Opinion
E066445
03-07-2018
THE PEOPLE, Plaintiff and Respondent, v. ROBERT EUGENE WAINSCOTT, JR., Defendant and Appellant.
Randall Conner, 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, and Adrianne S. Denault, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.Nos. RIF153356 & RIF10001335) OPINION APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge. Affirmed. Randall Conner, 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, and Adrianne S. Denault, Deputy Attorneys General, for Plaintiff and Respondent.
Robert Eugene Wainscott appeals his sentence in two consolidated cases, a domestic violence case and a theft case. In a prior appeal, this court reversed the trial court's true finding on a prior strike allegation in the domestic violence case, remanded for resentencing, but affirmed his conviction in all other respects. (People v. Wainscott (Dec. 7, 2012, E053674) 2012 WL 6063276 [nonpub. opn.] (Wainscott I).)
This appeal concerns the propriety of on-bail enhancements (Pen. Code, § 12022.1, subd. (b)) the trial court imposed in the theft case. At the original sentencing hearing, the trial court found true four on-bail enhancement allegations, but stayed three of them. Wainscott did not challenge those findings on appeal. On remand, the trial court imposed all four enhancements without staying them. Later, Wainscott succeeded in having one of his felony theft convictions reduced to a misdemeanor under Proposition 47, challenging his new sentence in a petition for habeas corpus, and obtaining a new sentencing hearing.
At that hearing, Wainscott convinced the trial court it should strike the enhancement based on the theft offense that had been reduced to a misdemeanor. However, the court refused to take up his challenge to another enhancement as based on insufficient evidence. Wainscott argues the resentencing court erred by refusing to hear his challenge and refusing to strike the enhancement.
We conclude Wainscott forfeited that challenge and therefore affirm.
I
FACTUAL BACKGROUND
A. Trials and Initial Sentencing
1. Overview
Initially, the Riverside County District Attorney's Office charged Wainscott with various domestic violence and theft offenses in six separate cases. The trial court consolidated the six cases into two—a four-count domestic violence case (case No. RIF10001335) and a nine-count theft case (case No. RIF153356). The People alleged five on-bail enhancements (§ 12022.1) in the domestic violence case and four on-bail enhancements in the theft case.
Unlabeled statutory citations refer to the Penal Code.
Ultimately, juries convicted Wainscott of various offenses in both cases, and the trial court sentenced him to a total aggregate term of 20 years 4 months. The court found two on-bail enhancement allegations true in the domestic violence case, but stayed them. In the theft case, the court found four on-bail enhancement allegations true, imposed sentence on one of them, and stayed the remaining three.
2. The domestic violence case
Wainscott destroyed possessions of his former domestic partner on February 18, 2010, after she left their house following a fight. A month later, on March 18, 2010, he struck her and drove his truck into the side of her vehicle when she was inside. As is common, she stayed with her abuser, and on June 16, 2010, he followed her to her apartment, threw her onto the couch, and threatened to hurt himself with a knife.
We rely in part for our account of the incidents and convictions on our opinion in Wainscott's prior appeal in this court. (Wainscott I, supra, [at WL 6063276].)
Based on those incidents, a jury convicted Wainscott of assault with a deadly weapon—a vehicle (§ 245, subd. (a)(1); count 1), two counts of misdemeanor battery of a cohabitant (§ 243, subd. (e)(1); counts 2, 4), misdemeanor disturbing the peace (§ 415, subd. (3); count 2); and felony vandalism of more than $400 (§ 594, subd. (b)(1); count 3).
After the trial court discharged the jury, the prosecution sought to amend the information to allege a prior burglary conviction as a strike. Defense counsel objected doing so would deprive Wainscott of his statutory right to have the same jury decide the offenses and the prior. At a pretrial hearing, he had agreed to waive a jury trial on out-on-bail allegations (§ 12022.1), and the prosecution argued he had thereby waived a jury trial on all matters concerning sentencing. The trial court agreed, heard the prior strike evidence, and found true that allegation.
The trial court also took up the question how many on-bail enhancements Wainscott would face in the domestic violence case. The People had alleged five such enhancements, but pursued only two at that time. The offenses that served as the predicates for the enhancements—the primary offenses—were offenses in the theft case which the People had not yet proven. Specifically, the People sought to show Wainscott was out on bail or on his own recognizance for the theft offenses starting in September 2009 and remained on bail when he committed the secondary offenses—the domestic violence offenses of February 18 and March 18, 2010. The court accepted court records the People submitted and found two valid out-on-bail enhancements would apply to the domestic violence case, provided the People ultimately proved Wainscott had committed the theft offenses.
The People dropped the on-bail enhancement for which count 2 served as the secondary felony offense because the jury found Wainscott guilty of a misdemeanor.
Wainscott concedes law enforcement released him on bail on September 11, 2009, following his arrest for three offenses subsequently charged as counts 1 through 6 in the theft case, and released him on his own recognizance on December 14, 2009, after his arrest for the earlier offenses ultimately charged as counts 7 and 8 of the theft case.
The secondary shoplifting offense charged as count 9 in the theft case occurred on May 25, 2010, so it could have served as a secondary offense too once proven, but the People did not pursue an enhancement on that basis at that time.
3. The theft case
Wainscott purchased $1,830.84 and $1,624.98 worth of tires in separate incidents on July 10 and 23, 2009, falsely using the name and account of his former employer. When he tried again in September, the former employer reported the order was fraudulent. On May 25, 2010, defendant carried merchandise worth $279 to a self-checkout stand at The Home Depot store and substituted a tag for an item worth $5 when he made the purchase.
Based on those incidents, a jury convicted Wainscott of two counts of grand theft (§ 487, subd. (a); counts 1, 3), one count of attempted grand theft (§§ 664, 487, subd. (a); count 5), three counts of second degree burglary (§ 459; counts 2, 4, 9), and one count of identity theft (§ 530.5; count 6). The same jury found a prior strike allegation true.
The People also accused Wainscott of knowingly possessing two stolen vehicles (§ 496d, subd. (a); counts 7, 8) on December 4, 2008. The jury found Wainscott not guilty of those counts. Those two counts were primary offenses the People had argued warranted on-bail enhancements if proven in the theft trial. The other proposed primary offenses were counts 1 through 6 of the theft case.
4. Combined sentencing
The court sentenced Wainscott at a single hearing. The court deemed the domestic violence case the base case. It sentenced him to six years for count 1 (the middle term, doubled for the strike), 16 months for count 3 (one-third the middle term, doubled), and enhanced the sentence by five years for the serious felony prior. Based on its prior ruling and the convictions on theft counts 1 through 6 and 9, the court found true the two on-bail enhancements the prosecution had pursued in the domestic violence case. However, the court stayed the on-bail enhancements and stayed the sentence on the remaining counts under section 654.
In the theft case, the trial court sentenced Wainscott to 16 months each (one-third the middle term, doubled for the strike) for counts 1, 3, 6, and 9 and eight months for count 5, attempted grand theft. The court found four on-bail enhancement allegations true in the theft case, but imposed only one two-year enhancement, and stayed the remaining three. The court also stayed the sentences on the misdemeanor counts 2 and 4 under section 654.
Wainscott's total sentence between the two cases totaled 20 years 4 months.
B. Prior Appeal and First Resentencing
Important to our analysis, Wainscott did not challenge the trial court's true findings on the on-bail enhancements. Instead, he appealed his sentence claiming the trial court had erred by permitting the prosecution to amend the information in the domestic violence case to allege a prior strike offense after the jury had been discharged. He contended doing so deprived him of his right, recognized in People v. Tindall (2000) 24 Cal.4th 767, to have the same jury determine his guilt of the charged offenses and the truth of the prior strike allegation.
The People conceded the error on the prior strike, and we agreed, reversing the true finding on the prior strike allegation. (Wainscott I, supra, at WL 6063276 [*3].) We affirmed the convictions in all other respects and remanded to the trial court for resentencing.
On June 24, 2013, on remand, the trial court held a new sentencing hearing. Wainscott was not present. His counsel requested the trial court reduce his sentence by eight years by removing the strike prior 5-year enhancement and reducing the sentence on count 1 from six years to three years because the prior strike no longer supported doubling the sentence. Instead, the trial court determined our disposition left the case as an "open plea case where [the court is] free to sentence to whatever is an appropriate sentence based on the overall criminal history of the defendant and the acts that were committed."
Wainscott did not appeal this aspect of the trial court's resentencing, so we express no opinion as to its correctness. --------
The court made the theft case the base case and resentenced Wainscott to four years on count 1 (the middle term, doubled for the strike). The court imposed the same sentences on the remaining counts—16 months (one-third the middle term, doubled) each on counts 3, 6, and 9, and eight months (one-third the middle term, doubled) on count 5. Finally, the court imposed all four two-year on-bail enhancements it had previously found, three of which had been stayed in the prior sentence. Defendant's total new sentence in the theft case was 16 years 8 months. The trial court then resentenced Wainscott in the domestic violence case to one year on count 1 (one-third the middle term, not doubled because we reversed the strike finding) and eight months on count 3 (one-third the middle term). The court did not impose additional time for the on-bail enhancements in the domestic violence case.
Wainscott's total new sentence was 18 years 4 months. He did not appeal the sentence.
C. Proposition 47 and Second Resentencing
On November 4, 2014, the electorate passed Proposition 47, which reduced various theft- and drug-related offenses from felonies or wobblers to misdemeanors. On December 15, 2014, Wainscott filed a Proposition 47 petition (§ 1170.18, subd. (a)) seeking to redesignate as misdemeanors his felony convictions on counts 1, 2, 3, 4, 5, 6, and 9 in the theft case. The People conceded Wainscott was entitled to resentencing on count 9 for second degree burglary, but opposed reducing the other counts because the value of the stolen property exceeded the $950 statutory cutoff.
On March 10, 2015, the trial court denied his petition as to counts 1 through 6, but granted the petition as to count 9 (§ 1170.18, subd. (b)), and redesignated the conviction as misdemeanor shoplifting (§ 459.5). The trial court vacated the sentence on count 9 and resentenced Wainscott to a concurrent term of 364 days in county jail. The court also imposed the four two-year on-bail enhancements it had previously found true, though one was based on count 9, now a misdemeanor, being a secondary offense. Wainscott's total new sentence for the theft case was 15 years 4 months, a 16-month reduction.
His overall sentence had been reduced to 17 years.
D. Habeas Petition and Third Resentencing
On November 24, 2015, Wainscott filed a writ of habeas corpus in the trial court, challenging his sentence on the ground the trial court had erred by resentencing him after remand without ensuring he was present at the hearing and without ordering a new probation report. The People conceded the error, and the trial court set a new sentencing hearing.
The trial court resentenced Wainscott again on July 13, 2016, with the defendant present. The court treated count 1 as the principle count and imposed a four-year sentence (the middle term, doubled for the strike), consecutive sentences on counts 3 (16 months), 5 (8 months), and 6 (16 months), and a concurrent 180-day sentence in county jail on the misdemeanor count 9. The court struck one on-bail enhancement based on the fact count 9 had been deemed a misdemeanor and could no longer serve as a secondary felony offense for the enhancement under section 12022.1. However, the court imposed two years for each of the other three two-year on-bail sentence enhancements the trial court originally found true. The court refused to revisit the original sentencing court's finding that the on-bail enhancements were true because Wainscott had not challenged those findings in his original appeal. His total new sentence in the theft case was 13 years 4 months. In the domestic violence case, the court imposed the same sentences, totaling 1 year 8 months, making his final total sentence 15 years.
Wainscott filed timely notices of appeal challenging the resentencing after a successful appeal and denial of a recall petition under section 1170.18. (§ 1237, subd. (b).)
II
DISCUSSION
Wainscott argues the trial court, in resentencing him on July 13, 2016, imposed an on-bail enhancement in the theft case the prosecution had not proven. The problem with his argument is the trial court explicitly refused to make findings on the enhancements. Instead, it resentenced him based on the on-bail findings the trial court had made in its original sentencing, prior to the first appeal in this case. There, the trial court found four on-bail enhancements applicable to theft case, but stayed three of them. Wainscott did not challenge those findings in his initial appeal.
Section 12022.1, subdivision (b) provides "[a]ny person arrested for a secondary offense that was alleged to have been committed while that person was released from custody on a primary offense shall be subject to a penalty enhancement of an additional two years, which shall be served consecutive to any other term imposed by the court." A primary offense is "a felony offense for which a person has been released from custody on bail or on his or her own recognizance prior to the judgment becoming final." (§ 12022.1, subd. (a)(1).) A secondary offense is "a felony offense alleged to have been committed while the person is released from custody for a primary offense." (§ 12022.1, subd. (a)(2).)
In this case, the three theft offenses that occurred in July and September 2009 serve as primary offenses, because the People obtained felony convictions based on those offenses and Wainscott was released on bail pending trial on those charges when he committed certain other offenses. The receiving stolen property offenses that occurred in December 2008, by contrast, cannot serve as either primary or secondary offenses, because the jury acquitted Wainscott on those charges, thus they are not felony offenses as required by the statute. (§ 12022.1, subd. (a)(1) & (2).)
At the time of his original sentencing, Wainscott had been convicted of three additional felony offenses he committed while out on bail on the theft offenses; these are secondary offenses for purposes of the enhancement statute. The jury convicted Wainscott of two domestic violence felonies that occurred on February 18 and March 18, 2010, and convicted him of a May 25, 2010 second degree commercial burglary felony. Those convictions supported three on-bail enhancements. A third domestic violence offense resulted in a misdemeanor conviction, so could not be a secondary offense. (§ 12022.1, subd. (a)(2).)
Wainscott later succeeded in getting the May 25, 2010 second degree commercial burglary conviction reduced to misdemeanor shoplifting under Proposition 47 (§§ 459.5, subd. (a), 1170.18, subd. (b)) and in convincing the trial court to strike the on-bail enhancement which relied on treating that conviction as a secondary offense. Wainscott argues, among other things, that the trial court's error lay in refusing to strike that enhancement, but our review of the record convinces us the court correctly ruled in his favor on that point at the final, July 13, 2016, sentencing hearing.
We are left with the question what offense could satisfy the fourth on-bail enhancement in the theft case. Wainscott posits the trial court based its true finding on that fourth enhancement on the receiving stolen property offenses the People alleged he committed in December 2008. Law enforcement apparently arrested Wainscott for those offenses—counts 7 and 8 of the theft case—and released him on his own recognizance a year later, in December 2009, while he was out on bail for the other theft offenses—counts 1 through 6. He contends the trial court's initial finding on the fourth on-bail enhancement relied on its conclusion he had been convicted of one of those receiving stolen property offenses. That conclusion is plainly wrong for two reasons. First, the offenses occurred in December 2008, not December 2009, so they do not qualify as secondary offenses "committed while that person was released from custody." Second, they do not qualify as either primary or secondary offenses because the jury acquitted him. It appears to follow, as Wainscott argues, that the trial court erred when it found four on-bail enhancement allegations true in the theft case.
However, when Wainscott appealed his original sentence, he did not challenge the propriety of the true finding on any on-bail enhancement. He challenged only the propriety of the strike prior finding in the domestic violence case. (Wainscott I, supra, at WL 6063276 [*3].) As we have discussed, this court agreed with his position. We reversed the true finding on the strike allegation, remanded for resentencing, and affirmed the convictions in all other respects. (Ibid.) On remand, the trial court did not revisit any factual findings, but instead accepted the fact findings as established and imposed sentence in accordance with them.
The question we must answer is whether Wainscott may challenge the on-bail enhancement finding despite failing to object to it at the original sentencing hearing and failing to challenge it as not supported by substantial evidence in the original appeal.
"[T]he right to challenge a criminal sentence on appeal is not unrestricted." (People v. Scott (1994) 9 Cal.4th 331, 351 (Scott).) In general, "reviewing courts have required parties to raise certain issues at the time of sentencing. In such cases, lack of a timely and meaningful objection forfeits or waives the claim. [Citations.] These principles are invoked as a matter of policy to ensure the fair and orderly administration of justice," specifically to encourage the parties to promptly identify errors and allow for their immediate correction by the trial courts. (Ibid.)
Courts of Appeal have applied the waiver doctrine to cases in which defendants attempted to attack their convictions after an initial appeal and remand for resentencing. So, in People v. Webb (1986) 186 Cal.App.3d 401, 410, the Third District refused to consider an attack on the validity of the defendant's plea agreement on a second appeal. The Court of Appeal noted "we specifically affirmed the judgment of conviction in the prior appeal and remanded only for resentencing" and held "[d]efendant cannot now be permitted to make a direct attack upon his convictions." (Ibid.) The same principles apply to subsequent attacks on unchallenged sentence enhancement true findings where remand is limited to resentencing.
People v. Senior (1995) 33 Cal.App.4th 531, 533 makes this point clear. In that case, a jury convicted defendant of nine counts. On counts 3 through 7, the trial court imposed full consecutive terms of three years each. In a first appeal, the defendant asserted the trial court had failed to articulate reasons for imposing full consecutive terms on counts 9 and 10. (Id. at pp. 533-534.) The Sixth District affirmed the convictions but ordered resentencing because the trial court had failed to articulate reasons for the consecutive sentences on the two counts. On remand, the trial court imposed the same consecutive terms of three years each on counts 3 through 7, but changed its approach on counts 9 and 10. In a second appeal, the defendant again challenged the disposition of counts 9 and 10, and ignored counts 3 through 7. The appellate court agreed with the challenge and again remanded the case for resentencing. The third time around, the trial court again imposed the same sentences on counts 3 through 7, and again changed its approach on counts 9 and 10. (Ibid.)
In a third appeal, defendant argued for the first time the trial court had committed sentencing error regarding the disposition of counts 3, 5, and 6. (People v. Senior, supra, 33 Cal.App.4th at p. 534.) The Court of Appeal rejected the move, because "all of the factual predicates upon which defendant's present contention rests were available at the time of defendant's initial appeal. There is no apparent justification as to why this issue could not have been raised the first time defendant's case was before this court." (Id. at p. 538.) The court therefore held the defendant had waived his right to raise any claim of sentencing error, having had the chance to do so twice already. (Ibid.)
The same logic controls in this case. Wainscott contends the trial court erred by treating one of his alleged felony December 2008 receiving stolen property offenses as a factual basis for finding four on-bail allegations true. Even if the trial court committed that error, and it appears that it did, the factual predicate for challenging it existed at the time of the original hearing. The trial court found four on-bail enhancement allegations true on April 22, 2011, when it imposed the original sentence. Wainscott's trial counsel failed to object. The factual basis for challenging the enhancement existed at the time of his first appeal as well, yet his appellate counsel failed to raise the error. Wainscott provides no justification for failing to raise the issue during the original proceedings, so we conclude he has forfeited his right to appeal the trial court's true finding on the fourth on-bail enhancement.
Wainscott argues the subsequent sentencing hearings, first on remand and then after the grant of his habeas petition, reopened the issue. Not so. In the first place, our earlier disposition affirmed the trial court's fact-finding by affirming the conviction on all other grounds not raised on the initial appeal. We remanded for resentencing in view of our determination that the prior strike finding must be stricken. Thus, the trial court was not asked to revisit the factual determinations that underlay the previous sentence. The court's task was to accept those facts and impose an appropriate and lawful sentence. (People v. Murphy (2001) 88 Cal.App.4th 392, 396-397 ["In an appeal following a limited remand, the scope of the issues before the court is determined by the remand order"].) In any event, and more important, Wainscott had the same record and the same factual basis available for challenging the true on-bail finding when he made his initial appeal, but he did not do so. Under the reasoning of Senior and like cases, he cannot resurrect the issue in a subsequent appeal.
Finally, Wainscott argues we should correct his sentence as unauthorized. "[T]he 'unauthorized sentence' concept constitutes a narrow exception to the general requirement that only those claims properly raised and preserved by the parties are reviewable on appeal." (Scott, supra, 9 Cal.4th at p. 354.) "[A] sentence is generally 'unauthorized' where it could not lawfully be imposed under any circumstance in the particular case. Appellate courts are willing to intervene in the first instance because such error is 'clear and correctable' independent of any factual issues presented by the record at sentencing. [Citation.] . . . [L]egal error resulting in an unauthorized sentence commonly occurs where the court violates mandatory provisions governing the length of confinement. It does not follow, however, that nonwaivable error is involved whenever a prison sentence is challenged on appeal." (Ibid.)
On the contrary, "claims deemed waived on appeal involve sentences which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner." (Scott, supra, 9 Cal.4th at p. 354; see also § 1238, subd. (a)(10) ["'[U]nlawful sentence' means the imposition of a sentence not authorized by law or the imposition of a sentence based upon an unlawful order of the court which strikes or otherwise modifies the effect of an enhancement or prior conviction"].) Wainscott challenges the trial court's sentence as factually unsupported, not legally unauthorized. As such, he was required to bring his claim of error in his prior appeal.
III
DISPOSITION
We affirm the sentence.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J. We concur: RAMIREZ
P. J. McKINSTER
J.