Opinion
C090253
09-16-2020
THE PEOPLE, Plaintiff and Respondent, v. DAVID BURNHART, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15F00184)
A jury found defendant David Burnhart guilty of numerous felonies including kidnapping to commit robbery (Pen. Code, § 209), kidnapping to commit rape (§ 209), and being a felon in possession of a firearm (§ 29900, subd. (a)(1)). Defendant appealed from his conviction. On remand from this court, the trial court resentenced defendant to an aggregate term of 41 years plus 28 years to life; defendant's sentence included three, 5-year prior felony enhancements (§ 667, subd. (a)(1)).
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends the trial court erred in imposing a five-year prior felony enhancement on his conviction for being a felon in possession of a firearm. He argues that because being a felon in possession of a firearm is not a serious felony, the enhancement is inapplicable. We agree and will strike the enhancement accordingly.
Defendant also contends the trial court erred in imposing three, 5-year prior felony enhancements. He asserts that because his is not a third strike sentence, the court was limited to imposing a single five-year prior felony enhancement to the aggregate of both his indeterminate and determinate terms. We disagree.
BACKGROUND
In 2016, following a jury trial, defendant was convicted of several serious felonies arising out of the kidnapping and robbery of a female real estate agent. (People v. Burnhart (Nov. 7, 2018, C082210) [nonpub. opn.].) Defendant appealed and this court remanded the matter "to the trial court to stay imposition of the sentence for robbery pursuant to . . . section 654, to exercise its discretion whether to strike the firearm enhancements, and to correct the abstract of judgment to reflect the correct statutory basis for the prior conviction enhancements." (Ibid.)
On remand, the trial court selected defendant's conviction for being a felon in possession of a firearm as the principal term and sentenced him to the upper term of three years. The court doubled that term to six years because it was defendant's second strike offense (§ 667, subd. (e)(1)). The court added another five years to defendant's sentence for his prior felony conviction pursuant to section 667, subdivision (a)(1).
On each of defendant's convictions for kidnapping, the court sentenced defendant to a term of seven years to life, as required by section 209, subdivision (b), then doubled the minimum commitment to 14 years because of defendant's prior strike conviction (§ 667, subd. (e)(1)). To each of these indeterminate terms, the trial court added another five years for defendant's prior felony conviction (§ 667, subd. (a)), and 10 years for a firearm use enhancement (§ 12022.53, subd. (b)). Pursuant to section 654, the trial court stayed defendant's sentence on the remaining four convictions.
"Any person who kidnaps or carries away any individual to commit robbery, rape, spousal rape, oral copulation, sodomy, or any violation of Section 264.1, 288, or 289, shall be punished by imprisonment in the state prison for life with the possibility of parole." (§ 209, subd. (b)(1).)
In sum, the trial court sentenced defendant to an aggregate indeterminate term of 28 years to life in state prison and an aggregate determinate term of 41 years in state prison.
DISCUSSION
A. Felon in Possession
Defendant contends the trial court erred in adding a five-year prior felony enhancement (§ 667, subd. (a)) to his conviction for being a felon in possession of a firearm. The People concede the issue.
A section 667, subdivision (a) enhancement may only be imposed on "[a]ny person convicted of a serious felony who previously has been convicted of a serious felony." (§ 667, subd. (a)(1).) The offense of felon in possession of a firearm (§ 29900, subd. (a)(1)), is not a serious felony. (See § 1192.7, subd. (c) [defining "serious" felony].) Thus, it was error to impose the prior serious felony enhancement on defendant's conviction for being a felon in possession of a firearm. We will strike the enhancement and direct the abstract of judgment to be modified accordingly. B. Kidnapping
Because we agree the enhancement should be stricken from defendant's determinate term, as discussed above, we need not address defendant's claim that the trial court erred in imposing five-year enhancements to both his determinate and indeterminate terms. We thus address only defendant's claim that the trial court erred in imposing a five-year prior felony enhancement to each of his indeterminate terms.
Defendant also contends the trial court erred in imposing five-year prior felony enhancements to each of the indeterminate terms imposed on his convictions for kidnapping. In support of his contention, defendant argues that the rule articulated by the Supreme Court in People v. Williams (2004) 34 Cal.4th 397, 400 (Williams), that five-year prior felony enhancements can be imposed on multiple indeterminate terms, is limited to third strike sentences. Because his is not a third strike sentence, he contends the rule does not apply. We disagree.
As often happens, defendant's claim " 'arises at the intersection' of several sentencing provisions": the determinate sentencing law (DSL) (§ 1170 et seq.), the three strikes law (§§ 667, subds. (b)-(i), 1170.12), and section 209, which requires imposition of a life sentence for defendants convicted under that statute. (People v. Sasser (2015) 61 Cal.4th 1, 13 (Sasser).) Our Supreme Court, however, has addressed these complex sentencing issues, in particular how the five-year prior felony enhancement operates within these different sentencing schemes.
In People v. Tassell (1984) 36 Cal.3d 77, the Supreme Court ruled the five-year prior felony enhancement is a status-based enhancement that can be added only once to multiple terms under the DSL. (Tassell, at pp. 90-91, overruled on another ground in People v. Ewoldt (1994) 7 Cal.4th 380, 386-387; see Sasser, supra, 61 Cal.4th at pp. 6-7, 10.)
Later, in Williams, supra, 34 Cal.4th 397, the Supreme Court ruled the five-year prior felony enhancement can be applied to multiple indeterminate three strikes sentences. (Id. at pp. 402-403.) The Supreme Court distinguished Tassell on the ground that the DSL "applies only to determinate sentences"; it does not "apply to multiple indeterminate sentences imposed under the Three Strikes law." (Williams, at p. 402.)
More recently, in Sasser, the Supreme Court considered whether, in imposing a determinate, second strike sentence, the trial court is free from the limitations of the DSL regarding status-based enhancements because the defendant also is being sentenced under the three strikes sentencing scheme. (Sasser, supra, 61 Cal.4th. at pp. 6-7.) The court ruled it was not. (Id. at p. 7.)
The court explained that the key question in determining whether the limits of the DSL apply to a defendant's sentence is not whether the defendant is being sentenced under the three strikes scheme or the DSL, some alternate statutory scheme, or some combination of all these. (Sasser, supra, 61 Cal.4th at p. 13.) The question is whether the defendant is being sentenced to a determinate term or an indeterminate term. (Ibid.)
Thus, although the defendant in Sasser was being sentenced as a second strike offender, the determinate portion of his sentence came within the ambit of the DSL. (Sasser, supra, 61 Cal.4th at pp. 13-14.) As such, the determinate portion of defendant's sentence was subject to the DSL's limitations on status-based enhancements. (Sasser, at p. 15.)
Collectively, these Supreme Court cases undermine defendant's argument on appeal. When reviewing a sentence at the intersection of multiple sentencing schemes, we do not, as defendant asserts, consider whether the sentence is imposed under the three strikes law. Rather, we must ask whether the sentence imposed is a determinate sentence, subject to the limitations of the DSL, or an indeterminate sentence, which is not. (Sasser, supra, 61 Cal.4th at p. 13.)
Here, in addition to a determinate term, defendant was sentenced to two indeterminate terms. Those indeterminate terms are not subject to the DSL and its limitations on status enhancements, as set forth in Tassell. (Sasser, supra, 61 Cal.4th at p. 13; see Williams, supra, 34 Cal.4th at p. 402.) Rather, the rule set forth in Williams allowing the imposition of a five-year prior felony on multiple indeterminate terms applies.
We thus conclude the trial court did not err in imposing a five-year prior felony enhancement to each of defendant's indeterminate terms. (Williams, supra, 34 Cal.4th at p. 402.) C. Abstracts of Judgment
The abstract of judgment for defendant's determinate prison term incorrectly indicates that all three, five-year prior felony enhancements imposed by the trial court were appended to defendant's determinate term. In fact, two of the enhancements should be appended to his indeterminate term. Accordingly, the two, five-year prior felony enhancements imposed on counts 1 and 2 should be reflected in the abstract of judgment for those counts and the abstract of judgment for defendant's indeterminate terms should be modified to add the five-year enhancements to each of those terms.
As discussed above, defendant's determinate term is not subject to a five-year prior felony enhancement and that enhancement should be stricken accordingly.
DISPOSITION
The five-year prior felony enhancement appended to defendant's conviction for being a felon in possession of a firearm is hereby stricken. The trial court is directed to modify the abstracts of judgment for defendant's determinate and indeterminate terms consistent with this opinion. The judgment is affirmed as modified.
/s/_________
RAYE, P. J. We concur: /s/_________
ROBIE, J. /s/_________
MAURO, J.