Opinion
D080509
06-30-2023
THE PEOPLE, Plaintiff and Respondent, v. JECARR FRANSWA MERCHANT, Defendant and Appellant.
Jason L. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Collette C. Cavalier and Melissa Mandel, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Riverside County No. RIF1406238 Bernard J. Schwartz, Judge. Affirmed in part, reversed in part, and remanded for resentencing. Request for judicial notice denied.
Jason L. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Collette C. Cavalier and Melissa Mandel, Deputy Attorneys General, for Plaintiff and Respondent.
DATO, J.
Defendant Jecarr Franswa Merchant successfully petitioned for habeas corpus based on legislative enactments that took effect while his judgment remained nonfinal on direct appeal. Amendments to Penal Code section 1385 gave the court discretion to strike the five year enhancement (nickel prior) for each prior serious felony conviction. (Stats. 2018, ch. 1013, § 2 (Sen. Bill No. 1393) eff. Jan. 1, 2019.) Section 667.5 was likewise amended to eliminate the one year prison prior enhancement for nonsexual violent offenses. (Stats. 2019, ch. 590, § 1 (Sen. Bill No. 136) eff. Jan. 1, 2020.) Merchant's sentence was vacated based on these changes in the law. At resentencing, the trial court struck the prison priors but not the nickel prior.
Further undesignated statutory references are to the Penal Code.
Merchant now argues that remand for resentencing is again necessary on multiple grounds. We deem it necessary to consider just one, concluding that resentencing is required to evaluate upper term sentencing on count 1 under the amended determinate sentencing law (DSL). (Stats. 2021, ch. 731, § 1.3 (Sen. Bill No. 567) eff. Jan. 1, 2022.) Merchant's remaining contentions can be directed to the trial court in the first instance on remand.
FACTUAL AND PROCEDURAL BACKGROUND
Merchant was convicted of kidnapping and misdemeanor battery against a spouse or cohabitant following an incident in which he careened down the freeway at high speeds, refusing his girlfriend's pleas to stop or let her out while grabbing her by her jacket and hair. He later badgered her in a series of jail calls to not testify against him at trial, resulting in a conviction in the same case for dissuading a witness. (People v. Merchant (2019) 40 Cal.App.5th 1179, 1182-1184 (Merchant I).) Merchant admitted a prior strike conviction. (Id. at p. 1184.) The trial court sentenced him to a total state prison term of 29 years: on count 1 (kidnapping), an eight-year upper term (§ 207, subd. (a)), doubled for the strike; on count 3 (dissuading a witness), a consecutive three-year middle term (§ 136.1, subd. (c)(1)), doubled for the strike; one year each for two prison priors (§ 667.5, former subd. (b)); and a five-year nickel prior for the prior serious felony enhancement (§ 667, subd. (a).) (Merchant I, at p. 1184.)
On direct appeal, we affirmed the judgment. (Merchant I, supra, 40 Cal.App.5th at p. 1195.) The California Supreme Court denied review on January 22, 2020. Roughly a year later, Merchant initiated habeas corpus proceedings, arguing in part that he was entitled to resentencing under Senate Bill No. 1393 and Senate Bill No. 136, both of which took effect before his appeal became final. The trial court granted relief on those grounds and directed Judge Schwartz "to consider resentencing in light of the Senate Bills."
The parties appeared before Judge Schwartz in May 2022. The prosecutor urged the court to strike the prison priors, which were no longer valid following Senate Bill No. 136, but maintain the nickel prior. She noted that Merchant's criminal history was extensive and serious, with a prior serious felony conviction that involved Merchant threatening a victim at gunpoint in 2006. Several prior acts of domestic violence were introduced during trial. Merchant convinced the victim in this case not to testify through cajoling and intimidation. In the prosecutor's view, there was no reason the court should exercise its discretion to strike the nickel prior given his history and the facts of this case.
Defense counsel urged the court to strike the nickel prior in the interest of justice. She noted that the conviction related to a 2006 incident, eight years before the incidents in this case. In addition, counsel noted that since going to prison, Merchant did not receive "any kind of violent write-ups" and was participating in classes, programs, and counseling. With the strike prior already doubling his time, Merchant faced a lengthy prison term. In defense counsel's view, the resulting sentence in striking the prison priors was still a lot of time given the circumstances of this case or Merchant's past, particularly "considering all the changes he made to his life."
As it turned out, the court only imposed two prison priors at the original sentencing hearing, making a revised term 27 years, not 26.
The trial court struck the two prison priors based on the revisions to section 667.5 made by Senate Bill No. 136. As to the prior serious felony enhancement (§ 667, subd. (a)), the court noted that Senate Bill No. 1393 gave it discretion to determine whether striking the five-year term would serve the interest of justice. The court concluded on the facts of the case that it would not. Merchant pressured the victim not to come to court, resulting in the rare occurrence of her out-of-court statements being admitted under the forfeiture doctrine. The court further recalled the evidence of numerous acts of domestic violence that was presented at trial. It noted Merchant was not a person who committed "a one-time act" but rather someone who "committed several acts against women in a violent fashion over a long period of time" without expressing remorse or taking responsibility. The facts of this case involved great violence against a vulnerable victim, and abuse of a position of trust-factors that justified imposition of the upper term sentence on the kidnapping count pursuant to the former DSL. With Merchant tossing the victim's phone out the window, it was "only by a stroke of luck" that he stopped the car at some point and let her get out.
Although the 2008 prior serious conviction was "somewhat old," Merchant had a lengthy criminal history with repeat violations during earlier periods of parole. This was not a case where defendant's record since the prior serious felony conviction was a clean one. As noted in the presentence probation report prepared back in 2017, there were no circumstances in mitigation as to the crime or the defendant.
On balance, the court felt the equities did not warrant striking the nickel prior. "[G]iven a review of the facts and circumstances of the case, the lack of mitigating factors, and several very aggravating factors, the lack of remorse from the defendant," the court found "more than ample reason . . . to continue to impose that five-year [section] 667 prior." "So while the court has discretion under Senate Bill [No.] 1393, the Court is going to choose not to exercise its discretion, and the five-year prior sentence will remain." Thus, with the prison priors gone, Merchant received a total sentence of 27 years in prison.
DISCUSSION
Merchant raises four sentencing error claims on appeal, two of which the People concede. Because we agree with Merchant that resentencing is necessary to reconsider upper term sentencing under the amended DSL, the parties may direct all remaining contentions to the trial court in the first instance at resentencing.
When Merchant was originally sentenced in 2017, the DSL gave the trial court broad discretion to select the appropriate term within a sentencing triad (§ 1170, former subd. (b)). The Legislature changed this scheme by enacting Senate Bill No. 567 to limit the circumstances in which an upper term sentence can be imposed. (Stats. 2021, ch. 731, § 1.3.) Effective January 1, 2022, a court must "order imposition of a sentence not to exceed the middle term," except under narrow circumstances. (§ 1170, subd. (b)(1).) An upper term sentence generally may be imposed "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." (Id., subd. (b)(2), italics added.) Nevertheless, subdivision (b)(3) of section 1170 permits a court to "consider the defendant's prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury."
These ameliorative amendments to section 1170, subdivision (b) apply retroactively to all cases that were not yet final as of January 1, 2022. (People v. Lopez (2022) 78 Cal.App.5th 459, 465 (Lopez); People v. Zabelle (2022) 80 Cal.App.5th 1098, 1108-1109 (Zabelle); see People v. Conley (2016) 63 Cal.4th 646, 656 ["new laws that reduce the punishment for a crime are presumptively to be applied to defendants whose judgments are not yet final"], citing In re Estrada (1965) 63 Cal.2d 740 (Estrada).)
Moreover, the Supreme Court recently addressed "whether Estrada's applicability to nonfinal judgments means it applies to a resentencing that occurs after a defendant's original sentence is vacated in a habeas corpus proceeding." (People v. Padilla (2022) 13 Cal.5th 152, 163 (Padilla).) Answering that question in the affirmative, the court held that vacatur of a sentence in collateral proceedings renders the judgment nonfinal. (Id. at p. 161.) As applied to this case, "[w]hen [Merchant's] sentence was vacated, the trial court regained the jurisdiction and duty to consider what punishment was appropriate for him, and [Merchant] regained the right to appeal whatever new sentence was imposed." (Id. at pp. 161-162.) His judgment therefore is subject to the Estrada presumption. (Padilla, at p. 162.)
As the Supreme Court explained in Padilla, collateral attack from a final judgment does not render the judgment nonfinal. But once a court determines in collateral proceedings that a defendant is entitled to resentencing, "the result is vacatur of the original sentence, whereupon the trial court may impose any appropriate sentence." (Padilla, supra, 13 Cal.5th at pp. 162-163.)
Merchant was sentenced to an upper term on the principal kidnapping count (count 1). When he was originally sentenced in November 2017, the court relied on the following factors to impose an upper term: (1) the crime involved great violence or threat of bodily harm; (2) Merchant threatened the victim in an attempt to prevent her from testifying; (3) he took advantage of a position of trust or confidence; (4) he engaged in violent conduct that indicated a serious danger to society; (5) his prior convictions were numerous and increasing in severity; and (6) he had previously served a state prison term.
By the time he was resentenced in May 2022, amendments to the DSL took effect. The People concede that pursuant to Estrada, Senate Bill No. 567 applies retroactively to all nonfinal judgments. They also agree that under Padilla, the amended DSL "applied to his case because the vacatur of his sentence during collateral proceedings made his judgment nonfinal." Nonetheless, they suggest there was either no error, or no prejudice. We disagree on both points and conclude Merchant is entitled to a new sentencing hearing.
Crediting the trial court's passing remark that the upper term sentence was imposed on the kidnapping conviction (count 1) at a time when the statute "did not require findings that need to be made now," the People suggest that the court applied the amended DSL and implicitly upheld the upper term based solely on Merchant's criminal record, the only set of aggravating factors it was now permitted to consider. In our view, however, the record cannot support any such implied finding. In the course of explaining why it would decline to strike the nickel prior under section 1385, the trial court referenced some of the aggravating factors used to justify the upper term. Its comment that it had imposed an upper term "which at that time did not require findings that need to be made now" appears to demonstrate awareness of a change in the law, but not an implied finding that the court would still impose an upper term under the new framework. Instead, it would appear the trial court limited its focus at resentencing to the two stated grounds for habeas corpus relief without appreciating that other new legislation now obligated it to conduct a full resentencing hearing.
Only two of the factors relied on to justify the upper term could properly be ascertained by the trial court from the record of conviction pursuant to section 1170, subdivision (b)(3). (See People v. Black (2007) 41 Cal.4th 799, 818-820 [number or severity of prior convictions]; People v. Towne (2008) 44 Cal.4th 63, 70-71 [prior prison terms and poor performance on probation].) Imposition of an upper term sentence based on the remaining factors is no longer permitted under the DSL. By reimposing the upper term at resentencing without indicating it relied solely on the permissible aggravating factors, the court erred.
Appellate courts have taken varying approaches to evaluate prejudice stemming from a sentencing court's failure to apply the amended DSL in imposing an upper term. (See People v. Flores (2022) 75 Cal.App.5th 495, 500-501; Lopez, supra, 78 Cal.App.5th at pp. 465-466; People v. Dunn (2022) 81 Cal.App.5th 394, 405, review granted Oct. 12, 2022, S275655 (Dunn); People v. Wandrey (2022) 80 Cal.App.5th 962, 981-982, review granted Sept. 28, 2022, S275942; Zabelle, supra, 80 Cal.App.5th at pp. 1110-1111; People v. Flowers (2022) 81 Cal.App.5th 680, 686, review granted Oct. 12, 2022, S276237; People v. Lewis (2023) 88 Cal.App.5th 1125, review granted May 17, 2023, S279147.) The Supreme Court has granted review to decide the appropriate harmless error standard. Absent further guidance from the high court, we will follow our court's two-step approach in Lopez, supra, 78 Cal.App.5th 459:
Review was granted in an unpublished opinion, People v. Lynch (May 27, 2022, C094174), on August 10, 2022, S274942, to answer the following question: "What prejudice standard applies on appeal when determining whether a case should be remanded for resentencing in light of newly-enacted Senate Bill No. 567 (Stats. 2021, ch. 731)?"
"[U]nder the new version of the triad system set forth in section 1170, the initial relevant question for purposes of determining whether prejudice resulted from failure to apply the new version of the sentencing law is whether the reviewing court can conclude beyond reasonable doubt that a jury would have found true beyond a reasonable doubt all of the aggravating factors on which the trial court relied in exercising its discretion to select the upper term. If the answer to this question is 'yes,' then the defendant has not suffered prejudice from the court's reliance on factors not found true by a jury in selecting the upper term. However, if the answer to the question is 'no,' we then consider the second question, which is whether a reviewing court can be certain, to the degree required by People v. Watson (1956) 46 Cal.2d 818, 836, that the trial court would nevertheless have exercised its discretion to select the upper term if it had recognized that it could permissibly rely on only a single one of the aggravating factors, a few of the aggravating factors, or none of the aggravating factors, rather than all of the factors on which it previously relied. If the answer to both of these questions is 'no,' then it is clear that remand to the trial court for resentencing is necessary." (Lopez, at p. 467, fn. 11; see id. at pp. 465-467.)
The People suggest that Dunn "presents the more well-reasoned analytical framework." Whereas Lopez requires in step one proof beyond a reasonable doubt that the jury would have found every aggravating circumstance the court relied upon true, Dunn requires one aggravating circumstance to meet that standard with the remaining circumstances reviewed under the Watson standard. (Dunn, supra, 81 Cal.App.5th at p. 408.) Elsewhere, however, the People appear to apply the Lopez standard in suggesting "there is no reasonable doubt that the jury would have found all the aggravating circumstances true beyond a reasonable doubt." Absent further guidance, we will follow the prior decisional authority of our court in evaluating prejudice.
Applying that test here, we cannot find the error harmless. Of the six factors relied on by the trial court, only two can now be found by the court rather than a jury, and several of the remaining factors involve highly subjective determinations. The People argue that the kidnapping victim and other drivers on the freeway were undeniably at great risk of bodily harm, and that Merchant clearly abused a position of trust in driving recklessly and throwing the victim's phone out the window. But whether a crime involved a great threat of bodily harm or abuse of a position of trust are subjective determinations that were not compelled by the jury's verdicts. Merchant also had little reason to present evidence bearing on these factors, making it "entirely speculative for us to presume, based on a record that does not directly address the aggravating factors, what a jury would have found true in connection with these factors." (Lopez, supra, 78 Cal.App.5th at p. 466.)
Because the answer to the first question does not negate prejudice, we move on to the second inquiry. (Lopez, supra, 78 Cal.App.5th at pp. 467-468 & fn. 11.) The People claim "there is no reasonable probability that the trial court would have imposed a sentence other than the upper term." To the contrary, here, as in Lopez, the court relied on multiple factors in selecting the upper term and did not clearly indicate that it would have selected that term based on an aggravating factor relating to Merchant's prior convictions alone. (Id. at p. 468.) Accordingly, remand is required to allow the court to exercise its sentencing discretion in light of the amendments to the DSL. (Ibid.)
The People request judicial notice of Merchant's prison packet and fingerprint card, which were admitted as exhibits at his original sentencing hearing. Merchant does not oppose the request, but we deny it as unnecessary to our decision. (See People v. Doane (2021) 66 Cal.App.5th 965, 969, fn. 1.)
Our conclusion on upper-term sentencing eliminates the need to address the remaining issues. Remand implicates the full resentencing rule, giving the resentencing court "jurisdiction to modify every aspect of the sentence, and not just the portion subjected to the recall." (People v. Buycks (2018) 5 Cal.5th 857, 893.) Merchant claims, and the People concede, that the sentence on the misdemeanor battery count should be modified to 364 days instead of 365. The parties likewise agree that the court has a duty to calculate Merchant's actual presentence custody credits up to the date of resentencing. These matters can be directed to the trial court at resentencing.
The same is true for Merchant's claim that the trial court failed to apply the new guidelines under section 1385 in declining to dismiss the nickel prior. Effective January 1, 2022, Senate Bill No. 81 (Stats. 2021, ch.721, § 1) adds mitigating circumstances to section 1385 that the court must consider and to which it must "afford great weight." (§ 1385, subd. (c)(2).) Where one or more of the enumerated mitigating factors are found, that "weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety." (§ 1385, subd. (c)(2) .) "Collectively, these provisions dictate that trial courts are to rebuttably presume that dismissal of an enhancement is in the furtherance of justice (and that its dismissal is required) unless the court makes a finding that the resultingly shorter sentence due to dismissal 'would endanger public safety.'" (People v. Walker (2022) 86 Cal.App.5th 386, 398.) Merchant can renew his arguments based on amended section 1385 at resentencing, and the trial court must apply the current law to evaluate any renewed request to dismiss the nickel prior.
Assembly Bill No. 200 (Stats. 2022, ch. 58, § 15) made nonsubstantive changes to the statutory text of section 1385 and took effect on June 30, 2022.
DISPOSITION
The matter is remanded for a full resentencing hearing. Following resentencing, the court is directed to prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
WE CONCUR: McCONNELL, P. J., O'ROURKE, J.