Opinion
B312053
05-31-2022
THE PEOPLE, Plaintiff and Respondent, v. TERRANCE McCREA, Defendant and Appellant.
Shay Dinata-Hanson, 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, Kenneth C. Byrne and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. TA038269 Ricardo R. Ocampo, Judge. Remanded with directions.
Shay Dinata-Hanson, 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, Kenneth C. Byrne and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.
VOGEL, J. [*]
Defendant and appellant Terrance McCrea appeals from the trial court's order correcting his sentence. He contends the court erred by failing to strike three one-year enhancements under Penal Code section 667.5, subdivision (b) from his sentence because, following the enactment of Senate Bill No. 136 (2019-2020 Reg. Sess.), those enhancements could no longer be imposed on him. We agree.
Undesignated section references are to the Penal Code.
BACKGROUND
A jury convicted McCrea of first degree murder (§ 187, subd. (a); count 1) and attempted murder (§§ 187, subd. (a), 664; count 2). The jury found that McCrea personally used a firearm (§ 12022.5, subd. (a)) and acted for a street gang's benefit (§ 186.22, subd. (a)) in the commission of both offenses, and that he inflicted great bodily injury (§ 12022.7, subd. (a)) in count 2.
On May 17, 2000, the court sentenced McCrea to prison for a term of 90 years to life on count 1, consisting of 25 years to life tripled because McCrea had suffered two prior strikes (§§ 667, subds. (b)-(i), 1170.12), plus 10 years for the firearm enhancement (§ 12022.5, subd. (a)), three one-year prison priors (§ 667.5, subd. (b)), and the midterm of two years for the gang enhancement (§ 186.22. subd. (b)(1)). On count 2, the trial court imposed a consecutive sentence of 21 years to life (three life terms with the possibility of parole, tripling the base term of seven years to life), plus 10 years for the firearm enhancement, three years for inflicting great bodily injury, and two years for the gang enhancement. On McCrea's 2003 appeal, we affirmed his conviction but vacated his sentence and remanded for resentencing. (People v. Batts et al. (Oct. 28, 2003, B139901) nonpub. opn. .) In December 2003, the trial court imposed the same sentence it had previously imposed.
On February 6, 2020, the Department of Corrections and Rehabilitation (DCR) sent a letter to the trial court stating that the court had erred in imposing sentence on count 2. When sentencing a defendant for a third-strike offense, the court is required to impose a sentence of either 25 years to life, or three times the ordinary term for the offense, whichever is greater. (§§ 667, subd. (e)(2)(A), 1170.12, subd. (c)(2)(A.) Thus, the court erred by sentencing McCrea to only 21 years to life-three times the ordinary seven-years-to-life sentence for willful, deliberate, and premeditated attempted murder-on count 2 instead of 25 years to life.
On April 5, 2021, the court held a hearing to address the DCR's letter. The court explained its mistake and its intention to correct it by increasing the sentence for attempted murder although leaving the remainder of McCrea's sentence unchanged. As a result, McCrea's aggregate sentence would be increased by four years. Defense counsel objected, stating that any increase in his client's sentence would violate his state and federal constitutional rights to equal protection, due process, and his right to be free from cruel and unusual punishment. The court then amended its original sentence as to count 2, applying the 25-year minimum term but otherwise not changing the original sentence.
The judge who presided over the hearing was not the same judge who sentenced McCrea in 2000 or 2003.
DISCUSSION
McCrea contends the trial court erred by failing to strike the three one-year prison-prior enhancements under section 667.5, subdivision (b) from his sentence. The enhancements were correctly imposed at the time of sentencing, but the Legislature subsequently enacted Senate Bill No. 136, which restricted prison-prior enhancements to cases where the prior prison term was served "for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code." (§ 667.5, subd. (b), as amended by Stats. 2019, ch. 590, § 1.) McCrea argues that, when the court corrected his sentence two years later, it was required to give him the benefit of this amendment. We agree. When correcting an unauthorized sentence, the trial court must hold a resentencing hearing to reconsider the sentence as a whole. This reopens the finality of the sentence and entitles the defendant to the retroactive application of any newly enacted ameliorative laws. (People v. Lopez (2020) 56 Cal.App.5th 835, 845, review granted Jan. 27, 2021, S265936.)
Ordinarily, a trial court loses jurisdiction to alter a prison sentence once the defendant begins to serve his term. (People v. Karaman (1992) 4 Cal.4th 335, 344.) The parties agree that an exception applied in this case allowing the court to change McCrea's sentence, but they disagree as to the nature of the exception. McCrea claims the trial court acted under section 1170.03. Under this statute, the trial court may, "within 120 days of the date of commitment on its own motion, at any time upon the recommendation of the secretary" of the DCR or certain other officials, "recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if they had not previously been sentenced, whether or not the defendant is still in custody, and provided the new sentence, if any, is no greater than the initial sentence." (§ 1170.03, subd. (a)(1), italics added.)
The statute authorizing trial courts to resentence defendants upon a recommendation of the Department of Corrections was formerly codified at section 1170, subdivision (d), and the parties refer to it in their briefs by its former designation. In 2021, the Legislature enacted Assembly Bill No. 1540 (2021-2022 Reg. Sess.), which amended the statute and re-codified it at section 1170.03. (Stats. 2021, ch. 719, § 3.1.) The amendments are not relevant to this opinion.
The People disagree and contend the court acted under its authority to correct unauthorized sentences. (See People v. Vizcarra (2015) 236 Cal.App.4th 422, 437 [distinguishing power to correct unauthorized sentence from recall and resentencing under predecessor to § 1170.03].) This power has been recognized for more than 100 years (see In re Lee (1918) 177 Cal. 690; see also In re Robinson (1956) 142 Cal.App.2d 484, 486 [listing cases]), long before section 1170.03 or its predecessor statutes were enacted. (See Holder v. Superior Court (1970) 1 Cal.3d 779, 781, fn. 1 [predecessor statute to § 1170.03 was enacted in 1963].) The power to correct unauthorized sentences differs from resentencing under section 1170.03 in several important ways. The court may correct an unauthorized sentence "whenever [the error] comes to a court's attention" (People v. Martinez (1998) 65 Cal.App.4th 1511, 1519), unlike section 1170.03, which permits the court to act only within 120 days of the original sentencing or upon receipt of a recommendation from certain officials. In addition, section 1170.03 gives the court discretion to choose not to resentence a defendant. By contrast, an unauthorized "sentence must be vacated and a proper sentence imposed whenever the mistake is appropriately brought to the attention of the court." (People v. Massengale (1970) 10 Cal.App.3d 689, 693, italics added.) Finally, section 1170.03 requires the court to impose a new sentence "no greater than the initial sentence." (§ 1170.03, subd. (a)(1).) This restriction does not exist when correcting unauthorized sentences, where, in some circumstances, the court must increase the length of the sentence in order to correct the error. (See People v. Serrato (1973) 9 Cal.3d 753, 764, disapproved on another ground in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1.)
We agree with the People that the trial court in this case acted to correct an unauthorized sentence, not under section 1170.03. The letter from the DCR did not invoke section 1170.03 or its predecessor statute. Nor did the letter recommend recalling McCrea's sentence and resentencing him to a lesser sentence. Instead, the letter pointed out that the original sentence was unauthorized because it was too lenient and suggested that the court might be required to increase the sentence.
Contrary to the People's contention, however, the court cannot simply change one part of the sentence but must start anew and reconsider the sentence as a whole, giving the defendant the benefit of any new ameliorative laws. In general, when a part of a defendant's sentence is determined to be invalid," '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.) This full resentencing rule applies because a "defendant's aggregate prison term cannot be viewed as a series of separate independent terms, but rather must be viewed as one . . . term made up of interdependent components. The invalidity of some of those components necessarily infects the entire sentence." (People v. Savala (1983) 147 Cal.App.3d 63, 68-69, disapproved on another ground in People v. Foley (1985) 170 Cal.App.3d 1039, 1044.) Although no reported case has applied this rule when the trial court remedies an unauthorized sentence in response to a DCR letter alerting it to its error, it has been applied in the case of resentencing under section 1170.03 and its predecessor statutes (see People v. Hill (1986) 185 Cal.App.3d 831, 834), as well as in resentencing under statutes allowing for postconviction relief, such as Propositions 36 and 47. (See Buycks, supra, at pp. 893- 895.) Appellate opinions have also applied it when correcting unauthorized sentences in other circumstances: for example, where the Court of Appeal has remanded a case for resentencing to correct an unauthorized portion of the sentence (see Savala, supra, at pp. 66-70), and where the prosecution files a petition for a writ of mandate to correct an unauthorized sentence. (See People v. Superior Court (Duran) (1978) 84 Cal.App.3d 480, 489.) It would be anomalous to apply a different rule where the trial court corrects an unauthorized sentence in response to a letter from the DCR alerting it to the error.
People v. Hill involved a letter from the DCR regarding an error in the defendant's sentence, but the court in that case determined that the trial court had resentenced the defendant under the predecessor to section 1170.03. (People v. Hill, supra, 185 Cal.App.3d at pp. 833-834.)
At any resentencing hearing, the defendant is entitled to the benefit of any ameliorative statutes that have become effective since the original sentencing. As our Supreme Court explained in In re Estrada (1965) 63 Cal.2d 740, when the Legislature enacts a law that reduces the punishment for an offense, "it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply." (Id. at p. 745.) The court recently reaffirmed the longstanding principle that "in the absence of a contrary indication of legislative intent, . . . legislation that ameliorates punishment . . . applies to all cases that are not yet final as of the legislation's effective date." (People v. Esquivel (2021) 11 Cal.5th 671, 675.) Senate Bill No. 136 is an ameliorative statute that applies retroactively under this rule. (People v. Lopez (2019) 42 Cal.App.5th 337, 340-342.)
The judgment in McCrea's case became final long ago, but a resentencing hearing reopens the finality of the sentence for purposes of Estrada. As the court explained in People v. Lopez, supra, 56 Cal.App.5th 835," '[i]n a criminal case, judgment is rendered when the trial court orally pronounces sentence.' [Citation.] . . . Because a resentencing . . . replaces the original sentence, the original sentence is no longer operative, and the finality of the original sentence is no longer material. The only sentence that matters after resentencing . . . is the new sentence, which is not final because a resentenced defendant can still obtain review from the California Supreme Court or the United States Supreme Court." (Id. at p. 845.) The court in Lopez addressed resentencing under the predecessor of section 1170.03, but it recognized that the same logic applies in other circumstances, such as resentencing following a successful petition for a writ of habeas corpus. (Lopez, supra, at p. 845; accord, People v. Padilla (2020) 50 Cal.App.5th 244, 255 [the defendant entitled to retroactive benefit of Proposition 57 following successful habeas petition], review granted Aug. 26, 2020, S263375.) To reimpose the prison prior enhancements in this case would mean sentencing McCrea under a statute the Legislature has determined to be too severe, contrary to Estrada and its progeny.
Accordingly, we will remand the case for another sentencing hearing to strike the enhancements under section 667.5, subdivision (b), and to resentence McCrea as described in this opinion.
DISPOSITION
The case is remanded to the trial court for a new sentencing hearing. The trial court is directed to prepare an amended abstract of judgment reflecting the new sentence and to forward a certified copy to the Department of Corrections and Rehabilitation.
WE CONCUR: ROTHSCHILD, P. J., BENDIX, J.
[*] Retired Associate Justice of the Court of Appeal, Second Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.