Opinion
E066716
01-11-2018
THE PEOPLE, Plaintiff and Respondent, v. BRANDON LEE SMITH, Defendant and Appellant.
Christopher Nalls, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton, Sabrina Y. Lane-Erwin and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1302006) OPINION APPEAL from the Superior Court of Riverside County. Richard T. Fields, Judge. Reversed. Christopher Nalls, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton, Sabrina Y. Lane-Erwin and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
In a prior appeal, this court directed the trial court to resentence defendant and appellant Brandon Lee Smith. (People v. Smith (Jan. 6, 2016, E061598) [nonpub. opn.] [2016 Cal.App.Unpub. LEXIS 129, *9].)
Prior to resentencing, the trial court denied defendant's Proposition 47 petition. (Pen. Code, § 1170.18.) Defendant contends the trial court erred in denying his petition. In particular, defendant asserts the trial court erred in concluding that resentencing defendant posed an unreasonable risk of danger to public safety. (§ 1170.18, subd. (b).) We reverse the order with directions.
All subsequent statutory references will be to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
A jury found defendant guilty of (1) robbery (§ 211); (2) petty theft with a prior (§§ 484, subd. (a), former 666, subd. (b)(1) [eff. Oct. 2011]); (3) possession of a controlled substance (Health & Saf. Code, § 11350); and (4) falsely identifying himself to a police officer (§ 148.9, subd. (a)). (People v. Smith, supra, E061598 LEXIS 129, *1.)
Defendant admitted suffering multiple prior convictions, which constituted: (1) a prison prior (§ 667.5, subd. (b)); (2) three prior serious felonies (§ 667, subd. (a)); and (3) four prior strikes (§§ 667, subds. (c) & (e)(2)(A), 1170.12, subd. (c)(2)(A)). The trial court struck three of defendant's prior strikes. The trial court sentenced defendant to prison for a term of 23 years eight months. Defendant appealed. In January 2016, this court filed an opinion directing the trial court to resentence defendant. (People v. Smith, supra, E061598 LEXIS 129 at pp. *9-*10.)
In April or May 2016, prior to the resentencing, defendant petitioned the trial court to resentence him for the four current convictions pursuant to Proposition 47 (§ 1170.18). The prosecutor responded to the petition. The prosecutor asserted (1) robbery (§ 211) was not a qualifying felony and therefore that conviction did not qualify for resentencing; and (2) a hearing should be set to determine if defendant posed an unreasonable risk of danger to public safety.
The record on appeal does not include defendant's petition. (Riverside Superior Court Form RI-CR039). The record does include a form entitled "Petition for Resentencing—Response and Order," which was completed by the court and the prosecutor, and which includes information about defendant's petition. (Riverside Superior Court Form CR045.)
" '[U]nreasonable risk of danger to public safety' means an unreasonable risk that the [defendant] will commit a new violent felony." (§ 1170.18, subd. (c).) There is a statutory list of qualifying violent felonies. The list includes "[a]ny serious and/or violent felony offense punishable in California by life imprisonment or death." (§ 667, subd. (e)(2)(C)(iv)(VII).)
In a written opposition, the prosecutor asserted resentencing defendant poses an unreasonable risk of danger to public safety because he presents an unreasonable risk of committing a third strike offense, which would be punishable by an indeterminate sentence, such as 25 years to life. (§ 667, subd. (e)(2)(A).) The opposition included details of violence in defendant's criminal history. For example, (1) in 2003, defendant bit a store employee who tried to stop defendant's theft, and (2) while in state custody, defendant engaged in mutual combat.
On August 18, 2016, the trial court held a combined hearing on (1) defendant's petition, and (2) the post-appeal resentencing. The trial court explained that defendant's petition was focused on two of his convictions: (1) petty theft with a prior (Pen. Code, §§ 484, subd. (a), former 666, subd. (b)(1) [eff. Oct. 2011]); and (2) possession of a controlled substance (Health & Saf. Code, § 11350). The trial court concluded the two offenses met the criteria for being reduced to a misdemeanor. (Pen. Code, § 1170.18, subd. (a).)
The trial court then discussed whether there was " 'an unreasonable risk that [defendant] will commit a new violent felony.' " The court explained that among the enumerated felonies that qualify as violent felonies, "[t]he only one [the court] see[s] that would apply here, in the Court's view, is where it says 'any serious and/or violent felony offense punishable in California by life imprisonment or death.' I don't—in my review of the evidence and the defendant's rather extensive record, I don't see any evidence that leads me to believe he is at a reasonable risk here of committing a homicide or attempted homicide or any of the other offenses set forth. But it does appear to me that he is an unreasonable risk for committing a serious or violent felony punishable in California by life imprisonment or death.
"The basis for that tentative decision is this: The defendant—well, the defendant has a consistent history of committing strike offenses, that is, serious or violent felony offenses." The court explained that defendant's probation report set forth offenses going back to juvenile court in 1998, reflecting crimes of battery, first-degree robbery, and residential burglary. The trial court counted eight serious or violent felony offenses in defendant's history.
The trial court said, "Is there an unreasonable risk that [defendant] will commit a new violent felony? And I've gone through those robberies that he committed, and I think that there is an unreasonable risk that he will do so. [¶] Then in terms of violent felonies, I referenced three separate either prior robberies or attempted robberies, which means the defendant is actually subject to life in prison for committing another such offense. [¶] And in fact, in this particular case, because this defendant does have two or more strikes, he's subject to life in prison for committing such an offense." The trial court denied defendant's petition. At the resentencing portion of the hearing, the trial court sentenced defendant to prison for a term of 17 years eight months.
DISCUSSION
Defendant asserts the trial court erred by concluding defendant's potential to commit a third strike offense, punishable by 25 years to life (§ 667, subd. (e)(2)(A)), equates with the potential to commit "[a]ny serious and/or violent felony offense punishable in California by life imprisonment or death." (§ 667, subd. (e)(2)(C)(iv)(VIII).)
A defendant may petition the trial court to have certain qualifying felony convictions reduced to misdemeanors. (§ 1170.18, subd. (a).) If the defendant's offenses meet the statutory criteria, the court shall grant the petition unless the court "determines that resentencing the [defendant] would pose an unreasonable risk of danger to public safety." (§ 1170.18, subd. (b).) "'[U]nreasonable risk of danger to public safety' means an unreasonable risk that the petitioner will commit a new violent felony" as defined in section 667, subdivision (e)(2)(C)(iv), which sets forth a list of qualifying felonies.
The enumerated violent felonies include sexually violent offenses; sexual acts with a child under 14 years old; lewd or lascivious acts with a child under 14 years old; homicide; solicitation to commit murder; assault with a machine gun on a peace officer or firefighter; possession of a weapon of mass destruction; and "[a]ny serious and/or violent felony offense punishable in California by life imprisonment or death." (§ 667, subd. (e)(2)(C)(iv).)
"By using the term 'offense punishable . . . by life imprisonment,' section 667, subdivision (e)(2)(C)(iv)(VIII) focuses on the offense and its associated statutory punishment, not the type of offender or the effect of other prior convictions on the offender's sentence." (People v. Hernandez (2017) 10 Cal.App.5th 192, 199.) "[T]he phrase 'offense punishable in California by life imprisonment or death' (§ 667, subd. (e)(2)(C)(iv)(VIII)) means an offense that itself has an associated statutory punishment of life imprisonment or death, not an offense such as robbery, which has an associated statutory punishment of two, three, or five years. An offense such as robbery is not converted to an 'offense punishable in California by life imprisonment or death' (§ 667, subd. (e)(2)(C)(iv)(VIII)) by virtue of the fact that the particular offender has two prior serious or violent felony convictions." (Id. at p. 202.)
We apply the abuse of discretion standard of review. (People v. Hall (2016) 247 Cal.App.4th 1255, 1263-1264.) " 'An abuse of discretion is shown when the trial court applies the wrong legal standard.' " (Id. at p. 1264.)
The trial court found defendant was likely to commit another strike offense, such as robbery or burglary, which would expose defendant to a third strike sentence. The trial court concluded that because defendant would be subject to a third strike sentence, such as 25 years to life (§ 667, subd. (e)(2)(A)), the third strike offense would be a "serious and/or violent felony offense punishable in California by life imprisonment." (§ 667, subd. (e)(2)(C)(iv)(VIII).)
The trial court abused its discretion by focusing on defendant's status as a recidivist and the sentence defendant would receive as a recidivist. The trial court should have focused on the crimes defendant is at an unreasonable risk of committing and whether those crimes carry a term of life imprisonment, regardless of defendant's status as a recidivist. Accordingly, we conclude the trial court erred. Because the trial court applied an incorrect legal standard, we will remand the matter with directions to reconsider the issue.
The People assert the trial court did not err because a third strike sentence is an offense punishable by 25 years to life (§ 667, subd. (e)(2)(A)), and thus a third strike sentence is an "offense punishable in California by life imprisonment" (§ 667, subd. (e)(2)(C)(iv)(VIII)). In People v. Thomas (1999) 21 Cal.4th 1122, our Supreme Court examined how to calculate presentence conduct credits for defendants subject to the "Three Strikes" law. (Id. at p. 1127.) The issue was that section 2933.1, subdivision (a), provided for no more than 15 percent worktime credit for defendants convicted of " '[a]ny felony punishable by death or imprisonment in the state prison for life.' " The defendant asserted the offense itself must carry a life sentence, without consideration of the defendant's status as a recidivist in order for the limited worktime credits to apply. The Attorney General argued a third strike defendant is subject to a life sentence and therefore could earn no more than 15 percent worktime credit. (Thomas, at p. 1127.)
The Supreme Court framed the issue as follows: "[T]he issue here is whether the 'felony' [punishable by imprisonment in the state prison for life] must itself be punishable by life imprisonment, or whether the phrase is intended to include any felony the commission of which may result in a life sentence, even if the sentence is based in part on conduct other than the commission of the current felony." (People v. Thomas, supra, 21 Cal.4th at p. 1127.) The Supreme Court concluded "a defendant's presentence conduct credit [is limited] to a maximum of 15 percent only when the defendant's current conviction is itself punishable by life imprisonment, not when it is so punishable solely due to his status as a recidivist." (Id. at p. 1130.) In other words, the Supreme Court rejected the People's argument.
Given the foregoing Supreme Court precedent rejecting the identical argument raised herein by the People, albeit in the context of custody credits, we conclude the People's argument is unpersuasive. We cannot ignore the precedent set by our Supreme Court. (Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450, 455.)
DISPOSITION
The order denying defendant's section 1170.18 petition is reversed. The trial court is directed to reconsider whether resentencing defendant poses an unreasonable risk of danger to public safety, and then grant or deny the petition in accordance with its conclusion on that issue (§ 1170.18, subd. (b)).
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: RAMIREZ
Retired Judge of the Riverside Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------
J.