Opinion
E064606
02-21-2017
THE PEOPLE, Plaintiff and Respondent, v. BILLY WAYNE CIGGS, JR., Defendant and Appellant.
Robert E. Boyce, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF110879) OPINION APPEAL from the Superior Court of Riverside County. Edward D. Webster, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part; reversed in part. Robert E. Boyce, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
In this appeal, defendant and appellant Billy Wayne Ciggs, Jr., contends the superior court erred by imposing sentence enhancements on multiple counts for the personal use of a firearm under Penal Code former section 12022.5, subdivision (a)(1), and Penal Code section 186.22, subdivision (b)(1)(C), when both enhancements arose from the use of a firearm during a single offense, to wit, assault with a firearm (Pen. Code, § 245, subd. (a)(2)). The People concede those sentences must be reversed, and the matter must be remanded for resentencing because Penal Code section 1170.1, subdivision (f), prohibits imposition of more than one sentence enhancement for the use of a firearm during the commission of a single offense. We agree and, therefore, we reverse the sentence and remand for resentencing.
I
PROCEDURAL BACKGROUND
The underlying facts of this case are not relevant to the purely legal issue raised on appeal. We conclude this appeal is suitable for resolution by memorandum opinion pursuant to standard 8.1 of the California Standards of Judicial Administration.
In 2004, a jury found defendant guilty of one count of shooting at an occupied motor vehicle (Pen. Code, § 246, count 1) and four counts of assault with a firearm (§ 245, subd. (a)(2), counts 2-5). With respect to all five counts, the jury rendered true findings that defendant committed his crimes for the benefit of a criminal street gang (§ 186.22, subd. (b)), and with respect to counts 2 through 5, the jury rendered true findings that defendant personally used a firearm during the commission of a felony (former § 12022.5, subd. (a)(1)). The trial court sentenced defendant to state prison for a total term of 15 years to life, plus 29 years eight months. The sentences on counts 2 through 5 each included an enhancement for the personal use of a firearm during the commission of a felony (former § 12022.5, subd. (a)(1)) and an enhancement for the use of a firearm during the commission of a violent felony (§ 188.66, subd. (b)(1)(C)). In an unpublished opinion affirming the judgment, this court rejected, inter alia, defendant's claim that the trial court violated the Sixth Amendment to the United States Constitution by imposing an upper term sentence on count 2 based on facts not found true by a jury beyond a reasonable doubt. (People v. Ciggs (July 12, 2005, E036083) [nonpub. opn.].) The California Supreme Court denied review. (People v. Ciggs (Oct. 12, 2005, S136624) review den.)
All additional unspecified statutory references are to the Penal Code.
In October 2006, defendant filed a petition for writ of habeas corpus in the United States District Court for the Central District of California addressing, inter alia, the Sixth Amendment claim with regard to the sentence on count 2. (Ciggs v. Felker (C.D. Cal., April 28, 2010, No. EDCV 06-1133 SVW (JC)) 2010 U.S.Dist. Lexis 83424, *1-*2.) Some four years later, the district court granted defendant's petition in part, concluded the trial court violated the Sixth Amendment as interpreted in Cunningham v. California (2007) 549 U.S. 270 when it imposed an upper term of four years on count 2, and issued a writ of habeas corpus directing the trial court to resentence defendant on count 2. (Ciggs v. Felker (C.D. Cal., Aug. 10, 2010, No. EDCV 06-1133 SVW (JC)) 2010 U.S.Dist. Lexis 83420.)
Neither the district attorney nor the superior court received notice of the federal court's order until five years later, when defendant filed a petition for recall of his sentence and resentencing. The superior court, after considering the factors set forth in the California Rules of Court, resentenced defendant to the same upper term of four years on count 2. Defendant timely appealed.
II
DISCUSSION
In this appeal, defendant contends, and the People concede, the trial court erred by imposing sentence enhancements on counts 2 through 5 under former section 12022.5, subdivision (a)(1), and section 186.22, subdivision (b)(1)(C), for the use of a firearm arising from a single offense, to wit, assault with a firearm. We agree.
Section 1170.1, subdivision (f), provides in relevant part: "When two or more enhancements may be imposed for . . . using . . . a firearm in the commission of a single offense, only the greatest of those enhancements shall be imposed for that offense." In People v. Rodriguez (2009) 47 Cal.4th 501 (Rodriguez), the defendant was convicted of three counts of assault with a firearm; the jury rendered true findings that the defendant personally used a firearm during the commission of the assaults within the meaning of former section 12022.5, subdivision (a)(1), and that the assaults were violent felonies committed on behalf of a criminal street gang within the meaning of section 186.22, subdivision (b)(1)(C); and the defendant's sentence on two of the counts included enhancements for the personal use of a firearm during the commission of a felony and for the use of a firearm during the commission of a violent felony. (Rodriguez, at pp. 504, 506, 508.) The California Supreme Court unanimously concluded the trial court ran afoul of section 1170.1, subdivision (f), reversed the judgment, and remanded for resentencing. (Rodriguez, at pp. 508-510.)
Rodriguez, supra, 47 Cal.4th 501, was decided after the original sentence in this case. Because Rodriguez vindicated the original meaning of section 1170.1, subdivision (f), it applies retroactively to defendant. (Woosley v. State of California (1992) 3 Cal.4th 758, 794.) In addition, although defendant's attorney did not object on this ground during the resentencing hearing, an unauthorized sentence may be addressed in the first instance on appeal. (People v. Anderson (2010) 50 Cal.4th 19, 26.) --------
Here, defendant's sentence on counts 2 through 5 include enhancements under former section 12022.5, subdivision (a)(1), and section 186.22, subdivision (b)(1)(C), for the use of a firearm during a single offense. Section 1170.1, subdivision (f), clearly prohibited such a sentence. (Rodriguez, supra, 47 Cal.4th at pp. 508-509.) Therefore, we reverse the sentence on those counts in conformity with section 1170.1, subdivision (f), and remand for resentencing. (Rodriguez, at p. 509.)
III
DISPOSITION
The sentence is reversed as to counts 2 through 5, and the matter is remanded for resentencing. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. HOLLENHORST
J.