Opinion
C088198
05-20-2020
THE PEOPLE, Plaintiff and Respondent, v. GERMAINE DOUGLAS O'NEIL, JR., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16FE019742)
Defendant Germaine Douglas O'Neil, Jr., was convicted of crimes related to a shooting. On appeal, he contends the trial court failed to obtain a knowing, intelligent, and voluntary admission of the strike prior allegation, prior serious felony conviction allegation, and prior prison term allegation. He also argues the trial court erred in imposing the prior serious felony enhancement three times, and requests that we remand the case to permit the trial court to consider whether to exercise its discretion to strike his prior serious felony enhancement pursuant to Senate Bill No. 1393 (Stats. 2018, ch. 1013, §§ 1, 2) (Senate Bill 1393). Citing People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), defendant further argues the trial court erred in imposing various fines and fees without holding a hearing regarding his ability to pay them. Finally, defendant asks that we strike the one-year prior prison term enhancement.
We will strike the one-year prior prison term enhancement. We also will remand the case for resentencing, including to allow the trial court to consider whether to strike the prior serious felony enhancement. We otherwise will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The resolution of this appeal requires only a brief recitation of the facts.
Defendant was charged with shooting at an occupied vehicle (Pen. Code, § 246; count one), two counts of assault with a deadly weapon (§ 245, subd. (b); counts two & three), and two counts of being a felon in possession of a firearm (§ 29800, subd. (a)(1); counts four & five). It further was alleged with respect to counts one through four that defendant committed the crimes for the benefit of a criminal street gang. (§ 186.22, subd. (b).) With respect to counts two and three, it also was alleged that defendant personally used a firearm. (§ 12022.5, subds. (a) & (d).) In addition, it was alleged defendant suffered a prior strike, a prior serious felony, and a prior prison term. (§ 667, subds. (a)-(i), 667.5, subd. (b).) The prior prison term allegation was based on defendant's 2013 conviction for inflicting corporal injury on a spouse or cohabitant (§ 273.5, subd. (a)), while the prior serious felony conviction allegation was based on a 2006 conviction for attempted robbery (§§ 664, 211).
Undesignated statutory references are to the Penal Code. --------
In August 2018, a jury found defendant guilty on all counts and the criminal street gang and firearm enhancements. The prior conviction allegations were to be heard in bifurcated proceedings. In all, 30 witnesses testified during the trial, including defendant. Prior to defendant's testimony, the trial court advised defendant that he had the "absolute right to remain silent and not testify," and that "anything you testify about can be used against you."
A. Defendant's stipulation to bifurcated proceedings on the prior conviction allegations
During the trial, and after 25 prosecution witnesses had already testified and been cross-examined, the prosecutor and defense counsel informed the court that defendant wanted to bifurcate the trial on the prior conviction allegations. Defense counsel said, "We would do a Court trial. I'll explain it to [defendant]. The agreement is to bifurcate it. To the extent—if [defendant] is found guilty, is to do it at the [judgment and sentencing hearing] and have a Court trial for it." The court asked if he wanted to put that on the record. Defense counsel responded, "I'm just telling you that's what we're going to do. I'm going to further explain it to [defendant], that that's to his advantage." The prosecutor interjected, "I'm not saying jury trial versus Court trial on the priors; just that today on the record, we were assured [defendant] is okay with bifurcating the trial." The court stated, "So we will bifurcate the priors. So that will not be part of the case-in-chief the People are going to put on at this time." Defense counsel replied, "Yes, we [are] going to agree to that at this time, Your Honor. I'm giving Your Honor a heads-up how we would handle it, to the extent we get there." The court responded, "Good." For purposes of the unlawful firearm possession allegations, defendant had already stipulated that he was a convicted felon prior to July 9, 2016, the date of the crimes at issue here.
Prior to the jury returning its verdict, defense counsel informed the court that he had "talk[ed] to [defendant] about the fact that we still have to have a Court trial on the prior and strike and that that would be handled at a different date, at judgment and sentencing . . . . [W]e would waive time and have it be on 30 days out." When the court asked, the defendant confirmed he agreed to waive time on sentencing and the "further trial on the issue of the allegation of the priors."
B. Stipulation to prior convictions
During the September 2018 sentencing hearing, the court stated, "This is the time and place for judgment and sentence. By stipulation of the parties and the time waiver from [defendant], sentencing was set for today and trial on the allegation of the prior convictions was also to be held today, [defendant] having waived a jury on those issues. [¶] My understanding in my discussion with counsel off the record is that [defendant], and with the advice of counsel, is prepared to stipulate to the fact of the prior convictions for purposes of trial on those issues." The court asked defendant if this was correct, and defense counsel and defendant each responded, "Yes." The court continued: "And pursuant to that stipulation, I do find the allegation of the prior convictions to be true and that the People have met their burden therefore beyond a reasonable doubt."
According to the probation report prepared for the September 2018 sentencing hearing, in 2013 defendant pleaded to violating section 273.5, subdivision (a) and admitted a prior strike. Defendant also pleaded to felony animal cruelty in 2011. (§ 597, subd. (a).) In addition, defendant was convicted of unauthorized possession of a controlled substance in 2013 (Health & Saf. Code, § 11377, subd. (a)), felony vehicle theft in 2009 (Veh. Code, § 10851), and attempted robbery in 2006 (§§ 664, 211). Defendant was 16 years old when he was convicted of the attempted robbery offense.
C. Judgment and sentencing
During the September hearing, the trial court stated it was sentencing defendant to state prison for an aggregate term of 18 years four months, plus 30 years to life. The sentence included the upper term of three years for count four (the principal determinate count) doubled to six years due to the strike, plus the upper term of four years for the associated gang enhancement. (§ 186.22, subd. (b)(1)(A).) In imposing the sentence, the trial court said, "I think today is a sad day. I am going to impose a sentence on you that will keep you in prison for a long time, probably or perhaps the rest of your life. [¶] But one of the reasons I am not following the recommendations and urgings of the People on this to add multiple years to your sentence is to at least give you the opportunity that if you earn the right for parole when you're in prison and if you manage to put yourself into a place where . . . the Parole Board and Board of Prison Terms believe you deserve to be released, that you will have a chance to do that."
In October 2018, defense counsel argued the sentence imposed on count five should have been stayed under section 654. The trial court agreed and vacated its prior sentence. Despite saying it was imposing a total of "16 years" for count four and an aggregate state prison term of 16 years, plus 30 years to life, the trial court orally pronounced the following sentence: the upper term of three years (§ 29800, subd. (a)(1)), doubled to six years due to the strike, plus the upper term of four years consecutive for the gang enhancement (§ 186.22, subd. (b)(1)(A)) (10 years total for count four); nine years each for counts two and three (§ 245, subd. (b)), doubled to 18 years each due to the strike, plus 10 years each for the firearm enhancement (§ 12022.5), plus five years each for the "prior prison term," stayed pursuant to section 654 (33 years total stayed for each count); 16 months for count five (§ 29800, subd. (a)(1), doubled to 32 months due to the strike, stayed pursuant to section 654 (two years eight months total stayed); and a consecutive indeterminate term of 15 years to life for count one (§§ 246, 186.22, subd. (b)(4)), doubled to 30 years to life due to the strike. As such, the total aggregate sentence orally imposed was 10 years plus 30 years to life. The trial court did not state it was imposing any sentence for defendant's prior prison term or prior serious felony enhancements, other than the two stayed five-year terms for the "prior prison term." The trial court imposed a restitution fine of $300 (§ 1202.4, subd. (b)) and a corresponding parole revocation fine of $300 (§ 1202.45).
The abstract of judgment reflects the following determinate sentence: six years for count four plus four years for the gang enhancement (10 years total), nine years each for counts two and three plus 10 years each for the firearm enhancement stayed per section 654 (19 years total stayed for each count), two years eight months for count five stayed per section 654, three five-year terms for the prior serious felony conviction with two of the terms stayed (§§ 667, subd. (a), 654), one year for the prior prison term (§ 667.5, subd. (b)), and thirty years to life for count one. As such, the total aggregate sentence as described in the abstract of judgment is 16 years, plus 30 years to life. The abstract also reflects a $300 restitution fine and a corresponding $300 parole revocation fine, suspended unless parole is revoked.
DISCUSSION
I
Citing People v. Cross (2015) 61 Cal.4th 164 (Cross), defendant argues the trial court erred in accepting his stipulation to the facts of his prior convictions for purposes of the allegations that he suffered a prior strike, a prior serious felony, and a prior prison term. According to defendant, the trial court violated his due process rights by failing to advise him of his trial rights and thereby failing to obtain a knowing, voluntary, and intelligent admission of the prior conviction allegations. The People argue the trial court was not required to so advise defendant because he merely made an evidentiary stipulation. In the alternative, they argue any error was harmless because the record shows that defendant's stipulation was voluntary and intelligent under the totality of the circumstances. We agree the trial court erred but do not find the error to be prejudicial.
When a defendant admits the truth of a prior conviction such that he also admits all elements of an enhancement that subjects him to increased punishment, the trial court is required to ensure that the plea is knowing and voluntary. (Cross, supra, 61 Cal.4th at pp. 170, 179-180; see also Boykin v. Alabama (1969) 395 U.S. 238, 242-244 [23 L.Ed.2d 274, 279-280], In re Tahl (1969) 1 Cal.3d 122, 130-133, and In re Yurko (1974) 10 Cal.3d 857, 863.) The court must "inform the defendant of three constitutional rights—the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront one's accusers—and solicit a personal waiver of each. [Citations.] Proper advisement and waiver of these rights . . . are necessary 'to make sure [the accused] has a full understanding of what the plea connotes and of its consequences." (Cross, at p. 170.)
Here, the trial court failed to give defendant any such advisements prior to accepting the stipulation on his prior convictions. Still, a trial court's failure to properly advise a defendant is "not reversible 'if the record affirmatively shows that [the admission] is voluntary and intelligent under the totality of the circumstances.' " (Cross, supra, 61 Cal.4th at p. 179; see also People v. Farwell (2018) 5 Cal.5th 295, 303 ["totality of circumstances test applies in all circumstances where the court fails, either partially or completely, to advise and take waivers of the defendant's trial rights before accepting a guilty plea"].) We review the " 'whole record,' " including the defendant's previous experience in the criminal judicial system. (Cross, at pp. 179-180.)
The record here indicates defendant knowingly and voluntarily stipulated to the fact of his prior convictions. Defense counsel informed the court that defendant wished to bifurcate the trial after 25 prosecution witnesses had testified and been subject to cross-examination. Defendant eventually entered the stipulation about his prior convictions after his trial on the remaining charges was complete, with 30 witnesses testifying, including defendant. Under the circumstances, defendant must have understood he had the right to confront and cross-examine witnesses. In addition, defendant must have understood he had the right to remain silent, since the court so advised him before he testified during trial.
We further note that defendant has a lengthy criminal record, which is " 'relevant to [his] " 'knowledge and sophistication regarding his [legal] rights.' " ' " (Cross, supra, 61 Cal.4th at p. 180.) After his first felony conviction at age 16, defendant pleaded to two additional felonies and a prior strike. Moreover, defendant was present in court when his appointed counsel asked to bifurcate the trial on defendant's prior felony convictions. His counsel indicated he had spoken with defendant about the court trial and the stipulation. (See, e.g., People v. Vest (1974) 43 Cal.App.3d 728, 736 ["when a plea is entered with counsel, and it appears or can be inferred from the record that prior thereto defendant has consulted with him it is presumed, in the absence of evidence to the contrary, that counsel has informed him of the various rights which are waived by a plea of guilty"].)
Under the totality of the circumstances, we conclude the stipulation was knowing, voluntary, and intelligent and defendant was not prejudiced by the trial court's failure to advise him of his rights before accepting it.
II
In a supplemental brief, defendant requests that we strike his prior prison term enhancement based on the retroactive application of Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill 136), and we agree.
On October 8, 2019, the Governor signed Senate Bill 136, which amended section 667.5, effective January 1, 2020 (Stats. 2019, ch. 590, § 1). Senate Bill 136 narrowed eligibility for the one-year prior prison term enhancement to those who have served a prior prison sentence for a sexually violent offense, as defined in section 667.5. The amended provision states in pertinent part: "Except where subdivision (a) applies, where the new offense is any felony for which a prison sentence or a sentence of imprisonment in a county jail under subdivision (h) of Section 1170 is imposed or is not suspended, in addition and consecutive to any other sentence therefor, the court shall impose a one-year term for each prior separate prison term for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code, provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of five years in which the defendant remained free of both the commission of an offense which results in a felony conviction, and prison custody or the imposition of a term of jail custody imposed under subdivision (h) of Section 1170 or any felony sentence that is not suspended." (§ 667.5, subd. (b).)
In this case, defendant's prior prison term enhancement was not based on a sexually violent offense. Defendant is therefore entitled to the ameliorative benefit of the statute if Senate Bill 136 is applied retroactively. We agree with the parties that the amendment to Senate Bill 136 should be applied retroactively in this case. Whether a particular statute is intended to apply retroactively is a matter of statutory interpretation. (See People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307 [noting " 'the role of a court is to determine the intent of the Legislature' "].) Generally speaking, new criminal legislation is presumed to apply prospectively unless the statute expressly declares a contrary intent. (§ 3.) However, where the Legislature has reduced punishment for criminal conduct, an inference arises under In re Estrada (1965) 63 Cal.2d 740 (Estrada) that, " 'in the absence of contrary indications, a legislative body ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not.' " (Lara, at p. 308.) "A new law mitigates or lessens punishment when it either mandates reduction of a sentence or grants a trial court the discretion to do so. [Citation.]" (People v. Hurlic (2018) 25 Cal.App.5th 50, 56.)
Senate Bill 136 narrowed the class of persons eligible for a section 667.5, subdivision (b) prior prison term enhancement, thus rendering ineligible many individuals, including defendant, who served a prior prison sentence for inflicting corporal injury on a spouse or cohabitant. There is nothing in the bill or its associated legislative history that indicates an intent that the court not apply this amendment to all individuals whose sentences are not yet final. Under these circumstances, we conclude Estrada's inference of retroactive application applies. (See, e.g., People v. Nasalga (1996) 12 Cal.4th 784, 797-798 [applying Estrada inference of retroactivity to legislative changes to § 12022.6, subds. (a) and (b) enhancements].) Accordingly, we will modify the judgment to strike defendant's prior prison term enhancement.
III
Defendant requests we remand the matter to permit the trial court to exercise its discretion to strike the prior serious felony conviction enhancement pursuant to Senate Bill 1393 (2017-2018 Reg. Sess.), and we agree. When defendant was sentenced, the trial court had no discretion to strike an enhancement for a prior serious felony conviction. (See former § 667, subd. (a), former § 1385, subd. (b).) Senate Bill 1393, which went into effect on January 1, 2019, amends sections 667, subdivision (a), and 1385, subdivision (b), to allow a trial court to exercise its discretion to strike or dismiss a prior serious felony conviction allegation for sentencing purposes.
There is nothing in the amendments to sections 667 or 1385 suggesting the Legislature intended them to apply prospectively only. Pursuant to Estrada, the amendments apply retroactively to this case, which was not yet final when they went into effect. (People v. Garcia (2018) 28 Cal.App.5th 961, 972-973.)
The trial court did not clearly indicate it would have declined to exercise its discretion to lessen defendant's sentence. Although it imposed the upper term on the principal determinate count, it also stated during the September 2018 sentencing hearing that it had declined the People's request to add on additional years in order to give defendant "a chance" at parole. Accordingly, the appropriate remedy is to remand the matter. (See People v. McDaniels (2018) 22 Cal.App.5th 420, 425 ["a remand is required unless the record shows that the trial court clearly indicated when it originally sentenced the defendant that it would not in any event have stricken a firearm enhancement"].)
IV
Defendant further challenges the sentence imposed as reflected in the abstract of judgment, arguing the trial court erred in imposing three five-year terms for the prior serious felony enhancement. In addition, citing Dueñas, defendant requests that we stay the $300 restitution and $300 parole revocation fines until the prosecution has shown he has the ability to pay. The People further argue the trial court should have imposed an additional five-year term on the indeterminate term, for the prior serious felony conviction.
Although the prior conviction enhancements challenged by defendant are listed in the abstract of judgment, they were not orally imposed by the trial court. Given the wide discrepancies between the abstract of judgment and the oral pronouncement of sentence, the record fails to make clear what sentence the trial court intended to impose. (See People v. Mesa (1975) 14 Cal.3d 466, 471 [ordinarily, an oral pronouncement of judgment controls] and People v. Smith (1983) 33 Cal.3d 596, 599 [a record that is in conflict will be harmonized if possible, depending on the circumstances of the case].) Despite stating it was imposing an aggregate determinate term of 16 years, the trial court imposed only 10 years. In addition, the trial court failed to orally impose sentence on defendant's prior conviction enhancement, except for the two "stayed" five-year terms imposed on counts two and three. The trial court also imposed 33 years stayed on each of counts two and three, but the abstract of judgment reflects a 19-year stayed sentence for each count. Under the circumstances, a full resentencing is required. Given our conclusions, we need not address defendant's claims regarding the fines and fees. (See People v. Buycks (2018) 5 Cal.5th 857, 893 [on remand for resentencing, the trial court has jurisdiction to modify every aspect of the sentence on the counts that were affirmed].)
DISPOSITION
The judgment is modified to strike defendant's section 667.5, subdivision (b) prior prison term enhancement. The sentence is stricken and the matter is remanded to the trial court with directions to hold a full resentencing hearing, including for the trial court to consider exercising its discretion under sections 667 and 1385 to strike the prior serious felony conviction enhancement. The trial court is directed to prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.
KRAUSE, J. We concur: MURRAY, Acting P. J. RENNER, J.