Opinion
A151288
07-20-2018
THE PEOPLE, Plaintiff and Respondent, v. WILLIE T. HILL, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16-CR-007246)
Defendant appeals from his conviction of seven drug-related offenses. The court imposed a three-year enhancement on defendant's sentence, pursuant to former Health and Safety Code section 11370.2, subdivision (a), which required enhancements for specified drug offenses. The Legislature recently amended that section and abolished the enhancement imposed in this case. The parties agree amended section 11370.2 applies retroactively and thus the enhancement should be stricken, but disagree as to whether remand is appropriate. Defendant maintains there in no need for remand; the Attorney General asserts otherwise. We reverse and remand, with directions to strike the enhancement and resentence defendant.
All statutory references are to the Health and Safety Code unless otherwise indicated.
BACKGROUND
We recite only those facts relevant on appeal.
Defendant was charged with six counts of possession for sale of a controlled substance (§§ 11351-counts 1, 3, 5, & 7, 11378-counts 2 & 6), and one count of possession for sale of cocaine base (§ 11351.5-count 4). The People also alleged five prior convictions. The jury found defendant guilty of counts 1, 3, 4, 5, 6, and 7 and of the lesser included misdemeanor offense alleged in count 2 (§ 11377).
A separate trial was held on the alleged prior convictions. The court found true two of the prior convictions, both of which were for violations of section 11351 (possession for sale of a controlled substance) and subject to three-year enhancements under former section 11370.2, subdivision (a). The court struck one of the priors, but imposed a three-year enhancement for the remaining prior.
Defendant was sentenced to a total term of five years, based on the three-year enhancement plus the low term of two years for count 1. The court imposed concurrent sentences on the remaining substantive counts: one year for count 2, two years for count 3, two years for count 4, two years for count 5, 16 months for count 6, and two years for count 7.
DISCUSSION
Former section 11370.2 required that a three-year enhancement be imposed for prior convictions of eleven different drug offenses. Effective January 1, 2018, section 11370.2 was amended to eliminate ten of the prior qualifying convictions. (Stats. 2017, ch. 677, § 1.) Thus, section 11370.2 now requires an enhancement only for a prior conviction of section 11380, use of a minor in the commission of a drug offense. (§§ 11370.2, subd. (a), 11380, subd. (a).)
The parties agree that amended section 11370.2 applies retroactively under In re Estrada (1965) 63 Cal.2d 740 (Estrada). In Estrada, the court held: "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. . . . It is an inevitable inference that the Legislature must have intended that the new statute . . . should apply to every case to which it constitutionally could apply. The amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final." (Id. at p. 745.) A judgment is final "when the availability of an appeal and the time for filing a petition for certiorari have expired." (People v. Smith (2015) 234 Cal.App.4th 1460, 1465 (Smith).)
Disapproved on another ground at stated in Californians for Disability Rights v. Mervyn's, LLC (2006) 39 Cal.4th 223, 230. --------
It is undisputed that, as amended, section 11370.2 lessens criminal punishment by abolishing certain enhancements. (See, e.g., People v. Rossi (1976) 18 Cal.3d 295, 301 [Estrada applies not only when a statute reduces punishment but also when a statute abolishes a criminal sanction.].) It is also undisputed that, as defendant's case is pending on appeal, the judgment is not yet final. (See Smith, supra, 234 Cal.App.4th at p. 1465.) Accordingly, the penalty-reducing amendment to section 11370.2 applies retroactively to defendant's judgment, and the three-year enhancement must be stricken.
The parties disagree as to whether remand for resentencing is appropriate. Noting that on remand a trial court "can reconsider its prior sentencing choices," the Attorney General maintains remand is necessary "[t]o allow the court to further consider the appropriate sentence." Defendant, relying on People v. Nasalga (1996) 12 Cal.4th 784 (Nasalga), asserts remand would serve no purpose because "no fact-finding [is] required . . . and therefore . . . 'there is no basis for resentencing.' "
In Nasalga, the defendant was charged with grand theft, with an enhancing allegation that the victim's loss exceeded $100,000. (Nasalga, supra, 12 Cal.4th at p. 788.) Pursuant to a negotiated plea, the defendant pleaded guilty to grand theft "in exchange for . . . [the] low term of 16 months for that crime," and agreed to a court trial on the truth of the enhancement. (Id. at p. 798.) The trial court found that the defendant had stolen $124,000 and imposed a two-year enhancement pursuant to the statute as then in effect. (Id. at p. 788.) As amended, the statute provided for only a one-year enhancement for $124,000 of stolen property. (Id. at pp. 788-789.) The Court of Appeal ordered defendant's sentence adjusted accordingly. (Id. at p. 798.) It explained there was "no basis for resentencing" because the defendant had pleaded guilty to the substantive offense in exchange for a low sentence and the trial court had already completed the fact-finding dictating the length of the enhancement. (Ibid.) Thus, "no purpose would be served by a remand." (Ibid.; see People v. Coelho (2001) 89 Cal.App.4th 861, 889 [no remand "where doing so would be an idle act that exalts form over substance because it is not reasonably probable the court would impose a different sentence"]; People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 [no remand where the trial court indicated "it would not, in any event, have exercised its discretion to lessen the sentence"].)
Unlike in Nasalga, defendant was not sentenced pursuant to a plea bargain. Nor did the trial court here make any factual determination that necessarily dictates defendant's sentence without an enhancement. Rather, the trial court made several discretionary decisions in connection with imposing a five-year sentence. The court first decided to strike one of defendant's priors, which would have subjected him to an additional three-year enhancement under the statute as then in effect. The court then indicated it was considering a six-year sentence, which would have been a compromise between the People's recommendation of eight years and the defendant's assertion that the minimum of five years was appropriate. After hearing from defense counsel, the court observed counsel did a "tenacious [and] aggressive job in making sure all four corners of [defendant's] life were brought to [the court's] attention." Ultimately, the court imposed a five-year sentence, consisting of the low term of two years for count 1 plus the three-year enhancement.
Given this record, we cannot say remand "would serve no purpose." The trial court based its decision on several different factors, and we can only speculate as to what sentence the court will impose on remand. "When a case is remanded for resentencing by an appellate court, the trial court is entitled to consider the entire sentencing scheme . . . because an aggregate prison term is not a series of separate independent terms, but one term made up of interdependent components. The invalidity of one component infects the entire scheme." (People v. Hill (1986) 185 Cal.App.3d 831, 834.) However, on remand, the aggregate term may not exceed the original sentence. (People v. Burbine (2003) 106 Cal.App.4th 1250, 1256.)
DISPOSITION
Defendant's sentence is reversed and the matter is remanded to the trial court with directions to strike the enhancement imposed under former section 11370.2 and to resentence defendant. The trial court is directed to amend the abstract of judgment to reflect this and any changes made at resentencing, and to forward the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
/s/_________
Banke, J. We concur: /s/_________
Humes, P.J. /s/_________
Dondero, J.