Opinion
E080571
07-01-2024
THE PEOPLE, Plaintiff and Respondent, v. RONNIE LEE EVANS, Defendant and Appellant.
Martin Kassman, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Assistant Attorney General, A. Natasha Cortina, Liz Sulaiman, Deputy Attorneys General for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. INF060970, John D. Molloy, Judge. Affirmed with directions.
Martin Kassman, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Assistant Attorney General, A. Natasha Cortina, Liz Sulaiman, Deputy Attorneys General for Plaintiff and Respondent.
OPINION
MENETREZ J.
Ronnie Lee Evans appeals after the trial court resentenced him under Penal Code section 1172.75. (Unlabeled statutory citations refer to this code.) Evans requested that the court (1) reduce his upper-term sentence for carjacking to the low term and (2) strike his firearm enhancement or impose a lesser included enhancement. The court denied both requests. On appeal, Evans argues that the court abused its discretion by denying both requests and that it should have granted at least one of them. He also argues that the court erred by failing to recalculate his custody credits as part of the resentencing. We remand for the court to recalculate Evans's custody credits, but we otherwise affirm.
BACKGROUND
I. Evans's trial and sentencing
We granted the People's request for judicial notice of the record in Evans's prior appeal and our opinion in that case. (People v. Evans (Oct. 30, 2009, E046427) [nonpub. opn.].)
In November 2007, Evans approached a man at a gas station and demanded the man's car keys. After the man refused the demand, Evans displayed a gun under his sweatshirt and said, "[Y]ou don't make me do this." The man dropped the keys and ran, and Evans drove away in the man's car.
In July 2008, a jury found Evans guilty of carjacking and possession of a firearm by a felon. (§ 215; former § 12021, subd. (a)(1), repealed and reenacted as § 29800 by Stats. 2010, ch. 711, §§ 4, 6.) The jury also found true that Evans personally used a firearm in the commission of the carjacking. (§ 12022.53, subd. (b).) Evans admitted that he had a 2003 felony conviction for carrying an unregistered, concealed weapon inside of a vehicle and that he had served a prior prison term for that offense. (Former § 667.5, subd. (b), amended by Stats. 2019, ch. 590, § 1; former § 12025, subd. (b)(6), repealed and reenacted as § 25400 by Stats. 2010, ch. 711, §§ 4, 6.) The record includes a certified record of that prior conviction and a certified prison packet.
"The Legislature has provided that what is commonly known as a 'prison packet' (i.e., records maintained by the institution where the defendant was incarcerated, or certified copies thereof) may be introduced as prima facie evidence that the defendant served a term of imprisonment." (People v. Tenner (1993) 6 Cal.4th 559, 563, citing § 969b.)
The court sentenced Evans to a total of 20 years in state prison-the upper term of nine years for carjacking, 10 years for the firearm enhancement, and one year for the prior prison term enhancement. (The court also imposed an eight-month sentence for the firearm offense, but it stayed that term under section 654.) The sentencing minute order and the abstract of judgment reflected that Evans had 209 days of actual custody credits.
II. Evans's resentencing
Effective January 1, 2020, the Legislature amended section 667.5 "by limiting the prior prison term enhancement to only prior terms for sexually violent offenses." (People v. Burgess (2022) 86 Cal.App.5th 375, 380.) Any enhancements imposed under the former version of section 667.5, subdivision (b), except for those imposed for sexually violent offenses, are "legally invalid." (§ 1172.75, subd. (a).) Section 1172.75 authorizes the court to resentence a defendant currently serving a term that includes an invalidated enhancement. (§ 1172.25, subds. (b)-(c) [requiring the Department of Corrections and Rehabilitation to identify affected defendants and provide their information to the sentencing court, which shall recall the sentence of eligible defendants and resentence them].)
As a result of those changes in the law, the trial court recalled Evans's sentence and struck the prior prison term enhancement in September 2022. Defense counsel requested more time to prepare for a full resentencing hearing, so the court continued the matter. But the court stated that Evans's total prison term was 19 years "for right now," and it directed the clerk to prepare an amended abstract of judgment. The amended abstract reflected that the court imposed 19 years in prison (nine years for carjacking, 10 years for the firearm enhancement, and a stayed term for the firearm offense). The amended abstract further reflected that Evans had 209 days of actual custody credit.
The People filed a resentencing brief arguing that Evans's criminal history supported an upper-term sentence of nine years for the carjacking. (§ 215, subd. (b).) In addition, the People argued that it was not in the interest of justice to strike Evans's firearm enhancement or to impose a lesser included enhancement under section 12022.5, subdivision (a).
With respect to Evans's criminal history, the probation report indicated that he was the subject of a 1998 wardship petition and had a juvenile adjudication for gross vehicular manslaughter in that case. (§ 192, subd. (c)(1).) The juvenile court committed him to the California Youth Authority. He was released on parole in 2001, and his parole was revoked twice from 2001 to 2002. Evans also had a 2002 misdemeanor conviction for carrying a loaded firearm (former § 12031, repealed and reenacted as § 25850 by Stats. 2010, ch. 711, §§ 4, 6), in addition to the 2003 firearm conviction on which the invalidated enhancement was based.
According to the certified record of Evans's 2003 conviction, the court sentenced him to 16 months in prison for that offense. His prison packet and the probation report indicated that he was paroled in June 2004, and he violated his parole several times from 2005 to 2006. Evans was on parole when he committed the carjacking offense in November 2007.
Evans filed a resentencing brief asking the court to impose the low-term sentence for carjacking. He argued that because he was 25 years old at the time, his youthfulness contributed to the commission of the offense, so the low term was the presumptive term under section 1170, subdivision (b)(6)(B). He also argued that his record of rehabilitation supported a low-term sentence. He submitted documentation showing that he had completed courses in anger management, offender responsibility, conflict resolution, goal setting, Narcotics and Alcoholics Anonymous, healthcare facilities maintenance, floors and floor care equipment, cleaning chemicals, and computer literacy. He also submitted a parole release plan describing what he intended to do within 24 hours of release, seven days of release, and one month of release. Evans argued that his youth and record of rehabilitation also supported striking his firearm enhancement or imposing a lesser included firearm enhancement.
At the resentencing hearing in January 2023, the court rejected Evans's arguments and ruled that his sentence would "remain 19 years." The court did "not find that his youth played a significant role in the commission of the last offense." It reasoned that Evans's criminal history rebutted the notion that youth played a role in the carjacking, because "[p]eople get matured by things like state prison. So to suggest that it is the undeveloped mind that caused this to happen, that would ring much more true if he had never been in any trouble before, he had never received any counseling or correction." The court observed that it did not have certified records of Evans's juvenile adjudication or his misdemeanor conviction, but it had certified records of his 2003 felony firearm conviction.
With respect to the firearm enhancement, the court explained that it found "nothing mitigated about the gun use here." The court noted that when Evans's demands for the victim's car were unsuccessful, Evans "then escalated to pulling up his shirt, showing that firearm to someone." The court further noted that Evans was on parole for a firearm offense when he committed the carjacking, which was an aggravating factor.
The court additionally discussed Evans's coursework in prison, acknowledging that he had done "well" and that his accomplishments were "not bad." The court noted that it had reduced the sentences of other defendants when they had clearly "changed who they are" and "had an epiphany," and it discussed four examples, including two who were "extraordinary." It observed that Evans's efforts at rehabilitation did not rise to the same level. But the court also stated that those examples were "not the bar" and that "[n]ot everyone has to make it to that level." The court ultimately concluded that Evans "was pretty dangerous at the time" he committed the carjacking and that he "was on [an] escalating trajectory," and although he had done "fairly well in prison," that evidence did not warrant a reduced sentence.
The court did not discuss Evans's custody credits at the September 2022 and January 2023 hearings, and the minute orders from both hearings do not mention custody credits.
DISCUSSION
I. Evans's request to reduce his 19-year sentence
Evans argues that the court abused its discretion by failing to reduce his carjacking sentence and failing to strike the firearm enhancement and impose a lesser included enhancement. More specifically, he contends that the court was required to reduce his sentence in at least one of those ways. The argument lacks merit.
A. Legal principles
If the court recalls a sentence under section 1172.75, then the court "shall apply 'any other changes in law that reduce sentences' when striking a prison prior." (People v. Coddington (2023) 96 Cal.App.5th 562, 568, quoting § 1172.75, subd. (d)(2).) The court has jurisdiction "to modify every aspect of the sentence, and not just the portion subjected to the recall." (People v. Buycks (2018) 5 Cal.5th 857, 893.)
Section 1170, subdivision (b), includes changes in the law that applied to Evans's resentencing. Effective January 1, 2022, the middle term of a sentencing triad is "the presumptive sentence for a term of imprisonment." (People v. Lopez (2022) 78 Cal.App.5th 459, 464.) The court may impose a sentence exceeding the middle term only if "there are circumstances in aggravation of the crime that justify" the upper term. (§ 1170, subd. (b)(1)-(2).) The facts underlying those aggravating circumstances must "have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial." (§ 1170, subd. (b)(2); accord § 1172.75, subd. (d)(4).) The court may also consider the defendant's prior convictions reflected in a certified record of conviction. (§ 1170, subd. (b)(3).)
Moreover, the court shall impose a lower-term sentence if the defendant was a youth at the time of the offense and their youth "was a contributing factor in the commission of the offense" (§ 1170, subd. (b)(6)(B)), "'unless the court finds that the aggravating circumstances outweigh the mitigating circumstances [so] that imposition of the lower term would be contrary to the interests of justice'" (People v. Salazar (2023) 15 Cal.5th 416, 426, quoting § 1170, subd. (b)(6)). A youth is "any person under 26 years of age." (§ 1016.7, subd. (b); § 1170, subd. (b)(6)(B).)
Section 12022.53 also includes changes that applied to Evans's resentencing. Effective January 1, 2018, the court has discretion to strike formerly mandatory firearm enhancements under section 12022.53. (People v. McDavid (2024) 15 Cal.5th 1015, 1021.) The relevant subdivision states: "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section." (§ 12022.53, subd. (h).) If the court strikes the section 12022.53 enhancement, then it may impose a lesser included enhancement authorized by another section of the Penal Code. (McDavid, at pp. 1020-1021.)
In resentencing the defendant, the court may consider postconviction factors, including the "record of rehabilitation of the defendant while incarcerated." (§ 1172.75, subd. (d)(3).) The court shall also apply the "sentencing rules of the Judicial Council" that apply generally to all sentencings. (§ 1172.75, subd. (d)(2).) Under those rules, relevant aggravating circumstances include whether the defendant has prior convictions of increasing seriousness, whether the defendant has served a prior prison term, whether the defendant was on parole when the crime was committed, and whether the defendant's prior performance on parole was unsatisfactory. (Cal. Rules of Court, rule 4.421(b)(2)-(5).) The court may consider those same factors when deciding whether to strike a firearm enhancement. (People v. Flores (2021) 63 Cal.App.5th 368, 377.) We presume that the court considered all relevant factors unless the record affirmatively indicates otherwise. (Cal. Rules of Court, rule 4.409.)
We review the court's sentencing decisions for abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847; People v. Mendoza (2023) 88 Cal.App.5th 287, 298.) "The abuse of discretion standard is highly deferential." (Mendoza, at p. 298.) The appellant must show that the court's "decision is so irrational or arbitrary that no reasonable person could agree with it." (People v. Carmony (2004) 33 Cal.4th 367, 377.)
B. Analysis
Evans fails to show that the court abused its discretion in this case. First, he discusses his youth but does not challenge the court's finding that his youth did not contribute to the commission of the offense. Instead, he acknowledges that the court's decision on that issue was not irrational, and he states that his challenge "rests primarily on the two other potentially mitigating circumstances considered by [the] court." None of that shows that the court erred.
Second, Evans argues that the court erred by concluding that there was "nothing mitigated" about his use of the firearm. He contends that his firearm use "was of the less egregious variety," and because of that and his record of rehabilitation, the court should have stricken the 10-year firearm enhancement and imposed a three- or four-year enhancement under section 12022.5, subdivision (a). But the court did not abuse its discretion by concluding that it was not in the interest of justice to strike the enhancement. As the court put it, Evans was on an "escalating trajectory." He had a prior conviction for a firearm possession offense, and he was still on parole for that offense when he used the firearm to commit the carjacking. The record also showed that he had violated his parole several times. All of those factors were relevant under the sentencing rules, and the court acted well within its discretion by relying on them.
Third, Evans argues that the court abused its discretion by concluding that his record of rehabilitation was insufficient to warrant relief. He asserts that the court improperly denied him relief because his achievements did not measure up to the extraordinary achievements of other defendants. The argument fails because it does not accurately reflect the court's reasoning. Although the court discussed other cases in which it had reduced defendants' sentences, the court was clear that those cases did not set the standard that Evans was required to meet. And as already explained, the court considered appropriate factors in resentencing Evans, namely, his prior conviction, prior prison term, parole status, and performance on parole.
For all of these reasons, Evans fails to show that the court abused its discretion by resentencing him to 19 years in prison.
II. Recalculation of custody credits
Evans argues that the court erred by failing to update his actual custody credits when it amended the abstract of judgment. The People concede that the court must update his custody credits, and we agree.
If the court modifies a defendant's sentence, then the court must recalculate the number of days that the defendant has already spent in custody and award those recalculated credits in the new abstract of judgment. (People v. Buckhalter (2001) 26 Cal.4th 20, 29, 37, 41; § 2900.1 ["Where a defendant has served any portion of [their] sentence under a commitment based upon a judgment which judgment is subsequently declared invalid or which is modified during the term of imprisonment, such time shall be credited upon any subsequent sentence [they] may receive upon a new commitment for the same criminal act or acts"].)
The court did not update Evans's custody credits. The 2022 amended abstract of judgment reflected that Evans had 209 days of actual custody credits-the same number reflected in the 2008 abstract of judgment. Accordingly, we remand for the court to recalculate Evans's custody credits.
DISPOSITION
The trial court is directed to (1) prepare a new resentencing minute order specifying the components of Evans's 19-year sentence and reflecting his custody credits at the time of his resentencing, and (2) prepare a second amended abstract of judgment reflecting those credits. The court shall forward that second amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
The minute orders from the September 2022 and January 2023 resentencing hearings stated that Evans was "sentenced to state prison for a total term of 19 years and 0 months." (Capitalization omitted.) The minute orders do not specify the components of that aggregate term.
We concur: CODRINGTON ACTING P.J., FIELDS J.