Opinion
G056679
04-01-2020
THE PEOPLE, Plaintiff and Respondent, v. DARRELL EDWARD ADAMS, Defendant and Appellant.
Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Andrew Mestman and Susan Elizabeth Miller, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF108462) OPINION Appeal from a resentencing order of the Superior Court of Riverside, John D. Molloy, Judge. Vacated and remanded with directions. Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Andrew Mestman and Susan Elizabeth Miller, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
When defendant Darrell Edward Adams was last before this court, he successfully petitioned to have the trial court's resentencing order vacated. A jury had found him guilty of willful, deliberate, and premeditated attempted murder, being a felon in possession of a firearm, and being a felon in possession of ammunition. The jury also found defendant had personally and intentionally discharged a firearm which proximately caused great bodily injury within the meaning of Penal Code sections 12022.53, subdivision (d) and 1192.7, subdivision (c)(8). The trial court found true sentencing enhancement allegations that defendant had served a prior prison term (§667.5, subd. (b)), had suffered a "strike prior" (§§ 667, subd. (c) & (e)(1) and 1170.12, subd. (c)(1)), and had suffered a prior serious felony conviction (§ 667, subd. (a)). We granted defendant's petition for a writ of habeas corpus because he had not been present at the resentencing hearing and ordered a resentencing hearing with defendant present.
All further statutory references are to the Penal Code unless otherwise specified.
A new resentencing hearing was held. This time, defendant was present. He now appeals from the trial court's July 16, 2018 resentencing order. We vacate that order and remand, with directions, for a full resentencing hearing.
During the pendency of this case, the law governing defendant's sentencing enhancements changed. Section 667.5, subdivision (b) was amended to limit the application of the one-year prior prison term sentencing enhancement to sexually violent offenses only. Sections 667, subdivision (a) and 1385, subdivision (b) have been amended to vest discretion in the trial court to strike the five-year prior serious felony conviction enhancement. Section 12202.53, subdivision (d), similarly, has been amended to vest new discretion in the trial court to strike the 25-years-to-life firearm sentencing enhancement term. The trial court imposed sentence as to all three sentencing enhancements at the July 16, 2018 resentencing hearing. As conceded by the Attorney General, the amendments to these statutes apply to defendant. Therefore, we vacate defendant's sentence and remand for a full resentencing hearing with directions as set forth in the disposition.
We direct the trial court to recalculate defendant's custody credits as of the time of resentencing and to order the preparation of a new probation report to assist the court in exercising its discretion in resentencing. The Attorney General agrees those actions are appropriate. We also direct the court to entertain any request by defendant to hold a hearing to determine his ability to pay any fees or fines imposed by the court.
FACTS AND PROCEDURAL BACKGROUND
We rely in large part on our three prior opinions in this case for the factual and procedural background: People v. Adams (Nov. 17, 2009, G041461) [nonpub. opn.] (Adams I); People v. Adams (Oct. 11, 2012, G044831) [nonpub. opn.] (Adams II); and In re Adams (Mar. 19, 2018, G049156) [nonpub. opn.] (Adams III).
In February 2003, defendant lured a man to a secluded location and shot him four times. (Adams II, supra, G044831.) Defendant was charged in an information with (1) willful, deliberate, and premeditated attempted murder (§§ 664, 187, subd. (a)) (count 1); possession of a firearm by a felon (former § 12021, subd. (a)(1)) (count 2); and possession of ammunition and reloaded ammunition by a felon (former § 12316, subd. (b)(1) (count 3). (Adams II, supra, G044831.) As to count 1, the information alleged defendant personally and intentionally discharged a firearm in the commission of that offense, causing great bodily injury. (§§ 12022.53, subd. (d), 1192.7, subd. (c)(8).) The information also alleged defendant had served a prior prison term within the meaning of section 667.5, subdivision (b) and had suffered a prior serious felony conviction and a prior strike within the meaning of sections 667, subdivisions (a), (c), and (e)(1), and 1170.12, subdivision (c)(1). (Adams III, supra, G049156.)
I.
THE FIRST TRIAL AND DEFENDANT'S APPEAL
At his first trial, a jury convicted defendant on all counts and found true the firearm sentencing enhancement. The trial court found true the prior conviction and prior prison term allegations. (Adams I, supra, G041461.) We reversed the judgment. (Ibid.) We held the trial court erred by admitting the victim's preliminary hearing testimony into evidence when the prosecution had not established its due diligence in searching for the victim before trial. (Adams III, supra, G049156.)
II.
THE SECOND TRIAL AND DEFENDANT'S APPEAL
At defendant's second trial, the victim testified and the jury convicted defendant on all counts and found true the sentencing enhancement allegations. (Adams II, supra, G044831.) The trial court again found the prior conviction and prison term allegations to be true. (Ibid.) We rejected defendant's assertions of instructional and other errors. (Ibid.) However, we agreed with defendant and the Attorney General that two sentencing errors had occurred. (Ibid.) We affirmed the judgment but remanded the matter for resentencing. (Ibid.)
The first sentencing error we identified in Adams II was the trial court increased defendant's sentence following his successful appeal in Adams I. We explained: "After the first trial, the court sentenced defendant to an indeterminate term of 39 years to life, plus a determinate term of 10 years. . . . Following retrial, the trial court sentenced defendant to a total prison term of 39 years to life, plus [a determinate term of] 13 years four months." (Adams II, supra, G044831.) Our disposition stated: "On remand, the trial court shall ensure that defendant does not receive a greater sentence than the sentence the court imposed following defendant's first trial." (Ibid.)
The second sentencing error we identified in Adams II was clerical in nature: The minute order and abstract of judgment did not accurately reflect the trial court's oral imposition of sentence on the prior prison term sentencing enhancement. Those documents stated that a five-year term was imposed under section 667, subdivision (a)(1). In fact, the court imposed a one-year term under section 667.5, subdivision (b). Our disposition stated: "The trial court shall also correct its minute order and the abstract of judgment to reflect the court's imposition of a one-year prison term for the prior prison term enhancement." (Adams II, supra, G044831.)
III.
DEFENDANT IS RESENTENCED UPON REMAND
"Following the issuance of Adams II, a hearing was held at the trial court regarding the return of the remittitur from this court. The court vacated its previously imposed determinate sentence, then imposed a 10-year determinate sentence. As part of this 10-year determinate sentence, the court imposed a one-year prison term for the prior prison term. In short, as stated in the court's minute order, it issued an 'order in compliance with [the] remittitur' from Adams II.
"Present at the hearing was a deputy district attorney and a deputy public defender. The minute order makes clear that [defendant] was not present. In her declaration filed in this habeas proceeding, the deputy public defender stated that she accepted appointment in this case the day of the resentencing hearing. She does not recall having any contact with [defendant], either before or after the hearing. According to her, 'standard practice' was to ensure the presence of a criminal defendant upon the return of a remittitur only when possible negative consequences are contemplated by the remittitur. Under this practice, '[w]hen a lower sentence is contemplated by the remittitur, then the attorney will appear without the client being present.' '[S]tandard practice' also meant that petitioner was not informed about the hearing or his right to appeal the court's resentencing order. No appeal was in fact filed from the resentencing order." (Adams III, supra, G049156.)
IV.
IN ADAMS III, WE GRANTED DEFENDANT'S PETITION FOR A WRIT OF HABEAS CORPUS
AND ORDERED A NEW RESENTENCING HEARING.
Defendant filed a petition for a writ of habeas corpus in this court seeking the constructive filing of a late notice of appeal of the trial court's resentencing order. (Adams III, supra, G049156.) In Adams III, we construed the petition as one seeking another resentencing hearing as a remedy, rather than merely seeking an appeal of the resentencing order. (Ibid.) We granted the petition, holding that defendant's absence at the resentencing hearing constituted constitutional error and the Attorney General did not demonstrate the error was harmless beyond a reasonable doubt. We vacated the resentencing order and ordered the trial court to conduct a new resentencing hearing at which defendant would be present. (Ibid.) We directed the court to ensure defendant did not receive a greater sentence than the sentence imposed following defendant's first trial. (Ibid.)
V.
DEFENDANT IS AGAIN RESENTENCED AND FILES THIS APPEAL.
Defendant was present at his July 16, 2018 resentencing hearing. The trial court vacated defendant's prior prison sentence as to all counts. The court resentenced defendant to the same prison term the court had originally imposed following the first trial. The court sentenced defendant to the two-year middle term on count 2, doubled to four years due to the prior strike sentencing enhancement. On count 1, the court imposed an indeterminate term of seven years to life, doubled to 14 years to life because of the prior strike. The court imposed a 25-years-to-life term for the firearm sentencing enhancement consecutive to the determinate term on count 1, for a total aggregate sentence of 39 years to life on count 1. The court sentenced defendant to the middle term of two years on count 3, doubled to four years due to the prior strike. The court stayed execution of sentence on count 3 pursuant to section 654. The court imposed an additional one-year term consecutive to the term served in count 2 for the prior prison term sentencing enhancement and imposed an additional five-year term under section 667, subdivision (a) also consecutive to the term served in count 2 for a total aggregate determinate sentence of 10 years in state prison consecutive to the term served in count 1.
There appears to be a discrepancy between the trial court's oral pronouncement of judgment at the latest resentencing hearing and its minute order regarding the order of prison terms imposed on counts 1 and 2 and related sentencing enhancements. Our recitation of defendant's sentence comports with the oral pronouncement of judgment. We do not further discuss the discrepancy because there will be a new oral pronouncement of judgment and minute order following the full resentencing hearing on remand.
Defendant filed the instant appeal.
DISCUSSION
I.
THE ONE-YEAR PRIOR PRISON TERM SENTENCING ENHANCEMENT MUST BE STRUCK.
In supplemental briefing, defendant contends and the Attorney General agrees that the one-year prior prison term sentencing enhancement imposed by the trial court under section 667.5, subdivision (b) must be struck. Effective January 1, 2020, Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill No. 136) amended section 667.5, subdivision (b), to provide the one-year prior prison term sentencing enhancement applies only to sexually violent offenses, as defined in Welfare and Institutions Code section 6600, subdivision (b). (People v. Jennings (2019) 42 Cal.App.5th 664, 681; People v. Lopez (2019) 42 Cal.App.5th 337, 340-341.) Senate Bill No. 136 applies retroactively to defendant because his sentence is not final. (See People v. Jennings, supra, at p. 682 ["Senate Bill No. 136's amendment to section 667.5, subdivision (b) applies retroactively to all cases not yet final as of its January 1, 2020, effective date."]; People v. Lopez, supra, at pp. 341-342 [applying Senate Bill No. 136 retroactively].) Defendant was not convicted of any sexually violent offenses in this case and therefore the prior prison term sentence enhancement is inapplicable.
We therefore vacate the July 16, 2018 resentencing order and remand for a full resentencing hearing at which the court is directed to strike the one-year section 667.5, subdivision (b) prior prison sentencing enhancement.
II.
ON REMAND, THE TRIAL COURT MUST EXERCISE ITS DISCRETION WHETHER TO STRIKE
THE PRIOR SERIOUS FELONY CONVICTION SENTENCING ENHANCEMENT.
Defendant argues that, given the change in the law granting the trial court discretion to strike the prior serious felony conviction sentencing enhancement, this case must be remanded "to allow the court to consider whether to strike the section 667, subdivision (a) five-year enhancement in furtherance of justice." (Capitalization and boldface omitted.)
Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Senate Bill No. 1393), which became effective January 1, 2019, amended sections 667, subdivision (a) and 1385, subdivision (b) to grant a trial court discretion to strike or dismiss a prior serious felony conviction for sentencing purposes. (People v. Garcia (2018) 28 Cal.App.5th 961, 971.) Prior versions of those statutes, which were in effect when defendant was originally sentenced, required the court to impose a five-year consecutive sentence on a defendant convicted of a serious felony who had been previously convicted of a serious felony and gave the court no discretion to strike a prior serious felony conviction for sentencing purposes. (Ibid.)
The appellate court in People v. Garcia concluded Senate Bill No. 1393 applied to all cases not yet final when Senate Bill No. 1393 became effective on January 1, 2019. (People v. Garcia, supra, 28 Cal.App.5th at p. 973, citing People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307-308 & fn. 5, and In re Estrada (1965) 63 Cal.2d 740, 744-745; see People v. Jones (2019) 32 Cal.App.5th 267, 272 ["When it enacted Senate Bill 1393, the Legislature did not indicate it intended the legislation to apply prospectively only"].)
Citing People v. Garcia, supra, 28 Cal.App.5th 961, the Attorney General concedes Senate Bill No. 1393 applies to defendant retroactively as this case is not yet final and "remand is warranted to allow the trial court to determine whether it will exercise its discretion to consider whether to strike [defendant]'s . . . prior in the interest of justice."
We agree and direct the trial court at the resentencing hearing to exercise its discretion whether to strike the prior serious felony conviction sentencing enhancement term in light of Senate Bill No. 1393. We do not express any opinion on how the court's discretion should be exercised.
III.
AT THE RESENTENCING HEARING ON REMAND, THE TRIAL COURT SHALL ALSO EXERCISE
ITS DISCRETION WHETHER TO STRIKE THE FIREARM SENTENCING ENHANCEMENT.
Defendant also argues that due to the enactment of Senate Bill No. 620 (2017-2018 Reg. Sess.) (Senate Bill No. 620), the matter should be remanded to provide the trial court the opportunity to exercise its discretion to strike the 25-years-to-life firearm sentencing enhancement. Before the enactment of Senate Bill No. 620, trial courts were prohibited from striking firearm sentencing enhancements under section 12022.53. Since defendant's original sentencing hearing, Senate Bill No. 620 amended section 12022.53 to give the trial court discretion to strike an enhancement in the interests of justice. (§ 12022.53, subd. (h).) This change in sentencing law applies retroactively to defendant's case. (People v. Chavez (2018) 22 Cal.App.5th 663, 712.)
Defendant's July 16, 2018 resentencing hearing occurred after the amendment to section 12022.53, subdivision (h) became effective. At that hearing, the trial court again imposed the personal use of a firearm sentencing enhancement under section 12022.53, subdivision (b) as it had when it originally sentenced defendant. Defendant contends that even though he did not object to the trial court's re-imposition of the firearm sentencing enhancement at that hearing, his argument is cognizable in this appeal because "[t]he sentencing court gave no indication it was aware of its discretion or whether it would impose the 25 to life enhancement if it was aware of its discretion." (Boldface omitted.) Defendant alternatively argues he was denied effective assistance of counsel.
The Attorney General contends defendant forfeited his claim for resentencing under Senate Bill No. 620 by failing to raise it at the July 16, 2018 resentencing hearing. The Attorney General takes the position, notwithstanding such forfeiture, that defendant will be able to request that the trial court strike the firearm sentencing enhancement at the post-remand resentencing hearing because he will be entitled to resentencing under Senate Bill No. 1393.
We do not need to decide whether the trial court was aware of its discretion to strike the firearm sentencing enhancement or whether defendant's trial counsel provided ineffective assistance by failing to raise that issue at the resentencing hearing. We are vacating the July 16, 2018 resentencing order and remanding for full resentencing. The California Supreme Court has held: "[W]hen part of a sentence is stricken on review, on remand for resentencing 'a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.'" (People v. Buycks (2018) 5 Cal.5th 857, 893.) Therefore, at the full resentencing hearing on remand, the trial court shall exercise its discretion whether to strike the enhancement.
IV.
DEFENDANT WILL HAVE THE OPPORTUNITY AT THE RESENTENCING HEARING ON
REMAND TO CHALLENGE THE TRIAL COURT'S IMPOSITION OF CERTAIN FEES AND A FINE.
Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157, defendant argues the trial court violated his right to due process by ordering him to pay a $120 court operations assessment fee, a $90 criminal conviction assessment fee, and a $600 restitution fine without conducting a hearing on his ability to pay those fees and fine. We do not need to decide whether defendant forfeited this issue because he will have the opportunity at the resentencing hearing to request a hearing on his ability to pay.
V.
RECALCULATION OF CUSTODY CREDITS AND PREPARATION OF A
CURRENT PROBATION REPORT.
Defendant argues custody credits must be recalculated and a new probation report prepared. He points out that after we issued Adams III, the trial court did not recalculate custody credits and that the number of days of actual time in custody reflected in the nunc pro tunc abstract of judgment does not correspond either to his time in custody from the date of his arrest to the first sentencing date of October 19, 2007 or to the most recent sentencing date of July 16, 2018. Defendant also points out that nothing in the record indicates a probation report has been prepared since late 2010 or early 2011, when he was sentenced following his second trial. He contends a new probation report is necessary for the trial court to make discretionary decisions at the resentencing hearing after remand.
The Attorney General, in the respondent's brief, states: "Respondent does not oppose upon remand a full resentencing hearing. Respondent also does not oppose this court ordering the trial court to recalculate [defendant]'s custody credits, and to order the preparation of and to consider a current probation report."
In People v. Buckhalter (2001) 26 Cal.4th 20 at page 23, the California Supreme Court held: "When, as here, an appellate remand results in modification of a felony sentence during the term of imprisonment, the trial court must calculate the actual time the defendant has already served and credit that time against the 'subsequent sentence.'" The Supreme Court stated: "The Court of Appeal erred in concluding that the trial court had no responsibility whatever to recalculate custody credits upon the remand," and noted "[u]nder section 2900.1, the trial court, having modified defendant's sentence, should have determined all actual days defendant had spent in custody, whether in jail or prison, and awarded such credits in the new abstract of judgment." (Id. at p. 41.)
Here, defendant's sentence will be modified following remand at least with regard to the striking of the prior prison sentencing enhancement, triggering the trial court's obligation to recalculate custody credits. We therefore direct the trial court on remand to calculate the actual time defendant has already spent in custody, whether in jail or prison, and award the appropriate credits in the new abstract of judgment.
We also direct the trial court on remand to order the preparation of a new probation report. An updated report is appropriate to assist the court in exercising its discretion whether to strike the five-year prior serious felony conviction sentencing enhancement and the 25-year firearm sentencing enhancement at the full resentencing hearing on remand. Even if defendant is not eligible for probation, a new probation report might be necessary for the trial court to assess his postconviction behavior and any other relevant developments. (See People v. Garcia (2008) 161 Cal.App.4th 475, 484, disapproved on other grounds in People v. Picklesimer (2010) 48 Cal.4th 330, 338 & fn. 4.)
DISPOSITION
The July 16, 2018 resentencing order is vacated and the matter is remanded for a full resentencing hearing as to all counts and sentencing enhancements. We specifically direct the trial court to (1) strike the prior prison term sentencing enhancement; (2) exercise its discretion whether to strike the prior serious felony conviction and firearm sentencing enhancements; (3) entertain any request by defendant to hold a hearing to determine his ability to pay any fees or fines imposed by the court; (4) recalculate custody credits; (5) order the preparation of a new probation report; and (6) following resentencing, prepare and issue an amended abstract of judgment and forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. The new resentencing hearing shall be conducted in defendant's presence, unless he expressly waives his presence at that hearing. The trial court "shall ensure that defendant does not receive a greater sentence than the sentence the court imposed following defendant's first trial." (Adams II, supra, G044831.)
FYBEL, J. WE CONCUR: MOORE, ACTING P. J. ARONSON, J.