Opinion
F071778
02-21-2018
THE PEOPLE, Plaintiff and Respondent, v. AARON JOSHUA WILSON, Defendant and Appellant.
Sharon G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary, and Lewis A. Martinez, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BF152273B)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Kenneth C. Twisselman II, Judge. Sharon G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary, and Lewis A. Martinez, for Plaintiff and Respondent.
—ooOoo—
Aaron Joshua Wilson was convicted of a range of offenses, including conspiracy to commit carjacking, two counts of carjacking, two counts of robbery, evading, driving the wrong way on a highway while evading, and several misdemeanors. He was sentenced to 33 years eight months in prison. Wilson does not challenge his convictions. Rather, he raises a number of claims related to his sentence. He argues that the trial court prejudicially erred in failing to apply Penal Code section 654 to stay the sentences on his two robbery convictions. He further argues that a prior prison term sentence enhancement imposed by the trial court must be stricken because, after his sentencing, the prior conviction underlying the enhancement was reduced to a misdemeanor pursuant to Proposition 47. We agree with both of these contentions. Wilson finally argues the trial court abused its discretion in imposing the upper term for the principal carjacking count, because the court misinterpreted California Rules of Court, rules 4.423(a)(4) and (b)(2), to find that his mental illness (schizophrenia and other disorders) was not a mitigating factor. We conclude the record is ambiguous as to the trial court's reasoning in this regard. Accordingly, we will remand the matter for the court to either clarify its prior reasoning or resentence Wilson on this count.
Subsequent statutory references are to the Penal Code unless otherwise stated.
The judgment of conviction is affirmed. Wilson's sentence is vacated and the case is remanded for further proceedings consistent with this opinion.
FACTS
At approximately 8:00 p.m. on December 16, 2013, a group of close friends (two women and a man)—Christina Zepeda, Priscilla Perez, and Tracy Malmos—got together at Perez's house to watch a movie. They were in their early twenties. Around 10:00 p.m., they went down the street to Tacos La Villa to get some tacos; Zepeda and Perez each drove their own cars (Malmos was evidently with Perez), which they parked in the parking lot outside the restaurant. Zepeda's car was a light blue Scion and Perez's was a red Kia. Upon leaving the restaurant a couple of hours later (neither Zepeda nor Perez remembered the exact time they left the restaurant), Zepeda, Perez, and Malmos observed some people walking towards the area where the Scion and the Kia were parked. Zepeda initially saw a group of two men and a woman approaching the cars; she then noticed that two other women were approaching the cars as well, albeit from a different angle. As for Perez, like Zepeda she saw the first group of three people approaching but then saw only one additional woman (wearing a cheetah print) coming from a different direction. While Zepeda saw five people in total, Perez saw four.
Carjacking and Robbery of Zepeda
Zepeda testified that rather than turning back, she decided to rush to her car, so she could get in quickly and leave. Zepeda got in her car, the Scion. Perez and Malmos were in Perez's car, the Kia. Within five seconds, Wilson came up to Zepeda's window, pointed a seemingly real handgun at her, and told her to get out and give him the car keys. Zepeda did as she was told. Two of the women who were present (one wearing a cheetah print) then seamlessly patted Zepeda down and took "whatever [she] had in [her] pockets," including $300 in cash. Another man and woman were simultaneously "taking [Perez's] phone" and wallet. Wilson was standing nearby looking over to Perez's car as Zepeda was patted down.
After Zepeda was patted down, Wilson and one of the women who had patted Zepeda down, got into Zepeda's car. The other three people got into Perez's car. A "male voice" said: "Go back in [to the restaurant]. We won't shoot you." The cars then drove away.
Zepeda noticed that her cell phone, which was in a "kangaroo pocket" across the front of her sweater instead of in her pants pocket, had not been taken; she used it to call the police. Thirty minutes after the incident, Officer Garcia responded to the scene.
Carjacking and Robbery of Perez
Perez testified that when she and her friends left the taqueria, she saw two men and a woman walking out of an alleyway towards them. Perez continued: "I started hurrying up to my car, opened the door. Once I sat down, [one of the men] told me to get out. Pulled his gun out and told me to get out." The man, who was not Wilson, "wanted [her] keys and everything [she] had." Perez "[g]ot out [of] the car and then gave him [her] keys," whereupon "he told [her] to empty out [her] pockets." Perez added: "I emptied out my pockets, [gave] him my wallet and phone, and then I remember ... him getting in the car." Malmos, who had been getting into the passenger seat, was patted down by the woman wearing the cheetah print. Thereafter, the woman in the cheetah print got into the passenger seat. The car then drove off; the man driving it pointed a gun at Perez as he drove away. Perez's cell phone and wallet were taken, as well as some school supplies that were in the car. As for Zepeda, Perez noted that "she was going through the same thing that [Perez] was going through." Perez said the whole incident appeared to be coordinated.
Wilson's Arrest and Interrogation
Officer Ryan Clark of the Bakersfield Police Department testified that he was on patrol on December 17, 2013, at approximately 12:30 a.m., when he heard a police radio broadcast regarding a "vehicle theft." The broadcast identified the stolen cars as a light blue Toyota Scion and a red Kia. Shortly thereafter, Clark noticed a light blue Scion pulling out of the driveway of the Sunset Motel and started to follow it. A police broadcast identified the license plate number of the stolen Scion, and, with reference to that, Clark confirmed that the Scion he was following was the stolen Scion. Clark then activated the lights and siren on his patrol car and initiated a traffic stop.
The Scion did not yield and traveled down various streets, reaching speeds of 70 miles per hour in a residential area. At that point, another police unit took the lead in pursuing the Scion and a Kern County Sheriff's Department helicopter was deployed to assist with the pursuit. The Scion still did not yield, running a number of stop signs, and reaching a speed of 100 miles per hour. The Scion ran a stop light and proceeded on the wrong side of the street on California Avenue, at which point the direct pursuit was conducted by helicopter only. The Scion eventually hit a sign pole, went over a curb, went through a parking lot, and again drove on the wrong side, on a number of roads. Finally, the front passenger-side wheel (tire and rim) came off, revealing the axle. The Scion started to slow down as it crashed into the carport of an apartment complex, causing two people to dive out of the way. It kept going, however, until it turned onto "undeveloped property that was sealed off by a locked gate." The Scion stopped "approximately 50 to 60 yards" after going through the locked gate. The entire pursuit lasted "15 to 20 minutes."
Several police units converged at the scene. The occupants of the Scion were commanded to exit the car, to no effect. A K9 officer then released his "canine partner," Rex. As Rex engaged with Wilson, who was driving the Scion, Wilson tried to hit Rex over the head. Wilson was eventually removed from the car by the K9 officer. Officer Clark then searched the Scion and "found a replica firearm that had been modified to look as if it was real." Wilson was also searched; he was not in possession of a driver's license. Subsequently, both Wilson and the female with him (Melissa Nevarez) were identified by Zepeda in an "infield show-up."
Wilson was taken to Kern Medical Center for treatment of dog-bite wounds. While there, Clark found a "small bindle of methamphetamine in [Wilson's] sock"; it was a usable amount of methamphetamine (the parties stipulated the substance was methamphetamine). Wilson, though, did not appear to be under the influence of methamphetamine. Rather he was sluggish and drowsy, as if he was "coming off of an adrenaline rush."
While Wilson "was lying" propped up on a "gurney," undergoing treatment, he was interrogated by Clark and another officer. A recording of the interrogation was played for the jury. Wilson told the officers that he and four others—Joseph, also known as Whoa; Whoa's girlfriend, Mika; Nevarez; and a woman known as Rit Rat—were involved in the carjacking incident at Tacos La Villa. Wilson also provided identifying information about his co-perpetrators to the police and revealed the hangouts where they might be located. Wilson said he and his co-perpetrators waited in the alley for a considerable time for Zepeda, Perez, and Malmos to come out of the taqueria. Whoa had a real gun. The gun found in the Scion was a "fake gun," a characterization with which the interrogating officers agreed. Wilson denied pointing the fake gun at Zepeda; he said Rit Rat had done that. Wilson said that after leaving the Tacos La Villa parking lot, he had gone to the Sunset Motel because he and his co-perpetrators had agreed, in advance, to meet there after executing the planned crimes.
After one of the officers commented on the hair-raising car chase Wilson had initiated, Wilson commented: "Are you serious?" He added, "That's fuckin' scary. I must be trippin' out." Wilson said he had a "blurry" recollection of driving through town. He explained: "I don't remember too much ... crashing into things. I just remember just trying to get away. My head was going ... spinning and spinning. I couldn't think. I was thinking it was a dream ... [¶] ... [c]ause I was all meth'ed out."
Wilson said he had used methamphetamine in the alley by Tacos La Villa; more specifically, he had smoked an "eight ball" (the equivalent of one-eighth of an ounce) over the course of the day. Officer Clark testified that an eight ball "would be approximately 35 times the average amount used in a single hit." Clark added that Wilson did not have the anxious and excited demeanor of someone who had recently used methamphetamine. However, Clark did not request a blood test for Wilson while he was under treatment at the hospital, to confirm whether or not he was under the influence of methamphetamine.
Co-perpetrator Elias Joseph Bernal
Police continued to look for the other suspects involved in the carjacking incident. Wilson had told the police to look at the Starlighter Motel or behind the Starlighter Motel, which was right next to the Sunset Motel. The day after the carjacking incident, two officers went to the Starlighter Motel and contacted a woman leaving the motel in a car. The woman gave them a home address for an Elias Joseph Bernal. Police officers went to that address. In a bedroom occupied by Bernal, they found the keys to Perez's car. A loaded semiautomatic gun was found next to the keys. Perez's Kia was found about a quarter of a mile from the residence. During her testimony, Perez confirmed, with reference to a photograph of the gun, that it looked like the gun that was pointed at her.
Wilson's Recorded Phone Calls from Jail
Recordings of a number of phone calls Wilson made from jail, after his instant arrest, were played for the jury. In one call, Wilson stated that he had "jacked" a car and driven it until "the wheel fell off." He explained to his girlfriend, amid tears, that he was sorry and did not think he would ever "[get] out." In another phone call he said that Rit Rat, Mika, and Green Eyes (Nevarez) were snitching on him but Whoa knew better. In a third phone call, Wilson said that when they stole the cars, all he had was a "plastic gun" but "the other dude" had a "real gun." Wilson said they had all agreed to meet up at the Sunset Motel after executing the crimes. Asked what he was thinking when he took the car, Wilson said he "wasn't [thinking]" because he "was too fucked up on drugs." He said he was "panicking" and "[f]reaking out" when he was trying to elude the police. Wilson said he was scared because he did not know what sentence he would receive.
PROCEDURAL HISTORY
Wilson was charged by an amended information (information) filed in the Kern County Superior Court with seven felonies and five misdemeanors: two counts of carjacking (counts 1 & 5; § 215, subd. (a)); one count of felony evading (count 2; Veh. Code, § 2800.2); one count of felony driving the wrong way to evade law enforcement (count 3; Veh. Code, § 2800.1); one count of conspiracy to commit carjacking (count 4; §§ 182, subd. (a)(1), 215, subd. (a)); two counts of robbery (counts 6 & 7; § 212.5, subd. (c)); one misdemeanor count of possession of methamphetamine (count 8, Health & Saf. Code, § 11377, subd. (a)); one misdemeanor count of hit and run (count 9; Veh. Code, § 20002, subd. (a)); one misdemeanor count of obstruction (count 10; § 148, subd. (a)(1); one misdemeanor count of driving without a license (count 11; Veh. Code, § 12500, subd. (a)); and one misdemeanor count of striking a police dog (count 12; § 600, subd. (a)). The information also included sentence enhancement allegations of a prior strike and serious felony offense (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e), 667, subd. (a)) and a prior prison term (§ 667.5, subd. (b)). As to count 5, the information further alleged that Wilson knew a principal was armed with a firearm (§ 12022, subd. (a)(1)).
Criminal proceedings subsequently were suspended under sections 1368 and 1369, and the court eventually found Wilson incompetent to stand trial. Wilson was admitted to Patton State Hospital. Criminal proceedings were reinstated several months later, upon a finding by the court that Wilson, by then, was competent to stand trial.
A jury found Wilson guilty as charged. In a bifurcated proceeding, the trial court sustained the strike, serious felony, and prior prison term enhancement allegations.
Wilson was sentenced to 33 years eight months in state prison. He was sentenced to 24 years on count 5 (carjacking of Perez) (the upper term of nine years doubled on account of a strike prior, plus five years under section 667, subdivision (a)) and one year under section 12022, subdivision (a)(1). In addition, he was sentenced to three years four months on count 1 (carjacking of Zepeda); one year four months on count 3 (driving wrong way on highway to evade); and two years each on counts 6 and 7 (second degree robbery). The court enhanced Wilson's aggregate sentence by one year on account of a prior prison term enhancement pursuant to section 667.5, subdivision (b)). The court also imposed consecutive sentences of six years on count 3 (felony evading) and 18 years on count 4 (conspiracy to commit carjacking), but these were both stayed under section 654. Finally, the court imposed concurrent sentences for counts 8-12, all of which were misdemeanors.
DISCUSSION
I. Application of Section 654 to Wilson's Carjacking and Robbery Convictions
Wilson was convicted of carjacking and second degree robbery of Perez; he was sentenced to consecutive sentences of 24 years and two years, respectively, for these offenses and related enhancements. He argues the trial court should have stayed his sentence for robbery pursuant to section 654. Wilson was also convicted of carjacking and second degree robbery of Zepeda, and was sentenced to consecutive sentences of three years four months and two years, respectively, for these offenses. With respect to his sentences for the offenses against Zepeda, he similarly argues that the sentence for robbery must be stayed under section 654.
Section 654, subdivision (a), provides, in relevant part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." "Whether a defendant may be subjected to multiple punishment under section 654 requires a two-step inquiry, because the statutory reference to an 'act or omission' may include not only a discrete physical act but also a course of conduct encompassing several acts pursued with a single objective." (People v. Corpening (2016) 2 Cal.5th 307, 311 (Corpening); Neal v. State of California (1960) 55 Cal.2d 11, 19 (Neal), overruled on other grounds by People v. Correa (2012) 54 Cal.4th 331, 344.) "We first consider if the different crimes were completed by a 'single physical act.' [Citation.] If so, the defendant may not be punished more than once for that act. Only if we conclude that the case involves more than a single act—i.e., a course of conduct—do we consider [in the second step of the inquiry] whether that course of conduct reflects a single 'intent and objective' or multiple intents and objectives." (Corpening, supra, at p. 311.) If multiple acts were pursued with a single criminal intent and objective, "'"'the defendant may be punished for any one of [the resulting] offenses but not for more than one.'"'" (People v. Jackson (2016) 1 Cal.5th 269, 354; accord, Corpening, supra, at p. 311.) Finally, when the applicable facts are undisputed—as they are here—the application of section 654 raises a question of law that we review de novo. (Corpening, supra, at p. 311; People v. Harrison (1989) 48 Cal.3d 321, 335 ["the applicability of (section 654) to conceded facts is a question of law"].)
Here, Zepeda testified that Wilson approached her car, pointed a seemingly real handgun at her, and forced her to get out and hand over her keys. Two women who were with Wilson immediately, and with minimal discussion, patted her down and took $300 from her pocket. The force or fear required for robbery was accomplished by the initial brandishing of a seemingly real handgun by Wilson (a point also made by the prosecutor in his closing argument). After taking Zepeda's cash, Wilson and one of the women with him got into Zepeda's car and drove off. Perez's account of what happened to her was slightly different from Zepeda's experience. The other man (who was with Wilson) forced Perez out of her car at gunpoint, demanding her car keys and everything she had. Perez got out of her car and handed over her car keys, wallet, and phone. The man, along with one or two of the women in the group, then got into Perez's car and drove off.
Perez testified that the entire episode appeared to unfold pursuant to a coordinated plan. The essentially simultaneous nature of the crimes, as well as Wilson's statement to the police that the group waited for Zepeda and Perez to emerge from the taqueria, also reflect a degree of coordination. Another indication of coordination is the fact, as revealed in Wilson's police statement and a phone call he made from jail, that the group had planned to meet up afterwards at the Sunset Motel, a point noted by the prosecutor in his closing argument.
Upon conducting the two-step section 654 inquiry as delineated in Corpening, we conclude that the carjacking and robbery of Zepeda entailed multiple acts, or, stated differently, a course of conduct spanning the carjacking and the robbery of her personal effects. The evidence reasonably suggests, however, that the course of conduct was incident to a single intent and objective, namely to make off with Zepeda's car and valuables (in other words, the objective was to take everything Zepeda had). Indeed, there is no evidence to support a different conclusion, i.e., that after telling Zepeda to get out of her car and hand over her keys, Wilson suddenly formed a discrete and separate intent to steal her personal property. Given our conclusion that Wilson had a unitary objective in committing the carjacking and robbery of Zepeda, his sentence for the latter offense must be stayed pursuant to section 654. (See Neal, supra, 55 Cal.2d at p. 19 [where "all the offenses were incident to one objective," the defendant may be "punished for any one of such offenses but not for more than one"].)
In contrast, the carjacking and robbery of Perez were both based on a single act, as the People acknowledge. Perez testified that the man who accosted her, demanded, at gunpoint, her "car keys and everything [she] had." In response, she promptly turned over the keys as well as the contents of her pockets, including her wallet and cell phone. Since the carjacking and robbery of Perez were based on a single act, Wilson's sentence for the robbery of Perez also must be stayed. (See People v. Dominguez (1995) 38 Cal.App.4th 410, 420 [where defendant demanded, by threat of force, "everything [the victim] had" and took both the victim's van and his jewelry, the carjacking and robbery were based on the same act and, therefore, section 654 barred multiple punishment]; Corpening, supra, 2 Cal.5th at p. 315 [actus reus of carjacking and robbery is a "forceful taking" of a car and personal property, respectively].)
In sum, we will remand the matter for resentencing, in order for the trial court to stay Wilson's sentences on both counts of robbery. II. Effect of Proposition 47 on Prison Prior Sentence Enhancement
Whether we apply a de novo or substantial evidence standard of review to this issue, our conclusion would remain that Wilson's sentences for his robbery convictions must be stayed pursuant to section 654. Furthermore, since we have resolved this issue in Wilson's favor, we need not address his alternative argument that the trial court erred in imposing consecutive sentences on the robbery counts.
The amended information alleged a prior prison term sentence enhancement pursuant to section 667.5, subdivision (b), based on a prior drug possession conviction that Wilson had suffered in the Kern County Superior Court in 2010. The trial court sustained the enhancement allegation in a bifurcated court trial, and, at sentencing, imposed a one-year prior prison term enhancement as part of Wilson's aggregate sentence.
Wilson was sentenced to the low term of one year four months for the prior drug conviction.
After Wilson's sentencing, but during the pendency of this appeal, the drug possession conviction underlying the prior prison term enhancement was reduced to a misdemeanor. Wilson argues that "[b]ecause the [prior] offense has now been reduced to a misdemeanor, this Court should order the trial court to strike the one-year [prison prior] enhancement" imposed as part of the sentence in this case. We agree with Wilson that remand is warranted for the trial court to strike the prior prison term enhancement, because the conviction underlying the enhancement has been reduced to a misdemeanor pursuant to Proposition 47.
Proposition 47 (§ 1170.18), enacted by the electorate in November 2014, reclassified certain felony drug possession offenses as misdemeanors. (People v. Lynall (2015) 233 Cal.App.4th 1102, 1108; see § 1170.18, subd. (i).) It also created a mechanism whereby a person convicted of such an offense, who had already completed his sentence, could have the conviction redesignated as a misdemeanor. (§ 1170.18, subds. (f) & (g).) Although Proposition 47 does not directly address how redesignation of a felony conviction to a misdemeanor affects recidivist enhancements based on the conviction at issue, section 1170.18, subdivision (k) specifies that any "felony conviction that is ... designated as a misdemeanor ... shall be considered a misdemeanor for all purposes, except [for purposes of firearm possession]." (Italics added.)
"'Imposition of a [prior prison term] sentence enhancement under [section 667.5, subdivision (b)] requires proof that the defendant: (1) was previously convicted of a felony; (2) was imprisoned as a result of that conviction; (3) completed that term of imprisonment; and (4) did not remain free for five years of both prison custody and the commission of a new offense resulting in a felony conviction.'" (In re Preston (2009) 176 Cal.App.4th 1109, 1115.) Stated differently, section 667.5, subdivision (b), imposes a one-year enhancement for committing an offense that leads to a felony conviction and prison custody within five years of having been released from custody on a previous felony conviction. Here, the trial court imposed this enhancement because Wilson was convicted of a felony offense (in the instant case) within five years of his release from custody for the prior drug possession conviction he suffered in 2010, which was a felony at the time of conviction.
Wilson challenges imposition of a recidivist enhancement pursuant to section 667.5, subdivision (b), because the prior felony conviction underlying the enhancement has now formally been designated a misdemeanor. Since section 1170.18, subdivision (k) specifies that a redesignated conviction "shall be considered a misdemeanor for all purposes," Wilson posits it can no longer satisfy the first element of section 667.5, subdivision (b) (see above). Wilson further contends that although his prior felony conviction was reduced to a misdemeanor after he was convicted and sentenced in the instant case, he is entitled, under In re Estrada (1965) 63 Cal.2d 740, 744, 748 (Estrada), to the ameliorative benefit of section 1170.18, subdivision (k), because judgment in his case is not yet final. (See Estrada, supra, at p. 744 ["The key date (in determining whether a defendant receives the benefit of an amendatory statute) is the date of final judgment."].)
The plain language of section 1170.18, subdivision (k)—"shall be considered a misdemeanor for all purposes"—anticipates that the redesignation of a felony conviction as a misdemeanor conviction would apply to collateral consequences such as recidivist enhancements, including prior prison term enhancements. In other words, since section 1170.18, subdivision (k) specifies that a felony conviction that is redesignated as a misdemeanor under Proposition 47 shall be a misdemeanor for all purposes, section 1170.18, subdivision (k), by its plain terms, serves to invalidate prior prison term sentence enhancements, which are necessarily predicated on prior felony convictions.
Here, Wilson's prior drug possession conviction—on which the prior prison term enhancement is predicated—was redesignated as a misdemeanor shortly after Wilson's sentencing in the instant case. The issue is thus whether section 1170.18, subdivision (k) applies retroactively to invalidate the prior prison term enhancement imposed by the trial court at Wilson's sentencing. Whether a statute has retroactive effect is ultimately a question of the intent of the legislature or electorate, as the case may be, in enacting the statute. (See, e.g., People v. Evans (2016) 6 Cal.App.5th 894, 903 (Evans), review granted Feb. 22, 2017, S239635.) In this context, Estrada explains that when a statue mitigates punishment, it leads to the "inevitable inference" that the enacting body (the legislature or the electorate) intended for it to apply as broadly as possible, i.e., to all cases that were pending final judgment on its effective date. (Estrada, supra, 63 Cal.2d at p. 745.) Since section 1170.18, subdivision (k) effectively invalidates a prior prison term enhancement upon the redesignation of the underlying felony prior as a misdemeanor, the statute mitigates punishment and, in turn, has retroactive application under Estrada. (See Evans, supra, at p. 903.)
This issue is currently pending review in the California Supreme Court, including in People v. Ruff (2016) 244 Cal.App.4th 935, review granted May 11, 2016, S233201 and Evans, supra, 6 Cal.App.5th 894.
Our conclusion is bolstered by the express statements of purpose included in Proposition 47, which make clear that in enacting this proposition, the electorate had determined that nonviolent crimes like drug possession and petty theft had erstwhile been punished too severely and warranted reduced punishment, including when convictions for these crimes served as the basis for sentence enhancements. (See Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 2, p. 70.) For example, the stated purposes of Proposition 47 included "maximiz[ing] alternatives for nonserious, nonviolent crime" and "ensur[ing] that prison spending is focused [instead] on violent and serious offenses." (Voter Information Guide, supra, § 2, p. 70.)
We will therefore remand the matter for the trial court to strike the prior prison term enhancement, because the prior conviction underlying the enhancement was redesignated, after sentencing, as a misdemeanor pursuant to Proposition 47. III. Wilson's Sentence on Count 5
In light of our conclusion, we need not address Wilson's alternative argument that defense counsel was ineffective in failing to have Wilson's prior drug conviction redesignated as a misdemeanor before his sentencing hearing.
Wilson argues the trial court abused its discretion in imposing the upper term of nine years on count 5, the carjacking of Perez, leading to a total sentence of 24 years for that count. (See § 215, subd. (b) ["Carjacking is punishable by imprisonment in the state prison for a term of three, five, or nine years."].) The total sentence of 24 years for count 5 resulted from a doubling of the upper term (nine years) based on a prior strike enhancement, plus the imposition of a five-year serious felony enhancement also based on the prior strike, along with a one-year firearm enhancement under section 12022, subdivision (a)(1). Wilson's argument centers on the court's finding that his mental illness was not a mitigating factor. Wilson argues the court misconstrued California Rules of Court, rule 4.423 (rule 4.423), which lists various factors in mitigation, including whether "[t]he defendant was suffering from a mental or physical condition that significantly reduced culpability for the crime." (Rule 4.423(b)(2); see § 1170, subd. (a)(3) ["In sentencing the convicted person, the court shall apply the sentencing rules of the Judicial Council."].) We conclude the record is ambiguous with respect to the court's interpretation and application of Rule 4.423(b)(2). Accordingly, we will remand the matter for the court to either clarify its initial rationale or resentence Wilson on count 5.
The prior strike and serious felony enhancements were based on a 2001 carjacking conviction. (§ 215, subd. (a).) The prior prison term enhancement was based on a 2010 drug possession conviction. (Health & Saf. Code, § 11377, subd. (a).)
A. Background
At sentencing, the trial court found that Wilson suffered from a mental illness. The court stated: "I don't have any doubt that he has mental health issues." The court next attempted to determine whether Wilson's mental illness was a mitigating factor under rule 4.423(b)(2). Since rule 4.423(b)(2) essentially provides that a defendant's mental illness is a mitigating factor when it significantly reduces culpability for the crime, the court properly considered whether Wilson's mental illness significantly reduced his culpability for the instant crimes. The court requested guidance regarding the appropriate way to resolve this question, asking what facts or factors were relevant for this purpose. Specifically, the court asked the probation officer: "In terms of your experience, training, and education regarding the application of CRC Rule 4.423(b)(2), what type of facts would support applying that circumstance in mitigation?" The probation officer failed to address the court's question, making only the obvious point that while Wilson suffered from "mental conditions," that "in and of itself" did not "merit" finding his mental illness to be a "mitigating factor."
The record before the court contained information that would potentially support a finding that Wilson's mental illness was mitigating, although the court had the discretion to reach the opposite conclusion as well. A number of psychologists had diagnosed Wilson with paranoid schizophrenia; schizophrenia, undifferentiated type; psychotic disorder, not otherwise specified; cognitive disorder, not otherwise specified; seizure disorder; and polysubstance dependence. These evaluators also noted that Wilson's "judgment" was "impaired;" he exhibited "obvious delusional thinking and [a] bizarre thought process;" and his score on the "Malingering Inventory" was "not suggestive of pathological malingering, but rather a psychotic condition." The record further showed that Wilson had an "extensive history of psychiatric hospitalizations," including a commitment, pursuant to section 2684, to a state hospital for mentally ill and insane prisoners. (See § 2684 [provides for transfer from state prison, and expedited treatment of, "mentally ill, mentally deficient, or insane prisoners"].) In addition, Wilson was not on antipsychotic medication at the time of the offenses but, once he was jailed on the current charges, he was placed on several medications, including BuSpar, Effexor, Strattera, Haldol, Vistaril, and Geodon, some of which are psychotropic medications. On the other hand, several psychologists had opined that Wilson was malingering—especially after he began taking antipsychotic medication—and gave him a provisional diagnosis of antisocial personality disorder.
Wilson was also involuntarily medicated while undergoing "competency training" at Patton State Hospital in connection with this case.
Furthermore, a defense expert, a psychologist, who had initially found that Wilson was legally insane when he committed the offenses, subsequently changed his opinion on the question of insanity on grounds that Wilson knew what he was doing and that it was wrong (this psychologist nevertheless maintained that Wilson was experiencing psychotic symptoms when he committed the offenses). At sentencing, the prosecutor referenced the fact that the defense expert had recanted his initial opinion that Wilson was legally insane when he committed the offenses; the prosecutor suggested that this not only indicated that Wilson was not insane but also that his mental illness was not a mitigating factor. The prosecutor maintained that Wilson "knew what he was doing" and was "sufficiently coherent to lead police on an incredibly dangerous police chase."
Ultimately, the court ruled:
"With regard to the argument about the defendant's mental condition, I do find that he was suffering from a mental condition on the date of the crime. But under all the circumstances, I do not find that it significantly reduces culpability for the crimes that he committed. That's partly based upon his ability to carry out these crimes in a manner that showed that he was aware of who he was, where he was, what he was doing. The high-speed chase involved a lot of motor control and judgment in order for him to successfully complete that. And then his statements to others on the jail calls shortly after, which counsel have both made offers of proof about, shows that he knew what was going on. He was aware that he was committing a crime and was hoping he wouldn't be caught, essentially. [¶] So I am not going to find [his mental illness as a] circumstance in mitigation."
B. Analysis
Wilson now argues the court rejected his mental illness as a mitigating circumstance "based on the faulty legal premise that if [he] knew what he was doing and that it was wrong, his mental illness was not mitigating." He points out that had he not been aware of what he was doing and that it was a crime, he would be eligible for a verdict of not guilty by reason of insanity. (People v. Elmore (2014) 59 Cal.4th 121, 145 [insanity is a complete defense]; People v. Dobson (2008) 161 Cal.App.4th 1422, 1432 [accord].) In sum, Wilson contends the court effectively reasoned that "unless [he] was [legally] insane ... his mental illness did not reduce his culpability for the crime."
Section 25, subdivision (b), delineates the standard for legal insanity: "In any criminal proceeding, including any juvenile court proceeding, in which a plea of not guilty by reason of insanity is entered, this defense shall be found by the trier of fact only when the accused person proves by a preponderance of the evidence that he or she was incapable of knowing or understanding the nature and quality of his or her act and of distinguishing right from wrong at the time of commission of the offense." (See People v. Hernandez (2000) 22 Cal.4th 512, 520-521 ["Insanity ... means that at the time the offense was committed, the defendant was incapable of knowing or understanding the nature of his act or of distinguishing right from wrong."].)
Wilson correctly points out that a defendant's mental illness, to the extent it reduces culpability for the offenses at issue, is mitigating under rule 4.423 even if the defendant was not legally insane. (See rule 4.423(a)(4) [any reason, not amounting to a defense, that partially excuses criminal conduct may constitute a mitigating factor].) Indeed, a defendant's mental illness is relevant for sentencing purposes precisely because it falls short of constituting a complete defense, such as legal insanity, which would exonerate the defendant. Mental illness, for example, may reduce culpability for an offense by vitiating a person's impulse control and impairing judgment. Some of the psychologists who evaluated Wilson noted he suffered from a "bizarre thought process" and "impaired" judgment. Similarly, mental illness may reduce culpability when a person's actions are influenced by a psychotic condition or delusional thinking. Wilson's expert psychologist noted he was experiencing psychotic symptoms at the time he committed the offenses. Wilson also told the probation officer that before he committed the instant offenses, he heard "voices" encouraging him to be a "superhero."
The court rejected Wilson's mental illness as a mitigating circumstance because Wilson "was aware of who he was, where he was, what he was doing," "knew what was going on," and "was aware that he was committing a crime," which prompted him to try to escape. The court's comments appear to echo the insanity standard, which requires that, "at the time the offense was committed, the defendant was incapable of knowing or understanding the nature of his act or of distinguishing right from wrong." (People v. Hernandez, supra, 22 Cal.4th at pp. 520-521.) Here, the court was free to exercise its discretion to find that Wilson's mental illness was not mitigating under rule 4.23(b)(2). However, to the extent the court believed that under that rule, it could not consider Wilson's mental illness to be mitigating unless Wilson was incapable of understanding what he was doing and distinguishing right from wrong, the court erred. Applying the latter standard in evaluating the mitigating role of a defendant's mental illness would be tantamount to requiring a showing, at sentencing, that the defendant was legally insane. (People v. Superior Court (Humberto S.) (2008) 43 Cal.4th 737, 742 ["Where the trial court's decision rests on an error of law... the trial court abuses its discretion."].)
As stated above, we recognize the trial court had the discretion to find that Wilson's mental illness was not mitigating. Nevertheless, given the court's comments, we cannot discern with certainty its rationale for finding that Wilson's mental illness did not reduce his culpability, and, in turn, was not a mitigating circumstance. Indeed, the People's brief completely fails to address the import of the court's comments in relation to the applicable sentencing rules and the insanity standard, thereby ignoring the gravamen of Wilson's argument. In light of the ambiguity in the record regarding the court's reasoning, we will vacate Wilson's sentence on count 5 and remand the matter for resentencing. On remand, the court may either reconsider whether Wilson's mental illness was a mitigating circumstance or simply clarify its initial rationale and reinstate the prior sentence for this count. Remand is appropriate because, to the extent the court erred in evaluating whether Wilson's mental illness was a mitigating factor, we cannot say that, absent the error, Wilson would not have obtained a more favorable sentence on count 5. (See People v. Cruz (1995) 38 Cal.App.4th 427, 433-434 [a reviewing court will set aside a sentence based on the trial court's erroneous reasoning only if it is reasonably probable that, absent the error, the defendant would have received a more favorable sentence]; also see People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 918 [a reasonable probability "does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility"].)
Since we have resolved Wilson's sentencing claims in his favor, we need not address his contention that his sentencing hearing was fundamentally unfair and violated his right to due process. --------
DISPOSITION
The judgment of conviction is affirmed. The matter is remanded for resentencing consistent with this opinion.
/s/_________
SMITH, J. I CONCUR: /s/_________
FRANSON, Acting P.J. PEÑA, J., Concurring and Dissenting
I concur in the majority opinion except for the direction in part II of the Discussion, which requires the trial court to strike the prior prison term enhancement upon remand for resentencing. While I agree the matter should be remanded for resentencing, the prosecution should be allowed the opportunity to oppose striking of the enhancement if it can show defendant Aaron Joshua Wilson poses an unreasonable risk of danger to public safety. (See Pen. Code, § 1170.18, subds. (b) & (c), all unspecified code references are to the Pen. Code; Harris v. Superior Court (2016) 1 Cal.5th 984, 991-992.)
Section 1170.18 codifies the recall of sentencing and redesignation aspects of Proposition 47, the Safe Neighborhoods and Schools Act. Subdivisions (a) through (e) of section 1170.18 allow for a resentencing of certain offenses reduced to misdemeanors by Proposition 47, so long as the defendant files a petition for sentence recall, satisfies the necessary criteria, and the sentencing court determines the defendant does not pose an unreasonable risk of danger to public safety. (People v. Morales (2016) 63 Cal.4th 399, 404; People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) Subdivisions (f) and (g) of section 1170.18 provide a mechanism for petitioning to have certain felony offenses reduced to misdemeanors retroactively, even where the judgment in those cases is final. (People v. Call (2017) 9 Cal.App.5th 856, 860; Alejandro N. v. Superior Court (2015) 238 Cal.App.4th 1209, 1217 ["the Proposition 47 voters made this felony-to-misdemeanor reclassification available to qualifying offenders on a retroactive basis"].) Prior prison terms are not among the listed "offenses" that may be reduced. But as the majority opinion points out at page 15, "Since section 1170.18, subdivision (k) effectively invalidates a prior prison term enhancement upon the redesignation of the underlying felony prior as a misdemeanor, the statute mitigates punishment and, in turn, has retroactive application under [In re Estrada (1965) 63 Cal.2d 740]."
I agree. This part of the statute has retroactive application, and for future purposes, the prior prison term can have no application now that the underlying conviction has been reduced to a misdemeanor, and we so held in Call. (People v. Call, supra, 9 Cal.App.5th at pp. 863-864.) However, since the redesignation to a misdemeanor occurred after sentencing, at a time the prior prison term was properly imposed, this case is governed by the recall and resentencing provisions of Proposition 47, codified in subdivisions (a) through (e) of section 1170.18, not subdivisions (f) through (h) and (k).
Under similar provisions of the Three Strikes Reform Act of 2012, Proposition 36, the high court in People v. Conley (2016) 63 Cal.4th 646 (Conley) stated:
"Where, as here, the enacting body creates a special mechanism for application of the new lesser punishment to persons who have previously been sentenced, and where the body expressly makes retroactive application of the lesser punishment contingent on a court's evaluation of the defendant's dangerousness, we can no longer say with confidence, as we did in Estrada, that the enacting body lacked any discernible reason to limit application of the law with respect to cases pending on direct review. On the contrary, to confer an automatic entitlement to resentencing under these circumstances would undermine the apparent intent of the electorate that approved section 1170.126: to create broad access to resentencing for prisoners previously sentenced to indeterminate life terms, but subject to judicial evaluation of the impact of resentencing on public safety, based on the prisoner's criminal history, record of incarceration, and other factors. This public safety requirement must be applied realistically, with careful consideration of the Reform Act's purposes of mitigating excessive punishment and reducing prison overcrowding. But given that section 1170.126, by its terms, applies to all prisoners 'presently serving' indeterminate life terms, we can discern no basis to conclude that the electorate would have intended for courts to bypass the public safety inquiry altogether in the case of defendants serving sentences that are not yet final." (Id. at pp. 658-659.)
In People v. Superior Court (Lara) (Feb. 1, 2018, S241231) ___ Cal.5th ___ , the court reiterated its holding in Conley as follows:
"[In Conley, w]e found Estrada's inference of retroactivity inapplicable. But that was because the legislation contained its own retroactivity provision. It permitted persons sentenced under the Three Strikes law, including those whose judgments were final, to seek resentencing and a reduced sentence, but subject to certain conditions. [Citations.] Accordingly, we held that persons already sentenced, including those whose judgments were not final, were not 'entitled to automatic resentencing' without regard to the conditions. [Citation.]" (People v. Superior Court (Lara), supra, ___ Cal.5th at p. ___ [2018 Cal. LEXIS 726 at pp. *19-*20].)
It seems to me the Supreme Court's reasoning applies equally to Proposition 47's resentencing provisions. As such, while defendant may urge the trial court to strike the prior prison term at his resentencing hearing, he is not entitled to automatic striking of the enhancement simply because a nonsentencing court under the redesignation procedures has already reduced it to a misdemeanor.
/s/_________
PEÑA, J.