People v. Baldwin

30 Cal.App.5th 648

241 Cal.Rptr.3d 753

The PEOPLE, Plaintiff and Respondent,

v.Anthony Lee BALDWIN, Defendant and Appellant.

A147588

Court of Appeal, First District, Division 5, California.

Filed December 21, 2018

As Modified December 27, 2018

Garrick Byers, Fresno, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Catherine A. Rivlin, Bruce M. Slavin and Basil Williams, Deputy Attorneys General, for Plaintiff and Respondent.

BRUINIERS, J.^*

Anthony Lee Baldwin was convicted in 2012 of robbery ( Pen. Code, § 211 ),¹ felony petty theft with theft priors (§§ 484, 666), and misdemeanor brandishing a knife (§ 417). He was sentenced to prison for a term of three years for the robbery plus six consecutive one-year enhancements for prior prison terms (§ 667.5, subd. (b); hereafter section 667.5(b) ), and sentence was stayed on the other two convictions (§ 654). In 2015, Baldwin successfully petitioned under the Safe Neighborhoods and Schools Act (Proposition 47) to reduce three of the prior section 667.5 felony convictions to misdemeanors. He then filed a Proposition 47 petition in the instant case to resentence the felony theft as a misdemeanor and dismiss four of the section 667.5(b) enhancements to his robbery sentence as no longer valid.

The trial court granted Baldwin’s petition in part. Sentence was recalled on the felony theft, the offense was reduced to a misdemeanor, and sentence on that count was imposed accordingly. The court, however, declined to resentence Baldwin on the robbery, leaving all section 667.5(b) enhancements in place. On appeal, Baldwin contended the trial court should have recalled his entire sentence and considered the validity of the sentencing enhancements or exercised its discretion to strike one or more of the enhancements pursuant to section 1385. In an unpublished opinion, we held the court was not required to structure a new sentence under these circumstances, and the section 667.5(b) enhancements were not subject to retroactive reduction under Proposition 47. We affirmed the judgment on December 23, 2016.

In March 2017, our Supreme Court granted Baldwin’s petition for review and held the matter pending disposition in another case. In October 2018, the Supreme Court transferred the matter back to this court with directions to vacate our decision and "reconsider the cause in light of People v. Buycks (2018) 5 Cal.5th 857, 236 Cal.Rptr.3d 84, 422 P.3d 531" ( Buycks ). In compliance with that directive, we have vacated our December 23, 2016 opinion by separate order and now conclude remand is required for resentencing.

I. BACKGROUND

The underlying information in this case charged Baldwin with second degree robbery ( § 211 ), petty theft with three prior theft-related convictions (§§ 484, 666), and misdemeanor brandishing a knife (§ 417). The information also alleged, under section 667.5(b), that in six separate instances Baldwin had been convicted of a felony, served a prison term for each felony, and in each instance had not remained free of subsequent prison custody or felony conviction for a period of five years. Four of the section 667.5(b) enhancements are relevant here:² a June 1995 conviction (Monterey County) for assault with a deadly weapon or force likely to produce great bodily injury (former § 245, subd. (a)(1) ); November 1998 and September 2000 convictions (Santa Cruz and Monterey Counties, respectively) for possession of a controlled substance (Health & Saf. Code, former § 11377); and a November 2003 conviction (Santa Cruz County) for making or passing a fictitious check (§ 476).

In June 2012, Baldwin was convicted by jury trial on all three counts. Baldwin admitted all six section 667.5(b) enhancements. The trial court sentenced him to a term of nine years in state prison—a three-year middle term for the robbery, with six one-year consecutive sentence enhancements.³ This court affirmed the judgment. (People v. Baldwin (Nov. 19, 2013, A136164) [nonpub. opn.].)⁴

In 2014, California voters passed Proposition 47, which was intended to "ensure that prison spending is focused on violent and serious offenses, to maximize alternatives for nonserious, nonviolent crime, and to invest the savings generated from this act into prevention and support programs in K–12 schools, victim services, and mental health and drug treatment." (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 2, p. 70.) To that end, Proposition 47 reduced most possessory drug offenses and thefts of property valued at less than $950 to straight misdemeanors and created a process for persons currently serving felony sentences for those offenses to petition for resentencing (§ 1170.18).

In July 2015, Baldwin sought reduction of his felony petty theft conviction to a misdemeanor and argued that reduction of his 1998, 2000, and 2003 convictions to misdemeanors precluded their use as § 667.5(b) enhancements in his current case. Baldwin attached to his pro se petition copies of Santa Cruz County Superior Court orders granting his section 1170.18 petitions related to his 1998 and 2003 convictions, and a copy of his 1170.18 petition in Monterey County regarding his 2000 conviction.⁵

The court appointed counsel to represent Baldwin on the section 1170.18 resentencing petition. Baldwin submitted a memorandum of points and authorities and written argument for resentencing, and the People filed written opposition. Hearings were held in October and November 2015. On February 2, 2016, the court issued its "Ruling Denying Request Under Proposition 47 to Resentence Without Enhancements." The court denied resentencing on the base robbery count, finding that the "the judgment is final and the enhancements were correctly imposed at the time of sentencing." On February 11, 2016, the court granted Baldwin’s resentencing petition as to the petty theft conviction. Baldwin filed a timely notice of appeal.

II. DISCUSSION

Baldwin contends he was entitled to a plenary resentencing hearing on all counts and enhancements, and the trial court was required to determine the validity of the section 667.5(b) enhancements as of the time of resentencing. He is correct.

A. Section 667.5 (b ) Enhancements

1. 1998, 2000, and 2003 convictions

Baldwin’s original sentence included six consecutive one-year enhancements imposed for his prior felony prison commitments under section 667.5(b). "Imposition of a sentence enhancement under [section 667.5(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." ( People v. Tenner (1993) 6 Cal.4th 559, 563, 24 Cal.Rptr.2d 840, 862 P.2d 840.) When found to be true, imposition of the one-year consecutive sentence enhancement is "mandatory unless stricken." ( People v. Langston (2004) 33 Cal.4th 1237, 1241, 17 Cal.Rptr.3d 596, 95 P.3d 865.)

In Buycks , the Supreme Court, interpreting the "misdemeanor for all purposes" language of section 1170.18, subdivision (k),⁶ as added by Proposition 47, held that "a defendant who successfully petitions for resentencing on a current Proposition 47 eligible conviction may, at the time of resentencing, challenge a felony-based enhancement contained in the same judgment because the prior felony conviction on which it was based has since been reduced to a misdemeanor." ( Buycks, supra, 5 Cal.5th at p. 879, 236 Cal.Rptr.3d 84, 422 P.3d 531.) Addressing section 667.5(b) priors, the court found "the resentencing of a prior underlying felony conviction to a misdemeanor conviction negates an element required to support a section 667.5 one-year enhancement. A successful Proposition 47 petition or application can reach back and reduce a defendant’s previous felony conviction to a misdemeanor conviction because the defendant ‘would have been guilty of a misdemeanor under’ the measure had it ‘been in effect at the time of the offense.’ (§ 1170.18, subds. (a), (f).) Therefore, if the ‘felony conviction that is recalled and resentenced ... or designated as a misdemeanor’ conviction becomes ‘a misdemeanor for all purposes,’ then it can no longer be said that the defendant ‘was previously convicted of a felony’ [citations], which is a necessary element for imposing the section [667.5(b) ] enhancement. Instead, ‘for all purposes,’ it can only be said that the defendant was previously convicted of a misdemeanor. [¶] Consequently, section 1170.18, subdivision (k) can negate a previously imposed section [667.5(b) ], enhancement when the underlying felony attached to that enhancement has been reduced to a misdemeanor under the measure." ( Buycks, at pp. 889–890, 236 Cal.Rptr.3d 84, 422 P.3d 531, fn.,omitted.) In Baldwin’s case, his 1998, 2000, and 2003 convictions are thus no longer eligible for use as § 667.5(b) enhancements.

2. 1995 felony conviction

Baldwin’s June 1995 conviction, for assault with a deadly weapon or force likely to produce great bodily injury (former § 245, subd. (a)(1) ), remains a felony. Baldwin argues that if enhancement for the subsequent 1998, 2000, and 2003 felonies convictions were stricken, his 1995 felony conviction no longer meets section 667.5(b) enhancement requirements because he would be deemed to have remained free of prison custody and felony conviction for five years thereafter.⁷ He is factually incorrect. As the Attorney General points out, the plain language of section 667.5(b) states the five-year "washout" rule applies only where the defendant "remained free of both the commission of an offense which results in a felony conviction, and prison custody." (Italics added.) Baldwin did not.

Section 667.5(b), by its express terms,...