Opinion
C091042
10-08-2020
THE PEOPLE, Plaintiff and Respondent, v. ROBERT DEAN PAUL GRAZIANO, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. S17CRF0062)
After defendant Robert Dean Paul Graziano pleaded no contest to three counts of forgery and four counts of shoplifting and admitted the special allegation that he served a prior prison term, the trial court imposed a "split sentence" of 30 months in jail followed by 36 months on mandatory supervision. This maximum felony sentence included a one-year enhancement for the prior prison term. Though the parties agree that the enhancement should be stricken because of recent changes to California law, they disagree on the nature and scope of the proper remedy after we strike the enhancement: defendant asks us to craft a new sentence, while the People ask us to remand for resentencing.
We will remand for a full resentencing, because even after we strike the prior prison term enhancement, there are still discretionary decisions to be made, and the trial court is the tribunal that should make them.
FACTS AND PROCEDURAL HISTORY
The underlying facts of defendant's crimes are irrelevant to the issues raised on appeal. In October 2018, defendant pleaded no contest to all counts of the information: three counts of forgery (Pen. Code, § 470, subd. (a); statutory section references that follow are to the Penal Code), and four counts of misdemeanor shoplifting (§ 459.5). Defendant also admitted the special allegation that he served a prison term for a burglary conviction within five years of his instant crimes. (§ 667.5, subd. (b).)
Defendant entered the plea in light of the trial court's indicated sentence of "the midterm of two years, plus the one-year prison prior for a total of three years," "18 months in custody and then . . . 18 months on mandatory supervision," "run[ning] the time on the other counts . . . concurrent[ly]." But the trial court warned defendant that if he "fail[ed] to show" at the sentencing hearing scheduled to occur in six weeks, "the [c]ourt could give [defendant] the full sentence" he faced.
See People v. Cruz (1988) 44 Cal.3d 1247, 1254, fn. 5 ["Cruz waiver" permits a trial court to "impose a sentence in excess" of the originally contemplated sentence if the defendant willfully fails to appear for sentencing]; see also People v. Masloski (2001) 25 Cal.4th 1212, 1215, 1224 [because defendant made a Cruz waiver and then failed to appear at sentencing, the trial court "adhered to the terms" of the plea, by imposing a longer sentence].
Defendant failed to appear at his initial sentencing hearing and "the indicated sentence [was] no longer available" therefore, the trial court imposed a split sentence of five years four months: "two years and four months in actual custody," the remaining time on mandatory supervision. The aggregate sentence was composed of: the upper term of three years on one forgery count; plus one year for the prior prison term; plus consecutive terms of eight months (one-third the middle term) for each of the remaining two forgery counts. The trial court ordered concurrent six-month terms for each of the four misdemeanor shoplifting offenses.
Under the Criminal Justice Realignment Act of 2011, qualified persons convicted of nonserious and nonviolent felonies serve their sentences in county jail instead of state prison. (People v. Scott (2014) 58 Cal.4th 1415, 1418-1419.) A trial court may commit a defendant to county jail for a full term in custody, or it may impose a split sentence consisting of county jail followed by a period of mandatory supervision. (Ibid.) --------
Accordingly, the trial court imposed the maximum felony sentence. (See § 1170.1, subd. (a).)
Regarding costs, the trial court imposed and stayed (pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157) a statutory minimum $300 restitution fine "on each of the felonies" and imposed and stayed a statutory minimum $150 restitution fine "on the misdemeanors." The trial court also imposed and stayed for each offense a $40 court security fee and a $30 court operations assessment. Neither party objected to any aspect of the sentence.
Defendant timely appealed.
DISCUSSION
I
"On October 8, 2019, . . . the Governor signed Senate Bill No. 136 (2019-2020 Reg. Sess.), which amended section 667.5, subdivision (b). [Citation.] Under the amendment, the one-year enhancement in section 667.5, subdivision (b) applies only if the defendant's prior prison term was 'for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code.' (Stats. 2019, ch. 590, § 1.) [¶] The amendment to section 667.5, subdivision (b) became effective on January 1, 2020," while this appeal was pending. (People v. Petri (2020) 45 Cal.App.5th 82, 93-94.)
The parties agree that, under In re Estrada (1965) 63 Cal.2d 740, 748, defendant's prior prison term enhancement (for a burglary conviction) should be stricken, because Senate Bill No. 136 is ameliorative and applies retroactively to his case, which is not yet final on appeal. We agree, and will strike the enhancement. (See People v. Winn (2020) 44 Cal.App.5th 859, 872.)
II
But the parties disagree on the nature and scope of the remedy to which defendant is entitled after we strike the enhancement.
Defendant argues we should "modify [his] term to four years and four months," because defendant "was sentenced . . . to the upper term and it is not likely there would or could be a change in the sentence if remanded." The People argue we should "remand[ ] for the trial court to strike the enhancement and resentence" defendant.
Defendant provides no authority in support of his position, and the People cite cases that did not consider the precise issue before us, and therefore are not authority for the proposition that we should remand for resentencing where the (temporal) maximum possible sentence was imposed, as a split sentence. (See People v. Myers (1987) 43 Cal.3d 250, 265, fn. 5 ["a decision is not authority for propositions that were not considered in the court's opinion"].)
We will remand for resentencing, because there are still some discretionary decisions to be made, even after we strike the prior prison term enhancement.
"[W]hen part of a sentence is stricken on review, on remand for resentencing 'a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.' (People v. Navarro (2007) 40 Cal.4th 668, 681, [citation].) [¶] Similarly . . . the Courts of Appeal have concluded that, under the recall provisions of section 1170, subdivision (d), the resentencing court has jurisdiction to modify every aspect of the sentence, and not just the portion subjected to the recall. [Citations.] In this situation, we have recognized that the resentencing court may consider 'any pertinent circumstances which have arisen since the prior sentence was imposed.' [Citation.] This principle, which we shall call the 'full resentencing rule,' has also been applied to recall and resentencing provisions enacted by Proposition 36, the Three Strikes Reform Act of 2012. [Citation.]" (People v. Buycks (2018) 5 Cal.5th 857, 893.)
In People v. Navarro, supra, our Supreme Court explained that "[a]lthough the Court of Appeal's . . . remand order was for resentencing 'on the modified convictions only,' . . . remand for a full resentencing as to all counts [was] appropriate, so the trial court [could] exercise its sentencing discretion in light of the changed circumstances." (People v. Navarro, supra, 40 Cal.4th at p. 681.)
But if a trial court has imposed the maximum possible sentence, there generally is no need to remand for resentencing. (See People v. Buycks, supra, 5 Cal.5th at p. 896, fn. 15; People v. Winn, supra, 44 Cal.App.5th at pp. 872-873.)
When imposing a split sentence pursuant to the Criminal Justice Realignment Act of 2011, "[u]nless the court finds that, in the interests of justice, it is not appropriate in a particular case, the court . . . shall suspend execution of a concluding portion of the term for a period selected at the court's discretion." (§ 1170, subd. (h)(5)(A), italics added; see also People v. Camp (2015) 233 Cal.App.4th 467 [" 'Trial courts have discretion to commit the defendant to county jail for a full term in custody, or to impose a hybrid or split sentence consisting of county jail followed by a period of mandatory supervision' "], italics added.) "The portion of a defendant's sentenced term that is suspended . . . shall be known as mandatory supervision," and during that time, "the defendant shall be supervised by the county probation officer." (§ 1170, subd. (h)(5)(B).)
Here, the trial court imposed the maximum felony sentence, and "split" the sentence between "two years and four months in actual custody" and the remainder on mandatory supervision. So even though the maximum sentence was imposed, the maximum possible confinement was not. Thus, we are confronted with a situation where there is a need to remand for resentencing to permit the trial court to exercise its sentencing discretion in light of the changed circumstances.
If, as defendant requests, we were simply to "modify [defendant's] term to four years and four months," an ambiguous sentence would result. Four years four months to be served how? The trial court decided that 30 months confinement and then 36 months of mandatory supervision was the right balance for defendant's split maximum sentence. The trial court (under no obligation to explain how it struck that balance) did not announce a mathematical equation it used that might permit us to arrive at a new split sentence simply by inserting defendant's new maximum possible sentence as the relevant variable. Now that the maximum felony sentence is shorter, the trial court -- not we -- will have to strike a new balance.
DISPOSITION
Defendant's one-year prior prison term enhancement imposed under section 667.5, subdivision (b) is stricken. The matter is remanded for a full resentencing. The trial court is instructed to issue an amended abstract of judgment and provide a copy to the El Dorado County Sheriff's Office.
/s/_________
HULL, Acting P. J. We concur: /s/_________
MURRAY, J. /s/_________
DUARTE, J.