People v. Kimble

318 Cal.Rptr.3d 204

The PEOPLE, Plaintiff and Respondent,

v.Kelly Vaughn KIMBLE, Defendant and Appellant.

C097389

Court of Appeal, Third District.

Filed February 9, 2024

APPEAL from a judgment of the Superior Court of Butte County, Corie J. Caraway, Judge. Affirmed. (Super. Ct. No. CM026600)

William Safford, Palo Alto, 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, Darren K. Indermill and John W. Powell, Deputy Attorneys General, for Plaintiff and Respondent.

Krause, J.

In November 2008, the trial court sentenced defendant Kelly Vaughn Kimble to 25 years to life under the former Three Strikes law, plus an additional year for a prior prison term enhancement. In October 2022, defendant appeared for resentencing pursuant to Senate Bill No. 483 (2021-2022 Reg. Sess.) (Senate Bill 483) (Stats. 2021, ch. 728, § 3), codified as Penal Code section 1172.75.^{1 2} At the hearing, the trial court struck defendant’s prior prison term enhancement, but otherwise left his sentence intact. Defendant appealed, arguing the trial court erred in resentencing him under Senate Bill 483 without applying the revised penalty provisions of the Three Strikes Reform Act of 2012 (Reform Act or Act) (Prop. 36, as approved by voters, Gen. Elec. (Nov. 6, 2012)). The Attorney General countered that defendant was not entitled to resentencing under the Reform Act as part of his resentencing under Senate Bill 483.

In our original opinion, filed July 14, 2023, we agreed with the Attorney General and affirmed the judgment. Two weeks later, the Attorney General filed a petition for rehearing, informing us that his position had changed, and that he now conceded defendant was entitled to application of the Reform Act’s revised penalties at his 2022 resentencing. The Attorney General did not explain the basis for his change in position, cite to any recent authority that might have triggered the sudden reversal, or point out any errors of law or fact in our opinion.³ After due consideration of the Attorney General’s rehearing petition, it was denied on the merits.

On October 25, 2023, the Supreme Court granted review and transferred the matter back to us with directions to vacate the decision and "reconsider the cause in light of the Attorney General’s concession that defendant was entitled to resentencing under the revised penalty, provisions of the Three Strikes Reform Act. (Cal. Rules of Court, rule 8.528(d).)" After transfer, defendant filed a supplemental opening brief, again arguing his position and noting the Attorney General’s late concession on the issue of resentencing. The Attorney General filed no brief in response.

[1, 2] Having carefully reconsidered the matter, we again decline to accept the Attorney General’s bare concession. As a general rule, we are not bound by concessions made by the People in a criminal case. (People v. Alvarado (1982) 133 Cal. App.3d 1003, 1021, 184 Cal.Rptr. 483.) And here, we are not inclined to give the Attorney General’s concession significant deference, as the issue before us turns on a question of statutory interpretation, such that the analysis is not invalidated simply by a, change in party position.

It also is worth highlighting that while the Supreme Court’s basis for granting review appears to be the Attorney General’s concession, he has declined to take any position after transfer. Defendant, however, advances new arguments in his supplemental brief following the Supreme Court’s transfer order. We will address these contentions, and explain why the judgment is properly affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

In July 2008, a jury found defendant guilty of stalking (§ 646.9) which, at the time, constituted a third strike, as he had prior convictions for attempted kidnapping and criminal threats. Accordingly, the trial court sentenced defendant to 25 years to life under the Three Strikes law (former §§ 667, subds. (b)-(i), 1170.12), plus a one-year prior prison term enhancement. (§ 667.5, subd. (b).) We affirmed his sentence on appeal. (People v. Kimble (Dec. 28, 2009, C060478) 2009 WL 5067654 [nonpub.opn.].)

In 2013, defendant filed a petition for resentencing under section 1170.126, subdivision (b) of the then newly-enacted Reform Act. As defendant’s third strike was not a violent or serious felony, defendant argued that he was eligible to be resentenced as a second strike offender under the Reform Act’s revised sentencing provisions.⁴ However, after considering People’s the evidence of defendant’s dangerousness, including the violent nature of defendant’s prior criminal acts, his poor performance on probation and parole, and acts of misconduct while in prison for the current offense, and allowing defendant to testify, the trial court found defendant would pose "an unreasonable risk of danger to the public if released" under section 1170.126, subdivision (f) and declined to resentence him as a second strike offender. Defendant appealed, and we affirmed the trial court’s ruling. (People v. Kimble (July 14, 2014, C073819) 2014 WL 3401249 [nonpub. opn.].)

Effective January 1, 2022, Senate Bill 483 invalidated most prior prison term enhancements, including the one imposed on defendant. In July 2022, the trial court appointed counsel, who filed a petition for recall of defendant’s sentence and requested a full resentencing hearing. Defendant argued in his briefing that Senate Bill 483 invalidated his prior prison term enhancement and mandated a full resentencing, applying all ameliorative changes made to California’s penal laws, including the Reform Act.

At the resentencing hearing, the trial court stated that it was "declining to exercise [its] discretion to strike any enhancements or reduce the sentence, but for the one year prior prison term." Defense counsel objected, stating that Senate Bill 483 required a "complete resentencing," meaning the trial court had to "start over again" with "existing laws." The trial court responded, "I have gone over the existing laws, and I’m declining to exercise my discretion." Defendant appealed.

DISCUSSION

This case focuses on the interplay of two ameliorative changes made to our state’s sentencing laws—the Reform Act and Senate Bill 483—each of which has its own resentencing mechanism. Defendant was most recently considered for resentencing under Senate Bill 483’s recall and resentencing procedure. Defendant argues that because Senate Bill 483 requires the trial court to conduct a full resentencing, it was required to apply the ameliorative sentencing changes adopted by voters in the Reform Act. Defendant asserts that if the trial court had followed the law, he would automatically have been resentenced as a second strike offender, which would have reduced his prison term to, at most, 10 years, qualifying him for release from prison. The Attorney General, before articulating a contrary position in his rehearing petition, argued that Senate Bill 483 does not authorize trial courts to bypass the Reform Act’s own voter-approved resentencing mechanism. Rather, when a sentence is final—as defendant’s has been since 2009—the Reform Act provides for a distinct resentencing procedure that defendants must follow in order to seek discretionary relief under the Reform Act. We agree with the position initially taken by the Attorney General in this case and reaffirm the conclusions reached in our prior opinion.

I Senate Bill 483

In October 2021, the Governor signed Senate Bill 483. Effective January 1, 2022, the bill added section 1171.1, later renumbered as section 1172.75, to the Penal Code, which provides: "Any sentence enhancement that was imposed prior to January 1, 2020, pursuant to subdivision (b) of Section 667.5, except for any enhancement imposed for a prior conviction for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code is legally invalid." (§ 1172.75, subd: (a).)

Section 1172.75 also describes how relief is obtained under the statute. First, the Department of Corrections and Rehabilitation notifies the sentencing court of a person in its custody who currently is serving a prison term that includes a section 667.5 enhancement. (§ 1172.75, subd. (b).) This notification vests the trial court with jurisdiction to review the judgment and recall and resentence the defendant after verifying that his or her sentence includes a qualifying enhancement. (§ 1172.75, subd. (c).) A key provision for purposes of this case provides that, at resentencing, "[t]he court, shall apply the sentencing rules of the Judicial Council and apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing." (§ 1172.75, subd. (d)(2).)

II The Reform Act

The other sentencing scheme we consider is the Reform Act, an initiative measure that prospectively ameliorated penalties under the Three Strikes law. (Former §§ 667, subds. (b)-(j), 1170.12.) Under its revised penalty provisions, "many third strike defendants are excepted from the provision imposing an indeterminate life sentence (see [former] § 1170.12, subd. (c)(2)(A)) and are instead sentenced in the same way as second strike defendants (see id., subd. (c)(2)(C)): that is, they receive a term equal to ‘twice the term otherwise provided as punishment for the current felony conviction’ (id., subd. (c)(1))." (People v. Conley (2016) 63 Cal.4th 646; 653, 203 Cal.Rptr.3d 622, 373 P.3d 435 (Conley).)

For defendants being sentenced for the first time after the Reform Act’s November 2012 effective date, section 1170.12 sets forth the Act’s sentencing rules, which generally require prosecutors to "plead and prove each prior serious or violent felony conviction." (§ 1170.12, subd. (d)(1).) The prosecutor also must have "pled and proved" any...