Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. MA021318, Rand S. Rubin, Judge.
Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
BOREN, P. J.
Giovanni C. Williams was convicted of multiple crimes and was found to have suffered two prior serious felony convictions within the meaning of the three strikes law (Pen. Code, §§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) and Penal Code section 667, subdivision (a). In July 2001, he was sentenced to 17 years in prison. We affirmed the judgment in People v. Williams (2002) 102 Cal.App.4th 995 (case No. B152020). In March 2007, he was resentenced by the superior court to 13 years in prison after the United States District Court, Central District of California, granted a conditional writ of habeas corpus as to three counts. He appeals from the judgment imposed upon resentencing.
All further statutory references are to the Penal Code unless otherwise indicated.
On the court’s own motion, we take judicial notice of the record and our opinion in case No. B152020 and of the judgment of the federal court in Giovanni Christopher Williams v. C.D.C., et al., No. CV 03-9101-MMM(E), all of which have been referred to by both parties in the instant appeal. (Evid. Code, §§ 452, 459.)
Appellant contends that one of the five-year enhancements imposed by the trial court pursuant to section 667, subdivision (a)(1) must be vacated because it violates the state and federal constitutional prohibitions against ex post facto laws and therefore was an unauthorized sentence. Respondent agrees that error occurred but argues that the matter should be remanded for resentencing.
We modify the judgment and remand the matter for resentencing in accordance with our decision in People v. Castaneda (1999) 75 Cal.App.4th 611 (Castaneda).
FACTS AND PROCEDURAL BACKGROUND
We need not recite the facts underlying appellant’s conviction, which are set forth at length in our opinion in People v. Williams, supra, 102 Cal.App.4th 995. It will suffice to observe that appellant’s offenses were committed on October 2, 1999.
Appellant was convicted by jury of second degree robbery, criminal threats, child abuse with personal use of a deadly weapon, and assault with a deadly weapon or by means likely to produce great bodily injury, all felonies, and misdemeanor assault, a lesser included offense (§§ 211, 422, 273a, subd. (a), 12022, subd. (b)(1), 245, subd. (a)(1), 240). The jury found that he had suffered two prior felony convictions within the meaning of the three strikes law and section 667, subdivision (a)(1). One of the prior convictions, case No. MA015827, was a June 8, 1998, conviction of making criminal threats in violation of section 422.
At the initial sentencing proceeding, the trial court struck both strike convictions and sentenced appellant to 17 years in prison, comprised of the upper term of six years for child abuse with a one-year deadly weapon enhancement and two 5-year section 667, subdivision (a)(1) serious felony enhancements. The sentences on the remaining counts, including the upper term of five years for robbery, were ordered to run concurrently.
After the United States District Court granted a conditional writ of habeas corpus as to the convictions of criminal threats, child abuse and assault with a deadly weapon, the trial court vacated those convictions and resentenced appellant. At the commencement of the resentencing hearing, defense counsel objected that imposition of a five-year enhancement based on the prior criminal threats conviction “would be a violation of ex post facto laws because the date of the offense preceded a [section] 422 [violation] being a serious felony by about six months . . . .” The trial court declined to consider that issue, stating that it was not encompassed in the “directive . . . from the federal court.” The trial court ordered that the two strike priors remain stricken and imposed a term of 13 years, comprised of the midterm of three years for robbery, a concurrent term of six months for misdemeanor assault, and two 5-year section 667, subdivision (a)(1) enhancements.
The federal court ordered that appellant must be discharged from all adverse consequences of his convictions on those counts unless he were to be retried. The People apparently elected not to retry appellant.
In imposing judgment, the trial court stated, “Mr. Williams, I intend to resentence you without three counts based on the federal habeas petition, and that will take you from a 17-year sentence down to a 13-year sentence. If I was asked to reconsider on the two five-year priors which the jury found to be true and the Court of Appeal has not made any determination on, I would probably consider resurrecting one of the strikes. I struck two strikes on condition that the sentence remain valid. It hasn’t remained valid. Federal courts have overturned some counts. But I’m not going to resurrect the strikes, not at this time. We’ll see if it comes back again. I think it was the appropriate sentence at the time. I think it’s going to be appropriate now.”
DISCUSSION
Appellant contends that the five-year section 667, subdivision (a)(1) serious felony enhancement based upon his prior conviction of making criminal threats in violation of section 422 must be stricken because it was not a serious felony at the time he committed the current offenses. Thus, he argues, imposition of the five-year enhancement constitutes a violation of the state and federal prohibitions against ex post facto laws. As respondent acknowledges, appellant is correct.
“Based upon the plain language of section 667, subdivision (a), the crucial date for determining if a prior conviction qualifies as a serious felony is the date of the charged offense. If the alleged prior conviction is included in the list of serious felonies in section 1192.7 on the date of the charged offense, the prior conviction qualifies for the five-year enhancement under subdivision (a).” (People v. Ringo (2005) 134 Cal.App.4th 870, 884.) Making criminal threats in violation of section 422 was added to the list of serious felonies (§ 1192.7, subd. (c)(38)) by Proposition 21, which became effective March 8, 2000. Appellant’s crimes occurred in October 1999. At the time of his offenses, a violation of section 422 was not a serious felony.
The offense was formerly known as “terrorist threats” and was originally so denominated in section 1192.7, subdivision (c)(38).
Subjecting appellant to a serious felony enhancement for an offense that was not a serious felony at the time he committed his instant crimes would constitute a violation of the ex post facto clauses of the state and federal Constitutions. (See People v. Alvarez (2002) 100 Cal.App.4th 1170, 1178; People v. Williams (1987) 196 Cal.App.3d 1157, 1159-1161.) The section 667, subdivision (a)(1) enhancement based on the prior conviction in case No. MA015827 must be vacated and the allegation dismissed.
Respondent argues, however, that the matter should be remanded for resentencing. We agree.
In Castaneda, supra, 75 Cal.App.4th 611, the defendant was resentenced by the trial court because the 10-year sentence originally imposed violated a statutory limitation on enhancements. The original sentence was comprised of the three-year midterm for assault, with a four-year firearm use enhancement and a three-year great bodily injury enhancement. On resentencing, the trial court stayed the great bodily injury enhancement and imposed a total sentence of eight years, comprised of the four-year upper term for assault and the four-year firearm use enhancement. (Castaneda, supra, at p. 612.)
This court held that the eight-year sentence, including the four-year upper term for assault, was proper although the trial court had initially chosen the three-year midterm for assault. We agreed with the line of cases reasoning that “‘[a] judge’s subjective determination of the value of a case and the appropriate aggregate sentence, based on the judge’s experiences with prior cases and the record in the defendant’s case, cannot be ignored. A judge’s subjective belief regarding the length of the sentence to be imposed is not improper as long as it is channeled by the guided discretion outlined in the myriad of statutory sentencing criteria. . . . “In making its sentencing choices in the first instance the trial court undoubtedly considered the overall prison term to be imposed and was influenced in its choices by the length of the enhancements.” [Citations.]’ [Citation.]” (Castaneda, supra, 75 Cal.App.4th at p. 614.) We concluded that the new sentence was proper because it was correctly calculated and did not exceed the original aggregate term of 10 years. (Ibid; accord, People v. Burbine (2003) 106 Cal.App.4th 1250, 1257-1259.)
The principles expressed in Castaneda govern our conclusion in this case. Here, the trial court observed that it originally had stricken both strike priors “on condition that the sentence remain valid,” and the sentence had not remained valid. While it stated that it considered the striking of the strike convictions still to be appropriate after it imposed the 13-year sentence, it added, “I’m not going to resurrect the strikes, not at this time. We’ll see if it comes back again.” By this, the trial court clearly was referring to defense counsel’s objection to imposition of the five-year enhancement for the prior criminal threats conviction. The court thus suggested that a sentence of less than 13 years might prompt it to “resurrect” the strike convictions. Were we merely to vacate the five-year enhancement for the prior conviction in case No. MA015827, appellant’s sentence would be reduced to eight years. On this record, we will return the case to the trial court for resentencing to permit that court to exercise its discretion, within the applicable sentencing laws and rules, in accordance with its subjective belief as to the value of the case, as long as the term imposed does not exceed 13 years and with the understanding that only one of the prior convictions is a valid strike.
It similarly would be a violation of the ex post facto clauses to subject appellant to the three strikes provisions based on the prior criminal threats conviction. The amendments to section 1192.7 enacted through Proposition 21 apply to make a prior conviction a strike only when the current offense was committed on or after the effective date of Proposition 21. (People v. Ringo, supra, 134 Cal.App.4th at p. 884; People v. James (2001) 91 Cal.App.4th 1147, 1150.)
DISPOSITION
The five-year enhancement imposed pursuant to section 667, subdivision (a)(1) based on the violation of section 422 in case No. MA015827 is vacated and the allegation is dismissed. The matter is remanded for resentencing in accordance with the views expressed herein. In all other respects, the judgment is affirmed.
We concur: DOI TODD, J., CHAVEZ, J.