Opinion
F083652
11-13-2023
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM JACK HOPKINS, Defendant and Appellant.
Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. SF019655A John R. Brownlee, Judge.
Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SMITH, J.
INTRODUCTION
Following a crime spree that spanned three days, appellant William Jack Hopkins was arrested and convicted by jury of the following crimes: kidnapping with the intent to commit rape (Pen. Code, § 209, subd. (b)(1), count 1), forcible rape (§ 261, subd. (a)(2), count 2), assault with the intent to commit sodomy (§§ 220, 286, subd. (c)(2), count 3), two counts of robbery (§ 212.5, subd. (c), counts 4 &5), two counts of criminal threats (§ 422, counts 6 &7), two counts of felon in possession of a firearm (§ 29800, subd. (a)(1), counts 8 &11), assault with a firearm (§ 245, subd. (a)(2), count 9), attempted unlawful taking of a motor vehicle (§ 664; Veh. Code, § 10851, subd. (a), count 10), and two counts of receipt of a stolen motor vehicle (§ 496d, subd. (a), counts 14 &15). The jury further found true that Hopkins used a firearm in the commission of some of these offenses (§§ 12022.53, subd. (b), 12022.5, subd. (a), counts 1-7, 10 &12), and as to count 2, that Hopkins kidnapped the victim (§ 667.61, subd. (d)(2)), personally used a firearm in the commission of the offense (§ 667.61, subd. (e)(3)), and that he tied or bound the victim (§ 667.61, subd. (e)(5)).
All undefined statutory citations are to the Penal Code unless otherwise indicated.
The trial court sentenced Hopkins to prison for indeterminate terms of life with the possibility of parole, plus 15 years to life, and an aggregate determinate term of 60 years four months.
He raises the following claims on appeal. First, Hopkins claims that the 10-year prison term imposed for the section 12022.53, subdivision (b) gun use enhancement applied to count 2 was unauthorized and must be stricken. Second, he asserts that the trial court erred by imposing consecutive terms on count 2 and 3, because the acts upon which these counts are based did not occur on separate occasions (see § 667.6, subd. (d)). According to Hopkins, there was no reasonable opportunity for him to reflect upon his actions between the sexual acts for which he was convicted in counts 2 and 3, and thus, the imposition of concurrent terms on these counts was improper. Third, Hopkins claims that he is entitled to a new sentencing hearing following the enactment of Senate Bill No. 567 (2020-2021 Reg. Sess.) (Senate Bill No. 567) and Assembly Bill No. 124 (20202021 Reg. Sess.) (Assembly Bill No. 124). Fourth, the sentence for the section 12022.5, subdivision (a) gun use enhancement applied to count 10 was unauthorized. Fifth, the trial court failed to exercise its discretion to strike or modify the gun use enhancements. (See People v. Tirado (2022) 12 Cal.5th 688.) Sixth, Hopkins contends that he is entitled to a hearing on his ability to pay court-imposed restitution fines and fees. Seventh, he submits that the abstract of judgment must be corrected to accurately reflect the number of in-custody and good conduct credits he has earned. And finally, Hopkins contends a $10 section 1202.5 fine imposed at sentencing must be stricken as the trial court failed to find that he had the ability to pay the fine.
The Attorney General concedes that sentencing error requires remand for a new sentencing hearing and that the remainder of Hopkins's claims are rendered moot.
We accept the parties' concession that the enactment of new legislation calls for remand for a new sentencing hearing, and we will remand the matter back to the lower court for this purpose. Because a full resentencing is required on all counts, the remainder of the parties' claims of sentencing error are moot. We affirm the judgment of conviction.
PROCEDURAL HISTORY
On March 6, 2020, the Kern County District Attorney charged Hopkins with kidnapping with the intent to commit rape (§ 209, subd. (b)(1), count 1), forcible rape (§ 261, subd. (a)(2), count 2), assault with the intent to commit sodomy (§§ 220, 286, subd. (c)(2), count 3), two counts of robbery (§ 212.5, subd. (c), counts 4 &5), two counts of criminal threats (§ 422, counts 6 &7), three counts of felon in possession of a firearm (§ 29800, subd. (a)(1), counts 8, 11 &13), assault with a firearm (§ 245, subd. (a)(2), count 9), attempted unlawful taking of a motor vehicle (§ 664; Veh. Code, § 10851, subd. (a), count 10), robbery (§ 212.5, subd. (c), count 12), and two counts of receipt of a stolen motor vehicle (§ 496d, subd. (a), counts 14 &15). The jury further found true that Hopkins used a firearm in the commission of some of these offenses (§§ 12022.53, subd. (b), 12022.5, subd. (a), counts 1-7, 10 &12), and as to count 2, that Hopkins kidnapped the victim (§ 667.61, subd. (d)(2)), personally used a firearm in the commission of the offense (§ 667.61, subd. (e)(3)), and that he tied or bound the victim (§ 667.61, subd. (e)(5)).
On July 21, 2021, a jury found Hopkins guilty on counts 1 through 11, and counts 14 and 15, but found him not guilty on counts 12 and 13. The jury also found true the firearm enhancement allegations and aggravating circumstances alleged under section 667.61.
On December 8, 2021, the trial court sentenced Hopkins to an aggregate determinate term of 22 years to life, plus an aggregate determinate term of 60 years four months on the remaining counts and enhancements.
Hopkins filed a timely notice of appeal.
STATEMENT OF FACTS
June 13, 2019 (Counts 9-11)
J.R. lived across the street from a funeral home. On June 13, 2019, around 11:30 p.m., J.R. and his friend, Q.A., were in J.R.'s backyard hanging out when they heard a loud bang. They walked toward the funeral home to investigate. Once there, they saw a man wearing sunglasses, a hoodie, and a face covering going through a truck.
When J.R. and Q.A. got within five to 10 feet of the truck, the man noticed them, pulled out a "little pistol," and told them to "scoot." J.R. and Q.A. fled.
The truck, a Ford F-350, belonged to R.W., who owned and managed the funeral home. The sides of the truck had been damaged, the ignition collar was removed, and the ignition switch had been tampered with.
June 14, 2019 (Counts 1-8)
On June 14, 2019, at around 5:30 a.m., A.T. and his girlfriend, Jane Doe, were parked near a cemetery in Shafter. Jane Doe fell asleep. A.T. got out of the car to relieve himself.
Armed with a pistol, Hopkins walked toward A.T., pointed the gun at him, and threatened," '[p]ut your hands up or I'm going to shoot you.'" A.T. described the gun as black and silver-colored pistol, "possibly a .22-caliber Ruger." Hopkins instructed A.T. not to look at him and told A.T. to empty his pockets.
Jane Doe awoke and got out of the car. Hopkins pointed the gun at A.T. and Jane Doe. He demanded," 'Give me the fucking money or I'm going to shoot you.' "
A.T. did not have money on him. He gave Hopkins the money from Jane Doe's purse. Hopkins told A.T. to move to the back of the car or he would shoot Jane Doe. As Hopkins pointed the gun at Jane Doe, he demanded that A.T. get in the trunk and threatened to shoot Jane Doe. Jane Doe closed the trunk.
Hopkins told Jane Doe that he would drive to a point where he (Hopkins) could get away and A.T. would not be able to chase him. He assured Jane Doe that he would let her go at that point, and that nothing else would happen to her.
A.T. opened the trunk from the inside and began to get out. Hopkins told A.T. to get back inside or he would shoot Jane Doe. A.T. complied.
As they walked into an orchard, Hopkins put a sack over Jane Doe's head, which prevented her from seeing anything. Hopkins threatened to shoot her if she did anything. Hopkins then led her into a truck. He had Jane Doe sit on top of him with her hands in her pants and drove off.
Approximately 10 to 15 minutes later, Hopkins stopped the truck. Hopkins taped the sack on Jane Doe's head and taped her hands together behind her back. He laid her down on the dirt ground, took off her sweats, underwear and shoes, and inserted his penis into her vagina for "a minute or so." A short time later, he attempted to insert his penis into her anus. Jane Doe kept wiggling her legs and told Hopkins that it hurt. Hopkins stopped.
Either before or after Hopkins attempted to sodomize Jane Doe, Hopkins stood up and began masturbating. He splashed water on Jane Doe, in between her legs, and told her that "he was just washing it off."
Hopkins put Jane Doe's clothes back on her. He told her that he had her identification and made her recite her home address. After she complied, Hopkins put Jane back into the truck and began driving. He drove for a short distance before instructing her to get out of the truck.
Hopkins threatened to "skin [her] alive" if Jane Doe went to the police or told anyone about what had occurred. He told her to count to 100, removed the bag covering her head, and informed her that if she walked in a straight line, she would reach the same location as A.T. When Jane Doe opened her eyes, she was in the orchard. She continued walking until she eventually found a man who called the police for her.
June 23, 2018 (Counts 14 &15)
On June 23, 2019, about 7:00 a.m., E.A., a foreman at an agriculture business, saw a Dodge 2500 truck with a trailer attached, driving through the business's vineyard. Believing that the truck was going to dump tires in the area, E.A. pursued it. The Dodge truck failed to turn at the end of a road and crashed into a reservoir.
A passenger inside the truck fled through an orchard nearby. The driver ran into the vineyards, returned to the truck to retrieve a black bag, and then ran into the orchard. The truck and the trailer attached to it were both stolen.
Hopkins's fingerprints and DNA were found in the Dodge truck. Hopkins admitted to being a passenger inside the Dodge truck when it crashed into the reservoir. He further admitted having known that the truck was stolen because the driver told Hopkins that it was.
Hopkins's Prior Convictions
The parties stipulated that Hopkins had previously been convicted of a felony that prohibits him from owning, purchasing, receiving, or possessing a firearm. At trial, Hopkins admitted that he had been convicted of two felonies in 2012, and one felony in 2015, 2016, and 2017.
The Sentencing Hearing
The probation officer's report identified four factors in aggravation of Hopkins's sentence, including: Hopkins's numerous prior convictions as an adult and sustained juvenile wardship proceedings as a minor; his poor prior performance on probation; the fact that Hopkins had served seven prior prison terms and a commitment to the California Youth Authority, and that he was on a grant of post-release community supervision when the instant crimes occurred. Only one factor in mitigation was identified: Hopkins had previously completed one deferred entry of judgment and one grant of parole.
Hopkins was sentenced on December 8, 2021. After considering mitigating and aggravating factors, the trial court concluded that the upper term sentence was warranted as to all determinate counts and enhancements with triads. The court did not identify what aggravating factors it had specifically relied upon in concluding that the upper term sentence was warranted.
DISCUSSION
I. Hopkins is Entitled to a New Sentencing Hearing Based Upon the Enactment of Senate Bill No. 567 and Assembly Bill No. 518 (2021-2022 Reg. Sess.)
Senate Bill No. 567 amended section 1170, subdivision (b) by restricting a trial court's discretion to impose an upper term sentence. (Stats. 2021, ch. 731, § 1.3.) Effective January 1, 2022, "[t]he court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term, and the facts underlying those circumstances have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial." (§ 1170, subd. (b)(2); People v. Flores (2022) 73 Cal.App.5th 1032, 1038.)
Although Hopkins claims that he is entitled to resentencing relief under Assembly Bill No. 124, he does not explain how he is entitled to imposition of a lower prison term because various factors were contributing factors in the commission of the offense, including, "psychological, physical, or childhood trauma," (§ 1170, subd. (b)(6)(A)) his age at the time of the commitment offense (see § 1016.7), or other factors (see § 1170, subd. (b)(6)(C), (7). Nothing shall preclude Hopkins from raising this issue at his resentencing hearing below.
Assembly Bill No. 518 (2021-2022 Reg. Sess.) amended section 654 to permit an act or omission punishable under two or more provisions of law to "be punished under either of such provisions." (§ 654, subd. (a); Stats. 2021, ch. 441, § 1, eff Jan. 1, 2022.) Following Assembly Bill No. 518's amendment to section 654, the trial court is no longer required to impose the longest possible term of imprisonment when multiple offenses are based on the same act or omission. (See People v. Mani (2022) 74 Cal.App.5th 343, 379.) Rather, section 654 vests "the trial court with discretion to impose and execute the sentence of either term, which could result in the trial court imposing and executing the shorter sentence rather than the longer sentence." (People v. Mani, at p. 379.)
Senate Bill No. 567 and Assembly Bill No. 518 went into effect on January 1, 2022, nearly one month after Hopkins's sentencing hearing. Nothing in the record suggests that the trial court was aware of changes made to the law as a result of these impending legislative enactments. Even assuming the trial court's failure to comply with Senate Bill No. 567 is harmless error (see People v. Dunn (2022) 81 Cal.App.5th 394, review granted Oct. 12, 2022, S275655), the trial court was unaware of its newly conferred discretion under Assembly Bill No. 518. "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.)
The parties do not dispute that both laws apply retroactively to Hopkins's judgment of conviction, which has not yet reached finality.
Moreover, because we do not know what factors in aggravation the trial court relied upon in imposing the upper term sentence on all determinate terms and enhancements, we are unable to conclude, with confidence, that remand for a new sentencing hearing would be an idle act. (See People v. Gamble (2008) 164 Cal.App.4th 891, 901 ["' [i]f 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' "].)
We will therefore remand this matter back to the lower court for a full resentencing hearing in accordance with People v. Buycks (2018) 5 Cal.5th 857, 893. Hopkins shall have the opportunity to raise his remaining claims at the hearing below.
II. The Attorney General's Claims of Sentencing Error
The Attorney General raises two additional claims of sentencing error. First, he contends that punishment imposed on both of Hopkins's convictions for possession of a firearm by a felon (§ 29800, counts 8 &11) was improper, as substantial evidence fails to show that Hopkins was in possession of more than one firearm. Second, he contends that Hopkins's sentence on either count 1, his conviction for kidnapping with the intent to commit rape, or count 2, forcible rape, must be stayed.
Though we find insufficient support for the Attorney General's assertion that either count 8 or 11 must be reversed rather than stayed, the Attorney General's assertions otherwise appear to have merit. (See People v. Spirlin (2000) 81 Cal.App.4th 119, 130-131 [finding three sentences for possession of a firearm by a felon (§ 12021, subd. (a)(1) improper under section 654 where the defendant had continuous possession of the same gun, and thus, his intent to possess the weapon as a felon did not change]; People v. Latimer (1993) 5 Cal.4th 1203, 1216 [finding that § 654 prohibited punishment for kidnapping where" 'the kidnapping was for the purpose of committing the sexual offenses and [defendant] ha[d] been punished for each of the sexual offenses' "].)
The gun described in count 11, the incident at the funeral home on June 13, 2019, was described only as "a little pistol." The gun used in the commission of count 8, the kidnapping and rape of Jane Doe, was described as a black and silver "smaller gun," "possibly a .22-caliber Ruger." The incidents occurred only six hours apart.
In light of our conclusion that a full resentencing hearing is required, we do not address these contentions as they are technically moot. Nothing shall preclude the parties from raising these issues, in the first instance, in the trial court below.
DISPOSITION
The judgment of conviction is affirmed. The sentence is vacated and the matter is remanded back to the lower court for a new sentencing hearing.
WE CONCUR: HILL, P. J., DE SANTOS, J.