Opinion
B306225
02-17-2021
THE PEOPLE, Plaintiff and Respondent, v. DEWITT JOHNSON, Defendant and Appellant.
Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Julie A. Harris and Christopher G. Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA445259) APPEAL from an order of the Superior Court of Los Angeles County, Michael J. Shultz, Judge. Reversed and remanded with directions. Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Julie A. Harris and Christopher G. Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Dewitt Johnson appeals from order entered on remand after the sentencing court declined to exercise discretion to strike either five-year recidivist enhancements under the 2019 amendments to Penal Code sections 667 and 1385. We reverse the order and direct the court to schedule a hearing at which defendant can be present with counsel.
All further statutory references are to the Penal Code, unless otherwise indicated.
BACKGROUND
In 2017, a jury convicted defendant of assault with a firearm in violation of section 245, subdivision (a)(2) (count 1), and attempted kidnapping in violation of sections 664 and 207, subdivision (a) (count 2). The jury found true an allegation that a principal was armed during the assault within the meaning of section 12022, subdivision (a)(1). The trial court found true that defendant had suffered two prior serious felony convictions alleged under section 667, subdivision (a)(1), and five prior convictions alleged as strikes under the "Three Strikes" law (§ 667, subds. (b)-(j).). The court also found true that defendant had served four prior prison terms within the meaning of section 667.5, subdivision (b). Defendant was sentenced to a total term of 36 years to life in prison, comprised of 25 years to life, plus two five-year serious felony enhancements, plus a one-year firearm enhancement. The trial court imposed the upper term of four years as to count 2, doubled as a second strike, and stayed the sentence pursuant to section 654. The court struck his four one-year prior prison enhancements.
After defendant appealed the judgment, we struck the one-year firearm enhancement and directed the court to file an amended abstract of judgment, but otherwise affirmed the convictions and remanded the matter to the trial court to determine whether or not to exercise its discretion to strike the five-year enhancements imposed under section 667, subdivision (a)(1). (See People v. Tuggle (March 27, 2019, B282497) [nonpub. opn.].) On remand, in a hearing held on July 18, 2019 outside the presence of defendant and his counsel, the trial court declined to exercise its discretion to dismiss the five-year enhancements. On March 10, 2020, the trial court filed an amended abstract of judgment.
Effective January 1, 2019, sections 667, subdivision (a)(1), and 1385, subdivision (b), were amended to give trial courts discretion to strike sentencing enhancements for prior serious felony convictions in the interest of justice. This discretion was not available when defendant was sentenced. (See Stats. 2018, ch. 1013, §§ 1 & 2.) The amendments applied retroactively to all cases in which judgment was not yet final on January 1, 2019. (People v. Garcia (2018) 28 Cal.App.5th 961, 973.) As defendant's judgment was not final when his appeal was before this court, we remanded the matter to the trial court to exercise its discretion whether or not to strike the five-year enhancement imposed under section 667, subdivision (a)(1).
On June 23, 2020, after obtaining relief from default, defendant filed a notice of appeal from the trial court's order of July 18, 2019.
DISCUSSION
Defendant contends that the trial court erred in declining to exercise its discretion to impose the five-year serious felony enhancements without holding a hearing in the presence of defendant and his counsel.
Respondent agrees that "to permit the trial court to decide how to exercise its discretion under section 1385 without affording defendant and his counsel an opportunity to address the subject would be manifestly unfair." (People v. Rodriguez (1998) 17 Cal.4th 253, 260 [upon remand to consider striking a prior conviction].) The same considerations of fairness apply on remand to the sentencing court to determine whether to exercise newly granted discretion to strike or dismiss an enhancement. (People v. Rocha (2019) 32 Cal.App.5th 352, 356-359.)
We agree. A defendant whose case has been remanded for retroactive application of such amended statutes as sections 1385 and 667 must be given the same opportunity to be present with counsel as those who were sentenced under the new law in the first instance. (See People v. Rocha, supra, 32 Cal.App.5th at pp. 358-360.) We thus remand so the sentencing court can hold a hearing at which defendant may be present with counsel to advocate his position.
Defendant may waive his appearance. (See People v. Rocha, supra, 32 Cal.App.5th at p. 357; § 977, subd. (b)(1); § 1193, subd. (a).) --------
DISPOSITION
The order declining to strike the enhancements is reversed and remanded with directions to the trial court to hold a hearing (at which defendant has the right to be present with counsel) whether it will exercise its discretion and strike either or both of the five-year enhancements of section 667, subdivision (a). If the court decides to strike the enhancements, defendant shall be resentenced and the abstract of judgment amended accordingly. If the court decides not to strike either of the enhancements, the original (modified) sentence shall remain in effect.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
/s/_________, J.
CHAVEZ We concur: /s/_________, P. J.
LUI /s/_________, J.
ASHMANN-GERST