Opinion
A156461
07-14-2020
THE PEOPLE, Plaintiff and Respondent, v. PAUL WILLIAMS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. 618504B)
After a jury found defendant Paul Williams guilty of crimes committed during a 2016 home-invasion robbery, he was sentenced to 51 years in prison. In sentencing Williams, the trial court was not informed, and was seemingly unaware, that a law had recently become effective giving it discretion to strike a prior-serious-felony enhancement under Penal Code section 667, subdivision (a) (section 667(a)). On appeal, Williams contends that he is therefore entitled to be resentenced, and we agree.
All further statutory references are to the Penal Code.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
On June 29, 2016, a 68-year-old man, Paul H., and his family were in their home in Oakland. At approximately 11:30 p.m., Williams, who was armed, and his accomplice or accomplices entered the home. An accomplice rounded up three of Paul H.'s teenage and young adult children and brought them downstairs. While Williams held a gun to Paul H., the accomplice went through the house looking for property to steal. Another one of Paul H.'s teenage children called 911 from the basement.
Williams had at least one accomplice, who was a co-defendant in this case. Members of Paul H.'s family testified, however, that at least one other person participated in the robbery.
Hearing police sirens, the intruders left the house. Police officers who had already arrived at the scene saw Williams run down the driveway and turn onto the street. After officers yelled commands at Williams indicating he should stop, he looked at the officers, paused, and resumed running as officers continued to yell commands. After a chase, Williams finally stopped, got on the ground, and told the officers, "I didn't do shit. I heard my neighbor screaming." In fact, Williams was not a neighbor, and he lived at least two-and-a-half miles away. An accomplice was discovered hiding in Paul H.'s backyard, holding Paul H.'s keys and aquarium cards associated with family members. Inside the house, officers found a duffel bag containing the family's electronics and saw belongings strewn about.
In March 2017, Williams was charged with four counts of first degree robbery and one count of being a felon in possession of a firearm. Each of the robbery counts was accompanied by the allegation that Williams personally used a firearm during the crime, and the robbery count involving Paul H. was accompanied by the additional allegation that the crime was committed against a person 65 years of age or older. Williams was also alleged to have suffered a 2004 conviction of a serious felony, carjacking.
The robbery charges were brought under section 211, and the firearm-possession charge was brought under section 29800, subdivision (a). The firearm enhancements were alleged under sections 12022.5, subdivision (a), and 12022.53, subdivision (b), and the elderly-victim enhancement was alleged under section 667.9, subdivision (b). The prior-serious-felony enhancement was alleged under section 667(a)(1), based on a conviction for carjacking under section 215, subdivision (a).
In July 2018, a jury found Williams guilty of all five counts and found true all the enhancement allegations accompanying them. The trial court also found true the prior-serious-felony allegation. The following February, after denying Williams's request for probation and his Romero motion to strike the prior-serious-felony enhancement, the court sentenced him to prison for a total term of 51 years. The sentence was composed of a six-year term, doubled, for the first robbery count, plus consecutive terms of 10 years for the associated firearm enhancement and two years for the associated elderly-victim enhancement; consecutive terms of seven years and four months each for the other three robbery convictions and accompanying firearm enhancements; a concurrent four-year term for unlawful possession of a firearm; and a consecutive five-year term for the conviction of a prior serious felony.
Under Romero, a court may in certain cases strike an allegation of a prior felony conviction in the interest of justice. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504.)
The abstract of the judgment incorrectly states that the five-year term for the prior serious felony was imposed under section 667.5. The trial court should ensure this error is not repeated upon resentencing. --------
II.
DISCUSSION
Williams contends that the trial court mistakenly believed it had no discretion to strike the five-year term under section 667(a) because it was unaware that Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Senate Bill No. 1393) had taken effect before the sentencing. He argues that remand is required for the court to exercise its discretion under section 667(a). He is correct.
Effective January 1, 2019, Senate Bill No. 1393 vested sentencing courts with discretion to strike enhancements imposed under section 667(a) for prior convictions of serious felonies. (People v. Garcia (2018) 28 Cal.App.5th 961, 971.) Before Senate Bill No. 1393, courts were required to impose an additional five years for each prior conviction of a serious felony. (Garcia, at pp. 971-972.) But since the effective date of Senate Bill No. 1393, courts have had the discretion to strike these enhancements in the interest of justice under section 1385. (People v. Ellis (2019) 43 Cal.App.5th 925, 933, review granted Feb. 26, 2020, S260261.)
Williams's sentencing hearing took place in February 2019, shortly after Senate Bill No. 1393 took effect. The record reveals that the trial court was unaware of its new discretion to strike the section 667(a) enhancement. During the hearing, it stated it was "mandated based upon [Williams's] conduct and his . . . prior serious violent felony to give him [five] years state prison on the 667 prior." (Italics added.) The court's misunderstanding was understandable. Neither the prosecution's nor the defense's sentencing materials mentioned Senate Bill No. 1393 or otherwise informed the court of the new discretion it had under the law. In his sentencing memorandum, Williams argued that if the court dismissed the prior-strike allegation under Romero, there would be no underlying serious felony to trigger the section 667(a) enhancement. But he did not argue that the court could still exercise its discretion to strike the enhancement even if the prior-strike allegation was not dismissed. Similarly, the prosecution's sentencing letter stated that Williams's "prior conviction for [carjacking], a strike prior, adds a five-year enhancement." In contrast, as to other issues on which the court had discretion, both parties' sentencing materials explicitly identified the existence of that discretion.
The Attorney General argues, and we agree, that Williams forfeited his claim under Senate Bill No. 1393 by failing to raise the issue below. We nevertheless exercise our discretion to review the issue on the merits, and our decision to do so renders moot Williams's claim that his trial counsel was ineffective in failing to inform the trial court of the new law. (See People v. Smith (2003) 31 Cal.4th 1207, 1215; People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6; People v. Urbano (2005) 128 Cal.App.4th 396, 404.)
Remand is required where a trial court was unaware of sentencing discretion and might have exercised that discretion in the defendant's favor if it had been aware of its discretion. Where "the record shows that the trial court proceeded with sentencing on the . . . assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing. [Citations.] Defendants are entitled to 'sentencing decisions made in the exercise of the "informed discretion" of the sentencing court,' and a court that is unaware of its discretionary authority cannot exercise its informed discretion." (People v. Brown (2007) 147 Cal.App.4th 1213, 1228.)
An exception to this rule is when the record shows that " 'the trial court would not have exercised its discretion even if it believed it could do so, then remand would be an idle act and is not required.' " (People v. Gamble (2008) 164 Cal.App.4th 891, 901.) The exception is inapplicable here. We agree with Williams that the trial court's use of the word "mandated" in imposing the section 667(a) enhancement indicates the trial court was unaware of its discretion to strike the enhancement. And the record does not otherwise show that the court would have declined to strike the enhancement if it had been aware of its discretion.
In arguing to the contrary, the Attorney General contends that the trial court would have declined to strike the enhancement because it was motivated by several aggravating factors—including the callous and violent nature of the offenses and the devastation Paul H.'s family experienced—when it declined to impose concurrent terms and denied the Romero motion. The Attorney General relies on two decisions in arguing that these factors show remand would be superfluous, but we are unpersuaded. The first is People v. Gutierrez (1996) 48 Cal.App.4th 1894. The case involved the application of Romero, which was issued during the pendency of the defendant's appeal. (Gutierrez, at p. 1896.) The defendant claimed he was entitled to be resentenced since Romero had clarified that sentencing courts have discretion to strike a prior conviction. (Gutierrez, at p. 1896.) At the sentencing hearing, however, the trial court "stated that imposing the maximum sentence was appropriate" and "increased [the defendant's] sentence beyond what it believed was required by the [T]hree [S]trikes law." (Ibid.) The Court of Appeal concluded that the trial court's statements and choices at the sentencing hearing demonstrated the futility of remand, as the court had indicated "it would not, in any event, have exercised its discretion to lessen the sentence." (Ibid.)
The second decision is People v. McVey (2018) 24 Cal.App.5th 405, which also determined that remand was unnecessary in light of the trial court's statements and imposition of the maximum term. The case involved the application of Senate Bill No. 620 (2017-2018 Reg. Sess.), which became effective while the appeal was pending and vested trial courts with discretion to strike firearm enhancements. (McVey, at p. 418.) The defendant argued remand was necessary to allow the court to exercise its new discretion and reconsider whether to strike a firearm enhancement imposed under section 12022.5, subdivision (a). (McVey, at p. 418.) But under that statutory provision, the trial court had discretion to impose a three, four, or ten-year prison term, and it stated during sentencing that "the high term . . . [was] the only appropriate sentence" on the enhancement. (Id. at p. 419.) Relying on Gutierrez, McVey concluded that, given the trial court's "pointed comments on the record, and its deliberate choice of the highest possible term for the firearm enhancement," there was "no possibility that, if the case were remanded, the trial court would exercise its discretion to strike the enhancement." (Ibid.)
Gutierrez and McVey are distinguishable from this case. Here, while the record shows that the trial court wanted Williams to serve a lengthy sentence, it also shows that the court declined to impose the maximum term permitted by law and requested by the prosecution, which was 58 years and four months. Thus, we cannot say that the record excludes the possibility that the court would exercise the discretion afforded to it under Senate Bill No. 1393 to strike the section 667(a) enhancement.
On remand, Williams will be entitled to a full resentencing. (See People v. Buycks (2018) 5 Cal.5th 857, 893.) We therefore need not reach his remaining claims about other aspects of his sentence. Our opinion should not be read as affirming the trial court's rulings on these issues, however, and Williams may reassert his sentencing claims on remand. Further, we note that the record supports his assertion that the trial court considered his refusal to accept the plea offer, which forced the victims to testify, in sentencing him. For the court's guidance on remand, we caution that in sentencing Williams it cannot rely on his decision to exercise his right to trial. (See People v. Superior Court (Felmann) (1976) 59 Cal.App.3d 270, 276 ["[A court] may not treat a defendant more leniently because he foregoes his right to trial or more harshly because he exercises that right"].)
III.
DISPOSITION
The sentence is vacated, and the matter is remanded to the trial court for a full resentencing hearing at which the court may exercise its discretion whether to strike the section 667(a) enhancement.
/s/_________
Humes, P.J. WE CONCUR: /s/_________
Banke, J. /s/_________
Sanchez, J.