Opinion
C077959
12-03-2018
THE PEOPLE, Plaintiff and Respondent, v. DAVON LOUIS DEHUGHES, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 13F7660) OPINION ON TRANSFER
Defendant Davon Louis DeHughes was convicted by jury of possession of three controlled substances for sale, i.e., heroin, hydrocodone, and methamphetamine (Counts 1-3), possession of concentrated cannabis (Count 6), possession of marijuana for sale (Count 7), possession of a controlled substance with a firearm (Count 4), and possession of a firearm and ammunition by a convicted felon (Counts 5 and 8). With respect to the first three counts, the jury also found defendant was personally armed with a firearm. In a bifurcated hearing, defendant admitted he was previously convicted of a strike offense within the meaning of the three strikes law, he served four prior prison terms, and he had two prior narcotics convictions. The trial court sentenced defendant to serve an aggregate determinate prison term of 30 years 8 months.
On appeal, defendant contends: (1) Proposition 47 requires reduction of his possession of concentrated cannabis conviction to a misdemeanor; and (2) we must remand the matter for resentencing because (a) the record suggests the trial court believed it had no discretion to impose concurrent terms on Counts 2, 3, and 6, and (b) the trial court failed to state reasons for imposing the upper term sentence on the arming enhancement.
On December 21, 2016, we issued an opinion affirming the judgment. As we explained, and do so again, Proposition 47 (as approved by voters Gen Elec., Nov. 4, 2014, eff. Nov. 5, 2014) (Proposition 47) does not permit this court to reduce defendant's possession of concentrated cannabis conviction to a misdemeanor. Instead, in order to have this conviction reduced, he is required to comply with the terms of Penal Code section 1170.18, enacted by the voters as part of Proposition 47, by filing a petition for recall of sentence in the trial court once his judgment is final. We also explained the matter need not be remanded for resentencing because the record does not indicate the trial court believed it lacked discretion to impose concurrent terms on Counts 2, 3, and 6. Moreover, even assuming the trial court erred in failing to separately state reasons for imposing the upper term on the arming enhancement, there is no reasonable probability defendant would receive a more favorable sentence on remand.
Undesignated statutory references are to the Penal Code.
Our Supreme Court granted review and, on August 15, 2018, transferred the matter to this court with directions to vacate our prior decision and to "reconsider the cause in light of the 2017 amendment to Health and Safety Code section 11370.2 (Stats. 2017, ch. 677, § 1, eff. Jan. 1, 2018) (Sen. Bill No. 180) and In re Estrada (1965) 63 Cal.2d 740." We received supplemental briefing from defendant regarding this issue. (Cal. Rules of Court, rules 8.528(f) & 8.200(b).) Having reviewed the briefing, we now conclude three 3-year enhancement terms imposed pursuant to Health and Safety Code former section 11370.2 must be stricken in light of the 2017 amendment to this section.
The Attorney General submitted no such briefing.
FACTS
Our resolution of this appeal does not require a detailed recitation of the facts underlying defendant's convictions. For our purposes, it will suffice to state that during a probation search of defendant's house in Redding, law enforcement officers found in a closet near the laundry room a black zippered pouch containing about 26 grams of heroin, about 18 grams of methamphetamine, about 12 grams of concentrated cannabis, five hydrocodone pills, and six other pills that were likely ecstasy. The street value of these narcotics was over $3,000. Also inside the closet was a loaded .22 caliber handgun. Defendant's cell phone was also searched and found to contain numerous text messages relating to the sale of various narcotics.
DISCUSSION
I
Proposition 47
Defendant contends Proposition 47 requires this court to reduce his felony possession of concentrated cannabis conviction to a misdemeanor. He is mistaken.
"On November 4, 2014, the voters enacted Proposition 47, the Safe Neighborhoods and Schools Act . . . , which went into effect the next day. (Cal. Const., art. II, § 10, subd. (a).)" (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) Proposition 47 enacted section 1170.18. (Ibid.) Subdivision (a) of this section provides that "[a] person currently serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under the act that added this section ('this act') had this act been in effect at the time of the offense may petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing in accordance with Sections 11350, 11357, or 11377 of the Health and Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as those sections have been amended or added by this act." (§ 1170.18, subd. (a), italics added.)
As this court has previously held, section 1170.18 provides the sole means by which a defendant can seek resentencing under Proposition 47. "Defendant is limited to the statutory remedy of petitioning for recall of sentence in the trial court once his [or her] judgment is final, pursuant to . . . section 1170.18." (People v. Noyan (2014) 232 Cal.App.4th 657, 672; see also People v. Shabazz (2015) 237 Cal.App.4th 303, 309 ["the voters have expressly enacted procedures to permit the retroactive application of those portions of Proposition 47 which reduce certain felonies to misdemeanors" and "have not expressed an intention to permit us on direct appeal to reduce . . . felony convictions to misdemeanors without the filing of an application"].) Defendant acknowledges these cases are "at odds" with his argument on appeal, but asserts they "were wrongly decided" for a number of reasons. We decline to reconsider our conclusion that a defendant must comply with the statutory requirements enacted by the voters in order to have a felony conviction reduced to a misdemeanor.
Nor does this conclusion result in a denial of equal protection of the laws. Defendant argues that "[t]hose sentenced on or after November 5, 2014, will be automatically eligible for immediate relief, while those sentenced before that date, even two days before like [defendant], will be required to petition for relief under . . . section 1170.18. There is no legitimate interest in distinguishing between these two groups. Denying [defendant] the benefit of the new law will constitute a legislative classification which is not reasonably related to a legitimate public purpose." Not so. First, we are not denying defendant the benefit of the new law. As we have explained, section 1170.18, subdivision (a), requires defendant to file a petition for recall. We are therefore providing defendant with precisely the benefit the new law provides.
Second, while Proposition 47 does create two classes of defendants, i.e., those who are sentenced after its effective date and those sentenced before that date, the latter group being required to file a petition for recall of the sentence already imposed, we cannot conclude this distinction amounts to a denial of equal protection. Indeed, had the new scheme denied retroactive effect altogether, this would not have deprived defendant of equal protection. " 'The Legislature properly may specify that [ameliorative] statutes are prospective only, to assure that penal laws will maintain their desired deterrent effect by carrying out the original prescribed punishment as written.' [Citations.] The voters have the same prerogative. [Citation.]" (People v. Floyd (2003) 31 Cal.4th 179, 188.) Here, rather than deny retroactive effect, the voters simply specified the mechanism by which those already sentenced may reap the benefits of the new law. As the Attorney General observes: "A determination of whether someone qualifies for misdemeanor sentencing will, in some cases, depend on factual issues such as the existence of disqualifying prior convictions. The electorate could [have] reasonably decide[d] that for persons sentenced prior to the passage of Proposition 47, the only way to obtain a sentence reduction should be through a petition for recall of sentence submitted to the trial court, which can then make the necessary factual determinations." We conclude the creation of such a procedure for those already sentenced does not deprive defendant of his right to equal protection of the laws.
Accordingly, we reject defendant's assertion that we must reduce his felony conviction for possession of concentrated cannabis to a misdemeanor under Proposition 47.
II
Sentencing Issues
Defendant also claims we must remand the matter for resentencing because (a) the record suggests the trial court believed it had no discretion to impose concurrent terms on Counts 2, 3, and 6, and (b) the trial court failed to state reasons for imposing the upper term on the arming enhancement. We conclude remand for resentencing is not required.
A.
Imposition of Consecutive Terms on Counts 2 , 3 , and 6
As mentioned, the trial court imposed an aggregate determinate prison term of 30 years 8 months. This sentence was comprised of 8 years for Count 1 (the upper term sentence of 4 years, doubled), plus 11 years for the enhancements attached to this count (5 years for the arming enhancement, plus 6 years for the narcotics prior enhancements (3 years each)), plus 4 years for the prior prison term enhancements (one year each), plus a consecutive term of 2 years for Count 2 (one-third the middle term of 3 years (one year), doubled), plus consecutive terms of 16 months for Counts 3 and 6, respectively (one-third the middle term of 2 years (8 months), doubled), plus 3 years for a separate narcotics prior enhancement attached to Count 3.
Sentences imposed on Counts 4, 5, 7, and 8 were stayed pursuant to section 654.
As defendant correctly observes, the three strikes law did not mandate imposition of consecutive sentences on Counts 2, 3, or 6 because his current felony convictions were "committed on the same occasion" and "ar[ose] from the same set of operative facts." (§ 1170.12, subd. (a)(6); People v. Lawrence (2000) 24 Cal.4th 219, 223 ["consecutive sentences are not mandated . . . if all of the current felony convictions are either 'committed on the same occasion' or 'aris[e] from the same set of operative facts'"].) Rather, the trial court possessed discretion to impose either consecutive or concurrent sentences on these counts.
Defendant argues, "the record shows it is reasonably likely the trial court did not accurately understand its concurrent/consecutive sentencing discretion." This argument is belied by the record. After discussing the aggravating circumstances justifying imposition of an upper term sentence on Count 1, which we set forth more specifically immediately below, the trial court imposed sentence on Count 2 as follows: "For the sentence on Count 2, I am going to impose two years consecutive, and all these sentences should be consecutive. To be clear, whether I inadvertently fail to mention it or not, that's my intention." (Italics added.) Had the trial court believed it was required to impose consecutive sentences under the three strikes law, there would be no need to announce its "intention" to impose consecutive sentences, as opposed to its obligation to do so. Nor is "should" a word indicating a false belief consecutive sentences were required. Quite the contrary. That these lines indicate the trial court was aware of its sentencing discretion with respect to imposing consecutive or concurrent sentences is bolstered by the fact defendant's trial counsel specifically asked the trial court "to exercise its discretion and have a lot of these drug offenses be concurrent time rather than consecutive time." (Italics added.) The prosecutor did not challenge defense counsel's correct assertion the trial court possessed discretion to run the sentences concurrently. There is nothing in the record indicating the trial court sentenced defendant under the mistaken belief it was required to impose consecutive sentences under the three strikes law. We must therefore reject defendant's claim to the contrary.
B.
Imposition of the Upper Term Sentence on the Arming Enhancement
Before imposing the upper term sentence on Count 1, the trial court stated: "In selecting the aggravated term, I did go through the factors in aggravation which were laid out on page 18 and 19 from the Probation Department. I do . . . find you were armed with or used a weapon at the time of the commission of the crime. . . . [¶] I agree with [the prosecutor]. As things go, this crime involved a large quantity of contraband. . . . [Y]our prior convictions as an adult are numerous. In my view, they are of increasing seriousness. You have served a prior prison term. As a matter of fact, more than one. You were on probation or parole community supervision at the time this crime was committed, and your prior performance on probation or parole has been abysmal, to say the least. [¶] . . . [¶] [A]ny one of these factors in aggravation standing alone would be more than enough to impose the aggravated sentence on you given the facts of the case before me." After finding "no factors in mitigation," the trial court imposed the upper term sentence on Count 1 and then imposed the enhancement terms attached to that count, including the upper term of five years for the arming enhancement. (See § 12022, subd. (c).)
Defendant argues the trial court was required to state separate reasons for imposing the upper term for the arming enhancement, relying on California Rules of Court, rule 4.428 and People v. Zamarron (1994) 30 Cal.App.4th 865 (Zamarron). The Attorney General argues the claim is forfeited by defendant's failure to make a timely objection in the trial court. A similar forfeiture argument was made and rejected in Zamarron. (Id. at p. 870.) We need not decide whether we agree with Zamarron on the forfeiture issue. Even assuming the issue is properly preserved and error occurred, remand for resentencing is not required because "it is not reasonably probable that resentencing would result in a sentence more favorable to defendant." (People v. DeHoyos (2013) 57 Cal.4th 79, 155.) The trial court listed a number of aggravating circumstances justifying the sentence imposed. (See rule 4.421(a)(2) ["defendant was armed with or used a weapon"], (a)(10) ["crime involved a large quantity of contraband"], (b)(2) ["defendant's prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness"], (b)(3) ["defendant has served a prior prison term"], (b)(4) ["defendant was on probation or parole when the crime was committed"], (b)(5) ["defendant's prior performance on probation or parole was unsatisfactory"].) Defendant's parole status alone would have been sufficient to justify the upper term for the arming enhancement. (See People v. Hall (1994) 8 Cal.4th 950, 963-964.)
Undesignated rule references are to the California Rules of Court.
Rule 4.428 provides in relevant part: "If an enhancement is punishable by one of three terms, the court must, in its discretion, impose the term that best serves the interest of justice and state the reasons for its sentence choice on the record at the time of sentencing."
Simply put, with so many aggravating circumstances from which to choose, we cannot conclude there is a reasonable probability the trial court would impose a lesser sentence on remand.
III
Retroactivity of Senate Bill No. 180
We must, however, strike the three narcotics prior enhancements imposed pursuant to Health and Safety Code former section 11370.2 (Stats. 1998, ch. 936, eff. Sept. 28, 1998). Two such enhancements (attached to Count 1) were imposed under subdivision (a) of this section and the third enhancement (attached to Count 3) was imposed pursuant to subdivision (c). These enhancements were based on a 1998 violation of Health and Safety Code section 11351.5 (Stats. 1987, ch. 1174, eff. Sept. 25, 1987) and a 2005 violation of Health and Safety Code section 11378 (Stats 2001, ch. 841).
Health and Safety Code former section 11370.2, subdivision (a) (Stats. 1998, ch. 936, eff. Sept. 28, 1998), provided in relevant part: "Any person convicted of a violation of, or of a conspiracy to violate, Section 11351 . . . shall receive, in addition to any other punishment authorized by law, including Section 667.5 of the Penal Code, a full, separate, and consecutive three-year term for each prior felony conviction of, or for each prior felony conviction of conspiracy to violate, Section 11351, 11351.5, 11352, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380, 11380.5, or 11383, whether or not the prior conviction resulted in a term of imprisonment." (Italics added.)
Subdivision (c) of former section 11370.2 provided in relevant part: "Any person convicted of a violation of, or of a conspiracy to violate, Section 11378 . . . with respect to any substance containing a controlled substance specified in paragraph (1) or (2) of subdivision (d) of Section 11055 shall receive, in addition to any other punishment authorized by law, including Section 667.5 of the Penal Code, a full, separate, and consecutive three-year term for each prior felony conviction of, or for each prior felony conviction of conspiracy to violate, Section 11351, 11351.5, 11352, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380, 11380.5, or 11383, whether or not the prior conviction resulted in a term of imprisonment." (Italics added.)
Senate Bill No. 180, effective January 1, 2018, amended section 11370.2, subdivisions (a) and (c), to remove Health and Safety Code sections 11351, 11351.5, 11352, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380.5, and 11383 from the list of prior convictions that qualify a defendant for imposition of the enhancement, leaving only violation of Health and Safety Code section 11380 as a qualifying prior conviction. (Stats. 2017, ch. 677, § 1, eff. Jan. 1, 2018.)
Relying on In re Estrada (1965) 63 Cal.2d 740 (Estrada), defendant argues the foregoing amendments apply retroactively to his case because they "lessen[] the punishment for persons such as [defendant] whose prior convictions no longer qualify as enhancements" and his judgment is not yet final. In Estrada, our Supreme Court stated: "When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply." (Id. at p. 745.) This includes "acts committed before its passage provided the judgment convicting the defendant of the act is not final." (Ibid.) Thus, under Estrada, absent evidence to the contrary, we presume the Legislature intended a statutory amendment reducing punishment to apply retroactively to cases not yet final on appeal. (Id. at pp. 747-748; People v. Brown (2012) 54 Cal.4th 314, 324.) "The rule in Estrada has been applied to statutes governing penalty enhancements, as well as to statutes governing substantive offenses." (People v. Nasalga (1996) 12 Cal.4th 784, 792.)
In People v. Millan (2018) 20 Cal.App.5th 450, our colleagues at the Fourth Appellate District applied the Estrada rule to Senate Bill No. 180's amendment to Health and Safety Code section 11370, subdivision (c), reversed the judgment including such enhancements, and remanded the matter to the trial court with directions to strike them. (Id. at pp. 455-456.) We agree Estrada, supra, 63 Cal.2d 740 applies. However, rather than reverse the judgment and remand the matter to the trial court, we shall modify the judgment to strike the enhancements and affirm the modified judgment. (See People v. Zabala (2018) 19 Cal.App.5th 335, 344-345.)
DISPOSITION
The judgment is modified to strike the enhancements imposed pursuant to Health and Safety Code section 11370.2, subdivisions (a) and (c). As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting the modification and forward a certified copy to the Department of Corrections and Rehabilitation.
/s/_________
HOCH, J. We concur: /s/_________
HULL, Acting P. J. /s/_________
RENNER, J.