Opinion
F073752
02-20-2018
THE PEOPLE, Plaintiff and Respondent, v. MARLON JUMALE TURNER, Defendant and Appellant.
Stephen Gilbert, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BF139460A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Brian M. McNamara, Judge. Stephen Gilbert, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
—ooOoo—
This appeal is from a resentencing on remand following an earlier appeal. At issue is whether the court erred in reimposing two one-year enhancements based on prior prison terms, pursuant to Penal Code section 667.5, subdivision (b).
Statutory references are to the Penal Code unless otherwise noted.
It did err. One of these one-year enhancements was based on the same prior offense as a five-year enhancement the court imposed under section 667, subdivision (a). This was a prohibited dual use. The other one-year enhancement was based on an offense that had been reduced to a misdemeanor prior to the resentencing hearing, pursuant to section 1170.18 (Proposition 47). At the time of the resentencing, this offense thus could no longer support the enhancement, which requires a felony conviction. Both enhancements, consequently, were unauthorized and are subject to correction at any time. We direct the trial court to strike them.
FACTS AND PROCEDURAL HISTORY
Conviction and sentencing
In 2013, defendant Marlon Jumale Turner was convicted on three counts: (1) possession of cocaine base for sale (Health & Saf. Code, § 11351.5); (2) possession of marijuana for sale (Health & Saf. Code, § 11359); and (3) active participation in a criminal street gang (§ 186.22, subd. (a)). On counts 1 and 2, the jury found gang enhancement allegations true, and the court found prior conviction allegations true. The facts are detailed in our opinion in the prior appeal and need not be reiterated for purposes of this appeal. (People v. Turner (Aug. 17, 2015, F068169) [nonpub. opn.].)
The sentence imposed after trial was 20 years four months, calculated as follows: On count 1, eight years (equal to double the middle term of four years), plus five years for a prior serious felony, three years for the gang allegation, and one year each for two prior prison terms; on count 2, one year plus one year for the gang allegation. The sentence on count 3 was stayed pursuant to section 654.
At issue here are the recidivism enhancements imposed on count 1. On that count, the information included the following enhancement allegations for prior offenses. (The allegation numbers in the table below refer to the order in which the allegations appear in count 1 of the information. The allegations are not actually labeled with numbers in the information, but they are referred to in this way elsewhere in the record.)
| Prior Offense | Date of Conviction | Super. Ct. No. | Type of Enhancement |
|---|---|---|---|
| Discharging firearmfrom vehicle (former §12034, subd. (b)) | BF096306B | Allegation No. 3: Priorstrike (§§ 667, subd.(c)-(j); 1170.12, subd.(a)-(e)Allegation No. 4: Priorserious felony (§ 667,subd. (a))Allegation No. 5: Priorprison term (§ 667.5,subd. (b)) | |
| Possession ofcontrolled narcoticsubstance (Health &Saf. Code, § 11350,subd. (a)) | June 21, 2010 | BF132431A | Allegation No. 6: Priorprison term (§ 667.5,subd. (b)) |
| Possession of drugs inprison (§ 4573.6) | Nov. 20, 2002 | SF10991A | Allegation No. 7: Priorprison term (§ 667.5,subd. (b)) |
The information shows this date as January 25, 2002, but the court orally corrected it to January 14, 2002.
As indicated, the allegations included three prior prison terms for purposes of the one-year enhancement provided by section 667.5, subdivision (b): one for each of the three prior offenses. At the bifurcated proceeding on the prior offense allegations, the trial court found the allegations true, except that it found there could only be two prior prison term enhancements. This was because the sentences served on the January 2002 conviction (discharging a firearm from a vehicle) and the November 2002 conviction (possession of drugs in prison) were parts of a single continuous period of incarceration, and in fact the sentence on the later conviction was ordered to run concurrently with the sentence on the earlier conviction. The statute defining the prior prison term enhancement allows only one one-year enhancement for "each separate prison term ... for any felony ... provided that no additional term shall be imposed ... for any prison term ... imposed ... 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." (§ 667.5, subd. (b).) In other words, the enhancement adds one year to the sentence for each separate period of incarceration that is separated from the next felony conviction or period of incarceration by less than five years. The terms for discharging a firearm from a vehicle and possessing drugs in prison were not separate and thus had the potential to support only a single one-year enhancement under section 667.5, subdivision (b). The remaining offense, possession of a controlled narcotic substance, could support another one-year enhancement under that statute.
We take judicial notice of the reporter's transcript of this hearing. (Evid. Code, § 452, subd. (d).)
The clerk's minute order for this hearing states that for count 1, the court found allegation No. 5—discharging a firearm from a vehicle as the basis of a prior prison term—to be true, and allegation No. 7—possession of drugs in prison as the basis of a prior prison term—to be not true. But that is not what the court said. It said that the "two [allegations] represent one prison prior."
At the sentencing hearing, the trial court imposed the recidivism enhancements on count 1 as follows: Allegation No. 3 (discharging a firearm from a vehicle as a prior strike) doubled the middle term from four to eight years. Allegation No. 4 (discharging a firearm from a vehicle as a prior serious felony) added five years. Allegation No. 5 (discharging a firearm from a vehicle as the basis of a prior prison term) combined with allegation No. 7 (possessing drugs in prison as part of the basis of the same prior prison term) added one year. Allegation No. 6 (possession of a controlled narcotic substance as the basis of a prior prison term) added one more year.
We take judicial notice of the reporter's transcript of this hearing as well.
As we will discuss further in our analysis below, these sentencing decisions included an error that was not raised at the sentencing hearing or in the prior appeal. The 2002 conviction of discharging a firearm from a vehicle was used both to add the five-year enhancement under section 667, subdivision (a), (allegation No. 4) and a one-year enhancement under section 667.5, subdivision (b) (allegation No. 5). This was a prohibited dual use. (People v. Jones (1993) 5 Cal.4th 1142, 1149-1151 [when an offense qualifies for both an enhancement under section 667 and an enhancement under section 667.5, only the greater enhancement applies].) It did not help that the court also appeared to intend to base the one-year enhancement partly on the 2002 conviction of possessing drugs in prison (allegation No. 7). That was not the basis of a separate prison term and thus could not provide any support for an enhancement under section 667.5, subdivision (b) (and it was not alleged as a basis for any other enhancement). The conviction of discharging a firearm from a vehicle could properly be used for the five-year enhancement under section 667, subdivision (a), and the 2010 conviction for possessing a controlled narcotic substance (allegation No. 6) could properly be used for a one-year enhancement under section 667.5, subdivision (b), but there was no proper basis for an additional one-year enhancement under section 667.5, subdivision (b).
Prior appeal
In our opinion in the prior appeal, we reversed the conviction on count 3 (active participation in a criminal street gang, § 186.22, subd. (a)) under People v. Rodriguez (2012) 55 Cal.4th 1125. We also remanded for resentencing on count 1. This was because the sentencing triad for Health and Safety Code section 11351.5 had been changed from three, four, or five years to two, three, or four years by statutory amendment. Further, the abstract of judgment contained a clerical error in the sentence for count 2, which the court was directed to correct on remand. Our opinion was filed on August 17, 2015.
Proposition 47 petition
On January 29, 2016, the trial court considered Turner's Proposition 47 petition to reduce to a misdemeanor his June 2010 conviction under Health and Safety Code section 11350, subdivision (a), which was the basis of enhancement allegation No. 6 in count 1 in the present case. Proposition 47 requires the court, upon the petition of a defendant who has served a sentence, to designate as a misdemeanor an offense that was a felony at the time of conviction but that would have been a misdemeanor had Proposition 47 been in effect at that time. (§ 1170.18, subds. (f)-(g).) After such a petition is granted, the conviction "shall be considered a misdemeanor for all purposes," except that the defendant is still subject to the same restrictions on firearm possession as a felony convict. (§ 1170.18, subd. (k).) The court granted Turner's petition.
The minute order granting Turner's petition was the subject of a request for judicial notice filed in this court on July 8, 2016. On July 29, 2016, we granted another request for judicial notice filed by Turner on the same day, but our docket indicates no ruling on his request for judicial notice of the order granting his Proposition 47 petition. We grant that request now.
Resentencing
When the case returned to the trial court on May 3, 2016, for resentencing pursuant to our order in the prior appeal, Turner argued that, in addition to resentencing him under the new triad on count 1 and eliminating the sentence for count 3, the court should also decline to reimpose the two prior prison term enhancements on count 1. Defense counsel stated:
"Since the case has come back, our office filed a petition to reduce the 11350A in BF132431A to a misdemeanor. That petition was granted by Judge Somers on January 29, 2016.
"Given that that felony has now been reduced to a misdemeanor, your Honor, I would request the court to strike the sentence on that prison prior and also the prison prior previous to that, given that prison priors can be imposed only if the prison sentence is connected by five years. In other words, I would request that the court reduce Mr. Turner's sentence further by two years for the prison priors." (Unnecessary capitalization omitted.)
Defense counsel's argument appears to imply that without the section 11350 prior, there would be more than five years between the time Turner was released on the 2002 convictions and the time he committed his next felonies, which would be the current offenses. The record submitted to us does not show when he was released, however.
Overlooking the fact that Turner's Proposition 47 petition was granted before the resentencing hearing, the prosecutor argued that treating the section 11350, subdivision (a) prior as a misdemeanor would be an improper retroactive application of a Proposition 47 reclassification order. He cited People v. Valenzuela (2016) 244 Cal.App.4th 692, review granted March 30, 2016, S232900, in which it was held that a Proposition 47 petition granted after sentencing (i.e., between the sentencing and the appeal in which the issue was raised) did not convert the prior offense to a misdemeanor for the purpose of deciding whether the prior offense could be the basis of a sentence enhancement.
Valenzuela is the first of several cases in which the California Supreme Court has granted review to decide this retroactivity issue. Some of the cases, like Valenzuela, reject this form of retroactive application, while others accept it. (See People v. Johnson (2017) 8 Cal.App.5th 111, review granted Apr. 12, 2017, S240509 (Johnson); People v. Evans (2016) 6 Cal.App.5th 894, review granted Feb. 22, 2017, S239635 (Evans); People v. Jones (2016) 1 Cal.App.5th 221, review granted Sept. 14, 2016, S235901; People v. Williams (2016) 245 Cal.App.4th 458, review granted May 11, 2016, S233539; People v. Ruff (2016) 244 Cal.App.4th 935, review granted May 11, 2016, S233201; People v. Carrea (2016) 244 Cal.App.4th 966, review granted Apr. 27, 2016, S233011.) --------
Without stating its reasoning, the court denied Turner's request to omit the prison priors. On count 1, it imposed the new middle term of three years, doubled for the prior strike, plus three years for the gang enhancement, five years for the section 667, subdivision (a) enhancement, and two years for the two section 667.5, subdivision (b) enhancements. On count 2, the court reimposed the term of one year plus one year for the gang enhancement. The sentence on count 3 was stricken. The total new sentence thus was 18 years.
In its oral pronouncement of sentence, the court did not state which allegation formed the basis of each recidivism enhancement. The clerk's minute order stated that the five-year section 667, subdivision (a) enhancement was based on allegation No. 4 (the 2002 conviction of discharging a firearm from a vehicle), and that one of the one-year section 667.5, subdivision (b) enhancements was based on allegation No. 6 (the 2010 conviction of possession of a controlled narcotic substance), while the other was based on allegation No. 7 (the 2002 conviction of possessing drugs in prison). The use of allegation No. 7 conflicted with the trial court's earlier finding that the 2002 conviction of possessing drugs in prison could not support a prior prison term enhancement because Turner did not serve a separate prison term for it.
DISCUSSION
Turner argues that at the time of the resentencing, the two prior prison term enhancements were inapplicable as a matter of law. The People contend that the court at the resentencing had no authority to alter that portion of the sentence. As the questions presented are questions of law only, and not a matter of the trial court's sentencing discretion, we review the judgment under the de novo standard. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799; Topanga & Victory Partners, LLP v. Toghia (2002) 103 Cal.App.4th 775, 779-780; Hill v. City of Long Beach (1995) 33 Cal.App.4th 1684, 1687.)
As indicated above, one of the prior prison term enhancements was based on allegation No. 6, the 2010 conviction for possession of a controlled narcotic substance (Health & Saf. Code, § 11350, subd. (a)). The other prior prison term enhancement was based either on allegation No. 5, the 2002 conviction for discharging a firearm from a vehicle (former § 12034, subd. (b)), allegation No. 7, the 2002 conviction for possession of drugs in prison (§ 4573.6), or both. As we will explain, none of these allegations could properly support an enhancement under section 667.5, subdivision (b). Allegation Nos. 5 and 7
At the original sentencing, the trial court ruled that allegation No. 7 could not support a section 667.5, subdivision (b) enhancement because the prison term Turner served for the offense on which that allegation was based—the 2002 possession of drugs in prison—was part of the same prison term he served for the offense on which allegation No. 5 was based, the 2002 discharge of a firearm from a vehicle. The court then imposed a single section 667.5, subdivision (b) enhancement for these allegations. As we have already explained, this single enhancement was still error because the 2002 discharge of a firearm from a vehicle was the basis of a five-year enhancement under section 667, subdivision (a) (allegation No. 4). That meant the section 667.5, subdivision (b) enhancement based on allegation No. 5 was a prohibited dual use; and allegation No. 7 could not provide independent support for that enhancement because Turner did not serve a separate prison term for it.
The sentencing on remand did nothing to cure the problem. Either the court simply repeated the dual-use mistake in the original sentence, or it tried to avoid the dual use by basing the enhancement on allegation 7 alone, as the minute order appeared to indicate. The latter approach could not help, because allegation No. 7—the 2002 conviction for possessing drugs in prison—did not involve a separate prison term.
For these reasons, the section 667.5, subdivision (b) enhancement based on allegation No. 5 and/or allegation No. 7 was unauthorized and must be stricken. An unauthorized sentence can and should be corrected by an appellate court any time the error comes to the court's attention. (In re Harris (1993) 5 Cal.4th 813, 842.)
The People argue that at the resentencing hearing, the trial court had no authority to alter the prior prison term enhancements because our remand order was limited to applying the correct sentencing triad for count 1, striking the sentence for the reversed count 3, and correcting the clerical error in the sentence for count 2. This argument—the merits of which we will address below in connection with the enhancement based on allegation No. 6—is irrelevant here. A prior prison term enhancement based on the 2002 convictions was unauthorized from the outset. The discharging a firearm from a vehicle offense supported only the five-year enhancement—not both the five-year and one-year enhancements—and the possession of drugs in prison offense supported neither. It is our responsibility to correct the sentence now regardless of whether the trial court was authorized to do so at the time of the resentencing. Allegation No. 6
As stated above, an offense reclassified as a misdemeanor pursuant to a Proposition 47 petition is subsequently to be treated as a misdemeanor for all purposes except in regard to the defendant's right to possess firearms. (§ 1170.18, subd. (k).) Turner argues that because the offense on which allegation No. 6 was based—the 2010 possession of a controlled narcotic substance—was reclassified as a misdemeanor prior to the resentencing hearing, the law required the resentencing court to treat it as a misdemeanor and therefore not to use it as the basis of a section 667.5, subdivision (b) prior prison term enhancement.
Turner relies on People v. Abdallah (2016) 246 Cal.App.4th 736. Abdallah was convicted of several felonies. At the time of his conviction of these offenses, he had a prior felony conviction. After his conviction on the current offenses but before sentencing, the prior was reduced to a misdemeanor pursuant to a Proposition 47 petition. In spite of this, the trial court imposed a one-year enhancement for the prior, based on section 667.5, subdivision (b). (Abdallah, supra, 246 Cal.App.4th at pp. 740-741.) The Court of Appeal ordered the enhancement stricken. (Id. at p. 749.) It held that because a felony conviction reclassified as a misdemeanor pursuant to a Proposition 47 petition becomes a misdemeanor for all purposes, Abdallah's reclassified prior was no longer a felony for purposes of section 667.5, subdivision (b) at the time he was sentenced on the current offenses, and therefore the enhancement did not apply. (Abdallah, supra, at pp. 743-746.) We agree with the holding in Abdallah and agree with Turner's argument that it determines the outcome in this case.
The People's sole argument in response to Turner's position is that at the time of Turner's resentencing, the trial court lacked jurisdiction not to reimpose the prior prison term enhancements because those enhancements were not among the issues addressed by us in our order remanding the case for resentencing. The People cite People v. Oppenheimer (1965) 236 Cal.App.2d 863. Citing only Witkin, the Court of Appeal there stated: "On remand with directions, after a judgment on appeal, the trial court has jurisdiction only to follow the directions of the appellate court; it cannot modify, or add to, those directions." (Oppenheimer, supra, 236 Cal.App.2d at pp. 865-866.) Oppenheimer made a new trial motion for the first time during proceedings on a remand for resentencing. The motion was untimely and the remand order involved only sentencing issues, so the appellate court declined to consider Oppenheimer's claim that the new trial motion was denied in error. (Id. at p. 866.) The People also cite People v. Vizcarra (2015) 236 Cal.App.4th 422. The Court of Appeal had remanded Vizcarra's case for resentencing on a single count, ordering the trial court to reconsider his motion to dismiss a prior strike allegation. In the second appeal, the Court of Appeal rejected Vizcarra's argument that the resentencing court abused its discretion in refusing to consider modifying any other aspect of his sentence. In so doing, the appellate court cited Oppenheimer. (Vizcarra, supra, 236 Cal.App.4th at pp. 441-443.)
Oppenheimer and Vizcarra are distinguishable from Turner's case. Oppenheimer and Vizcarra tried on remand to litigate issues that were or could have been raised in the trial court before the first appeal. The appellate courts rightly held they could not do this under the circumstances. But the rule confining the trial court's authority on remand to the scope of the remand order does not require or authorize the court to introduce new, unreviewable errors that did not exist at the time the remand order was made. Here, the reimposition of a prior prison term enhancement based on allegation No. 6 was a new error because, at the time of the original sentencing (as well as the first appeal), the prior offense had not yet been reclassified, so its use for enhancement purposes was correct then. It would only be incorrect to use it that way after the reclassification. The court could not disregard the reclassification without making this error, and we think it follows that the court must have had authority to consider it.
Further, as we have already mentioned, we have authority to correct an unauthorized sentence at any time. The prior prison term enhancement based on allegation No. 6 was unauthorized at the time of the resentencing because, at that time, the prior offense was a misdemeanor for all purposes. Consequently, even if we accepted the People's view that the trial court's hands were tied, we would correct the error now.
Finally, there is no need for us to reach any conclusions about the issue of the retroactive effect of Proposition 47 reclassifications, which the prosecutor mentioned at the resentencing hearing and which is now pending in the California Supreme Court. In some of the cases on which that court has granted review, it was held that the Proposition 47 reclassification was not retroactive in the sense that it would not support treating a reclassified felony as a misdemeanor for enhancement purposes if the petition was granted after sentencing, even if it was granted while the case was still pending on direct appeal. (See, e.g., Johnson, supra, 8 Cal.App.5th at p. 114.) In others, it was held that the prior must be treated as a misdemeanor in those circumstances. (See, e.g., Evans, supra, 6 Cal.App.5th at pp. 902-904.) This case is distinguishable from those cases: Although the petition here was granted after the original sentencing, it was granted before the resentencing. Our view is that because the prior was a misdemeanor for all purposes at the time of resentencing, the trial court could not reimpose the enhancement based on it at that time.
The parties have not raised this retroactivity issue in their briefs in this appeal and we will not discuss it further.
DISPOSITION
The two one-year enhancements based on section 667.5, subdivision (b), are stricken. As modified, the judgment is affirmed. The trial court is directed to forward a corrected abstract of judgment to the appropriate correctional authorities.
/s/_________
SMITH, J. WE CONCUR: /s/_________
GOMES, Acting P.J. /s/_________
FRANSON, J.