Opinion
H045602
08-15-2022
THE PEOPLE, Plaintiff and Respondent, v. JULIUS DENZELL FORD, Defendant and Appellant.
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. C1490867
Greenwood, P. J.
A jury found defendant Julius Denzell Ford guilty on multiple counts of possession of controlled substances; possession of controlled substances while armed with a loaded firearm; procuring an adult for prostitution (pandering); false personation; and possession of a firearm by a felon. Two of the counts concerned offenses committed in Santa Barbara County, which had been joined with the remaining offenses committed in Santa Clara County. The jury further found true an arming enhancement, and Ford admitted allegations of prior strikes; a prior prison term; and that he was out of custody on bail when he committed several of the offenses. The trial court imposed a total term of 13 years four months in prison.
Ford raises multiple claims on appeal. First, he contends the trial court erred by denying his post-verdict motion in arrest of judgment challenging the trial court's jurisdiction over the offenses committed in Santa Barbara County. Second, he contends the court erred by failing to stay one of the imposed terms under Penal Code section 654.For the reasons below, we conclude these claims are without merit.
Subsequent undesignated statutory references are to the Penal Code.
Ford further contends we must remand for resentencing based on recent legislative amendments to section 1170, and he challenges the imposition of fines and fees on various grounds including his inability to pay them under People v. Duenas (2019) 30 Cal.App.5th 1157 (Duenas). The Attorney General concedes we must remand for resentencing based on recent changes to the sentencing law, and we accept the concession. Because we are remanding for a new sentencing hearing, Ford may assert his Duenas claim below.
Accordingly, we will reverse the judgment and remand for a new sentencing hearing limited to the matters identified above.
I. Factual and Procedural Background
A. Procedural Background
The prosecution charged Ford in a consolidated information with nine counts: counts 1, 2, and 8-procuring an adult for prostitution (§ 266i, subd. (a)(1)); count 3- possession of heroin for sale (Health &Saf. Code, § 11351); count 4-possession of methamphetamine for sale (Health &Saf. Code, § 11378); count 5-possession of heroin while armed with a loaded firearm (Health &Saf. Code, § 11370.1); count 6-possession of methamphetamine while armed with a loaded firearm (Health &Saf. Code, § 11370.1); count 7-false personation exposing the victim to liability (§ 529); and count 9-possession of a firearm by a felon (§ 29800, subd. (a)(1)). The information further alleged Ford committed the offenses in counts 1 through 4 and count 8 while armed with a firearm. (§ 12022, subds. (a)(1) &(c).) Finally, the information alleged Ford had suffered two prior juvenile adjudications constituting strikes (§§ 667, subds. (b)-(i), 1170.12); that he had served a prior prison term (§ 667.5, subd. (b)); and that he committed several of the offenses while out of custody on bail (§ 12022.1).
The operative information consolidated charges from two counties. The prosecution alleged Ford committed counts 1 through 7 in Santa Clara County and counts 8 and 9 in Santa Barbara County. Ford moved pretrial to dismiss counts 8 and 9 under section 784.7 for lack of jurisdiction and improper venue but the trial court denied the motion.
Opening statements at trial began in September 2017. The jury found Ford guilty on counts 5 through 9 as charged and not guilty on counts 1 and 2. On counts 3 and 4, the jury found Ford guilty of the lesser included offenses of simple possession. The jury further found true the arming enhancement on count 8. Ford admitted the allegations of prior convictions, the prior prison term, and that he was out of custody on bail.
Ford moved to arrest judgment on counts 8 and 9 (the charges from Santa Barbara County) on the ground that the trial court lost jurisdiction over those charges when the jury found Ford not guilty on counts 1 and 2. At sentencing in February 2018, the trial court denied Ford's motion in arrest of judgment but granted a motion to strike one of the prior convictions, and struck the arming and prior prison term enhancements. The court imposed a total term of 13 years four months. The aggregate term consisted of an eightyear term for count 8; a consecutive two-year term for count 5; a consecutive term of one year four months for count 9; and a consecutive two-year term for the bail enhancement. The court also imposed concurrent terms of six years for count 6 and four years for count 7. The court dismissed the possession convictions on counts 3 and 4.
B. Facts of the Offenses
In July 2014, police were on patrol in San Jose when they saw two women whom the officers suspected to be prostitutes based on their clothing and conduct. The women made eye contact with a blue Pontiac parked nearby, whereupon the officers approached the Pontiac and saw Ford in the driver's seat with two female passengers. Upon searching the car, police found cash, bindles of methamphetamine, marijuana, and a loaded semiautomatic pistol. The police also found cash, heroin, and two more bindles of methamphetamine on Ford's person.
In July 2015, police in Santa Maria responded to a call from a hotel manager who suspected a prostitute was renting a room at the hotel. When police arrived, they found Ford with the suspected prostitute. The police found a nine-millimeter pistol in a backpack, and the woman admitted she was in Santa Maria to engage in prostitution.
II. Discussion
A. Denial of Motion in Arrest of Judgment Based on Lack of Jurisdiction
After the jury acquitted Ford on counts 1 and 2 (pandering in Santa Clara County), he moved to arrest judgment on counts 8 and 9 (pandering and unlawful possession of a firearm in Santa Barbara County). He argued the trial court lost jurisdiction over counts 8 and 9 when the jury acquitted him on counts 1 and 2. The trial court denied the motion. Ford now contends the trial court erred in its denial. The Attorney General contends the court properly denied the motion.
1. Legal Principles
"A motion in arrest of judgment is an application on the part of the defendant that no judgment be rendered on a plea, finding, or verdict of guilty, or on a finding or verdict against the defendant, on a plea of a former conviction, former acquittal or once in jeopardy." (§ 1185.) "[O]bjection to the jurisdiction of the court and the objection that the facts stated do not constitute a public offense may be taken by motion in arrest of judgment." (§ 1012.)
"Traditionally, venue in a criminal proceeding has been set, as a general matter, in the county or judicial district in which the crime was committed." (People v. Simon (2001) 25 Cal.4th 1082, 1093.) Section 777 provides in part: "[E]xcept as otherwise provided by law the jurisdiction of every public offense is in any competent court within the jurisdictional territory of which it is committed." (§ 777.) However, "numerous statutes-applicable to particular crimes or in specified circumstances-long have authorized the trial of a criminal proceeding in a county other than the county in which the offense itself occurred." (Simon, at p. 1094.) As relevant here, section 784.7, subdivision (c), provides in part that if more than one pandering violation occurs "in more than one jurisdictional territory, the jurisdiction of any of those offenses, and for any offenses properly joinable with that offense, is in any jurisdiction where at least one of the offenses occurred, subject to a hearing pursuant to Section 954, within the jurisdiction of the proposed trial." (§ 784.7, subd. (c).) "In determining whether all counts in the complaint should be joined in one county for prosecution, the court shall consider the location and complexity of the likely evidence, where the majority of the offenses occurred, the rights of the defendant and the people, and the convenience of, or hardship to, the victim or victims and witnesses." (Ibid.)
"Determining the proper venue presents an issue of law to be decided prior to trial. [Citation.] Accordingly, we apply the de novo standard of review. [Citation.]" (People v. Campbell (2020) 51 Cal.App.5th 463, 480.)
2. The Trial Court Did Not Err in Denying the Motion in Arrest of Judgment
As set forth above in section I.A, Ford initially moved pretrial to dismiss counts 8 and 9 (the charges from Santa Barbara County) under section 784.7 on grounds of improper venue and lack of jurisdiction. The court denied the motion under subdivision (c) of that section, which, among other things, allows for joinder of charges in one jurisdiction when the defendant commits multiple pandering charges in more than one jurisdiction territory. (§ 784.7, subd. (c).) The prosecution charged Ford in counts 1 and 2 with pandering in Santa Clara County and in count 8 with pandering in Santa Barbara County, so joinder was permissible under that section; Ford does not dispute that the trial court properly denied his pretrial motion on that ground. Rather, he contends the trial court lost jurisdiction once the jury rendered not guilty verdicts on counts 1 and 2, which had provided the initial jurisdictional basis for prosecuting all the charges in Santa Clara County. The Attorney General disputes that the jury's not guilty verdicts had any effect on the operation of the joinder statute, and he argues that once the charges were properly joined pretrial, the court retained jurisdiction regardless of the verdicts.
Ford cites no authority for the proposition that the not guilty verdicts divested the trial court of jurisdiction. The language of section 784.7 makes clear that it confers jurisdiction in one territorial jurisdiction prior to trial for charges alleged to have occurred in multiple territorial jurisdictions. The trial court's power to try the case is not conditioned on a subsequent guilty verdict on the charges that allowed for joinder in the first place. "Venue or territorial jurisdiction establishes the proper place for trial, but is not an aspect of the fundamental subject matter jurisdiction of the court and does not affect the power of a court to try a case." (Price v. Superior Court (2001) 25 Cal.4th 1046, 1055 (Price).)
As stated in the plain language of the statute, it is intended to reduce the burdens that would be imposed by subsequent trials in separate jurisdictions: "In determining whether all counts in the complaint should be joined in one county for prosecution, the court shall consider the location and complexity of the likely evidence, where the majority of the offenses occurred, the rights of the defendant and the people, and the convenience of, or hardship to, the victim or victims and witnesses." (§ 784.7, subd. (c).) As the California Supreme Court has recognized, "Section 784.7 was enacted to protect repeat victims of child abuse or molestation and victims of domestic violence, offenses that are often inflicted on the same victim by the same perpetrator, from the need to make multiple court appearances to testify against the perpetrator and to reduce costs of separate trials." (Price, supra, 25 Cal.4th at p. 1055.) The legislature also expressly included section 266i in the offenses for which trial in a single jurisdiction is appropriate even if the offenses are committed in more than one jurisdictional territory. There is nothing in the statute or the case law that indicates the trial court would later lose jurisdiction based on a subsequent verdict at trial, and it would defeat the purposes of the statute to infer such a result.
For the reasons above, we conclude this claim is without merit.
B. Imposition of a Concurrent Term on Count 6 under Penal Code Section 654
The trial court imposed a concurrent six-year term on count 6 (possession of methamphetamine while armed with a loaded firearm) in addition to imposing a two-year term on count 5 (possession of heroin while armed with a loaded firearm). The record establishes that those two offenses occurred simultaneously and both were based on the same loaded firearm. Ford contends the trial court therefore erred by failing to stay the term on count 6 under section 654. The Attorney General contends the trial court properly declined to stay the term on count 6 because it constituted a distinct offense from count 5 under section 654.
1. Legal Principles
Section 654, subdivision (a) provides in part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." "[I]f a defendant commits two crimes, punishment for one of which is precluded by section 654, that section requires the sentence for one conviction to be imposed, and the other imposed and then stayed." (People v. Deloza (1998) 18 Cal.4th 585, 594.) Section 654 prohibits punishment for two crimes arising from a single, indivisible course of conduct. (People v. Hicks (2017) 17 Cal.App.5th 496, 514 (Hicks).) Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. (Ibid.)
"Whether a defendant harbored a separate intent and objective for each offense is a factual determination for the trial court, and its conclusion will be sustained on appeal if supported by substantial evidence. [Citation.] On review of this issue, we consider the evidence in the light most favorable to the judgment. [Citation.]" (Hicks, supra, 17 Cal.App.5th at pp. 514-515.) When the relevant facts are undisputed, the application of section 654 raises a question of law we review de novo. (People v. Corpening (2016) 2 Cal.5th 307, 312.)
2. The Trial Court Did Not Err by Declining to Stay the Term on Count 6
California courts have long held that the simultaneous possession of different controlled substances constitutes separate offenses under section 654. (See People v. Jones (2012) 54 Cal.4th 350, 358 [simultaneous possession of different items of contraband are separate acts] (Jones); People v. Barger (1974) 40 Cal.App.3d 662, 672 [multiple punishment allowed for one count of possession for sale and three counts of simple possession of different drugs]; People v. Schroeder (1968) 264 Cal.App.2d 217, 228 [multiple punishment for simultaneous possession of various narcotic drugs not precluded by section 654]; People v. Lockwood (1967) 253 Cal.App.2d 75, 82 [multiple punishment allowed for simple possession of two different substances]; People v. Lopez (1959) 169 Cal.App.2d 344, 350 [multiple punishment allowed for simple possession of three different substances]; People v. Mandell (1949) 90 Cal.App.2d 93, 98 [same].) Thus, if Ford had been convicted on separate counts of simple possession of heroin and simple possession of methamphetamine, section 654 would allow for the punishment of both offenses. The only added element here is that he committed each of these possession offenses while he was armed with the same loaded firearm. But that does not alter the analysis, and Ford cites no authority that suggests it would. Indeed, it would be incongruous to hold that the added possession of a loaded firearm entitles Ford to less punishment than a defendant who possessed the same two substances while unarmed.
Ford relies on Jones, supra, 54 Cal.4th 350, but that case is inapposite. In Jones, the California Supreme Court held that the single possession or carrying of a single firearm on a single occasion may be punished only once under section 654. (Id. at p. 357.) But Ford was convicted of possessing two different substances while armed. This case is more similar to cases allowing for multiple punishment for simple possession of multiple substances.
Ford also relies on People v. Buchanan (2016) 248 Cal.App.4th 603 (Buchanan), and In re Adams (1975) 14 Cal.3d 629 (Adams). In Adams, the California Supreme Court held that the simultaneous transportation of different substances in one indivisible transaction with the single objective to deliver them to one person constitutes only one punishable offense under section 654. (Id. at p. 632.) In Buchanan, the court of appeal distinguished Adams and held the defendant's transportation of two different substances constituted two punishable offenses because he was transporting different drugs to different groups of purchasers. (Buchanan, at p. 612.) Ford argues his case is more like Adams because his simple possession of two different substances had a single objective: his own personal use.
Adams was concerned with transportation, however, not simple possession. California courts have held that the rule allowing multiple punishment for simple possession of different substances survived Adams. (People v. Monarrez (1998) 66 Cal.App.4th 710, 715 [line of cases allowing for multiple punishment for possession of multiple substances survived Adams].) This distinction is consistent with Buchanan and Adams because the simple possession of two different substances is consistent with two separate objectives: the personal use of one substance as distinct from the personal use of the other substance. Here, substantial evidence supports the inference that Ford intended to personally use heroin, and that he separately intended to personally use methamphetamine; these constitute separate objectives for the purposes of section 654. The additional possession of a firearm simultaneous with the possession of those two substances does not alter this analysis.
Applying the longstanding rule concerning the application of section 654 to the simultaneous simple possession of two substances, we conclude the trial court did not err by declining to stay the term on count 6. This claim is without merit.
3. Repeal of Criminal Justice Administration Fee by Assembly Bill No. 1869
At sentencing in February 2018, the trial court imposed a $129.75 criminal justice administration fee under former Government Code section 29550.1. Ford contends the fee must be stricken under recent changes to the law that repealed the fee. The Attorney General concedes Ford is entitled to the retroactive application of the law but the Attorney General argues Ford is only entitled to relief from any balance that is unpaid as of July 1, 2021.
Based on the plain language of the statute, the Attorney General is correct that Ford is only entitled to have the unpaid balance vacated. Effective July 1, 2021, Assembly Bill No. 1869 (Assembly Bill 1869) revised Government Code section 6111, which now provides, "On and after July 1, 2021, the unpaid balance of any court-imposed costs pursuant to . . . [Government Code] [s]ections 29550.1 . . . as those sections read on June 30, 2021, is unenforceable and uncollectible and any portion of a judgment imposing those costs shall be vacated." (Gov. Code, § 6111, subd. (a).) "[B]y its plain terms the ameliorative changes of Assembly Bill 1869 apply retroactively to make any unpaid portion of the identified assessments, as they existed on June 30, 2021, 'unenforceable and uncollectible' as of July 1, 2021. (Stats. 2020, ch. 92, §§ 11, 62.)." (People v. Greeley (2021) 70 Cal.App.5th 609, 626.) "[A]lthough the unpaid balance of the identified fees is no longer enforceable and collectible, the statute also mandates that any portion of a judgment imposing those fees be vacated. Accordingly, based on the plain language of the statute, the unpaid balance of the probation supervision and criminal justice administration fees must be vacated." (Id. at pp. 626-627, fns. omitted.)
Accordingly, we will vacate the portion of the judgment requiring payment of any balance on the criminal justice administration fee that remained unpaid as of July 1, 2021.
4. Remand for Resentencing
Ford requests that we remand to the trial court on two grounds. First, he contends the trial court erroneously imposed the fines and fees without determining his ability to pay them as required under Duenas, supra, 30 Cal.App.5th 1157. Second, he contends we should remand to the trial court for resentencing under recently enacted Senate Bill No. 567 and Assembly Bill No. 124. The Attorney General contends remand under Duenas is unwarranted, but he concedes we should remand for a new sentencing hearing under the recent changes to the sentencing law.
This issue is currently under review in the California Supreme Court in People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019, S257844.
As to the recent changes in the law, the Attorney General's concession is well taken. Effective January 1, 2022, Senate Bill No. 567 amended former subdivision (b) of section 1170 by making the middle term the presumptive sentence in the absence of certain circumstances. (Stats. 2021, ch. 731, § 1.3, adding Pen. Code, § 1170, subd. (b)(1) &(2).) Senate Bill No. 567 also created a presumption in favor of the low term for defendants who were under 26 years of age at the time of the offense. (Stats. 2021, ch. 695, § 4, adding Pen. Code, § 1016.7; Stats. 2021, ch. 695, § 5.1, adding Pen. Code, § 1170, subd. (b)(6)(B).) The revised section 1170 provides in part: "[U]nless the court finds that the aggravating circumstances outweigh the mitigating circumstances that imposition of the lower term would be contrary to the interests of justice, the court shall order imposition of the lower term if any of the following was a contributing factor in the commission of the offense: [¶] (A) The person has experienced psychological, physical, or childhood trauma, including, but not limited to abuse, neglect, exploitation, or sexual violence. [¶] (B) The person is a youth, or was a youth as defined under subdivision (b) of Section 1016.7 at the time of the commission of the offense." (§ 1170, subd. (b)(6).) Under subdivision (b) of section 1016.7, a "youth" is defined as any person under 26 years of age on the date the offense was committed. That includes Ford, who was 23 to 24 years old at the time of the offenses. Furthermore, as the Attorney General concedes, the record shows Ford suffered childhood trauma, making the revised section 1170 relevant to potential resentencing decisions. Finally, these changes in law apply retroactively to nonfinal convictions, which includes this case. (People v. Flores (2022) 73 Cal.App.5th 1032, 1039.)
Because Ford was sentenced in 2018, the trial court here necessarily imposed the middle term on counts 6, 7, and 8 without considering the statutory presumption now available to Ford under the revised statute. Accordingly, we will remand for the trial court to hold a new sentencing hearing and resentence Ford on all counts.
As for Ford's claim under Duenas, the Attorney General argues Ford has no constitutional grounds to raise inability to pay the restitution fine because it is punitive in nature, and the Attorney General contends Ford forfeited his right to assert his inability to pay by failing to raise it below. Because we must remand for resentencing in any event, we need not resolve the merits of this claim. Ford will have the opportunity to assert his claim under Duenas at the new sentencing hearing.
III. Disposition
The judgment is reversed and the matter is remanded for a new sentencing hearing at which the trial shall resentence Ford under Penal Code section 1170 as revised by Senate Bill No. 567. The trial court is ordered to vacate any portion of the $129.75 criminal justice administration fee that remained unpaid as of July 1, 2021.
WE CONCUR: Grover, J. Danner, J.