Opinion
B314785
07-19-2022
THE PEOPLE Plaintiff and Respondent, v. MICHAEL JACQUET DANIELS, Defendant and Appellant.
Natalie Walters Cohen, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BA301458 Drew E. Edwards, Judge. Reversed with directions.
Natalie Walters Cohen, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.
STRATTON, P. J.
INTRODUCTION
In 2006, appellant Michael Daniels was involved in a car accident which left his passenger paralyzed and permanently disabled. A jury convicted appellant of one count of driving under the influence of alcohol causing injury (Veh. Code, § 23153, subd. (a)) and one count of driving with a blood alcohol level of .08 percent or more causing injury to another. (Veh. Code, § 23153, subd. (b)). As to each count, the jury also found Daniels personally inflicted great bodily injury within the meaning of Penal Code section 12022.7, subdivision (b). The trial court found Daniels suffered three prior strike convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(c)), four prior serious felony convictions (§ 667, subd. (a)), and had served four prison terms (§ 667.5, subd. (b)). He was sentenced to 45 years to life in state prison. We recited the underlying facts in a nonpublished opinion affirming Daniels's convictions. (People v. Daniels (Aug. 31, 2009, B208132) [nonpub. opn.].) These facts are not at issue here.
Undesignated statutory references are to the Penal Code.
In 2020, the Secretary of the California Department of Corrections and Rehabilitation (CDCR) wrote to the trial court recommending the court recall and resentence appellant pursuant to provisions of former section 1170, subdivision (d)(1). The recommendation was based on appellant's exceptional postconviction behavior and rehabilitative efforts. The trial court followed the CDCR's recommendation and struck appellant's three prior "strike" convictions (§ 667, subds. (b)-(i)), and one prior serious felony conviction. (Id., subd. (a).) The trial court resentenced appellant to 18 years in state prison.
Effective January 1, 2022, Senate Bill No. 567 (Stats. 2021, ch. 731, §1.3) and Assembly Bill No. 1540 (Stats. 2021, ch. 719, § 3) moved the recall and resentencing provisions formerly under section 1170, subdivision (d)(1) to section 1170.03 and amended its requirements.
Appellant raises three issues in this appeal with respect to his new sentence: (1) the trial court erred in imposing concurrent terms on counts 1 and 2 instead of imposing one and staying the other; (2) the trial court erred in imposing two prior serious felony enhancements on count 1 and again on count 2; and (3) the trial court's imposition of a $300 restitution fine (§ 1202.4) and $300 parole revocation fine (§ 1202.45) violated ex post facto principles.
DISCUSSION
I. The Sentence on Count 1 or Count 2 Must be Stayed Pursuant to Section 654.
On count 1, appellant's new sentence consists of the upper term of three years for the driving under the influence causing injury conviction (Veh. Code, § 23153, subd. (a)), plus 10 years for two prior serious felony conviction enhancements (§ 667, subd. (a)(1)), plus five years for the great bodily injury enhancement. (§ 12022.7, subd. (b).) An identical concurrent sentence was imposed on count 2. (Veh. Code, § 23153, subd. (b).)
Section 654, provides, in relevant part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (§ 654, former subd. (a).) Section 654 precludes multiple punishments for a single physical act that violates different provisions of the law. (People v. Jones (2012) 54 Cal.4th 350, 358 (Jones).) Where section 654 applies, imposition of concurrent sentences is precluded. (Jones, at p. 353.) Thus, for a single act of driving, section 654 precludes concurrent sentencing for violations of subdivisions (a) and (b) of Vehicle Code section 23153. (People v. Duarte (1984) 161 Cal.App.3d 438, 446-447 (Duarte).)
Effective January 1, 2022, Assembly Bill No. 518 (Stats. 2021, ch. 441, § 1) modified section 654 to read: "An act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision." (§ 654, subd. (a), italics added.)
The People concede, and we agree, section 654 applies and one of the sentences should have been stayed. Appellant was convicted of both subdivision (a) and subdivision (b) of Vehicle Code section 23153 for a single physical act of driving while under the influence causing injury. Although he may be convicted on both counts, he can be punished for only one of them. (Duarte, supra, 161 Cal.App.3d at pp. 446-447.)
II. The Section 667 (a)(1) Enhancements on Count 2 Must be Stricken
Appellant's count 1 (Veh. Code, § 23153, subd. (a)) and count 2 (Veh. Code, § 23153, subd. (b)) convictions are both determinate sentences. Status enhancements, such as appellant's prior serious felony convictions (§ 667, subd. (a)(1)), are added only once to multiple determinate-term offenses upon which sentence is imposed. (§ 1170.1; People v. Tassell (1984) 36 Cal.3d 77, 89-92; overruled on other grounds in People v. Ewoldt (1994) 7 Cal.4th 380, 401; People v. Gutierrez (2002) 28 Cal.4th 1083, 1163-1164 (Gutierrez) [extending Tassell's holding to section 667 subdivision (a)(1) enhancements].) The People concede, and we agree, appellant's five-year sentence enhancements under section 667 subdivision (a)(1) should have been imposed only once in connection with the aggregate sentence (and not as to each count).
III. Remand for Resentencing Is Necessary
Appellant's sentence is composed of multiple elements as to which the trial court had some discretion. (See, e.g., §§ 1170, subd. (b); 1385, subd. (b)(1).) Although we have the authority to modify appellant's sentence on appeal, we find remand is necessary because an "aggregate prison term is not a series of separate independent terms, but one term made up of interdependent components. The invalidity of one component infects the entire scheme." (People v. Hill (1986) 185 Cal.App.3d 831, 834 (Hill); see §1260; People v. Buycks (2018) 5 Cal.5th 857, 893 [where an appellate court strikes a portion of a sentence, remand for a full resentencing as to all counts is generally appropriate]; People v. Price (1986) 184 Cal.App.3d 1405, 1411 ["an incorrect application of section 654 produces an unauthorized sentence which may be rectified on remand."].)
Effective January 1, 2022, section 1385 was amended by Senate Bill No. 81. (Stats. 2021, ch. 721, § 1.)
On remand, the trial court is to" 'sentence defendant for each count'" then" 'stay execution of sentence on certain of the convictions to which section 654 is applicable.'" (Jones, supra, 54 Cal.4th at p. 353.) If imposed, appellant's section 667 subdivision (a)(1) enhancements should be imposed only once in connection with the aggregate sentence. (Gutierrez, supra, 28 Cal.4th at pp. 1163-1164.) Additionally, the trial court is "obligated to look at the facts and the law in effect at the time of that resentencing." (People v. Walker (2021) 67 Cal.App.5th 198, 205.) The trial court may reconsider all its discretionary sentencing choices, so long as it does not impose a total prison term greater than the original sentence. (People v. Burbine (2003) 106 Cal.App.4th 1250, 1258-1259 (Burbine).)
IV. We Decline to Address Whether Appellant's $300 Restitution and $300 Parole Revocation Fines Violated Ex Post Facto Principles.
The trial court also imposed various fines and assessments, including a $300 restitution fine (§ 1202.4) and a corresponding $300 parole revocation fine (§ 1202.45). Appellant contends these restitution and parole revocation fines violated the prohibition against ex post facto laws because the minimum fine at the time of his offenses in 2006 was $200. (§ 1202.4, former subd. (b)(1); Stats. 2005, ch. 240, § 10.5.) Accordingly, he requests we reduce these fines from $300 each to $200 each.
We agree with the People that appellant has forfeited the right to challenge these fines by failing to raise an objection in the trial court. (People v. White (1997) 55 Cal.App.4th 914, 917.) We therefore decline to consider the issue. However, as we are remanding for resentencing, appellant can raise the issue in the trial court if he so chooses. (Burbine, supra, 106 Cal.App.4th at p. 1259; Hill, supra, 185 Cal.App.3d at p. 834.)
DISPOSITION
The sentence is reversed. The matter is remanded with directions to the trial court to stay either the sentence imposed on count 1 (driving under the influence of alcohol, causing injury) or on count 2 (driving with a blood alcohol level of .08 percent or more, causing injury). The section 667, subdivision (a) enhancements on count 2 are stricken.
We concur: GRIMES, J., HARUTUNIAN, J. [*]
[*]Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.