Opinion
A148683
02-16-2018
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH HANNON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. 174237A)
I.
INTRODUCTION
Appellant Joseph Hannon argues his sentence of eight months for being a felon in possession of a firearm must be reversed because the court imposed a concurrent midterm sentence that was improper under Penal Code section 1170, subdivision (b). The Attorney General agrees. Hannon also argues his sentence must be remanded pursuant to the amendment to section 12022.5, subdivision (c) to allow the trial court to exercise its discretion to strike the firearm enhancement. The Attorney General again agrees.
All subsequent references are to the Penal Code unless otherwise identified.
Hannon further appeals the imposition of a $5,000 fine and a $250 restitution fee at sentencing, arguing his trial counsel was ineffective for failing to object. We conclude the record does not support a finding of ineffective assistance. We remand to the trial court for resentencing on the felon in possession count and for the court to exercise its discretion with regard to the firearm enhancement. We otherwise affirm the judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Procedural History
The Alameda County District Attorney charged Hannon with three counts: (1) attempted murder pursuant to sections 187, subdivision (a), and 664; (2) assault with a firearm pursuant to section 245, subdivision (a)(2); and (3) possession of a firearm by a felon in violation of section 29800, subdivision (a)(1). The information further alleged Hannon had a prior conviction in 2004 for being a felon in possession of a firearm.
Hannon was tried by a jury and found not guilty of attempted murder, but guilty of assault with a firearm and being a felon in possession of a firearm.
B. Statement of Facts
We only briefly summarize the facts. Hannon and his companion, Brenda G., went to a McDonald's in Oakland. Chris Jordan was sitting at a table when Hannon and Brenda G. passed him. After Hannon and Brenda G. sat down, Jordan heard Hannon say: "Do you want me to slap him" looking in Jordan's direction. Hannon approached Jordan and Jordan punched him. Hannon then pulled a gun from his pocket and shot Jordan in the stomach. Hannon and Brenda G. left the restaurant and Hannon was arrested a short time later.
C. Sentencing
The court stated that Hannon had been found guilty of counts two and three as well as the alleged prison prior pursuant to section 667.5. The prosecutor argued for the maximum sentence because of the aggravated nature of Hannon's conduct, namely, shooting someone at close range in a crowded restaurant. Defense counsel argued the court should deviate from the minimum sentence due to Hannon's age (65 years old) and his poor health.
The court sentenced Hannon on count two, assault with a firearm, to the low term of two years in prison with a consecutive three-year term for violating section 12022.5 and another three years consecutive pursuant to section 12022.7 for inflicting great bodily injury.
For count three, being a felon in possession of a firearm, the court sentenced him to eight months to run concurrently to count two. The court then imposed a one-year term pursuant to section 667.5 for the prior conviction, for a total of nine years in state prison.
The court ordered restitution to the victim and McDonald's. The court noted that counsel "was silent as to the restitution fine that was requested to be imposed by the Probation Department." The probation department recommended a restitution fine of $10,000. The court then imposed a $5,000 restitution fine pursuant to section 1202.4. The court also ordered Hannon to pay $250 as a probation investigation fee.
III.
DISCUSSION
A. Remand Is Required for Resentencing of Count Three
Hannon argued, and respondent agrees, that the court's sentence for count three of eight months to run concurrently to count two was improper.
"[W]hen a court imposes consecutive prison terms for two or more determinate counts, one term becomes the principal term, and the rest are subordinate terms." (People v. Felix (2000) 22 Cal.4th 651, 653.) "The court imposes the full term, either lower, middle, or upper, for the principal term. However, in general (there are exceptions), the court imposes only 'one-third of the middle term' for subordinate terms." (Id. at p. 655.)
Section 29800, subdivision (a)(1) specifies that a person who has previously convicted of a felony cannot possess a firearm. Under section 18, the punishment is sixteen months, two years, or three years. Under section 1170, subdivision (a)(3), the court is required to select the upper, middle, or low term for each count. If the court selects one-third of the middle term, it must run the sentence consecutive to the primary term. (§ 1170.1, subd. (a).)
"The imposition of one-third the middle term for subordinate offenses applies in case of consecutive, but not concurrent, sentences. (Pen. Code, §§ 669, 1170.1)." (People v. Matthews (1999) 70 Cal.App.4th 164, 169, fn. 4.) "Because concurrent terms are not part of the principal and subordinate term computation under section 1170.1, subdivision (a), they are imposed at the full base term, not according to the one-third middle term formula, even though they are served at the same time. A concurrent term begins when it is imposed and runs together with the other terms, with the latest expiring term controlling. [Citations.]" (People v. Quintero (2006) 135 Cal.App.4th 1152, 1156, fn. 3, overruled on other grounds, People v. Poisson (2016) 246 Cal.App.4th 121.)
The imposition of a concurrent term calculated according to the consecutive term formula of section 1170.1 is an unauthorized sentence. Here, for count three, the court sentenced Hannon to eight months, which was one-third of the middle term of two years, and ordered it to run concurrent to count two, the primary term. This was error.
B. Remand Is Required to Allow the Trial Court to Exercise Its Discretion to Strike the Firearm Enhancement
At the time Hannon was sentenced, section 12022.5 prohibited the court from striking the firearm enhancement. On October 11, 2017, section 12022.5 was amended, effective January 1, 2018, to permit a court to exercise its discretion to strike a firearm enhancement. The current version of section 12022.5, subdivision (c) provides: "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. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law."
The relevant statutes provided: "Notwithstanding Section 1385 or any other provisions of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section." (Former §§ 12022.5, subd. (c), 12022.53, subd. (h).) --------
Hannon's case was fully briefed on July 10, 2017. On November 30, 2017, Hannon filed a supplemental brief arguing that the amendment to section 12022.5 applied retroactively because his case was not yet final. He contends his case must be remanded to the trial court to allow it to exercise its discretion. On December 13, 2017, the Attorney General filed a supplemental brief agreeing that effective January 1, 2018, Hannon was entitled to a remand for the trial court to exercise its discretion to strike the firearm enhancement.
Both parties agree that under the reasoning of In re Estrada (1965) 63 Cal.2d 740 (Estrada), this court must apply the amendment retroactively. Estrada held that in the absence of a statutory "saving clause" precluding retroactive application, it is presumed the Legislature intended any change in the penal law that mitigates punishment to "apply to every case to which it constitutionally could apply," including cases not yet final at the time the law becomes effective. (Id. at p. 745.)
The Attorney General argues the reasoning of People v. Francis (1969) 71 Cal.2d 66, controls here. People v. Francis applied the rule in Estrada to a change in the law that gave the trial court discretion to impose a misdemeanor rather than a felony. (Id. at pp. 76-77.) Similarly, here, the amended version of section 12022.5 gives the trial court discretion to impose a lesser sentence and must be applied retroactively to Hannon's case.
We therefore remand to the trial court to conduct a new sentencing hearing to exercise its discretion under section 1385 and to decide whether to strike the section 12022.5 firearm enhancement, or to again impose the enhancement term.
C. Ineffective Assistance of Counsel at Sentencing
Hannon argues his trial counsel provided ineffective assistance by failing to object to the restitution fine of $5,000 and the $250 presentence investigation fee imposed at sentencing.
In order to demonstrate ineffective assistance of counsel, a defendant must first show counsel's performance was "deficient" because his "representation fell below an objective standard of reasonableness . . . . [¶] . . . under prevailing professional norms." (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) Prejudice is shown when there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (In re Sixto (1989) 48 Cal.3d 1247, 1257.)
Normally, "the failure to object is a matter of trial tactics that an appellate court will seldom second-guess [citation] . . . ." (People v. Carter (2003) 30 Cal.4th 1166, 1209.) However, an exception exists where "there simply could be no satisfactory explanation" for counsel's failure to object. (Id. at p. 1211.)
Hannon argues there is no tactical reason for trial counsel not to object to the restitution fine or presentence investigation fee. Hannon was homeless, suffered from back problems, and was 65 years old, demonstrating that he had no ability to pay any fines or fees. He received monthly Social Security Disability Income.
Respondent argues Hannon cannot demonstrate prejudice because the court has discretion under section 1202.4 to impose a restitution fine up to $10,000.
"In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record." (§ 1202.4, subd. (b).) If the defendant commits a felony, the court shall set a fine amount at not less than $300 and not more than $10,000. (§ 1202.4, subd. (b)(1).) The court can determine the fine based upon the minimum fine multiplied by the number of years of imprisonment, multiplied by the number of felony counts of conviction. (§ 1202.4, subd. (b)(2).) The court shall consider the defendant's ability to pay, the seriousness of the offense, economic gain to the defendant, and the number of victims. (§ 1202.4, subd. (d).) The court may consider the defendant's ability to earn prison wages in determining a defendant's ability to pay. (People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837 (Hennessey).)
"Ability to pay does not necessarily require existing employment or cash on hand." (People v. Staley (1992) 10 Cal.App.4th 782, 785.) The trial court may consider the defendant's ability to pay in the future. (Hennessey, supra, 37 Cal.App.4th at p. 1837.) Respondent argues Hannon had the potential to earn wages in prison. Every able-bodied prisoner is required by statute to perform labor for compensation. (§ 2700.) In the absence of some indication at the time of sentencing that his disability precluded him from performing any type of labor in prison, it cannot be assumed that he was incapable of earning prison wages. (See People v. Gentry (1994) 28 Cal.App.4th 1374, 1377, fn. 6 [court may not assume that the defendant with claimed bad back cannot secure prison employment without evidentiary showing].)
The record is silent as to why Hannon's counsel did not object to the restitution fine and the trial court did not explain its reasons for imposing a fine greater than the statutory minimum. However, the restitution fine was within the authorized statutory range of potential fines and well below the $10,000 amount recommended in the probation report. Without any information about why trial counsel elected not to object to the amount, we cannot find ineffective assistance of counsel.
"If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation. [Citation.]" (People v. Gray (2005) 37 Cal.4th 168, 207.) Otherwise, the claim is more appropriately raised in a petition for writ of habeas corpus. (People v. Carter (2003) 30 Cal.4th 1166, 1211.)
The record is also silent as to why trial counsel did not object to the $250 presentence investigation fee. Because defendant fails to demonstrate that " ' "there simply could be no satisfactory explanation" ' " for trial counsel's lack of objection to the presentence investigation fee, we reject defendant's claim of ineffective assistance of counsel. (People v. Lopez (2008) 42 Cal.4th 960, 966.)
Further, Hannon cannot demonstrate there is reasonable probability that if trial counsel had objected to the restitution fine and investigation fee that the court would have imposed a lesser fine or waived the fee. The court stated that it had reviewed the "probation report; the defendant's sentencing memorandum; the social worker's mitigation letter, which includes references to defendant's age, life story, disability, and poor health." The court noted that the social worker's report was "most instrumental" in helping the court determine the appropriate sentence. The probation report recommended the court impose the maximum restitution fine of $10,000, but the court exercised its discretion to impose $5,000. The record, however, is silent as to how the court reached this amount. Under these circumstances, we cannot conclude that Hannon was prejudiced by his counsel's failure to argue for a lesser fine or fee.
IV.
DISPOSITION
The matter is remanded for resentencing on count three and for the court to exercise its discretion with regard to the firearm enhancement. In all other respects, the judgment is affirmed.
/s/_________
RUVOLO, P. J. We concur: /s/_________
REARDON, J. /s/_________
STREETER, J.