Opinion
A160100
02-23-2022
THE PEOPLE, Plaintiff and Respondent, v. ROY GERALD GORDON, Defendant and Appellant.
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 05-152089-9
MILLER, J.
Defendant Roy Gerald Gordon appeals his sentence imposed after remand for resentencing. We conclude that the trial court erred in imposing a three-year enhancement for a prison prior offense under Penal Code section 667.5, subdivision (a) (§ 667.5(a)), because none of the offenses Gordon committed after the prison prior offense is a "violent" felony as required by the statute. Accordingly, we order the three-year enhancement stricken and remand for resentencing.
The Attorney General suggests that we should specify that, on remand, the People may "withdraw from the plea." The parties in this case, however, did not reach a negotiated disposition with a specific prison term. Because striking the enhancement does not deprive the People of any benefit of the bargain, an opportunity to "withdraw" from Gordon's open plea is not warranted. 1
BACKGROUND
Charges, Open Plea, and Sentence
This is the second appeal arising out of Gordon's sentence. We set out the relevant background here.
Gordon was charged with various crimes, among them, conspiracy to commit human trafficking (Pen. Code, §§ 182, subd. (a)(1), 236.1, subd. (b); count 1), dissuading a witness (§ 136.1, subd. (c)(1); count 18), and conspiracy to dissuade a witness (§ 136.1, subd. (c)(2); count 19). (People v. Gordon (June 12, 2019, A154614) [nonpub. opn.] (Gordon I).) It was alleged that Gordon had two convictions for which he had served prison terms. One of those convictions, "first degree residential burglary committed in 2009" was alleged to be "a violent felony for which he had served a prison term under section 667.5, subdivision (a)." (Ibid.)
Further undesignated statutory references are to the Penal Code.
We grant Gordon's request for judicial notice of the record in the prior appeal and also take judicial notice of our unpublished opinion in the matter. (Evid. Code, §§ 451, subd. (a), 452, subd. (a), 459; see, e.g., People v. Vizcarra (2015) 236 Cal.App.4th 422, 426, fn. 1 [taking judicial notice of the record on the defendant's prior appeal and the court's unpublished opinion]; People v. Bilbrey (2018) 25 Cal.App.5th 764, 769 [taking judicial notice of the record in a related appeal on the court's own motion].)
Gordon pleaded no contest to all charges and admitted all enhancement allegations. There was no indicated disposition, and the plea form Gordon signed and initialed provided that the maximum sentence he faced was "LIFE." (Gordon I, supra.)
At the sentencing hearing in 2018, "[t]he prosecutor moved to dismiss counts 2 through 4, and she noted that count 5 previously had been dismissed pursuant to section 995. The trial court sentenced Gordon to 36 years, eight months in prison." (Gordon I, supra.) This sentence included four years for 2 Gordon's prison priors-a "three-year term for his prior prison term for a violent felony (§ 667.5, subd. (a))" (ibid.) and a one-year term for the other prior prison term (§ 667.5, subd. (b)). Gordon's Prior Appeal
Gordon appealed from his sentence, and in Gordon I, we remanded the matter for resentencing under Senate Bill No. 1393 (2017-2018 Reg. Sess.), a newly enacted law that amended sections 667 and 1385 to grant trial courts discretion to strike or dismiss prior serious felony convictions for sentencing purposes. (Gordon had been sentenced to two five-year enhancements under section 667, subd. (a)(1).)
In addition, although Gordon had not raised the issue on appeal, we noticed that the offenses that occurred after the 2009 burglary, "[c]ounts 1 (conspiracy to commit human trafficking), 18 (dissuading a witness), and 19 (conspiracy to dissuade a witness), . . . d[id] not appear to qualify as violent felonies." (Gordon I, supra.) Because we were already remanding for resentencing, we also remanded for consideration of whether the three-year enhancement of section 667.5(a) or the one-year enhancement of section 667.5(b) applied to the prison term Gordon served for the 2009 burglary. We expected the parties on remand to address whether any of counts 1, 18, and 19 qualified as violent felonies under section 667.5. If so, the three-year enhancement already imposed under section 667.5(a) would survive; if not, 3 the three-year enhancement would have to be replaced by the one-year enhancement under section 667.5(b).
At the time we decided Gordon I, section 667.5(a), provided for a three-year enhancement when "one of the new offenses is one of the violent felonies specified" and the defendant served a prior prison term for a violent felony, while subdivision (b) (§ 667.5 (b)) generally called for a one-year enhancement for all other prior prison terms. (Former § 667.5(a), (b), as amended by Stats. 2018, ch. 423, § 65.)
Since we decided Gordon I, however, the law on enhancements for prison priors changed. Effective January 1, 2020, Senate Bill No. 136 (2019- 2020 Reg. Sess.) eliminated the one-year enhancement of section 667.5(b) for all prison priors except those for served for convictions of sexually violent offenses. (People v. Henderson (2021) 67 Cal.App.5th 785, 787 (Henderson).) Section 667.5(a) continues to provide for a three-year enhancement where the current offense and the prior offense are violent felonies. Sentencing After Remand in Gordon I
At the first sentencing hearing on remand in January 2020, the trial court was aware of the change wrought by Senate Bill No. 136, noting, "because the law changed, the Court would have to delete the 667.5 subdivision (b), one-year prior."
As to the three-year enhancement under section 667.5(a), the trial court found that counts 18 and 19 were not violent felonies and questioned whether section 667.5(a) could apply. It further observed that first degree residential burglary is not a violent felony unless a person was present during the offense. (§ 667.5, subd. (c)(21).) The court reviewed Gordon's underlying conviction for the 2009 burglary and discovered that the enhancement allegation that would have made the 2009 burglary a violent felony (§ 667.5, subd. (c)(21)) had been stricken; as a result, the court determined, "the first degree burglary from that time is . . . not a violent felony." It concluded therefore that the three-year enhancement under section 667.5(a) based on the 2009 burglary was "an illegal sentence."
The court, however, was disinclined to strike the three-year enhancement, expressing concern that "then we'll have to debate whether the 4 District Attorney can simply add back what was dismissed because that might end up meaning that Mr. Gordon could take his plea back . . . ." The prosecutor stated she was willing to negotiate with Gordon "about reinstating determinate charges . . . so that we can reach the same number or close to" the original sentence.
At the second sentencing hearing on remand in February 2020, the court recapped the previous hearing: "So last when we were here, . . . it did appear to the Court that the three years for a [section 667.5(a)] . . . enhancement was improperly imposed as there was no prior violent felony for which Mr. Gordon had been convicted, and that under the current state of the law, there are no longer any one year enhancements for 667.5(b) prison priors, so that the Court believes that four years would have to be subtracted from his sentence as it currently stands.
"However, we had some discussion about whether the People would stand by their prior dismissals of some of the enhancements and counts if the Court were to simply go ahead and subtract the four years, and I had asked counsel if there could be some sort of meeting of the minds, so has there been any discussion that would resolve this?"
The attorneys reported that the parties had not come to an agreement. Defense counsel urged that, pursuant to our remand order in Gordon I, the trial court could strike the three-year enhancement and "there's nothing that says the sum total of Mr. Gordon's sentence has to be maintained." He pointed out that Gordon did not negotiate a particular determinate sentence as part of a plea bargain. Rather, "The People exercised their discretion in striking certain provisions and proposing what they believed would be an appropriate sentence, which the Court then imposed." Defense counsel wondered why the prosecutor believed she could reinstate charges and 5 enhancements that had been dismissed after Gordon pleaded no contest to them as he was unaware of "legal authority for that."
The trial court decided to strike the one-year enhancement based on the change in the law, but the court did not strike the three-year enhancement, even though it found the underlying 2009 burglary was not a violent felony and recognized that dissuading a witness (counts 18 and 19) is not a violent felony either. (The court did not rule on whether count 1, conspiracy to commit human trafficking, is a violent felony.)
DISCUSSION
A. The Three-Year Enhancement Must Be Stricken
The three-year enhancement under section 667.5(a) only applies when, among other things, "one of the new offenses is one of the violent felonies specified in subdivision (c)." Here, there is no dispute that none of Gordon's new offenses is a "violent felony." Thus, regardless whether the underlying 2009 burglary is considered a violent felony, the three-year enhancement under section 667.5(a) does not apply to Gordon because none of his new offenses qualifies as "violent" under the statute. The parties agree the 6 enhancement must be stricken. We will strike the enhancement and remand the matter for resentencing. (See People v. Buycks (2018) 5 Cal.5th 857, 893 ["when 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' "].)
At oral argument, the Attorney General agreed that counts 1, 18 and 19 are not violent felonies for purposes of section 667.5. Conspiracy (§ 182) and human trafficking (§ 236.1) (count 1) are not listed among the "specified crimes" identified as "violent" felonies in section 667.5, subdivision (c). (See In re Gadlin (2019) 31 Cal.App.5th 784, 793 (conc. opn. of Baker, J.) [noting human trafficking is not "a violent felony as defined by the Penal Code"].) Witness intimidation (§ 136.1) (counts 18 and 19) is only "violent" under section 667.5, subdivision (c)(20), when the crime "would constitute a felony violation of Section 186.22" (active participation in a criminal street gang), but the enhancement allegation against Gordon did not mention gangs or section 186.22. (See People v. Torres (2011) 198 Cal.App.4th 1131, 1151 [a violation of section 136.1 is a violent felony under section 667.5(a)" 'only when it is gang related' "].)
At oral argument, the Attorney General conceded the three-year enhancement under section 667.5(a) is an illegal sentence that must be stricken.
B. Remand
The Attorney General argues that because we are striking the section 667.5(a) enhancement, the prosecutor "should be allowed to withdraw from the plea and the court should be allowed to reconsider its approval of the plea." He asserts, "Even granting that the plea was open, the objective manifestation of the parties' intent was that the certain charges would be dismissed in exchange for the use of the priors for sentencing." He does not cite anything in the record to support this assertion, and the record shows the contrary. At the first sentencing hearing on remand after Gordon I, the prosecutor disavowed any "agreement with the Defense regarding the dismissal of the counts and enhancements" and stated her agreement regarding sentencing was with the trial court only.
The Attorney General's reliance on People v. Stamps (2020) 9 Cal.5th 685 is misplaced. There, the defendant entered a plea agreement for a specific prison term, and the law subsequently changed while his appeal was pending to grant the trial court discretion to strike an enhancement. (Id. at p. 692.) Our high court held that if a defendant seeks the benefit of such a new law and the trial court indicates it would strike the enhancement under 7 the new law, "the [trial] court is not authorized to unilaterally modify the plea agreement by striking the . . . enhancement but otherwise keeping the remainder of the bargain"; rather," 'the prosecutor is entitled to the same remedy as the defendant-withdrawal of assent to the plea agreement.'" (Id. at p. 707.)
Stamps does not apply to this case. The Stamps court recognized, "If defendant stood convicted of a crime with an enhancing prior as a result of trial or an open plea of guilty as charged, his case could be remanded for the court to reconsider its sentence in light of its newly conferred authority to strike the enhancement. This case is procedurally different because both parties entered a plea agreement for a specific prison term." (People v. Stamps, supra, 9 Cal.5th at p. 700, italics added.)
Gordon entered an open plea, pleading no contest to all charges and enhancements with no indicated disposition and a maximum sentence of life. Striking the three-year enhancement does not deprive the People of the benefit of their bargain. (See Henderson, supra, 67 Cal.App.5th at pp. 788- 789 [Stamps does not apply where striking the enhancement results in a sentence "within the range of possible outcomes agreed to by the parties"; "striking the enhancement . . . does not deprive the People of the benefit of their bargain, or grant defendant a bounty to which he is not entitled, or require the trial court to unilaterally restructure the terms of the plea deal"].) Under the circumstances of this case, there is no reason to allow the People the option of withdrawing from Gordon's plea.
Finally, we note that there is another change in the sentencing law which must be taken into account on remand. Effective January 1, 2022, Senate Bill No. 567 (2021-2022 Reg. Sess.) amended section 1170, so that it now provides, "The court may impose a sentence exceeding the middle term 8 only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term, and the facts underlying those circumstances have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial." (§ 1170, subd. (b)(2).) Gordon was sentenced to upper terms for counts 6 and 7, and the trial court did not state its reasons for imposing aggravated terms. Gordon is entitled to resentencing under Senate Bill No. 567 on remand because the sentence is not final and Senate Bill 567's change to the sentencing law is ameliorative. (See People v. Flores (2022) 73 Cal.App.5th 1032 [2022 WL 121934, at *7] [remanding for resentencing under another ameliorative amendment to section 1170 by Senate Bill No. 567].)
At oral argument, the parties agreed that Senate Bill No. 567 is retroactive and applies to sentences that are non-final such as this one.
DISPOSITION
The three-year prior prison term enhancement (§ 667.5(a)) is stricken from Gordon's sentence, and the matter is remanded for resentencing in accordance with this opinion and Penal Code section 1170 as amended by Senate Bill No. 567. 9
WE CONCUR: Richman, Acting P.J., Stewart, J. 10