Opinion
B298364
07-01-2020
THE PEOPLE, Plaintiff and Respondent, v. DWIGHT RICHARD LAWSON, Defendant and Appellant.
Nilou Panahpour, 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, Acting Senior Attorney General, Michael R. Johnson and Theresa A. Patterson, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a). Los Angeles County Super. Ct. No. MA075288 APPEAL from a judgment of the Superior Court of Los Angeles County, Carolina V. Lugo, Judge. Reversed in part. Nilou Panahpour, 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, Acting Senior Attorney General, Michael R. Johnson and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
A jury convicted appellant and defendant Dwight R. Lawson of unlawful driving or taking of a vehicle. On appeal, he argues: (1) his two prior prison term enhancements imposed under Penal Code section 667.5, subdivision (b) should be stricken in light of Senate Bill No. 136 (Sen. Bill No. 136 (2019-2020 Reg. Sess.) § 1), which modified subdivision (b) such that the enhancement now applies only when the prior conviction was for a sexually violent felony; and (2) the case should be remanded in light of People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) for a hearing on his ability to a pay court operations assessment, a court facilities assessment, and a restitution fine. We reject Lawson's Dueñas argument, but agree with his Senate Bill No. 136 argument. We order his two prior prison term enhancements stricken. In all other respects, the judgment is affirmed.
All undesignated statutory references are to the Penal Code.
PROCEDURAL BACKGROUND
The Los Angeles County District Attorney filed an information charging Lawson with driving or taking a vehicle without consent (Veh. Code, § 10851, subd. (a); count one), and later added a receiving stolen property charge (§ 496, subd. (a); count two). The information further alleged Lawson sustained one prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and two prior prison term convictions (§ 667.5, subd. (b)) for burglary and identity theft.
The jury convicted Lawson of both counts, the trial court dismissed count two in furtherance of justice (§ 1385), and Lawson admitted the prior conviction allegations. The court sentenced Lawson to six years in state prison, consisting of a three-year upper term on count one, doubled to six years based on his prior strike conviction. The court also imposed two concurrent one-year prior prison term enhancements.
Lawson timely appealed.
FACTUAL BACKGROUND
On the morning of December 10, 2018, Bessy Lopez went outside her home, started the minivan in her driveway to warm the engine, and left the key in the ignition. While she was outside, a man asked her for a lighter. Lopez went back inside to get a bottle of water and when she returned the minivan was gone. Lopez asked her daughter to call the police.
Lopez's mother, Kristen Simmonds, owned the minivan, but Lopez was the vehicle's primary driver, and no one else had permission to drive it.
Later that evening, while responding to a call, Los Angeles County Deputy Sheriff Jonathan Taylor observed Lawson getting out of the back door of a minivan that had no license plates. Lawson began disassociating himself from the minivan, walking away from it at a mild pace. Taylor detained Lawson and asked him who owned the minivan. Lawson said it belonged to his girlfriend Winnie, but did not provide Winnie's last name. Taylor found license plates in the minivan's trunk. He ran the minivan's vehicle identification number and learned it had been reported stolen. Lopez went to the location and confirmed the minivan was the one that had been stolen from her driveway. Taylor asked Lopez to look at Lawson to see if she recognized him, but Lopez refused out of fear for her safety.
Detective Shane Wolf of the Los Angeles Sheriff's Department obtained recordings of telephone calls Lawson made from jail following his arrest. At 4:17 p.m. on December 25, 2018, Lawson made a call to a person he referred to as "Ma." Lawson told her to contact his attorney, identify herself as "Kelly Simmonds," and provide an affidavit stating Lawson paid her to use her car.
Lopez's mother, the owner of the minivan, was named Kristen Simmonds.
DISCUSSION
I. The prior prison term enhancements should be stricken in light of Senate Bill No. 136
Lawson argues recently enacted Senate Bill No. 136 applies retroactively to his case, and as a result, his two prior prison term enhancements should be stricken. The Attorney General agrees. We agree with the parties.
A. Senate Bill No. 136 applies retroactively to Lawson
Section 667.5, former subdivision (b), mandated that a one-year enhancement be imposed "for each prior separate prison term or county jail term imposed under subdivision (h) of Section 1170 or when sentence is not suspended for any felony; provided that no additional term shall be imposed under this subdivision for any prison term or county jail term imposed under subdivision (h) of Section 1170 or when sentence is not suspended prior to a period of five years in which the defendant remained free of both the commission of an offense which results in a felony conviction, and prison custody or the imposition of a term of jail custody imposed under subdivision (h) of Section 1170 or any felony sentence that is not suspended. A term imposed under the provisions of paragraph (5) of subdivision (h) of Section 1170, wherein a portion of the term is suspended by the court to allow mandatory supervision, shall qualify as a prior county jail term for the purposes of the one-year enhancement."
Following the enactment of Senate Bill No. 136, which became effective on January 1, 2020, section 667.5, subdivision (b)'s one-year enhancement is now imposed only if the prior prison term was served for a sexually violent offense, as defined in the statute. (§ 667.5, subd. (b).)
"'When the Legislature amends a statute . . . to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient 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.'" (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307 (Lara), quoting In re Estrada (1965) 63 Cal.2d 740, 745 (Estrada).) "'The Estrada rule rests on an inference that, in the absence of contrary indications, a legislative body ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not.' [Citations.]" (Lara, supra, 4 Cal.5th at p. 308.) "[U]nder the Estrada rule, Senate Bill No. 136's . . . amendment to section 667.5, subdivision (b) applies retroactively to all cases not yet final as of its January 1 2020, effective date." (People v. Jennings (2019) 42 Cal.App.5th 664, 682 (Jennings).)
The trial court imposed the section 667.5, subdivision (b) enhancements based on Lawson's convictions for burglary (§ 460, subd. (a)) and unauthorized use of personal identifying information (§ 530.5, subd. (a)), neither of which is a sexually violent offense. Lawson's appeal was not yet final when Senate Bill No. 136 became effective on January 1, 2020. Consequently, Senate Bill No. 136 applies in his case. (See Jennings, supra, 42 Cal.App.5th at p. 682.)
B. Remedy
In his opening brief, Lawson argues the proper remedy is either for us to remand the matter so the trial court can strike the enhancements, or alternatively, for us to strike the enhancements now. The Attorney General argues that because the trial court already imposed the maximum sentence available, a remand for resentencing for the court to consider all sentencing options available is unnecessary. In his reply brief, Lawson argues the appropriate remedy is for us to vacate the sentence and remand the case so the trial court can "reconsider the sentence in the aggregate." By failing to properly raise the argument in his opening brief, Lawson has forfeited the argument on appeal. (See Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764 ["'Points raised for the first time in a reply brief will ordinarily not be considered . . . .'".] Internal citation omitted.)
Even assuming Lawson had not forfeited the argument, we would still conclude a remand is not warranted for the reason expressed by the Attorney General. The trial court imposed the high term when it could do so, and decided, over defense counsel's motion, not to strike the prior strike enhancement. (People v. Lopez (2019) 42 Cal.App.5th 337, 342 ["Because the trial court imposed the maximum possible sentence, there is no need for the court to again exercise its sentencing discretion."].) We order the judgment modified to strike the one-year enhancements imposed under Penal Code section 667.5, subdivision (b).
II. Lawson's Dueñas argument
The trial court imposed a $40 court security assessment (§ 1465.8, subd. (a)), a $30 criminal conviction assessment (Gov. Code, § 70373), and a $300 restitution fine (§ 1202.4, subd. (b)(1)). Relying on People v. Dueñas, supra, 30 Cal.App.5th 1157, Lawson argues due process requires that we remand his case for a hearing on his ability to pay the assessments and fine. Lawson concedes he did not object to the imposition of the assessments or fines. Lawson has forfeited his Dueñas argument by failing to object. Lawson was sentenced over four months after Dueñas was decided. This fact alone forecloses Lawson's argument that Dueñas was an unforeseen shift in the law trial counsel could not have anticipated.
Even assuming for the sake of argument Lawson's sentencing hearing had occurred before Dueñas was decided, we would still conclude his argument was forfeited. (People v. Bipialaka (2019) 34 Cal.App.5th 455, 464; see People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1155.) --------
DISPOSITION
The judgment is modified to strike the one-year enhancements imposed under Penal Code section 667.5, subdivision (b). The judgment is otherwise affirmed. The clerk of the superior court is directed to prepare an amended abstract of judgment and forward it to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, J. We concur: MANELLA, P.J. COLLINS, J.