Opinion
C087392
09-03-2019
THE PEOPLE, Plaintiff and Respondent, v. TREVIN CORNELIUS PHILLIPS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17FE019302)
Following his conviction for attempted robbery with true findings on a single prior conviction that qualified as a strike, serious felony, and prison prior, defendant Trevin Phillips appeals the sentence imposed. He contends: 1) the trial court improperly imposed the one-year prison prior enhancement because it was based on the same conviction used to impose the five-year sentence enhancement; 2) we must remand the case to permit the trial court to exercise its discretion to strike his serious felony enhancement, pursuant to Senate Bill No. 1393 (Stats. 2018, ch. 1013, §§ 1-2 (SB 1393)); and 3) the trial court erred in awarding him only 15 percent credit, rather than 50 percent credit. The People concede the one-year prior enhancement must be stricken and that defendant is entitled to credits at 50 percent. They also concede that Senate Bill No. 1393 applies retroactively, but claim remand is not warranted. We strike the one-year sentence imposed for the prison prior and remand the matter for the trial court to correct the award of presentence custody credits, and to permit the trial court to exercise its new discretion under Senate Bill No. 1393.
BACKGROUND
The substantive facts underlying the convictions are not relevant to any issue raised on appeal and are therefore not recounted here.
A jury found defendant guilty of attempted robbery and the trial court found he had a prior conviction that qualified as a strike, a serious felony, and a prison prior. The trial court sentenced him to an aggregate term of 12 years, which included both a five-year term on the prior serious felony conviction and a one-year term for the prison prior. The trial court also awarded defendant presentence custody credits at 15 percent.
The trial court denied defendant's Romero motion, largely relying on defendant's extensive criminal background. The trial court reviewed the probation report, heard argument of the parties, and considered defendant's statement to the court and letters in support of defendant. The trial court indicated the letters and statements of his family and friends made him consider the midterm, but increasing punishment was the purpose of the statutory scheme. The court found there were a number of aggravating factors, including defendant's violent conduct and numerous prior convictions, and no mitigating factors. The trial court concluded the upper term was the appropriate sentence, not because of the current conviction, but rather because of defendant's criminal history.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
The trial court sentenced defendant to the upper term of three years, doubled pursuant to the strike, with an additional one year for the prison prior plus five years for the prior serious felony. The trial court noted defendant had 208 days of actual presentence custody time, "plus 31 days on a 50 percent time. That will be 239 days for credit for time served."
DISCUSSION
I
Sentence For Both Enhancements
Defendant contends the trial court erred in enhancing his sentence using both the five-year serious felony enhancement and the one-year prison prior enhancement as they relied on the same prior conviction. The People properly concede.
Where enhancements for a prior prison term and a prior serious felony arise from the same conviction, a trial court may impose only the greater enhancement and must strike the lesser. (People v. Jones (1993) 5 Cal.4th 1142, 1152-1153.) Because the trial court imposed both enhancements on the same prior conviction, we will direct it to strike the lesser prior prison term enhancement.
II
Remand For Senate Bill No. 1393
Defendant's sentence includes a five-year enhancement for a prior serious felony conviction. Defendant and the People agree that Senate Bill No. 1393 applies to defendant but disagree that remand is the proper remedy. We agree with the parties that the amendments enacted by Senate Bill No. 1393 retroactively apply to defendant but agree only with defendant that remand is appropriate.
When the trial court sentenced defendant in this case, it imposed one five-year enhancement for a prior serious felony conviction. The enhancement was mandatory at the time. But Senate Bill No. 1393 amended Penal Code section 667, subdivision (a), and section 1385, effective January 1, 2019, to grant trial courts discretion to strike or dismiss such enhancements. We agree with the parties that this change in law applies to defendant retroactively. (People v. Garcia (2018) 28 Cal.App.5th 961, 973.)
Further references are to this code. --------
Where a trial court is unaware of its sentencing choices, remand is required unless "the record reveals a clear indication that the trial court would not have reduced the sentence even if at the time of sentencing it had the discretion to do so." (People v. Almanza (2018) 24 Cal.App.5th 1104, 1110.) Here, there is no such indication. The trial court made no express statements to that effect. Although the trial court imposed the aggravated term, and denied defendant's Romero motion, it also acknowledged the support of defendant made it consider the midterm. As an appellate court, we cannot know "what the trial judge would have done at a defendant's sentencing hearing if, in fact, it had been aware of the full extent of its discretion under Senate Bill No. 1393, . . . effective January 1, 2019." (People v. Franks (2019) 35 Cal.App.5th 883, 894 (conc. & dis. opn. of Robie, J.).) " ' "Defendants are entitled to sentencing decisions made in the exercise of the 'informed discretion' of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that 'informed discretion' than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record." ' (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 . . . .) After taking into account the change in policy and after hearing argument from both sides, the trial court may feel differently than when it initially sentenced defendant to the enhancement. Defendant should not be denied this opportunity." (Franks, at p. 895.) Speculation formed on a consideration of the original sentence alone does not provide a clear indication of what the trial court would do. (Almanza, at pp. 1110-1111.) Remand is the general rule in this context, and on this record we decline to deviate from the general rule. (See, e.g., People v. Garcia, supra, 28 Cal.App.5th at p. 973, fn. 3.) Accordingly, we will remand the matter to allow the trial court to exercise its newly granted discretion.
III
Custody Credits
Defendant contends the trial court erred in awarding him only 15 percent credits under section 2933.1, rather than 50 percent under section 4019. The People properly concede this claim.
Section 2933.1 limits the credits available to people convicted of certain enumerated felonies to 15 percent of worktime credit. Robbery is one of those felonies. (§§ 2933.1, 667.5, subd. (c)) Attempted robbery is not. Defendant was convicted of attempted robbery. An attempt is a separate and distinct offense from the completed crime. (People v. Reed (2005) 129 Cal.App.4th 1281, 1283-1285.) Accordingly, section 2933.1 does not limit the credits available to defendant to 15 percent and defendant was entitled to credits under section 4019.
DISPOSITION
We strike the one-year sentence imposed for the prison prior, remand the matter for the trial court to correct the award of presentence custody credits and to permit the trial court to exercise its new discretion under Senate Bill No. 1393. In all other respects, the judgment is affirmed.
/s/_________
Robie, J. We concur: /s/_________
Blease, Acting P. J. /s/_________
Krause, J.