Opinion
F079463
03-23-2021
THE PEOPLE, Plaintiff and Respondent, v. DAVID EARL WHITFIELD, Defendant and Appellant.
Jennifer A. Mannix, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Eric L. Christoffersen, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15CMS7248)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kings County. Valerie R. Chrissakis, Judge. Jennifer A. Mannix, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Eric L. Christoffersen, Deputy Attorneys General, for Plaintiff and Respondent.
Before Hill, P.J., Smith, J. and Snauffer, J.
-ooOoo-
INTRODUCTION
This is the second appeal filed by defendant David Earl Whitfield after a jury found him guilty of several offenses in relation to incidents in which he hit his neighbor, Raymond S., in the face with a beer bottle, and later solicited a fellow jail inmate to murder Raymond. In his first appeal, we dismissed Whitfield's conviction on one of three counts and remanded for the trial court to consider whether to exercise its newly afforded discretion to strike or dismiss a five-year prior serious felony enhancement (Pen. Code, § 667, subd. (a)) under Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1013, §§ 1-2) (Senate Bill No. 1393). In all other respects, we affirmed the judgment. (People v. Whitfield (Jan. 16, 2019, F074000) [nonpub. opn.] (Whitfield).) In this second appeal, Whitfield contends the trial court erred in refusing to strike or dismiss the prior serious felony enhancement. He also contends the fines, fees, and assessments originally imposed by the trial court are unconstitutional because he is unable to pay. Lastly, in supplemental briefing, Whitfield contends that his two prior prison term enhancements (§ 667.5, subd. (b)) must be stricken under Senate Bill No. 136 (2019-2020 Reg. Sess.) (Stats. 2019, ch. 590, § 1) (Senate Bill No. 136), which was enacted during the pendency of this second appeal.
Pursuant to California Rules of Court, rule 8.90, we refer to some persons by their first names. No disrespect is intended.
Undesignated statutory references are to the Penal Code.
We conclude the trial court did not abuse its discretion in declining to strike Whitfield's prior serious felony conviction. However, we conclude Whitfield is entitled to the ameliorative benefit of Senate Bill No. 136. We will therefore modify the judgment by striking his prior prison term enhancements and remand for resentencing. We decline to reach Whitfield's argument regarding the fines, fees, and assessments, which was not raised in the trial court or in his prior appeal. However, because we remand for resentencing, Whitfield will have the opportunity to raise this argument in the trial court in the first instance. In all other respects, we affirm.
BACKGROUND
We previously granted Whitfield's request that we take judicial notice of the record on appeal in Whitfield, supra, F074000. Our description of the underlying factual background is taken from the appellate record and opinion in that case.
"Whitfield and Raymond were acquaintances who lived around the corner from each other. On the date of the incident, at approximately 3:00 p.m., Whitfield went to Raymond's home and asked him to step outside. Raymond walked out onto his front porch and Whitfield hit Raymond very hard on his upper right eyebrow. Whitfield then got on his bicycle and rode away saying, 'That's what you get punk bitch.'
"Police were called and, when Officer Oscar Torres arrived, Raymond was bleeding and sitting near a pool of blood. Officer Torres contacted Whitfield, who admitted he hit Raymond with a 40-ounce Hurricane brand beer bottle, then left the bottle on the porch. Officer Torres found such a bottle on Raymond's porch. Raymond, however, adamantly told Officer Torres that Whitfield hit him with the closed fist of his right hand and not a bottle.
"Raymond initially refused medical aid. However, at approximately 7:00 p.m., he went to the hospital and received five stitches. He had a headache that night and into the next morning. He also had a black eye. He had no long-term injuries other than a barely noticeable scar.
"While Whitfield was subsequently in custody at the King[]s County Jail, he was housed with Phillip R. Phillip contacted the district attorney's office after Whitfield started talking to Phillip about 'taking care of a problem.' According to Phillip, Whitfield offered to pay $3,000 to have Raymond murdered before he could appear in court. Detectives gave Phillip a phone number and told Phillip to get Whitfield to speak with an undercover officer over the phone. During two recorded phone calls, Whitfield was reluctant to speak, and Phillip did most of the talking. Many of Whitfield's statements during the calls were inaudible. However, Whitfield eventually described Raymond's appearance and whereabouts to the undercover officer, told the undercover officer to 'go for it,' and discussed payment." (Whitfield, supra, F074000.)
A jury convicted Whitfield of assault by means of force likely to cause great bodily injury (§ 245, subd. (a)(4); count 1) and assault with a deadly weapon (§ 245, subd. (a)(1); count 2), both with enhancements for inflicting great bodily injury (§ 12022.7, subd. (a)), and also convicted him of solicitation to commit murder (§ 653f, subd. (b)). In bifurcated proceedings, the court found true the allegations that Whitfield had suffered a prior serious felony conviction (§ 667, subd. (a)(1)), two prior strike convictions (§§ 667, subds. (b)-(i); 1170.12), and three prior prison terms (§ 667.5, subd. (b)). The court granted in part Whitfield's Romero motion and struck the oldest of Whitfield's prior strike convictions. Whitfield was sentenced to a determinate 22-year prison term, which included a five-year term for the prior serious felony enhancement, and one year for each of two prison priors. (Whitfield, supra, F074000.)
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
The court declined to impose a prior prison term enhancement for the robbery conviction because the sentence was to be enhanced for this same conviction under section 667, subdivision (a). However, the court did not expressly strike the enhancement. (Whitfield, supra, F074000.)
Whitfield appealed. On January 16, 2019, this court issued its opinion, in which we dismissed Whitfield's conviction on count 1 and struck the associated great bodily injury enhancement. We remanded for the court to consider striking Whitfield's prior serious felony enhancement pursuant to Senate Bill No. 1393, which had become effective during the pendency of the appeal. In all other respects, we affirmed the judgment. (Whitfield, supra, F074000.)
On March 27, 2019, our Supreme Court denied Whitfield's petition for review. The remittitur issued the next day.
On May 14, 2019, Whitfield filed in the trial court a motion to strike the prior serious felony enhancement. (§§ 667, subd. (a); 1385.)
On June 4, 2019, the trial court denied Whitfield's motion and reaffirmed Whitfield's 22-year sentence.
On June 10, 2019, Whitfield timely filed a notice of appeal.
DISCUSSION
I. Denial of Motion to Strike Prior Serious Felony Enhancement
Whitfield contends the trial court abused its discretion in denying his motion to strike the prior serious felony enhancement. We find no abuse of discretion.
Section 667, subdivision (a) requires a trial court to impose a five-year enhancement for each prior serious felony conviction. However, effective January 1, 2019, Senate Bill No. 1393 amended sections 667 and 1385 to give courts power to strike a five-year prior serious felony enhancement "in furtherance of justice." (Stats. 2018, ch. 1013, § 2; see § 1385, subd. (b)(1).)
Published opinions following the enactment of Senate Bill No. 1393 have addressed the scope of a trial court's authority to strike a prior serious felony enhancement and the standard of appellate review. In People v. Brooks (2020) 53 Cal.App.5th 919, 926-927, the court reviewed the denial of a motion to strike a prior serious felony enhancement for abuse of discretion in light of the relevant sentencing criteria. In People v. Taylor (2020) 43 Cal.App.5th 1102, 1113-1114, the court found no abuse of discretion in the court's refusal to strike a prior serious felony enhancement based on the same considerations for reviewing the court's refusal to strike a prior strike enhancement under the Three Strikes Law. In People v. Shaw (2020) 56 Cal.App.5th 582, 586-588, the court determined a trial court does not abuse its discretion in declining to strike a prior serious felony enhancement, so long as it evaluates "all relevant circumstances to ensure that the punishment fits the offense and the offender" (id. at p. 588).
Here, we conclude the trial court considered the appropriate factors in denying Whitfield's motion to strike the prior serious felony enhancement. The enhancement at issue was based on a 1987 robbery conviction. (Whitfield, supra, F074000.) The trial court considered the motion and argument presented by Whitfield's counsel, the original probation report, and a supplemental probation report prepared specifically for the motion hearing. The court stated on the record its reasons for denying Whitfield's motion, specifically, that Whitfield's prior conviction was "serious," that Whitfield had not spent significant time out of custody without committing an offense and therefore had not demonstrated a meaningful period of being crime-free, that the seriousness and gravity of his offenses had increased, and that, in the court's opinion, Whitfield was not outside the spirit of the law governing prior serious felony enhancements. The court also considered Whitfield's advanced age, the length of his sentence, and his medical and substance abuse issues, but concluded those considerations did not override the other considerations before the court. These are essentially the same factors the court relied on to deny Whitfield's Romero motion to strike the same offense as a prior strike conviction, which ruling we have already affirmed. (Whitfield, supra, F074000.) On these facts, we cannot conclude the court failed to consider relevant circumstances or otherwise abused its discretion.
Whitfield nevertheless contends the court abused its discretion because the prior serious felony conviction was remote in time and involved conduct that was "not . . . egregious," Whitfield has medical issues and drug addiction issues, he was 69 years old at the time of the resentencing hearing, and the offenses involved in the instant case were not sophisticated. These were relevant factors the court could, and did, consider in making its determination. However, the court concluded these factors were insufficient to warrant a favorable exercise of the court's discretion. Although Whitfield believes these factors should have been given more weight, this contention does not convince us that the court abused its discretion in concluding the sentence fit both the offense and the offender. II. Prior Prison Term Enhancements
For efficiency, we resolve this issue prior to Whitfield's challenge to the fines, fees, and assessments.
Whitfield contends his two prior prison term enhancements (§ 667.5, subd. (b)) must be stricken under Senate Bill No. 136. We agree.
At the time Whitfield was sentenced in June 2016, and resentenced in June 2019, section 667.5, subdivision (b) required, with limited exception, that trial courts impose a one-year sentencing enhancement for each separate prior prison term the defendant served for a felony conviction. (Former § 667.5, subd. (b).) Effective January 1, 2020, Senate Bill No. 136 amended section 667.5, subdivision (b) to make a one-year enhancement pursuant to that statute applicable only to a prior prison term for a sexually violent offense, as defined in Welfare and Institutions Code section 6600, subdivision (b). (See Stats. 2019, ch. 590, § 1.) Whitfield's prior prison term enhancements arose out of convictions for assault (§ 245, subd. (a)(1)) and transportation or sale of a controlled substance (Health & Saf. Code, § 11352, subd. (a)), which do not qualify as sexually violent offenses under Welfare and Institutions Code section 6600, subdivision (b).
Senate Bill No. 136 went into effect during the pendency of this appeal. The People agree that Senate Bill No. 136 applies retroactively to all cases that are not yet final. (People v. Lara (2019) 6 Cal.5th 1128, 1134 [a statutory amendment lessening punishment is presumed to apply in all cases not yet final as of the statute's effective date, unless the enacting body clearly indicates to the contrary]; accord, People v. Lopez (2019) 42 Cal.App.5th 337, 341-342 (Lopez) [Senate Bill No. 136 applies retroactively to defendants whose convictions were not final at the time the law became effective].) A judgment of conviction is final when the time for petitioning the United States Supreme Court for a writ of certiorari has expired. (People v. Vieira (2005) 35 Cal.4th 264, 306; People v. Johnson (2019) 32 Cal.App.5th 938, 942.) For purposes of the retroactivity analysis, the " 'judgment of conviction' " includes both the conviction and sentence. (People v. McKenzie (2020) 9 Cal.5th 40, 46 (McKenzie).) Here, Whitfield's sentence is not final, as his judgment of conviction has not yet reached final disposition in the highest court authorized to review it. (Ibid.) To the contrary, we previously remanded for further proceedings relating to his sentence, and the court's ruling with regard to his sentence is again before us for review.
The People incorrectly contend Whitfield is not entitled to the benefit of Senate Bill No. 136 because his conviction and sentence were final after this court issued the remittitur on his first appeal. In support, they rely on People v. Hargis (2019) 33 Cal.App.5th 199 (Hargis). There, a different panel of this court affirmed the judgment in its entirety, but remanded to allow the trial court to determine whether the defendant had sufficient opportunity to make a record of information relevant to his eventual youth offender parole hearing. (Id. at p. 202; see People v. Franklin (2016) 63 Cal.4th 261, 284.) Prior to issuance of the remittitur in that appeal, the voters passed Proposition 57 (The Public Safety and Rehabilitation Act of 2016), which requires prosecutors to commence criminal cases against juvenile offenders in juvenile court. (Hargis, at pp. 202-203.) On remand, the defendant sought to have the matter transferred to juvenile court pursuant to Proposition 57. The trial court denied the request on the ground it exceeded the scope of the remittitur. (Hargis, at p. 203.) The defendant timely appealed and, while his appeal was pending, Senate Bill No. 620 (Stats. 2017, ch. 682, §§ 1, 2) (2017-2018 Reg. Sess.) (Senate Bill No. 620) went into effect, affording trial courts discretion to strike certain firearm enhancements. (Hargis, at p. 203.) In the defendant's second appeal, this court concluded the defendant was entitled to a juvenile fitness/transfer hearing pursuant to Proposition 57 because that law became effective before the judgment was final, i.e., prior to the issuance of the remittitur. (Hargis, at p. 208.) However, the defendant was not entitled to relief pursuant to Senate Bill No. 620, which became effective after the remittitur issued. (Hargis, at pp. 209-211.)
We noted, however, that Senate Bill No. 620 also allows a trial court to strike or dismiss a firearm enhancement when resentencing a defendant pursuant to any other law. (Hargis, supra, 33 Cal.App.5th at p. 210.) Thus, if on remand the defendant was retained under juvenile court jurisdiction, the juvenile court would be required, in fashioning an appropriate disposition, to determine whether to strike or dismiss the firearm enhancements pursuant to Senate Bill No. 620. (Ibid.)
Hargis is distinguishable. In Hargis, this court affirmed the judgment of conviction and sentence in its entirety, and remanded for a collateral proceeding that did not affect the judgment. In contrast, here, the judgment was affirmed in several respects, but was remanded for further proceedings as to the sentence. The trial court's sentencing decisions are now before us again in Whitfield's appeal of the denial of his request to strike his prior serious felony enhancement. His sentence is not yet final, and Hargis is inapplicable.
Of course, this appeal does not present a wholesale opportunity for Whitfield to raise sentencing challenges he failed to raise in his first appeal. " '[W]hen a criminal defendant could have raised an issue in a previous appeal but did not do so, the defendant may be deemed to have waived the right to raise the issue in a subsequent appeal, absent a showing of good cause or justification for the delay.' " (People v. Murphy (2001) 88 Cal.App.4th 392, 395.) Because Senate Bill No. 136 was not enacted until after Whitfield's first appeal concluded, the delay in raising this issue is justified.
Because Whitfield's sentence is not yet final, he is entitled to the ameliorative benefit of the change in law caused by Senate Bill No. 136. (Lopez, supra, 42 Cal.App.5th at pp. 341-342.) We will modify the judgment by striking Whitfield's one-year prior prison term enhancements imposed under former section 667.5, subdivision (b). Because the trial court did not impose the maximum sentence, we will remand the matter for resentencing. (People v. Buycks (2018) 5 Cal.5th 857, 893 ["[W]hen part of a sentence is stricken on review, . . . 'a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.' "]; see Lopez, at p. 342 ["Because the trial court imposed the maximum possible sentence, there is no need for the court to again exercise its sentencing discretion" due to recent enactment of Senate Bill No. 136].) III. Fines, Fees, and Assessments
In Whitfield's initial sentencing hearing, the court imposed a $1,000 restitution fine (§ 1202.4); a $1,000 parole revocation fine, which was stayed (§ 1202.45); a $90 court facilities fee (Gov. Code, § 70370); and a $120 court security fee (§ 1465.8). Whitfield did not challenge these fines, fees, and assessments in his first appeal. Following remand, the court reaffirmed Whitfield's sentence, and stated that all fines and fees previously imposed remained fully enforceable.
Whitfield now contends these fines, fees, and assessments violate his rights to due process, equal protection, and freedom from excessive punishment under the United States and California Constitutions because he is unable to pay. In support, he relies primarily on People v. Dueñas (2019) 30 Cal.App.5th 1157, 1164, 1167, which held that "due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant's present ability to pay" (id. at p. 1164) before it imposes any fines or fees.
This broad holding has been rejected on various grounds. (E.g., People v. Aviles (2019) 39 Cal.App.5th 1055, 1069; accord, People v. Lowery (2020) 43 Cal.App.5th 1046, 1056-1057; see People v. Son (2020) 49 Cal.App.5th 565, 592-595; see also People v. Caceres (2019) 39 Cal.App.5th 917, 928-929; People v. Johnson (2019) 35 Cal.App.5th 134, 138.) --------
We conclude it is unnecessary to reach Whitfield's constitutional challenge to the fines, fees, and assessments given our remand of this matter for resentencing. To the extent Whitfield believes Dueñas or any other law entitles him to relief from fines and fees, he may request such relief in the trial court in the first instance. (People v. Castellano (2019) 33 Cal.App.5th 485, 489-491.)
DISPOSITION
Whitfield's one-year prior prison term enhancements under section 667.5, subdivision (b) are stricken, and the matter is remanded for resentencing. In all other respects, the judgment is affirmed.