Opinion
F077240
08-07-2020
THE PEOPLE, Plaintiff and Respondent, v. DVONTAE LAROME PINK, Defendant and Appellant.
Scott Concklin, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Peter H. Smith, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF150965C)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. John R. Brownlee, Judge. Scott Concklin, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Peter H. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Poochigian, J. and Meehan, J.
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INTRODUCTION
A jury convicted appellant Dvontae Larome Pink of numerous crimes following separate shootings in 2013. His convictions included first degree murder (Pen. Code, § 187, subd. (a); count 8); attempted first degree murder (§§ 664/187, subd, (a); count 2); discharging a firearm from a vehicle at a person (§ 26100, subd. (c); count 1); shooting at various occupied vehicles (§ 246; counts 4, 5, 6 and 9); and conspiracy to commit murder (§ 182, subd. (a)(1); count 14). The jury found true that appellant committed these crimes to benefit a criminal street gang, and numerous firearm enhancements were also found true. As stated by the trial court, appellant received an aggregated sentence of "life without the possibility of parole [LWOP], plus 25 years to life, plus 15 years to life, plus 25 years to life, plus 32 years to life, plus 27 years to life, plus 27 years to life, plus 27 years to life, plus seven years."
All future statutory references are to the Penal Code unless otherwise noted.
In 2017, this court issued an unpublished opinion in which we affirmed much of appellant's judgment. (People v. Pink (May 19, 2017, F070488) [nonpub. opn.] [opn. mod. June 19, 2017].) However, based on insufficient evidence, we reversed a conviction for receiving a stolen vehicle (§ 496d, subd. (a); count 7). Based on instructional error, we also reversed a conviction for carrying a loaded firearm as an active street gang member (§ 25850, subd. (c)(3); count 12). Finally, we agreed with the parties that clerical errors appeared in the determinate abstract of judgment. We remanded this matter for resentencing, and we instructed the court to declare whether it intended to impose concurrent or consecutive sentences. (People v. Pink, supra, F070488.)
On December 3, 2018, appellant filed a request for judicial notice regarding our prior opinion in this matter. On December 7, 2018, we deferred ruling on that request pending consideration of the appeal on its merits, and we granted respondent an opportunity to object. Respondent did not file an objection to appellant's request. We hereby grant the request for judicial notice. (Evid. Code, § 452, subd. (d).)
On March 16, 2018, appellant was resentenced in this matter. He again received LWOP for the murder, and numerous consecutive indeterminate terms.
In the present appeal, the parties agree, as do we, that the court imposed an unauthorized sentence in count 2 for attempted first degree murder. The gang enhancement and the firearm enhancement were added together, which resulted in an improper parole eligibility period in that count. Based on this sentencing error, and to address another error appearing in the abstract of judgment, we again remand this matter for resentencing. At resentencing, we direct the court to declare whether or not it will strike or dismiss any of the firearm enhancements pursuant to Senate Bill No. 620 (2017-2018 Reg. Sess.) (Senate Bill 620). We otherwise affirm appellant's judgment.
BACKGROUND
Because the issues raised on appeal deal with sentencing, we provide only a brief overview of the trial evidence. The prosecution established that, in 2013, three separate shootings occurred in Bakersfield, California: (1) a "drive-by" in the parking lot of Roy's Market on February 6; (2) the homicide of Floyd Beam, Jr. outside Roy's Market on February 10; and (3) a shooting at a family gathering on March 3 about a mile from Roy's Market at a particular residence. (People v. Pink, supra, F070488.)
Appellant was charged with these crimes along with codefendants Wendall Keith Allen, Jimmy Lee Baker, and Trevonte Shevelle Williams. The prosecution established a conspiracy among the codefendants, who were all identified as Country Boy Crip (CBC) gang members. A fellow CBC member, Devontay Garrett, acting on behalf of law enforcement, had secretly recorded Baker and Williams speaking about these shootings, and portions of the recordings were introduced into evidence at trial. Based on Williams's statements, the evidence showed that appellant participated in the drive-by shooting. Based on Baker's statements about Beam's murder, along with circumstantial evidence linking appellant with Baker, the evidence established that appellant participated in Beam's murder. Evidence suggested these shootings were done as gang retaliation for the killing of another CBC member, Charles Bell. Appellant was tried alone, and he was convicted of crimes involving the drive-by shooting and Beam's murder, but acquitted of the charges regarding the shooting at the residence. (People v. Pink, supra, F070488.)
Appellant was convicted and sentenced for the following crimes. I. Charges Associated With The February 6, 2013, Drive-By Shooting.
A. Count 1.
For count 1, appellant was found guilty of discharging a firearm from a vehicle at a person in violation of section 26100, subdivision (c). The jury found true a gang enhancement (§ 186.22, subd. (b)(1)) and two firearm enhancements (§ 12022.53, subds. (c) & (e)(1); § 12022.53, subds. (d) & (e)(1)). (People v. Pink, supra, F070488.) At the 2018 resentencing, the court imposed a term of seven years to life in prison, which was enhanced by five years because of the gang enhancement. This sentence was stayed pursuant to section 654. As we discuss later in this opinion, the indeterminate term imposed in count 1 was improper. Appellant may be sentenced to a determinate term of three, five, or seven years. (§ 26100, subd. (c).)
B. Count 2.
For count 2, appellant was found guilty of attempted first degree murder in violation of sections 664, 187, subdivision (a), and 189. A gang enhancement (§ 186.22, subd. (b)(1)) and a firearm enhancement (§ 12022.53, subds. (d) & (e)(1)) were found true. (People v. Pink, supra, F070488.) At the 2018 resentencing, appellant was sentenced to prison for 15 years to life for this conviction, which was enhanced by 25 years to life for the firearm.
C. Counts 4, 5 and 6.
For counts 4, 5 and 6, appellant was found guilty of shooting at occupied vehicles in violation of section 246. The jury found true gang enhancements (§ 186.22, subd. (b)(1)) in each count. For count 4, a firearm enhancement was found true under section 12022.53, subdivisions (d) and (e)(1). For counts 5 and 6, a firearm enhancement was found true under section 12022.53, subdivisions (c) and (e)(1). (People v. Pink, supra, F070488.) At the 2018 resentencing, appellant received 32 years to life in count 4. He was sentenced to 27 years to life in count 5. Finally, the court imposed a sentence of 27 years to life in count 6. II. Charges Associated With Beam's Homicide On February 10, 2013.
A. Count 8.
For count 8, appellant was found guilty of first degree murder for Beam's homicide (§§ 187, subd. (a)/189). The jury found true a gang enhancement (§ 186.22, subd. (b)(1)) and a firearm enhancement (§ 12022.53, subds. (d) & (e)(1)). Finally, the jury found true that the murder was committed while appellant was an active participant in a criminal street gang and done to further the gang's activities (§ 190.2, subd. (a)(22)). (People v. Pink, supra, F070488.) At the 2018 resentencing, appellant received LWOP for this murder, plus 25 years to life for the firearm enhancement.
B. Count 9.
For count 9, appellant was found guilty of shooting at an occupied vehicle during Beam's homicide (§ 246). The jury found true a gang enhancement (§ 186.22, subd. (b)(1)) and a firearm enhancement (§ 12022.53, subds. (c) & (e)(1)). (People v. Pink, supra, F070488.) At the 2018 resentencing, appellant received a sentence of 27 years to life.
C. Count 14.
For count 14, appellant was found guilty of conspiracy to commit murder in violation of section 182, subdivision (a)(1). The jury found true a gang enhancement (§ 186.22, subd. (b)(1)) and two firearm enhancements (§ 12022.53, subds. (c) & (e)(1); § 12022.53, subds. (d) & (e)(1)). (People v. Pink, supra, F070488.) At the 2018 resentencing, appellant received a term of 25 years to life, which was increased by 20 years and 25 years to life, respectively, for the firearm enhancements. This sentence was stayed.
Appellant contends that the court erred in imposing sentence on both of these firearm enhancements. To assist the parties on remand, we address that concern later in this opinion. We determine that the court did not err in this regard.
III. A Miscellaneous Charge.
For count 13, appellant was found guilty of participating in a criminal street gang in violation of section 186.22, subdivision (a). The jury found true that he used a firearm during this offense (§ 12022.5, subd. (a)). (People v. Pink, supra, F070488.) At the 2018 resentencing, appellant received an upper prison term of three years, which was increased by 10 years for the firearm enhancement. This sentence was stayed.
DISCUSSION
I. Sentencing Error Occurred.
The parties have identified an unauthorized sentence for count 2, which is reflected in the indeterminate abstract of judgment. We vacate appellant's sentence and remand for resentencing.
In count 2, appellant was convicted of attempted first degree murder (§§ 664/187, subd. (a)/189). The jury found true a gang enhancement (§ 186.22, subd. (b)(1)) and a firearm enhancement (§ 12022.53, subds. (d) & (e)(1)). (People v. Pink, supra, F070488.)
At the resentencing in this matter, the court stated in relevant part that appellant's sentence in count 2 was "for the term prescribed by law of 15 years to life." The court enhanced this sentence by 25 years to life because of the firearm enhancement. The indeterminate abstract of judgment reflects that appellant was sentenced to 40 years to life in count 2 with the possibility of parole.
The parties agree, as do we, that a sentence of 40 years to life in count 2 is unauthorized. Because appellant committed attempted first degree murder with a gang enhancement, the correct sentence in count 2 is life with the possibility of parole, with a minimum parole eligibility term of 15 years. (§§ 664, subd. (a), 186.22, subd. (b)(5).) Section 186.22, subdivision (b)(5), is an alternate penalty provision that applies to any gang-related felony when that underlying felony is punishable in the state prison for life. (People v. Briceno (2004) 34 Cal.4th 451, 460, fn. 7.) The crime of attempted first degree murder under section 189 results in imprisonment in state prison for life with the possibility of parole. (§ 664, subd. (a).) Our Supreme Court has held that section 186.22, subdivision (b)(5), applies to both a straight life term as well as a term expressed as years to life. (People v. Lopez (2005) 34 Cal.4th 1002, 1007.)
Error occurred here because the firearm enhancement does not add to the gang enhancement to result in an aggregate sentence of 40 years to life. Because of the imposed firearm enhancement, appellant is eligible for parole in count 2 after serving a minimum term of 25 years in state prison. (See People v. Lopez, supra, 34 Cal.4th at p. 1009 [the parole eligibility date under § 186.22, subd. (b)(5) is trumped by any greater penalty or longer period of imprisonment under another section of law].) The Board of Prison Terms, however, may consider the jury's true finding for the gang enhancement as a factor when determining appellant's release date, even if it does not actually extend his minimum parole date. (People v. Lopez, supra, 34 Cal.4th at p. 1009.)
Respondent concedes that the 15-year minimum eligible parole date from the gang enhancement is subsumed by the 25-year firearm enhancement.
To complicate matters further, the indeterminate abstract of judgment was drafted in such a way that improperly states appellant is not eligible for parole in count 2 until he has served a minimum of 65 years in prison. To assist the court clerk upon remand, the indeterminate abstract of judgment should have reflected that, for count 2, appellant was sentenced to prison for 15 years to life with the possibility of parole. In other words, box No. 6. a. should have been checked for count 2. The firearm enhancement is not added to this term on top of the gang enhancement. Instead, the firearm enhancement is shown in box No. 2. (which lists the enhancements for all counts).
We vacate appellant's sentence and we remand for resentencing.
II. The Court Shall Exercise Its Discretion Under Senate Bill 620.
At the time of appellant's original sentencing in this matter, the trial court did not have discretion to strike or dismiss the firearm enhancements which the jury had found true. However, after the remitter issued following our prior opinion, the Governor signed Senate Bill 620. A trial court now has discretion to strike or dismiss firearm enhancements found true under sections 12022.5 and 12022.53. (§§ 12022.5, subd. (c), 12022.53, subd. (h).)
The parties agree, as do we, that Senate Bill 620 applies retroactively to appellant because his case is not yet final. The parties dispute, however, whether remand is warranted for the court to exercise its discretion under Senate Bill 620. According to appellant, the record does not demonstrate that the court considered or exercised its discretion when the firearm enhancements were imposed at the resentencing. Appellant notes that this change in law was not mentioned in the new probation report, none of the parties mentioned it at resentencing, and the court did not comment on it.
To avoid application of Senate Bill 620, respondent relies on the forfeiture doctrine. According to respondent, appellant is prohibited from asserting this claim due to a failure in raising it below. To overcome forfeiture, appellant contends that no meaningful opportunity existed to raise this issue at resentencing. According to appellant, the resentencing occurred based on very specific issues that did not involve the firearm enhancements. In the alternative, appellant raises a claim of ineffective assistance of counsel.
We decline to find forfeiture in this situation. It is not clear from the prior sentencing record whether the parties and the court considered Senate Bill 620. To the contrary, it reasonably appears that the parties and the court treated the remand as limited to the specific issues identified in our prior opinion.
In the interests of justice, and because we are remanding this matter for resentencing, it is appropriate for the court to exercise its sentencing discretion regarding the firearm enhancements. (See §§ 12022.5, subd. (c), 12022.53, subd. (h).) We take no position on how the court should exercise this discretion when appellant is resentenced.
III. The Court Did Not Err In Imposing Sentence On Both Firearm Enhancements In Count 14.
To assist the parties on remand, we address appellant's claim regarding the firearm enhancements imposed in count 14. In that count, appellant was found guilty of conspiracy to commit murder in violation of section 182, subdivision (a)(1). The jury found true a gang enhancement (§ 186.22, subd. (b)(1)) and two firearm enhancements (§ 12022.53, subds. (c) & (e)(1); § 12022.53, subds. (d) & (e)(1)). (People v. Pink, supra, F070488.) At the resentencing in this matter, appellant received a sentence in this count of 25 years to life, which was increased by 20 years and 25 years to life, respectively, for the two firearm enhancements. This sentence was stayed.
Appellant contends that the court erred in imposing sentence on both firearm enhancements in count 14. According to appellant, the court should have stricken the lesser firearm enhancement. He cites section 12022.53, subdivision (f), which states that only one firearm enhancement (the one providing the longest term of imprisonment) may be imposed for each crime. Appellant, however, acknowledges that our Supreme Court holds otherwise. Lesser firearm enhancements should be stayed and not stricken. (People v. Gonzalez (2008) 43 Cal.4th 1118, 1129 (Gonzalez).) Nevertheless, he contends that Gonzalez is no longer good law after the passage of Senate Bill 620. We decline to overrule Gonzalez.
As the court explained in Gonzalez, section 12022.53, subdivision (f), requires imposition and execution of only one firearm enhancement, the one providing for the longest sentence. (Gonzalez, supra, 43 Cal.4th at p. 1128.) The Gonzalez court concluded that striking any lesser firearm enhancement would contradict public policy by making it more difficult, if not impossible, to impose and execute a firearm enhancement in the event the greater enhancement was invalidated on appeal. (Ibid.) The court found that staying lesser firearm enhancements would be in harmony with the Judicial Council's general rule regarding how to pronounce sentence on a prohibited enhancement. (Gonzalez, at p. 1128.) Finally, the court noted that staying rather than striking lesser firearm enhancements serves legislative goals "by making the prohibited enhancements readily available" should the greater enhancement be invalidated on appeal. (Id. at p. 1129.)
Appellant argues that Gonzalez declined to follow the literal language of section 12022.53, subdivision (f), for two reasons. First, prior to Senate Bill 620, imposition of a firearm enhancement was mandatory. Second, striking a duplicative enhancement would be contrary to legislative intent to ensure that offenders remain in prison for the longest term possible. Appellant contends that Senate Bill 620 eliminated both of these concerns. First, firearm enhancements are no longer mandatory. Second, the September 13, 2017, Senate Floor Analysis for Senate Bill 620 stated that longer sentences " 'do not deter crime or protect public safety' " and "mandatory firearm sentence enhancements come at a high cost and do little to protect the public." (Sen. Rules Com., Off. of Sen. Floor Analyses, Rep. on Sen. Bill. No. 620 (2017-2018 Reg. Sess.) Sept. 13, 2017, pp. 5, 6.)
<https://leginfo.legislature.ca.gov/faces/billAnalysisClient.xhtml?bill_id=201720180SB620#>
According to appellant, these changes show that Gonzalez is no longer "authoritative" on how the statute should be construed. Appellant further asserts that it is no longer proper to ensure that a stayed lesser enhancement is "readily" available if the greater enhancement is later invalidated. In fact, appellant argues that this approach is contrary to the legislative intent that a court should exercise discretion to impose a firearm enhancement. According to appellant, if a greater enhancement is invalidated, that would mean the defendant was less culpable, which would impact how discretion should have been exercised.
We decline to hold that Gonzalez may no longer be followed. Although many of the policy concerns addressed in Gonzalez have changed, Gonzalez remains controlling authority and we are bound by the decisions of our Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) In any event, the Legislature did not state its intent in Senate Bill 620 to overrule Gonzalez. Based on Gonzalez, the trial court did not err in imposing sentence on both firearm enhancements in count 14, but then staying that sentence. Appellant's contrary assertions are without merit.
IV. An Additional Error In The Abstract Of Judgment.
The parties agree, as do we, that a clerical error appears in the abstract of judgment. Because we are remanding this matter for resentencing, we will direct the court to ensure that the following is corrected.
At the 2018 resentencing, the court asked the probation officer for an updated calculation regarding appellant's credit for time served. The officer stated that appellant had then served 1,626 days of actual time, and it appears that the court accepted that figure. The abstract of judgment, however, did not reflect that stated credit for time served. Instead, it indicated "CDCR to calculate." This was error. It is the sentencing court's responsibility to calculate the number of days the defendant has been in custody, and reflect the total in the abstract of judgment. (People v. Buckhalter (2001) 26 Cal.4th 20, 30.) We direct the court to calculate appellant's custody credits and provide that total in the new abstract of judgment.
DISPOSITION
Appellant's sentence is vacated and this matter is remanded for resentencing in a manner that is consistent with this opinion. For count 2, the court shall pronounce a sentence that provides a correct minimum parole eligibility date. When resentencing appellant, the court shall exercise its discretion under Senate Bill 620 whether to strike or dismiss the firearm enhancements. The court shall calculate appellant's custody credits and provide that total in the new abstract of judgment. The court shall ensure that the sentences imposed are reflected accurately in the new abstract of judgment. Following resentencing, the court shall forward the new abstract of judgment to the appropriate authorities. In all other respects, the judgment is affirmed.
To assist the parties at resentencing, we note that, in count 1, appellant was convicted of discharging a firearm from a vehicle at a person in violation of section 26100, subdivision (c). (People v. Pink, supra, F070488.) At the 2018 resentencing, the court imposed a term of seven years to life in prison for this conviction, with an additional five years because of the gang enhancement. This sentence was stayed pursuant to section 654. It appears the court misspoke when imposing a life sentence in count 1. The sentencing triad for this conviction is a determinate term of three, five, or seven years. (§ 26100, subd. (c).) --------