Opinion
G062984 G063431
09-24-2024
In re ERNESTO LUIS ESCAMILLA on Habeas Corpus.
Richard L. Fitzer, under appointment by the Court of Appeal, for Petitioner. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Daniel Rogers and Adrian R. Contreras, Deputy Attorneys General, for Respondent.
NOT TO BE PUBLISHED
Original proceedings; petition for a writ of habeas corpus to challenge a judgement of the Superior Court of Orange County, No. 14NF4554 Michael A. Leverson, Judge. Petition granted.
Richard L. Fitzer, under appointment by the Court of Appeal, for Petitioner.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Daniel Rogers and Adrian R. Contreras, Deputy Attorneys General, for Respondent.
OPINION
DELANEY, J.
In this habeas corpus proceeding, defendant Ernesto Luis Escamilla challenges the sentence he received on one of the six counts for which he was convicted roughly eight years ago. He contends the original sentencing court levied an unauthorized sentence on the count by staying execution of the sentence pursuant to Penal Code section 654 without first imposing a term. The Attorney General concedes the error. We grant Escamilla's petition and remand the matter to the trial court with directions to take appropriate steps to correct the unauthorized sentence, which shall include an evaluation of whether full resentencing on all counts is necessary under the circumstances.
All further statutory references are to the Penal Code.
BACKGROUND
In 2016, a jury convicted Ernesto Luis Escamilla of residential burglary (§§ 459, 460, subd. (a)), domestic battery causing injury with a prior conviction for battery or assault (§ 273.5, subds. (a), (f)(1)), kidnapping (§ 207, subd. (a)), criminal threats (§ 422, subd. (a)), false imprisonment by violence (§§ 236, 237, subd. (a)), and violation of a protective order with a prior conviction (§ 166, subd. (c)(4)). The jury also found true that the burglary was of an occupied residence (§ 667.5, subd. (c)(21)). In bifurcated proceedings, the trial court found true enhancement allegations concerning a prior serious felony conviction (§§ 667, subd. (a)(1), 1192.7, subd. (c)(1)), a prior serious and violent felony (§§ 667, subds. (d), (e)(1), 1170.12, subds. (b), (c)(1)), and five prison priors (§ 667.5, subd. (b)).
The trial court sentenced Escamilla to an aggregate prison term of 21 years 8 months. For the false imprisonment count, the court did not impose a term but stayed the sentence on that count pursuant to section 654. It also imposed and stayed a one-year term for each of the five prison prior enhancements.
While Escamilla's direct appeal from the conviction was pending, and following a 2018 letter from the California Department of Corrections and Rehabilitation, the trial court struck for sentencing purposes only each of the previously stayed prison prior enhancements. Shortly thereafter, this court affirmed defendant's conviction in an unpublished opinion. (People v. Escamilla (May 29, 2018, G053851) [nonpub. opn.].)
In July 2023, Escamilla filed a motion to have the court recall his sentence and resentence him pursuant to sections 1172.75 and 1170, subdivisions (b)(1) and (b)(2). Without holding a hearing or requesting a response from the prosecution, the court denied the motion. The court's minutes, sent to Escamilla, provided the following explanation: "Section 1172.75 contains no provisions for an individual defendant to file the type of petition. (People vs. Burgess (2022) 86 Cal.App.5th 375, 384.) Section 1172.75 simply does not contemplate resentencing relief initiated by any individual defendant's petition or motion." Defendant timely appealed.
In November 2023, the alternate defender's office filed a petition on Escamilla's behalf in the trial court seeking recall and resentencing pursuant to section 1172.75. The court summarily denied the petition and Escamilla timely appealed.
On its own motion, this court eventually consolidated the two appeals from the section 1172.75 denials. Prior to the consolidation, in compliance with People v. Delgadillo (2022) 14 Cal.5th 216, Escamilla's appointed counsel filed a brief in the first appeal summarizing the proceedings and facts of the case and advising they found no arguable issues in support of the appeal. Defendant was notified he could file a brief on his own behalf, but he did not do so. And, in response to an order from this court requesting further briefing from the parties concerning whether the sentence on count 5 is an unauthorized sentence, Escamilla's counsel filed a supplemental brief in the first appeal. After the consolidation, Escamilla's counsel indicated the intent to have the previously filed supplemental brief serve as the opening brief for both appeals.
In its responsive brief, the Attorney General conceded the sentence on count 5 is an unauthorized sentence because the trial court stayed the sentence pursuant to section 654 without first imposing a term. It proposed that the matter be remanded "for the trial court to impose a sentence for count 5."
Citing People v. Romero (1994) 8 Cal.4th 728, 740, fn. 7, a subsequent order notified the parties of this court's intent to treat Escamilla's supplemental opening brief as a petition for writ of habeas corpus, and to deem the Attorney General's concession to be an informal response waiving the filing of a return, the issuance of an order to show cause, and waiving oral argument. The Attorney General filed a letter of nonobjection; nothing was filed on Escamilla's behalf. Accordingly, we treat the matter consistent with the previously expressed intent.
DISCUSSION
Escamilla contends his sentence on count 5 is unauthorized and must be corrected because the original sentencing court stayed execution of the sentence pursuant to section 654 without first imposing a term. The Attorney General agrees the sentence is unauthorized, as do we.
Section 654 dictates how "[a]n act or omission that is punishable in different ways by different provisions of law shall be punished." The underlying principle is a defendant may not be subjected to multiple punishments for a single act or omission. (People v. Duff (2010) 50 Cal.4th 787, 796.) "Originally, some controversy existed regarding the appropriate procedure for sentencing courts to follow in carrying out the mandate of section 654." (Duff, at p. 795.) The Supreme Court eventually resolved the uncertainty. "[W]hen a court determines that a conviction falls within the meaning of section 654, it is necessary to impose sentence but to stay the execution of the duplicative sentence." (Id., at p. 796.) Failure to impose a sentence prior to the stay amounts to an unauthorized sentence which may be corrected at any time. (See Mani, supra, 74 Cal.App.5th at p. 380; People v. Crabtree (2009) 169 Cal.App.4th 1293, 1327; People v. Pelayo (1999) 69 Cal.App.4th 115, 122; see also In re G.C. (2020) 8 Cal.5th 1119, 1130 [habeas corpus petition is viable means of addressing unauthorized sentence once conviction is final].)
Assembly Bill No. 518 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 441), effective January 1, 2022, amended section 654, subdivision (a) to provide the trial court with greater discretion in selecting a term of punishment for an act or omission which is punishable in different ways by different provisions of law. (People v. Mani (2022) 74 Cal.App.5th 343, 379 (Mani).) The legislation did not impact how a trial court must pronounce sentence when the statute is implicated. (Id. at p. 380.)
Due the original sentencing court's error in applying section 654 in this case, we must remand the matter for the court to address the unauthorized sentence on count 5. We express no opinion regarding whether remedying that error will trigger the need for a full resentencing as to all counts, as urged by Escamilla. (See, e.g., People v. Buycks (2018) 5 Cal.5th 857, 893 ["[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'"].) Resolution of that issue is properly left to the trial court on remand.
DISPOSITION
The petition for writ of habeas corpus is granted, the matter is remanded, and the trial court is directed to take appropriate steps to correct the unauthorized sentence on count 5, which shall include consideration of whether full resentencing on all counts is necessary under the circumstances.
WE CONCUR: MOORE, ACTING P. J., SANCHEZ, J.