Opinion
H046454
04-23-2020
THE PEOPLE, Plaintiff and Respondent, v. SAVIN SAM, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. 210962)
Appellant Savin Sam pleaded guilty in 2009 to three counts of murder and twelve other crimes. Sam also admitted gang and firearm enhancements and special circumstance allegations. The trial court sentenced Sam to three consecutive terms of life without the possibility of parole, 350 years to life, and 29 years and 8 months in prison. On count 15, a conviction for assault with a firearm, the trial court imposed and did not stay terms for both a firearm and a gang enhancement.
In 2018, the Secretary of the Department of Corrections and Rehabilitation (CDCR) recommended that the trial court recall Sam's sentence and resentence him. In a letter to the trial court, the CDCR stated that, because the gang and firearm enhancements on count 15 were based on the use of the same firearm, punishment could not be imposed on both enhancements under Penal Code section 1170.1 and the California Supreme Court's decision in People v. Rodriguez (2009) 47 Cal.4th 501 (Rodriguez). In response to the CDCR's recommendation, the trial court issued an order declining to recall Sam's sentence.
Unspecified statutory references are to the Penal Code.
Sam appeals and claims the trial court erred by refusing to exercise its discretion under section 1170, subdivision (d)(1), to recall his sentence and stay execution of one of the 10-year enhancements on count 15. He urges this court to order correction of the original abstract of judgment and sentencing minute order to stay the gang enhancement. The Attorney General concedes that one of the enhancements on count 15 should be stayed but argues the appropriate remedy is a reversal of the trial court's order and remand to the trial court for recall and resentencing.
For the reasons explained below, we agree with the course of action suggested by Sam. We therefore reverse the trial court's order, modify the judgment to stay the gang enhancement on count 15, and affirm the judgment as modified.
I. PROCEDURAL BACKGROUND
On May 5, 2005, the grand jury of Santa Clara County returned an indictment charging Sam and two codefendants with three counts of murder (§ 187; counts 1, 5, 13), ten counts of premeditated attempted murder (§§ 187, 189, 664, subd. (a); counts 2, 3, 4, 6, 7, 8, 9, 10, 11, 12), one count of attempted murder (§§ 187, 664, subd. (a); count 14), and one count of assault with a firearm (§ 245, subd. (a)(2); count 15). The indictment alleged gang and firearm enhancements on all counts and several special circumstances. On count 15, the indictment alleged enhancements based on Sam's personal use of a firearm (§ 12022.5, subd. (a)) and commission of the crime to benefit a criminal street gang (§ 186.22, subd. (b)(1)(C)).
The facts of Sam's crimes are not recounted in this opinion because they are not relevant to the issue raised by his appeal.
On March 23, 2009, Sam pleaded guilty to all charges and admitted all allegations pursuant to an oral plea agreement. The Santa Clara County District Attorney agreed not to pursue the death penalty in exchange for Sam's guilty plea and a sentence of life without the possibility of parole. Sam agreed to "waive all appellate rights consistent with Penal Code section 1237.5 related to everything up to this date and including entry of [the] guilty plea."
On August 28, 2009, the trial court sentenced Sam to three consecutive terms of life without the possibility of parole, 350 years to life, and 29 years and 8 months in prison. On count 15, the trial court imposed an upper term of four years plus 10 years for the firearm enhancement and 10 years for the gang enhancement, for a total sentence of 24 years on that count.
On August 7, 2018, pursuant to section 1170, subdivision (d), the Secretary of the CDCR recommended the trial court recall Sam's sentence and resentence him in light of Rodriguez, supra, 47 Cal.4th 501. The Secretary noted that Sam's sentence on the assault conviction in count 15 included a firearm enhancement and a gang enhancement and "[b]oth enhancements were attached to [] Sam's section 245 offense." On August 21, 2018, the trial court issued an order stating, "Court declines to recall sentence. No further action needed." Sam filed a timely notice of appeal of the trial court's order declining to recall his sentence.
Rodriguez was decided on August 20, 2009, eight days before Sam's sentencing on August 28, 2009.
II. DISCUSSION
Sam asserts that he has standing to appeal the trial court's August 21, 2018 order and neither his appellate waiver nor his failure to request a certificate of probable cause bars this appeal. He further contends the trial court erred when it refused to recall his sentence and stay execution of one of the 10-year enhancements on count 15. He argues that, because the gang enhancements attached to the other counts (except count 14) were stayed at his sentencing in 2009, the 10-year gang enhancement imposed on count 15 should now be stayed. He asserts that the unstayed enhancement on count 15 is an unauthorized sentence that this court has the authority to correct.
The Attorney General agrees with Sam that the trial court erred under Rodriguez and should have stayed one of the 10-year sentence enhancements on count 15. However, the Attorney General contends the proper remedy is reversal of the trial court's order and remand for recall and resentencing. The Attorney General maintains that Sam's "appeal is not from the judgment but an order after judgment, [thus] the judgment is not before this court for review." The Attorney General also relies on Rodriguez as support for remand to the trial court for correction of the sentencing error and resentencing.
The Attorney General does not address the standing, appellate waiver, or certificate of probable cause issues identified by Sam. We understand this omission as an implicit concession of the merits of Sam's arguments. We agree that Sam has standing to appeal the trial court's order refusing to resentence him, and he did not need to obtain a certificate of probable cause to appeal the trial court's postjudgment order. (See People v. Loper (2015) 60 Cal.4th 1155, 1158 [concluding "that when the proceeding is properly initiated by prison or parole authorities as required by law, the trial court's decision produces an appealable order that may be appealed by the prisoner."]; People v. Arriaga (2014) 58 Cal.4th 950, 960 [certificate of probable cause not required when defendant appeals an " 'order made after judgment' "].) Moreover, by its terms, Sam's appellate waiver did not extend to the present sentencing issue or postjudgment proceedings.
We review the trial court's decision declining to recall Sam's sentence pursuant to section 1170, subdivision (d)(1), for an abuse of discretion. (See People v. Sandoval (2007) 41 Cal.4th 825, 847; People v. Carmony (2004) 33 Cal.4th 367, 375.)
Section 1170, subdivision (d)(1), provides in relevant part, "When a defendant subject to this section or subdivision (b) of Section 1168 has been sentenced to be imprisoned in the state prison . . . the court may . . . at any time upon the recommendation of the secretary or the Board of Parole Hearings in the case of state prison inmates . . . recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if he or she had not previously been sentenced, provided the new sentence, if any, is no greater than the initial sentence. The court resentencing under this subdivision shall apply the sentencing rules of the Judicial Council so as to eliminate disparity of sentences and to promote uniformity of sentencing. The court resentencing under this paragraph may reduce a defendant's term of imprisonment and modify the judgment, including a judgment entered after a plea agreement, if it is in the interest of justice."
We agree with the parties that, under Rodriguez, the trial court should not have imposed unstayed 10-year terms on both sentence enhancements for count 15. In Rodriguez, the California Supreme Court held that section 1170.1, subdivision (f), prohibits imposition of a gang enhancement, under section 186.22, subdivision (b)(1)(C), and a firearm enhancement, under section 12022.5, subdivision (a), as part of a sentence for assault with a firearm. (Rodriguez, supra, 47 Cal.4th at p. 504.) The Supreme Court explained that both enhancements fell within the scope of section 1170.1, subdivision (f). (Rodriguez, at pp. 504, 508.) The gang enhancement applied to the assault with a firearm conviction because it was a violent felony under section 667.5, subdivision (c)(8), by personal use of a firearm. (Rodriguez, at p. 509.) The Supreme Court observed that, " '[b]ecause two different sentence enhancements were imposed for defendant's firearm use . . ., section 1170.1's subdivision (f) requires that "only the greatest of those enhancements" be imposed.' " (Id. at pp. 508-509; see also People v. Le (2015) 61 Cal.4th 416, 419 (Le).)
Section 1170.1, subdivision (f), provides: "When two or more enhancements may be imposed for being armed with or using a dangerous or deadly weapon or a firearm in the commission of a single offense, only the greatest of those enhancements shall be imposed for that offense. This subdivision shall not limit the imposition of any other enhancements applicable to that offense, including an enhancement for the infliction of great bodily injury."
Sam's sentence on count 15 is indistinguishable from the one held improper in Rodriguez. Thus, the sentence Sam is currently serving on count 15 is erroneous under section 1170.1, subdivision (f). (See People v. Scott (1994) 9 Cal.4th 331, 354 ["a sentence is generally 'unauthorized' where it could not lawfully be imposed under any circumstance in the particular case"].) Accordingly, we conclude the trial court should have recalled Sam's sentence as recommended by the CDCR and corrected the sentencing error by staying one of the 10-year enhancements on count 15. (See People v. Vega (2013) 214 Cal.App.4th 1387, 13951396; Cal. Rules of Court, rule 4.447(a) [requiring the sentencing court to impose the aggregate term and then stay execution of the prohibited enhancement portion of the term].) Failure to do so was an abuse of discretion. (See People v. Patterson (2017) 2 Cal.5th 885, 894 [" '[W]hen a trial court's decision rests on an error of law, that decision is an abuse of discretion.' "].)
Having concluded that the trial court erred by refusing to recall Sam's sentence, we turn to the question of the appropriate remedy. Sam argues that we have the authority to order corrections to the abstract of judgment and sentencing minute order to stay the gang enhancement on count 15, in accord with the stays ordered by the trial court on other gang enhancements at his sentencing hearing. Sam contends further that it makes no difference which enhancement on count 15 is stayed because each mandates a 10-year, consecutive sentence. In addition, Sam argues, the trial court imposed the maximum sentence possible on all counts, so a remand for resentencing on count 15 would involve only the decision which enhancement to stay. In contrast, the Attorney General asserts the proper remedy is to reverse the trial court's order and remand the case for recall and resentencing.
We agree with Sam that we have the authority to correct an unauthorized sentence. (See In re Harris (1993) 5 Cal.4th 813, 842 ["An appellate court may 'correct a sentence that is not authorized by law whenever the error comes to the attention of the court.' "]; see also People v. Smith (2001) 24 Cal.4th 849, 854 [holding that the Court of Appeal may correct erroneous imposition of a parole revocation fine without remanding for further proceedings]; § 1260 [describing a reviewing court's power to modify judgments and reduce punishments].) We also agree with Sam that, under the circumstances of his case, it is appropriate for us to correct the sentence on appeal rather than remanding the matter to the trial court for resentencing.
At the original sentencing hearing, the trial court imposed the maximum sentence on Sam. This fact distinguishes this case from Rodriguez, where the trial court had not imposed the maximum sentence, and the California Supreme Court remanded to "give the trial court an opportunity to restructure its sentencing choices." (Rodriguez, supra, 47 Cal.4th at p. 509.) As the California Supreme Court noted in a later decision, "the trial court in Rodriguez had chosen the middle term of four years for the three underlying base felonies of assault with a firearm [and] imposed sentence on both the gang enhancement under section 186.22, subdivision (b)(1)(C) and the personal use of a firearm enhancement under section 12022.5, subdivision (a). Because we concluded that section 1170.1 precluded the imposition of sentence on both enhancements, this left the opportunity for the trial court to restructure its sentence by imposing the upper terms for the base felonies, if it was inclined to compensate for the loss of one of the enhancements." (Le, supra, 61 Cal.4th at p. 428, italics omitted.)
Because the trial court here has already imposed the upper term on the felony in count 15 and the maximum sentence overall, there is no additional action it could take to compensate for the "loss" of one of the enhancements. As there are no sentencing choices to restructure, it is appropriate for us to modify the sentence on appeal rather than remanding the matter to the trial court for resentencing. (See People v. Francis (2017) 16 Cal.App.5th 876, 887; People v. Rogers (2009) 46 Cal.4th 1136, 1174; § 1260.) Consistent with the trial court's decisions with respect to the gang enhancements on other counts, we will order the gang enhancement imposed on count 15 stayed.
Although the Attorney General argues remand is appropriate because Sam appeals from a postjudgment order declining to recall his sentence under section 1170, subdivision (d)(1), not the underlying judgment itself, he cites no authority for the proposition that this fact limits our authority to correct the unauthorized sentence.
We also note that Sam requests that, even though he already received the maximum sentence, we not remand the matter to the trial court for resentencing.
III. DISPOSITION
The trial court's order is reversed and the judgment is modified. The execution of the 10-year gang enhancement imposed on count 15 under Penal Code section 186.22, subdivision (b)(1)(C), is stayed. (Pen. Code, § 1170.1.) As modified, the judgment is affirmed.
Upon issuance of our remittitur, the trial court is directed to amend the abstract of judgment in this case to reflect the judgment as modified and to send a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. The clerk of this court is directed to send a copy of this opinion and the remittitur to the Department of Corrections and Rehabilitation. (Cal. Rules of Court, rule 8.272(d)(2).)
/s/_________
Danner, J. WE CONCUR: /s/_________
Premo, Acting P.J. /s/_________
Elia, J.