Opinion
A167016
10-30-2023
THE PEOPLE, Plaintiff and Respondent, v. CORY JAMES KOZLOFF, Defendant and Appellant.
NOT TO BE PUBLISHED
(Del Norte County Super. Ct. No. CRF 22-9329)
See Cal. Stds. Jud. Admin., § 8.1.
STEWART, P.J.
Cory James Kozloff, who pled guilty to six crimes, admitted allegations supporting two enhancements, and was sentenced to prison for a total of 22 years, appeals his sentence. He contends the trial court improperly imposed multiple unstayed punishments for the same act (Pen. Code, § 654; undesignated statutory citations are to this code) and failed to apply provisions requiring it to strike or impose a low term on each enhancement (§§ 1170, subd. (b)(6), 1385, subd. (c)). The People concede section 654 entitles Kozloff to relief and mandates a remand for a full resentencing, which will enable the trial court to exercise its discretion on the remaining issues. Kozloff expressly accepted this position in a letter declining to file a reply brief. We accept it as well. We vacate Kozloffs sentence and remand for full resentencing.
Kozloffs convictions arise from a single incident in which, as a felon with two strikes, he led police officers on a high-speed chase while possessing a saleable amount of heroin, a gun, and ammunition. The prosecution charged him with six felonies: recklessly fleeing a peace officer (count 1); possessing a firearm as a felon (count 2); transporting a controlled substance (count 3); possessing a controlled substance for sale (count 4); possessing a controlled substance while armed (count 5); and unlawfully possessing ammunition (count 6). The information alleged facts supporting separate sentence enhancements for having been armed while committing counts 1-2 (§ 12022, subd. (a)(1)) and having been armed while committing counts 3-4 (§ 12022, subd. (c); "section 12022(c)").
Kozloff pled guilty to all charges and admitted all allegations and strikes, subject to an agreed cap on his total sentence of 25 years to life, and to his right to move to strike his prior strikes (People v. Superior Court (Romero) (1996) 13 Cal.4th 497). In support of his Romero motion, he represented that he suffers drug addiction and mental illness and, as a child, suffered severe abuse. The trial court struck one prior strike.
The trial court sentenced Kozloff to 22 years in prison, which comprised the following consecutive terms: a 10-year base term on count 3, 16 months each on counts 1, 2, and 6, and 2 years on count 5, plus an upper term of 5 years on the arming enhancement for the drug-related offenses (§ 12022(c)) and 1 year on the arming enhancement for counts 1-2 (§ 12022, subd. (a)).
The trial court imposed, on count 3, an upper term of 5 years doubled for Kozloff's strike (§ 667, subd. (e)(1)), and on each other count, a midterm of 8 months or 1 year, similarly doubled. On count 4 (possessing heroin for sale), the court imposed and stayed a term of 4 years (§ 654).
Kozloff appealed, challenging only his sentence. He raises three claims, which we address in turn.
First, he contends the trial court violated section 654 by imposing multiple punishments for the same single act of possessing the same firearm on the same occasion. (People v. Jones (2012) 54 Cal.4th 350, 357.) The People agree. They concede we must vacate the sentence, remand for resentencing, and direct the court to stay three of the four punishments imposed for that single act of possession, i.e., the sentences on counts 2 and 5 and the two arming enhancements (§§ 12022, subd. (a)(1), 12022(c)). We agree and will remand with directions for the court to select one punishment to execute and three to stay pursuant to section 654.
Second, although he did not ask the trial court to strike either enhancement, Kozloff contends on appeal that it erred in two ways under section 1385, subdivision (c), which governs the striking of enhancements. He contends the court (1) "refus[ed]" to apply one subdivision of that statute which, in his view, requires a court to strike all but one enhancement in any case in which more than one is alleged (§ 1385, subd. (c)(2)(B)) and (2) improperly failed to strike the section 12022(c) enhancement under another subdivision authorizing dismissal of an enhancement whose application "could result in a sentence of over 20 years" (section 1385, subd. (c)(2)(C)).
The People neither address Kozloffs contentions point by point nor contend he has forfeited his right to raise them. Instead, the People contend we should remand for the trial court to find whether dismissing one of the enhancements based on either statutory factor invoked by Kozloff "would endanger public safety" (§ 1385, subd. (c)(2)), in which event, the factors would cease to "weigh[] greatly in favor of dismissing the enhancement" (ibid.).
We agree. When a case is remanded for resentencing-as is required here-a trial court is not "limited to merely striking illegal portions" of the sentence but may "reconsider all sentencing choices." (People v. Garner (2016) 244 Cal.App.4th 1113, 1118.) Accordingly, without deciding whether the trial court erred with regard to section 1385, we direct it on remand to conduct a full resentencing at which it may exercise its discretion under section 1385 to decide whether to strike one or both enhancements.
Kozloff is mistaken in claiming that section 1385, subdivision (c)(2)(B) unconditionally compels a trial court-in any case in which multiple enhancements are alleged-to strike all but one of them. (People v. Lopez (2023) 93 Cal.App.5th 1110, 1120.) The statute requires a court, in exercising discretion whether to dismiss one or more enhancements, to give "great weight" (§ 1385, subd. (c)(2)) to the fact multiple enhancements are alleged (id., subd. (c)(2)(B)) unless the court finds that striking one or more enhancements "would endanger public safety" (id., subd. (c)(2)), in which case it need not give great weight to the multiplicity factor. (People v. Anderson (2023) 88 Cal.App.5th 233, 239, review granted Apr. 19, 2023, S278786.)
Finally, Kozloff contends the trial court erred in two ways in imposing the upper term of five years on the section 12022(c) enhancement. The court assertedly (1) violated section 1170.1, subdivision (d) by imposing an upper term without finding an aggravating factor proven beyond a reasonable doubt and (2) abused its discretion under section 1170, subdivision (b)(6) by failing to find that childhood trauma was a contributing factor in his commission of the crimes. Such a finding, he contends, would have compelled the court to impose the low term unless it found that "aggravating circumstances outweigh the mitigating circumstances [so] that imposition of the lower term would be contrary to the interests of justice." (§ 1170, subd. (b)(6).)
As in the case of his section 1385 argument, Kozloff does not contend he raised these claims below, but the People do not contend he has forfeited them.
The People implicitly concede the trial court erred by imposing an upper term without finding an aggravating circumstance proven beyond a reasonable doubt. As to the second point, the People expressly concede the court may address on remand whether section 1170, subdivision (b)(6) warrants imposition of a low term on the enhancement. We agree and direct the trial court, on remand, to exercise its discretion under all applicable provisions to select the appropriate term to impose on the section 12022(c) enhancement.
Finally, the People note the abstract of judgment does not reflect that the terms imposed on each count were doubled for Kozloffs prior strike. After resentencing on remand, the court shall ensure that the amended abstract states the full lengths of any doubled terms.
DISPOSITION
Kozloff's sentence is vacated, and the matter is remanded for full resentencing consistent with this opinion. The trial court shall ensure that the amended abstract of judgment reflects any doubling of terms of imprisonment imposed as a result of Kozloff's prior strike.
We concur. MILLER, J., MARKMAN, J. [*]
[*] Judge of the Alameda Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.