Jones that his father was charged with murdering his mother and that Jones dropped out of high school in 12th grade following her death.
The parties cite Assembly Bill No. 124 (2021–2022 Reg. Sess.) (Assembly Bill 124) as having amended Penal Code section 1170 to add this latter provision. As we read the legislation, however, it is Senate Bill 567 that added subdivision (b)(6) to the statute. (Stats. 2021, ch. 731, §§ 1.3, 3(c).) Senate Bill 567, Assembly Bill 124, and one other bill (Assembly Bill No. 1540 (2021–2022 Reg. Sess.) (Assembly Bill 1540)), all of which were introduced in the first year of the 2021–2022 legislative term, proposed various changes to the Penal Code, including amendments to section 1170. All three bills were passed by the Legislature in September 2021 and approved by the Governor on October 8, 2021. (See Stats. 2021, ch. 695, § 5 [Assembly Bill 124], effective Jan. 1, 2022; Stats. 2021, ch. 719, § 2 [Assembly Bill 1540], effective Jan. 1, 2022; Stats. 2021, ch. 731, § 1.3 [Senate Bill 567], effective Jan. 1, 2022.) The three bills overlapped in that they proposed similar but not identical amendments to section 1170. But because Senate Bill 567 was the last bill signed by the Governor and bears the highest chapter number, its amendments to section 1170 prevail over the amendments to that code section specified in the other two bills. (Gov. Code, § 9605, subd. (b) ; In re Thierry S. (1977) 19 Cal.3d 727, 738–739, 139 Cal.Rptr. 708, 566 P.2d 610 ; People v. Banner (2022) 77 Cal.App.5th 226, 243, fn. 2, 292 Cal.Rptr.3d 574 (conc. & dis. opn. of Detjen, Acting P. J.).)
Another recent enactment, Assembly Bill 518, amended section 654, subdivision (a), to provide in relevant part: "An act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision." (Stats. 2021, ch. 441, § 1.) Previously, under section 654 "the sentencing court was required to impose the sentence that ‘provides for the longest potential term of imprisonment’ and stay execution of the other term. [Citation.] ... [S]ection 654 now provides the trial court with discretion to impose and execute the sentence of either term, which could result in the trial court imposing and executing the shorter sentence rather than the longer sentence." ( People v. Mani (2022) 74 Cal.App.5th 343, 379, 289 Cal.Rptr.3d 452.)
The parties agree aspects of Jones's sentence are potentially affected by these amendments to sections 1170, subdivision (b), and 654. The court, applying the pre-Senate Bill 567 version of section 1170, subdivision (b), imposed the upper term for the count 1 attempted murder conviction and imposed (but stayed) middle terms for counts 5, 9, and 10. And, applying the pre-Assembly Bill 518 version of section 654, the court imposed and executed the term applicable to attempted murder, while imposing but staying the terms applicable to other counts of conviction.
We agree with the parties that Jones, whose convictions are not final, is entitled to retroactive application of the ameliorative changes effected by Senate Bill 567 and Assembly Bill 518. ( People v. Flores (2022) 73 Cal.App.5th 1032, 1039, 288 Cal.Rptr.3d 818 ["The People correctly concede the amended version of section 1170, subdivision (b) that became effective on January 1, 2022, applies retroactively in this case as an ameliorative change in the law applicable to all nonfinal convictions on appeal"]; People v. Mani , supra , 74 Cal.App.5th at p. 379, 289 Cal.Rptr.3d 452 ["defendant is entitled to [the] ameliorative benefit" of Assembly Bill 518's amendment to section 654 ]; see People v. Vieira (2005) 35 Cal.4th 264, 305–306, 25 Cal.Rptr.3d 337, 106 P.3d 990 [conviction is not final while appeal is pending].) Remand is therefore necessary for the court to resentence Jones under amended sections 1170, subdivision (b), and 654. ( Mani , at p. 381, 289 Cal.Rptr.3d 452 ; Flores , at p. 1039, 288 Cal.Rptr.3d 818.)
The Attorney General, citing People v. Buycks (2018) 5 Cal.5th 857, 893, 236 Cal.Rptr.3d 84, 422 P.3d 531, argues the resentencing should be a " ‘ "full resentencing as to all counts." ’ " The full resentencing rule described in Buycks dictates that "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.’ " ( Buycks , at p. 893, 236 Cal.Rptr.3d 84, 422 P.3d 531 ; People v. Lopez (2020) 56 Cal.App.5th 835, 844–845, 270 Cal.Rptr.3d 749, review granted Jan. 27, 2021, S265936; see People v. Choi (2021) 59 Cal.App.5th 753, 770, 274 Cal.Rptr.3d 6 [full resentencing appropriate where certain enhancements were stricken]; People v. Burbine (2003) 106 Cal.App.4th 1250, 1259, 131 Cal.Rptr.2d 628 [full resentencing appropriate after the reversal of one or more subordinate counts of a felony conviction].) The full resentencing rule also applies to a resentencing that occurs pursuant to the recall provisions of section 1170, subdivision (d), Proposition 36 (Gen. Elec. (Nov. 6, 2012)), or Proposition 47 (Gen. Elec. (Nov. 4, 2014)). ( Buycks , at p. 893, 236 Cal.Rptr.3d 84, 422 P.3d 531.) A full resentencing may involve the trial court's revisiting such decisions as the selection of a principal term, whether to stay a sentence, whether to impose an upper, middle, or lower term, and whether to impose concurrent or consecutive sentences. ( People v. Valenzuela (2019) 7 Cal.5th 415, 424–425, 247 Cal.Rptr.3d 651, 441 P.3d 896.)
We agree with the Attorney General that a full resentencing is appropriate here. Although we are not reversing any of Jones's convictions or ruling that a portion of his sentence is invalid (and his sentence has not been recalled under the statutory provisions cited above), we conclude the need to apply amended sections 1170, subdivision (b), and 654 creates sufficiently " ‘changed circumstances’ " ( People v. Buycks , supra , 5 Cal.5th at p. 893, 236 Cal.Rptr.3d 84, 422 P.3d 531 ) to warrant a full resentencing. Application of the amended statutes will require the trial court, at a minimum, to reconsider which triad term to impose for certain counts of conviction and which terms to stay under section 654. ( §§ 654, subd. (a), 1170, subd. (b)(1)–(3), (6).) As part of that process, the court should also be free to reconsider any other components of the aggregate sentence it crafted in early 2020, which in this case included multiple counts of conviction and multiple enhancements. ( People v. Ramirez (2019) 35 Cal.App.5th 55, 64, 246 Cal.Rptr.3d 897 [" ‘When a case is remanded for resentencing by an appellate court, the trial court is entitled to consider the entire sentencing scheme’ "]; see People v. Burbine , supra , 106 Cal.App.4th at pp. 1257–1258, 131 Cal.Rptr.2d 628 [full resentencing appropriate given the " ‘interlocking nature’ " and "inherently integrated nature" of felony sentencing for a multiple-count conviction].) We will remand for a full resentencing.
III. DISPOSITION
The convictions are affirmed. The sentence is vacated, and the case is remanded for resentencing. If, on resentencing, the court again imposes the five-year enhancement for a prior serious felony conviction, the abstract of judgment should reflect that enhancement was imposed under section 667, subdivision (a)(1), rather than under section 667.5, subdivision (b).
WE CONCUR:
BROWN, J.
Judge of the Superior Court of California, County of Alameda, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.