Opinion
B297492
01-28-2020
THE PEOPLE, Plaintiff and Respondent, v. DAVID ANTHONY WHITESELL, Defendant and Appellant.
Andrea Keith, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, and Colleen M. Tiedemann, Deputy Attorney 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. MA075026) APPEAL from a judgment of the Superior Court of Los Angeles County, Denise M. McLaughlin-Bennett, Judge. Affirmed as modified. Andrea Keith, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, and Colleen M. Tiedemann, Deputy Attorney General, for Plaintiff and Respondent.
Defendant David Anthony Whitesell appeals from a judgment of conviction entered after a jury found him guilty of making criminal threats (Pen. Code, § 422, subd. (a)) and found true the allegation he served a prior prison term within the meaning of section 667.5, subdivision (b). We appointed counsel to represent Whitesell on this appeal. After review of the record, Whitesell's counsel filed an opening brief requesting this court to independently review the record pursuant to People v. Wende (1979) 25 Cal.3d 436, 441.
Unless otherwise specified, all further statutory references are to the Penal Code.
Consistent with Wende, on October 9, 2019, we sent a letter to Whitesell, advising him that he had 30 days within which to personally submit any contentions or issues which he wished us to consider. We received no response.
During the pendency of the appeal, the Legislature enacted Senate Bill No. 136, which amended section 667.5, subdivision (b), regarding the prior convictions for which a one-year prior prison term enhancement could be imposed. The legislation became effective January 1, 2020. We sent a letter to Whitesell's counsel and the People (Gov. Code, § 68081) requesting briefing as to the effect of this legislation on the judgment in this case. The parties agreed that the enhancement must be stricken, and we modify the judgment accordingly.
BACKGROUND
I. Factual Background
A. Prosecution Evidence
Doreen Salas was a psychiatric technician at the California State Prison in Los Angeles County. One of her duties was dispensing medication to prisoners, including Whitesell. She characterized him as an angry person, prone to being loud and disrespectful toward both staff and other inmates. She knew that he had gotten into altercations with staff members in the past.
Another inmate came to Salas and requested that she counsel Whitesell regarding making racial slurs, which had instigated altercations in the past. On the morning of September 12, 2018, when Whitesell came to Salas for his medication, she attempted to counsel him to be mindful of the things he was saying. He became irate and demanded to know who had told her about what he said. Salas told him it did not matter who told her, but he grew more irate. Correctional officers then arrived and escorted Whitesell back to his cell.
At about 1:05 that afternoon, Salas walked past a holding cell and saw Whitesell inside. Whitesell first gave her "the finger" with both hands. He then made shooting gestures, pointing at both Salas and his head. He told her, "fuck you bitch, I'll kill you bitch." Salas felt threatened and afraid, because he was bigger than she, she regularly came in contact with him, and she was aware of his previous altercations with staff members.
Another psychiatric technician, Debra Okoebor, accompanied Salas at the time. She saw Whitesell give Salas the finger and make gun motions, and she heard him say, "Fuck you, bitch. I am going to kill you the next time I see you."
B. Defense Evidence
Todd Kinnamon occupied the holding cell with Whitesell. When Kinnamon returned from having x-rays taken, Whitesell "flipped [Kinnamon] the bird. And that's how we communicate with each other." Whitesell was "just playing." Kinnamon did not see Whitesell make shooting motions, and Whitesell did not threaten any staff members.
Whitesell testified in his own behalf. He was upset with Salas because she had opened his medication cup with her fingernail. When he complained that her actions were unsanitary, she told him, "I don't give a fuck." Salas later passed by the holding cell and smirked at him. Whitesell admitted giving her the finger in response. He denied making shooting motions or verbally threatening her.
C. Rebuttal Evidence
Heather Sparks, a dental assistant, performed a dental procedure on Kinnamon on the afternoon of the incident. He was in her dental chair from 12:16 to 1:20 p.m.
II. Procedural Background
The People charged Whitesell by information with making criminal threats (§ 422, subd. (a)). The information alleged that Whitesell had three prior serious felony convictions (§ 667, subd. (a)(1)), which constituted strikes under the three strikes law (§§ 667, subds. (b)-(j), 1170.12). The information further alleged that Whitesell had two prior convictions for which he served prison terms within the meaning of section 667.5, subdivision (b): a 2015 assault conviction (§ 245, subd. (a)) and a 2009 robbery conviction (§ 211).
The jury found Whitesell guilty of making criminal threats, found true the allegations as to the three prior serious felony convictions, and found true the section 667.5, subdivision (b), allegation with respect to the 2009 robbery conviction.
The trial court granted Whitesell's Romero motion as to two of his three prior serious felony convictions for purposes of the three strikes law only. It sentenced him to the upper term of three years, doubled as a second strike to six years. It imposed an additional five years for each prior serious felony conviction, a total of 15 years, for a total term of 21 years. The court stayed the one-year enhancement under section 667.5, subdivision (b).
People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530, fn. 13.
The court also imposed a $1200 restitution fine (§ 1202.4, subd. (b)), imposed and stayed a $1200 parole revocation fine (§ 1202.45), and imposed a $30 criminal conviction assessment (Gov. Code, § 70373) and a $40 court operations assessment (§ 1465.8, subd. (a)(1)). Whitesell requested a hearing on his ability to pay the fines and assessments. The court granted him leave to bring information regarding inability to pay to the court's attention in the future.
Whitesell timely filed his notice of appeal.
DISCUSSION
At the time of sentencing, section 667.5, subdivision (b) provided: "Except where subdivision (a) applies, where the new offense is any felony for which a prison sentence or a sentence of imprisonment in a county jail under subdivision (h) of Section 1170 is imposed or is not suspended, in addition and consecutive to any other sentence therefor, the court shall impose a one-year term 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. . . ."
Effective January 1, 2020, Senate Bill No. 136 amended section 667.5, subdivision (b) to provide: "Except where subdivision (a) applies, where the new offense is any felony for which a prison sentence or a sentence of imprisonment in a county jail under subdivision (h) of Section 1170 is imposed or is not suspended, in addition and consecutive to any other sentence therefor, the court shall impose a one-year term for each prior separate prison term for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code, provided that no additional term shall be imposed under this subdivision for any prison term served 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." (Stats. 2019, ch. 590, § 1.)
Whitesell contends, and the People concede, that he is entitled to retroactive application of Senate Bill No. 136 to his case. (In re Estrada (1965) 63 Cal.2d 740, 745 [statute reducing punishment for a crime is applied retrospectively to cases not yet final]; accord, People v. Brown (2012) 54 Cal.4th 314, 323.) Since the prior conviction found to be true under section 667.5, subdivision (b), was not for a sexually violent offense, the enhancement must be stricken rather than stayed.
DISPOSITION
The judgment is modified to strike the one-year enhancement imposed and stayed pursuant to section 667.5, subdivision (b). As so modified, the judgment is affirmed.
NOT TO BE PUBLISHED
JOHNSON, Acting P. J. We concur:
BENDIX, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------