Opinion
C085792
09-12-2019
THE PEOPLE, Plaintiff and Respondent, v. BRUCE EVERETTE REED, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15F03781, 16FE005417)
Defendant Bruce Everette Reed appeals from a judgment entered after a jury convicted him of shooting a firearm in a grossly negligent manner (Pen. Code, § 246.3—count one), first degree burglary (§ 459—count two), and assault with a semiautomatic firearm (§ 245, subd. (b)—counts four, five, and six), but found him not guilty of receiving stolen property (§ 496—count three). As to the three assault with a firearm counts, the jury also found true the special enhancements that defendant had both personally used a firearm (§ 12022.5, subd. (a)) and committed the assaults to promote a criminal street gang (§ 186.22, subd. (b)(1)). The trial court originally sentenced him to an aggregate term of 26 years four months, which included unstayed time for both sets of sentencing enhancements (relating to personal use of a firearm and promoting a street gang) on counts four through six.
Subsequent undesignated statutory references are to the Penal Code.
Defendant appealed arguing that the trial court erred in imposing both sets of sentencing enhancements for counts four through six and that the trial court must be allowed to exercise its sentencing discretion authorized by the passage of Senate Bill No. 620 (2017-2018 Reg. Sess.) (SB 620). The People concurred that remand for resentencing was required.
However, during the pendency of this appeal, the California Department of Corrections and Rehabilitation filed a section 1170, subdivision (d) request for the trial court to resentence in light of sentencing errors. Thereafter, on November 1, 2018, the trial court resentenced defendant to an aggregate prison term of 24 years four months. The court designated count four as the principal term and imposed the mid-term of six years, plus 10 years for the section 12022.5 enhancement for a total of 16 years. The court also imposed one-third the mid-term for counts five and six (an additional two years for each), plus one year for each associated section 12022.5 enhancement consecutive (two years total), plus one-third the mid-term for both counts one (one year) and two (one year four months). The court failed to acknowledge the street gang enhancements (§ 186.22) for counts four through six. Defendant did not file a notice of appeal challenging his new sentence, nor did he request relief from his failure to file that notice of appeal in this court.
Because defendant's appeal pertained solely to issues related to the original sentence, and given defendant's failure to appeal from the new judgment, we dismissed this appeal as moot. On July 17, 2019, the California Supreme Court vacated this dismissal and directed this court to consider whether to reinstate the appeal to address whether the matter should be remanded to permit the trial court to exercise its discretion under section 12022.53. Our Supreme Court also directed us to consider whether to decide the parties' contentions that the new sentence was unauthorized because: (1) the court imposed one year instead of eight months for count one, and (2) the court failed to impose and stay a term for each of the gang enhancements found true by the jury.
Taking these issues in order, SB 620 amended sections 12022.5, subdivision (c) and 12022.53, subdivision (h), effective January 1, 2018 (Stats. 2017, ch. 682, §§ 1-2), to permit a trial court to strike a firearm enhancement: "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." This amendment applies retroactively to pending appeals. (See People v. Woods (2018) 19 Cal.App.5th 1080, 1089-1091 [amendment to § 12022.53 applied retroactively to pending appeal].)
However, because defendant was resentenced pursuant to section 1170, subdivision (d), and because this resentencing occurred 11 months after the effective date of SB 620, defendant has already received a sentencing hearing wherein the court must be presumed to have exercised this discretion. (See, e.g., People v. Hill (1986) 185 Cal.App.3d 831, 833-834 [court engaging in section 1170, subdivision (d) resentencing is not limited to correcting erroneous portion of sentence]; People v. Stowell (2003) 31 Cal.4th 1107, 1114 [on appeal, " 'a trial court is presumed to have been aware of and followed the applicable law' "].) "[T]he presumption of regularity of judicial exercises of discretion apply to sentencing issues. (People v. Moran (1970) 1 Cal.3d 755, 762 [decision to decline to commit adult to the youth authority].) Because we must assume the trial court exercised the discretion conferred by SB 620 when it resentenced defendant in November of 2018 pursuant to section 1170, subdivision (d), defendant is not entitled to remand for resentencing.
To the extent defendant suggests the trial court was without jurisdiction to consider striking his firearm enhancement because the SB 620 issue was briefed and pending on appeal, we disagree. (People v. Scarbrough (2015) 240 Cal.App.4th 916, 925 [1170, subdivision (d) is "an exception to the general bar on trial court action while an appeal is pending"].)
The judgment entered after resentencing contains errors that result in a sentence unauthorized by law, and consistent with the direction of our Supreme Court, we will address those errors even though the judgment is not the subject of a pending appeal. We agree with the parties that the trial court erred in imposing a one-year sentence for count one because one-third the mid-term for that offense is eight months. (§§ 246.3, subd. (a), 1170, subds. (a), (h).) We further agree with the People that the appropriate remedy to correct this error is to remand so that the trial court may either reduce defendant's sentence by four months or restructure the sentence in a manner that conforms with law. (See People v. Garner (2016) 244 Cal.App.4th 1113, 1118 [resentencing court may reconsider sentencing choices in light of interdependentness of sentence components and invalidity of a portion of those components].)
Finally, we conclude that the trial court should have imposed and stayed sentences for the street gang enhancements associated with counts four through six as required by California Rules of Court, rule 4.447(a). Rule 4.447(a) directs that instead of striking or dismissing an enhancement because imposing that term is prohibited by law, "the court must: [¶] (1) Impose a sentence for the aggregate term of imprisonment computed without reference to those prohibitions or limitations; and [¶] (2) Stay execution of the part of the term that is prohibited or exceeds the applicable limitation." Here, dual imposition of defendant's section 12022.5 and section 186.22 enhancements was prohibited by section 1170.1, subdivision (f) because both enhancements were based solely on defendant's firearm use in the commission of single offenses. (See People v. Le (2015) 61 Cal.4th 416, 429.) The court should have imposed and stayed sentences for the gang enhancements. (See rule 4.447(a).) We direct the trial court to conform its ultimate sentence to comply with rule 4.447(a)'s requirements as explained herein.
Further rule references are to the California Rules of Court.
DISPOSITION
We remand for resentencing consistent with this opinion. The judgment is otherwise affirmed.
/S/_________
RENNER, J. We concur: /S/_________
HULL, Acting P. J. /S/_________
BUTZ, J.