Opinion
F077415
10-29-2019
THE PEOPLE, Plaintiff and Respondent, v. SCOTTY CAMPBELL, Defendant and Appellant.
Rex A. Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Chung Mi Choi, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F17900600 )
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Arlan L. Harrell, Judge. Rex A. Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Chung Mi Choi, Deputy Attorneys General, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Smith, J. and Snauffer, J.
-ooOoo-
Defendant Scotty Wayne Campbell contends on appeal that remand is required for the trial court to consider whether to exercise discretion recently granted by Senate Bill No. 1393 (2017-2018 Reg. Sess.; SB 1393) to strike his prior serious felony conviction enhancement. The People respond that remand is unnecessary because the record clearly indicates the trial court would not have exercised this discretion. We affirm.
BACKGROUND
On January 29, 2017, at about 4:00 p.m., the victim and her two children went grocery shopping. When they finished shopping, they left the store and the victim loaded the groceries into her vehicle's hatchback. The victim was wearing her purse diagonally across her body. Her eight-year-old son put the cart away and got into the vehicle. As the victim was buckling her one-year-old daughter into her car seat in the backseat on the driver's side, defendant suddenly drove up in a loud, white dual-wheeled pickup truck and blocked the back of her vehicle. The truck was so close to the victim's vehicle she thought it was going to hit her open hatchback.
Defendant was alone in the truck and sat with his left arm partly out of the driver's window. He said, " 'Give me your purse.' " The victim said, " 'What?' " because she was not sure what he had said. He said, " 'Just give me your purse,' " in a clear, monotonic voice that was threatening and urgent. He pulled back his right hand to reveal an object in his left hand that appeared to be a gun pointed at her. She believed she saw the gun's barrel, a three- or four-inch-long straight cylinder of grayish, unpolished metal. She was scared, angry, and panicked, and she feared for her children and herself. Her protective instincts caused her to automatically tell him to "fuck off." She was surprised by her reaction and the language she used. He gave her a little smirk and drove off at a normal speed. She used her cell phone camera to take photographs of the truck, then she got in the front seat and called 911. She saw the truck leave the parking lot and drive down the street.
Officers responding to the attempted armed robbery were en route to the grocery store when they recognized the distinctive truck described by the victim. They followed it and called for backup. Eventually, defendant pulled over. When officers searched the truck, they found two medium-sized cylindrical flashlights in the driver's door pocket. One was nonmetallic gray. The officers did not find a firearm, but they believed the flashlight was significant because it could have been used to look like a firearm due to its shape and color.
The victim drove to another location to meet with the officers. She appeared to be shaken up and distraught. She spoke with the officers for about 15 minutes. Then an officer took her to the location where defendant had been stopped, and she was able to identify defendant and his truck.
On January 31, 2017, the Fresno County District Attorney filed a complaint against defendant, charging him with attempted second degree robbery (Pen. Code, §§ 664, 211; count 1), and alleging he had suffered a prior felony "strike" conviction within the meaning of the "Three Strikes" law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), had suffered a prior serious felony (§ 667, subdivision (a)(1)), and had served two prior prison terms (§ 667.5, subd. (b)). On April 19, 2017, an information containing the same charge and allegations was filed.
All statutory references are to the Penal Code unless otherwise noted. --------
On March 14, 2018, defendant admitted all the special allegations.
On March 15, 2018, a jury found defendant guilty on count 1.
At the sentencing hearing on April 19, 2018, the trial court sentenced defendant to the middle term of two years on count 1, doubled pursuant to the Three Strikes law, plus five years for the prior serious felony enhancement. The court struck the two prior prison term enhancements. Neither counsel offered argument after the following statement by the court:
"All right. I want to stress to each of you, the Court has read the probation report, the Court also heard the evidence in this case, and it is the Court's—by way of giving an indicated sentence, it is the Court's intent to impose the middle term of two years. That term would be doubled pursuant to the [Three Strikes] law, based upon [defendant's] criminal history, meaning that he had suffered the prior felony conviction which was determined to be a strike. The Court would also impose the five-year enhancement under [section] 667[, subdivision ](a)(1). If the Court had discretion to strike that enhancement, the Court would not exercise that discretion in this particular case. But it's the Court's understanding, as a matter of law, that it does not have discretion to strike that. For a total commitment in this case of nine years.
"The defendant had also admitted two prison priors, which the Court does have discretion to strike, and the Court would strike the two prison priors for purposes of sentencing in this case. [¶] ... [¶]
"All right. And just to be clear, the Court's imposing the middle term, that would be the Court's intent, based upon the fact the defendant was on a grant of parole at the time of the offense. The Court also in determining the appropriate term took into consideration that the defendant approached an individual who was in a very vulnerable position, based upon the evidence that was presented during the course of the trial, in that she was busy tending to two minors, rather young children, attempting to load them and her groceries into a vehicle in a parking lot, and but for her response, which she indicated surprised her, and obviously surprised the defendant, this would have been a completed robbery rather than simply an attempt. [¶] ... [¶]
"Again, the Court has read and considered the probation report dated April 13th, 2018. The Court notes the defendant is statutorily ineligible for a grant of probation. Even if the defendant were eligible for a grant of probation, given the circumstance of this particular case, the Court would find that he is an inappropriate candidate for probation. But he is ineligible in any event based upon the fact that he has the prior strike conviction and its prohibition under [section] 667[, subdivision ](c)(2).
"The Court is selecting as the appropriate sentencing option the middle term. Again, the Court is selecting that option based upon the fact the defendant was on a grant of parole at the time of the offense. That term of two years pursuant to Penal Code section 213[, subdivision ](b) is doubled pursuant to the [Three Strikes] law, for a commitment of four years as the middle term. That four-year term will be enhanced pursuant to Penal Code section 667[, subdivision ](a)(1) by an additional five years. And,
again, the Court does not have discretion, but even if the Court had discretion, the Court would not exercise that discretion in this particular case.
"The Court will exercise its discretion, however, under [section] 1385 pursuant—to strike the two prison priors under Penal Code section 667.5[, subdivision ](b) which were found true in this particular case. And frankly, the Court is exercising that discretion as to those prison priors based upon the fact that this was merely an attempt, it was not a completed robbery, through no fault of [defendant's], but still the Court considers that this was much more innocuous than it could have been given the conduct of [defendant] and giving him the benefit of that—of that outcome, frankly."
On April 26, 2018, defendant filed a notice of appeal.
DISCUSSION
When defendant was sentenced, the trial court had no power to strike the prior serious felony conviction enhancement imposed pursuant to section 667, subdivision (a), as the court noted. (See former § 1385, subds. (b), (c)(2), Stats. 2014, ch. 137, § 1.) However, SB 1393, which took effect on January 1, 2019, amended sections 667 and 1385 to provide trial courts discretion to strike prior serious felony conviction enhancements in the interest of justice. We agree with the parties that the law applies retroactively to defendant because his appeal was not yet final on the law's effective date. (People v. Garcia (2018) 28 Cal.App.5th 961, 973.)
Defendant contends that, despite the trial court's comments, we should remand to give the court the opportunity to exercise its newly granted discretion because the court demonstrated some leniency by imposing the midterm rather than the upper term and by striking the two prior prison term enhancements. Thus, defendant urges, under the rationale of People v. Billingsley (2018) 22 Cal.App.5th 1076 (Billingsley) and People v. Johnson (2019) 32 Cal.App.5th 26 (Johnson), we should remand notwithstanding the court's comments. He also notes that information regarding defendant's conduct in custody since the sentencing hearing would be a relevant consideration upon resentencing.
The People, on the other hand, argue remand is unwarranted because the trial court's comments at sentencing clearly demonstrate the court would not have dismissed the enhancement even if it had possessed the discretion to do so. We agree with the People.
The California Supreme Court has reiterated that " '[d]efendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that "informed discretion" than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record.' [Citation.] In such circumstances, [the Supreme Court has] held that the appropriate remedy is to remand for resentencing unless the record 'clearly indicate[s]' that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion.' " (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391; see People v. McVey (2018) 24 Cal.App.5th 405, 419 [Sen. Bill No. 620; remand not required where the trial court stated, " 'this is as aggravated as personal use of a firearm gets,' and 'the high term of 10 years on the enhancement is the only appropriate sentence on the enhancement' "; "[i]n light of the trial court's express consideration of the factors in aggravation and mitigation, its pointed comments on the record, and its deliberate choice of the highest possible term for the firearm enhancement, there appears no possibility that, if the case were remanded, the trial court would exercise its discretion to strike the enhancement altogether"]; People v. Jones (2019) 32 Cal.App.5th 267, 274-275 [SB 1393; remand not required where the trial court exercised no sentencing leniency and it "made clear its intention to impose the most stringent sentence it could justifiably impose," including stating the court felt "great satisfaction in imposing the very lengthy sentence"].)
On the other hand, as defendant recognizes, many courts have remanded "out of an abundance of caution," sometimes where the trial court showed sentencing leniency, and sometimes even where the trial court has stated it would not strike the enhancement if it had the discretion. (See Johnson, supra, 32 Cal.App.5th at p. 69 [Sen. Bills Nos. 1393 & 620; remanded even though trial court stated it "ha[d] no discretion to strike" and "wouldn't strike if [it] did have discretion"]; People v. Almanza (2018) 24 Cal.App.5th 1104, 1109-1111 [Sen. Bill No. 620; remanded where no clear indication of the trial court's intent; "speculation about what a trial court might do on remand is not 'clearly indicated' by considering only the original sentence," such as imposition of consecutive terms]; Billingsley, supra, 22 Cal.App.5th at pp. 1081-1082 [Sen. Bill No. 620; remanded where, "[a]lthough the trial court noted the facts of the case 'could have been a lot worse,' the court did not express an intention to impose the maximum possible sentence," and the court "expressed concern the consequences for Billingsley's sentence were 'unfortunate' and 'tragic' "]; People v. McDaniels (2018) 22 Cal.App.5th 420, 427-428 [Sen. Bill No. 620; remanded where record contained no clear indication of trial court's intent not to strike enhancement; court imposed midterm and struck prior convictions; "nothing in the record rule[d] out the possibility that the court would exercise its discretion to strike the ... enhancement"].)
Here, the probation officer recommended the upper term, plus all enhancements, for a total of 13 years, due to the severity of the offense and the lack of mitigating factors. Defendant had a history of violence and was on parole at the time he committed the crime. He planned the crime, choose a vulnerable victim, brandished what appeared to be a firearm, and demanded her purse. We acknowledge that, despite these facts, the trial court chose a more lenient sentence, imposing the middle term and striking the two prior prison term enhancements, because the robbery was not completed. Nevertheless, the court repeatedly and clearly stated it would not strike the serious felony enhancement even if it had the discretion to do so. Thus, it is difficult for us to say, based on the court's very explicit and repeated comments, that the court's intent was not clear. Indeed, we are compelled to conclude the court very plainly stated its intent and carefully fashioned the precise sentence it believed was appropriate under all the circumstances. Accordingly, we decline to remand for exercise of the discretion the court unambiguously stated it would refuse to exercise.
DISPOSITION
The judgment is affirmed.