Opinion
E072934
02-13-2020
In re DINH VAN NGUYEN, on Habeas Corpus.
John F. Schuck, under appointment by the Court of Appeal, for Petitioner. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Minh U. Le, Deputy Attorneys General, for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1301321) OPINION ORIGINAL PROCEEDINGS; petition for extraordinary writ. L. Jackson Lucky IV, Judge. Petition granted in part; denied in part. John F. Schuck, under appointment by the Court of Appeal, for Petitioner. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Minh U. Le, Deputy Attorneys General, for Respondent.
Petitioner Dinh Van Nguyen (defendant) filed his petition for writ of habeas corpus (Petition) in this court on June 11, 2019, contending he was erroneously resentenced upon remand after his first appeal. This court in a prior unpublished opinion in case No. E066293, People v. Nguyen (Opinion) affirmed defendant's convictions but modified his sentence to strike his sentence on a serious violent felony conviction found true pursuant to Penal Code section 667, subdivision (a), and to impose a one-year sentence for a prison prior pursuant to section 667.5, subdivision (b). We remanded to the trial court for the limited purpose of a correct calculation of his custody credits; despite this directive, the trial court conducted a complete resentencing of defendant. Defendant now insists the sentence imposed at the resentencing is unauthorized.
All further statutory references are to the Penal Code unless otherwise indicated.
We agree with defendant that the resentencing resulted in an unauthorized sentence and will grant the Petition by striking the unauthorized sentence and ordering the clerk of the Superior Court to prepare a corrected abstract of judgment that reflects this court's modifications set forth in the Opinion and custody credits.
FACTUAL AND PROCEDURAL HISTORY
The factual and procedural history are taken from the Opinion and the briefs; they are not in dispute. We also grant the People's request for judicial notice of the record in case No. E066293.
A jury found defendant guilty of numerous felonies in Riverside County Superior Court case No. RIF1301321. In addition, the trial court found he had suffered a prior conviction within the meaning of sections 667, subdivisions (a), (b) through (i); 1170.12; and 667.5, subdivision (b). In a separate case, case No. RIF1301886, defendant entered a guilty plea to making a criminal threat. He was sentenced on both cases together. Defendant was given a 12-year sentence for a first degree burglary conviction; a concurrent one year four months sentence for a conviction of diversion of construction funds; a consecutive one year four months sentence for the making criminal threats conviction in case No. RIF1301886; and a consecutive five-year term for the prior serious felony conviction. He received a total state prison sentence of 18 years four months. No sentence was imposed for the section 667.5, subdivision (b), prior conviction.
Defendant appealed. On December 11, 2017, we filed the Opinion finding that the trial court had improperly sentenced defendant on the section 667, subdivision (a), prior as it was not properly pled and proven. In addition, we concluded the sentence on the section 667.5, subdivision (b), prior should have been imposed. Finally, we found that the trial court had improperly calculated the custody credits. Our disposition provided in total as follows: "The judgment is modified by striking the prior serious felony conviction enhancement and the related five-year term, and by adding a prior prison term enhancement and a related one-year term, to be served consecutively. The judgment is reversed, solely with respect to the calculation of presentence conduct credit, and the matter is remanded with directions to recalculate defendant's presentence conduct credit. In all other respects, the judgment as modified is affirmed." Remittitur issued on February 13, 2018.
On March 16, 2018, after an in-chambers conference, the trial court stated in open court that the parties had reached a consensus on the resentencing of defendant. Defendant was not present and was represented by counsel. Defendant was sentenced to 12 years for the burglary; he was given a one year four months consecutive sentence for the conviction of diversion of construction funds; and he was again sentenced to a one year four months consecutive sentence for the making criminal threats conviction. The section 667, subdivision (a), prior was struck, and a consecutive one-year term was imposed for the section 667.5, subdivision (b), prior. The aggregate term was 15 years eight months. Defendant was given 624 days of actual custody credit, plus presentence credit of 624 days, for a total of 1,248 days.
Defendant did not file an appeal and the sentence became final on May 15, 2018. (See Cal. Rules of Court, rule 8.308(a) [appeal must be filed within 60 days of rendition of judgment].) Defendant filed the Petition on his own behalf on June 11, 2019. Defendant contended the trial court improperly conducted a resentencing on remand and the consecutive one year four months sentence on the diversion of construction funds conviction should not have been imposed. He further contended he received ineffective assistance when trial counsel failed to object to the resentencing. Defendant alleged that he first became aware of the new sentence on January 24, 2019, when he received a "Legal Status Summary" reflecting the new sentence. He was never notified by counsel.
On August 8, 2019, this court requested an informal response to the Petition from the People. The informal response was filed by the People on August 22, 2019. The People argued that the Petition was untimely and lacked merit. On September 11, 2019, we issued an order to show cause why the relief prayed for in the Petition should not be granted and appointed counsel for defendant. The People filed a return to the order to show cause on October 7, 2019, and defendant's counsel filed a traverse on November 5, 2019.
DISCUSSION
A. DEFENDANT'S SENTENCE IS UNAUTHORIZED
Defendant's sole claim in the Petition is that the trial court improperly imposed a consecutive one year four months sentence when he was resentenced upon remand in March 2018. He contends that the resentencing was unauthorized. The People argue that the Petition is untimely as it was filed one year and three months after defendant's resentencing and the information regarding his resentencing was known to him since his resentencing. The People further contend the claim fails on the merits because the trial court did not exceed its authority by conducting a full resentencing upon remand.
"Our state Constitution guarantees that a person improperly deprived of his or her liberty has the right to petition for a writ of habeas corpus." (People v. Duvall (1995) 9 Cal.4th 464, 473-474.) "An appellate court receiving such a petition evaluates it by asking whether, assuming the petition's factual allegations are true, the petitioner would be entitled to relief. [Citations.] If no prima facie case for relief is stated, the court will summarily deny the petition. . . . Issuance of an OSC, therefore, indicates the issuing court's preliminary assessment that the petitioner would be entitled to relief if his factual allegations are proved." (Id. at pp. 474-475.)
Initially, we address the People's argument that the Petition is untimely. Procedural rules pertaining to habeas corpus petitions require "a petitioner mounting a collateral attack on a final criminal judgment by way of habeas corpus to prosecute his or her case without unreasonable delay, and to have first presented his or her claims at trial and on appeal, if reasonably possible." (In re Reno (2012) 55 Cal.4th 428, 452.)
However, in this case, as we will set forth post, the sentence imposed by the trial court was unauthorized. " 'An appellate court may "correct a sentence that is not authorized by law whenever the error comes to the attention of the court." [Citation.]' [Citation.] An unauthorized sentence is just that. It is not subject to a harmless error analysis. Nor does it ripen into a sentence authorized by law with the passage of time. Imposition of an unauthorized sentence is an act which is in excess of a court's jurisdiction and may be the subject of later review even after affirmance of the judgment on direct appeal. [Citation.] Thus the general rule that an unexplained delay in seeking relief may bar habeas corpus relief [citation] does not apply to bar the correction of an unauthorized sentence." (In re Birdwell (1996) 50 Cal.App.4th 926, 930.)
Moreover, the failure to object does not prevent vacating an unauthorized sentence on habeas corpus. (In re Birdwell, supra, 50 Cal.App.4th at p. 931; see also People v. Scott (1994) 9 Cal.4th 331, 354-355.)
As we set forth below, the trial court had no jurisdiction to resentence defendant. The matter was before the trial court for the sole purpose of calculating the presentence custody credits, and then prepare a modified abstract of judgment reflecting the calculation, plus the modification of the sentence ordered by this court in the Opinion. Since the sentence was unauthorized, defendant can now raise the issue in the Petition.
As for the merits of the claim in the petition, the trial court went beyond the order of this court by resentencing defendant upon remand.
"[T]he courts of appeal, may affirm, reverse, or modify any judgment or order appealed from, and may direct the proper judgment or order to be entered, or direct a new trial or further proceedings to be had." (Code of Civ. Proc., § 43.) " 'The order of the reviewing court is contained in its remittitur, which defines the scope of the jurisdiction of the court to which the matter is returned.' " (Ayyad v. Sprint Spectrum, L.P. (2012) 210 Cal.App.4th 851, 859.) The rule requiring the trial court to follow the terms of the remittitur is jurisdictional. (Snukal v. Flightways Mfg., Inc. (2000) 23 Cal.4th 754, 774, fn. 5 [the terms of the remittitur "define the trial court's jurisdiction to act"]; see also Ayyad, at p. 859.)
" 'When there has been a decision on appeal, the trial court is reinvested with jurisdiction of the cause, but only such jurisdiction as is defined by the terms of the remittitur. The trial court is empowered to act only in accordance with the direction of the reviewing court; action which does not conform to those directions is void.' " (People v. Dutra (2006) 145 Cal.App.4th 1359, 1366, citing to Stafford v. Municipal Court (1960) 180 Cal.App.2d 368, 370-371.) " 'Where a reviewing court reverses a judgment with directions . . . the trial court is bound by the directions given and has no authority to retry any other issue or to make any other findings. Its authority is limited wholly and solely to following the directions of the reviewing court.' " (Dutra, at p. 1367.)
"A trial court may not disobey a remittitur, as that would amount to overruling the appellate court's decision, thereby violating a basic legal principle: [¶] 'Courts exercising inferior jurisdiction must accept the law declared by courts of superior jurisdiction. It is not their function to attempt to overrule decisions of a higher court.' " (People v. Dutra, supra, 145 Cal.App.4th at p. 1362.) "Whether the trial court correctly interpreted our opinion is an issue of law subject to de novo review." (Ayyad v. Sprint Spectrum, supra, 210 Cal.App.4th at p. 859.)
Here the disposition in the Opinion was clear. First, we "modified" the sentence by striking the five-year felony conviction enhancement and by adding a one-year sentence for the prior prison term enhancement pursuant to section 667.5, subdivision (b). We then stated, "The judgment is reversed, solely with respect to the calculation of presentence conduct credit, and the matter is remanded with directions to recalculate defendant's presentence conduct credit. In all other respects, the judgment as modified is affirmed." It was clear the trial court was only tasked with calculating the custody credits and then preparing a new abstract of judgment reflecting the modified sentence set forth in the Opinion and including the new calculation of custody credits. Instead of following this directive, the trial court engaged in a complete resentencing. Such sentence imposed by the trial court upon remand is void.
The People, relying upon People v. Valenzuela (2019) 7 Cal.5th 415, 424-425 and People v. Burbine (2003) 106 Cal.App.4th 1250, 1258-1259, insists that when this court struck the prior serious felony conviction enhancement and imposed the prior prison term enhancement, this court modified defendant's aggregate prison term. Accordingly, upon remand for resentencing, the trial court was entitled to reconsider its sentencing choices to fashion an appropriate sentence in this case in light of the changed circumstances. In Burbine, the trial court held that "upon remand for resentencing after the reversal of one or more subordinate counts of a felony conviction, the trial court has jurisdiction to modify every aspect of the defendant's sentence on the counts that were affirmed." (Burbine, at p. 1259.) In Valenzuela, supra, at pages 424 through 427, the court discussed that a full resentencing was warranted when a felony was reduced to a misdemeanor pursuant to section 1170.18, subdivision (a) and the defendant's convictions were dependent upon the charge being a felony, e.g. a gang enhancement that requires "felonious" conduct.
Here, there was not a reversal of the subordinate counts or reduction of a felony to a misdemeanor. This court struck the section 667, subdivision (a) prior conviction for failure to be properly proven, and imposed the prior prison term enhancement pursuant to section 667.5, subdivision (b). There was no impact on the remainder of defendant's sentence. Further, this court ordered the modification, and remanded the matter for the sole purpose of calculating custody credits. Burbine and Valenzuela do not apply in the instant case.
This court did not remand for a full resentencing; rather, we reversed for the calculation of presentence conduct credit and directed the trial court to perform a new calculation. The trial court did not have jurisdiction to conduct a new sentencing hearing and impose a different sentence. As such, we strike the resentencing and will order the clerk of the superior court to prepare an abstract of judgment that accurately reflects this court's modification of defendant's sentence as set forth in the Opinion, and reflect the properly calculated custody credits.
B. SENATE BILL 136
We asked defendant and the People to address whether the section 667.5, subdivision (b) one-year consecutive sentence could be imposed against defendant based on the newly enacted Senate Bill No. 136 (Stats. 2019, ch. 590, § 1) (Senate Bill 136).
On October 8, 2019, Senate Bill 136 was signed into law and became effective on January 1, 2020. Senate Bill 136 modifies section 667.5, subdivision (b), to eliminate the one-year sentences for prior prison terms served unless the prior prison term involves a conviction of a sexually violent offense (which is not involved here). The statute is retroactive and applies to cases not yet final as of its effective date.
Senate Bill 136 does not contain explicit language stating it is to be applied retroactively. As such, it only applies retroactively to those defendants whose cases are not yet final. (People v. Garcia (2018) 28 Cal.App.5th 961, 973; see People v. Brown (2012) 54 Cal.4th 314, 319-324.) A judgment is final when the time for petitioning the United States Supreme Court for a writ of certiorari has expired. (People v. Vieira (2005) 35 Cal.4th 264, 306; People v. Johnson (2019) 32 Cal.App.5th 938, 942.) Here, the Opinion imposing the section 667.5, subdivision (b), prior was issued on December 11, 2017, and remittitur issued on February 13, 2018. There is no suggestion that defendant filed a petition for review or a writ of certiorari. Hence, the judgment would have been final as of May 14, 2018. (People v. Superior Court (Rodas) (2017) 10 Cal.App.5th 1316, 1325 [time to seek a petition for writ of certiorari is within 90 days after entry of judgment].) Moreover, defendant did not appeal the resentencing that occurred on March 16, 2018. Hence, as indicated, it was final on May 15, 2018.
We are not modifying our Opinion in granting the Petition. Rather, we are ordering the clerk of the court to prepare a correct abstract of judgment, which it was ordered to do upon remand in the Opinion. The time to appeal our Opinion, which imposed this sentence, has long since passed and defendant failed to file an appeal from the resentencing. Defendant's "subsequent habeas corpus petitions and motions do not extend the date on which his judgment became final for purposes of Senate Bill No. [136]." (People v. Johnson, supra, at p. 942.) In this unique factual situation, our grant of the petition to void the resentencing and order preparation of the correct abstract of judgment does not entitle defendant to application of Senate Bill 136.
DISPOSITION
We find that defendant is entitled to relief on his claim that the trial court erroneously conducted resentencing upon remand. We order the sentence imposed by the trial court upon remand vacated except for the calculation of custody credits. We order the clerk of the superior court to prepare an amended abstract of judgment reflecting this court's order in the Opinion that (1) the sentence on the section 667, subdivision (a) prior be struck; (2) a one-year sentence was imposed on the section 667.5, subdivision (b) prison prior; and (2) the custody credits of 1,248 days be reflected. The trial court is directed to prepare new abstracts of judgment and forward them to the Department of Corrections and Rehabilitation. Defendant is entitled to no other relief.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: RAMIREZ
P. J. SLOUGH
J.