People v. Pipkins

1

THE PEOPLE, Plaintiff and Respondent, v. JUSTIN PIPKINS, Defendant and Appellant.

F083745

California Court of Appeals, Fifth District

May 18, 2023

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Kern County No BF186664B. John D. Oglesby, Judge.

Brian J. Poore, 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, Julie A. Hokans, and Galen N. Farris, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

THE COURT^[*]

Defendant Justin Pipkins was found guilty by a jury for possession of methamphetamine, transportation of methamphetamine, and possession of paraphernalia, and was sentenced to eight years in prison. His sentence included upper term sentences on two counts, one of which was stayed pursuant to Penal Code section 654.^[1] On appeal, defendant contends that his sentence must be vacated, and the case remanded for resentencing, because the trial court failed to apply the following ameliorative changes in law: (1) Senate Bill No 81's (2021-2022 Reg. Sess.) (Senate Bill 81) amendments to section 1385, (2) Senate Bill No. 567's (2021-2022 Reg. Sess.) (Senate Bill 567) amendments to section 1170 subdivision (b), and (3) Assembly Bill No. 518's (20212022 Reg. Sess.) (Assembly Bill 518) amendments to section 654. Alternatively, defendant contends that (4) assuming he forfeited his claims of error, his trial counsel's failure to apprise the court of the ameliorative changes in law constituted ineffective assistance of counsel, and (5) the cumulative effect of the trial court's failure to apply the ameliorative changes in law caused him prejudice. Finally, defendant contends that (6) the trial court erred in staying the prison term on count 1 without also staying the related fines and fees imposed in relation to the same count. The People respond that defendant forfeited his first three claims of error and that defendant's first five claims of error fail on the merits. The People agree that the abstract of judgment should be modified to reflect that the fines and fees imposed in connection with count 1 are stayed. We order the trial court to issue an amended abstract of judgment reflecting that the fines and fees imposed in connection with count 1 are stayed. In all other respects, we affirm.

PROCEDURAL SUMMARY

On November 29, 2021, the Kern County District Attorney filed an amended information charging defendant with possession of methamphetamine (Health &Saf. Code, § 11378; count 1), transportation of methamphetamine (Health &Saf. Code § 11379, subd. (a); count 3), and misdemeanor possession of drug paraphernalia (Health &Saf. Code, § 11364; count 4).^[2] As to counts 1 and 3, the amended information alleged that defendant had suffered a prior "strike" conviction within the meaning of the "Three Strikes" law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).

On December 3, 2021, the jury found defendant guilty on all counts. On the same date, at a bifurcated proceeding outside the presence of the jury, the trial court found the prior strike allegation to be true in reliance on a certified copy of defendant's RAP sheet.

On January 11, 2022, the trial court denied defendant's request to strike his prior strike conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). The court then sentenced defendant to an aggregate term of eight years as follows: on count 3, eight years (the upper term of four years doubled due to the prior strike conviction); on count 1, six years (the upper term of three years doubled due to the prior strike conviction), stayed pursuant to section 654; and on count 4, 180 days, concurrent with the term on count 3. As to each count, the court also imposed a $50 drug laboratory fee pursuant to Health and Safety Code section 11372.5 and a $100 drug program fee pursuant to Health and Safety Code section 11372.7. The court did not explicitly order those fees stayed on count 1 pursuant to section 654.

On the same date, defendant filed a notice of appeal.

FACTUAL SUMMARY

On July 27, 2021, two Kern County Sheriff's deputies observed codefendant Gary Mills, who appeared to be transient, stand at the front driver side door of defendant's sedan, lean in, remove a closed hand from the vehicle and place his hand into the right cargo pocket of his shorts. The officers left their patrol vehicle and approached defendant and codefendant. As they approached, one of the officers saw codefendant counting cash. The officer then searched codefendant's right cargo pocket and discovered a bag of what was later determined to be approximately 28 grams of methamphetamine and a hypodermic needle. In addition, the officer found codefendant had $120 cash in his hand, and approximately $100 cash in his right front pocket. In codefendant's backpack, the officer discovered a loaded firearm, a digital scale, a spoon with drug residue, and three syringes.

Defendant was the driver of the sedan, which held two other passengers. One of the passengers possessed 30.9 grams of methamphetamine and $100 in cash. Defendant possessed $1,805 in cash. In the cupholder between the two front seats of the sedan, officers found 0.3 grams of methamphetamine. Officers further discovered a backpack in the vehicle, containing defendant's mail and a methamphetamine pipe with residue.

DISCUSSION

I. Senate Bill 81

Defendant contends that his sentence should be vacated, and the matter should be remanded, because the trial court did not understand the discretion granted to it by Senate Bill 81's addition of subdivision (c) to section 1385 and that it was required to give great weight to the mitigating factors listed in subdivision (c) in determining whether to strike defendant's prior strike conviction. The People respond that the plain language of the statute unambiguously applies only to enhancements, and the Three Strikes law is an alternative sentencing scheme, not an enhancement. We agree with the People.

Effective January 1, 2022, Senate Bill 81 amended section 1385 to add subdivision (c) (Stats. 2021, ch. 721, § 1; Cal. Const., art. IV, § 8, subd. (c); Gov. Code, § 9600, subd. (a)), which provides, in part:

"(1) Notwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute.

"(2) In exercising its discretion under this subdivision, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the [listed] mitigating circumstances ... are present. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety." (§ 1385, subd. (c)(1)-(2).)

The mitigating circumstances listed include that the current offense is not a violent felony, and that the enhancement is based on a prior conviction that is over five years old. (§ 1385, subd. (c)(2)(F), (H).) Defendant was sentenced after the effective date of Senate Bill 81, his present felony convictions were not violent offenses, and his prior strike conviction was more than five years old. It is further undisputed that the trial court did not discuss subdivision (c) of section 1385 in imposing defendant's sentence.

The People argue that subdivision (c) of section 1385 "by its plain language ... does not apply to [defendant's] sentence [because it] ... includes no enhancements." Rather, the People argue, defendant's sentence as modified by the Three Strikes law was a result of "an alternative sentencing scheme for the current offense rather than an enhancement." (Romero, supra, 13 Cal.4th at p. 527.)

Whether the amendments to section 1385 apply to a prior strike conviction is a question of statutory interpretation, which we review de novo. (People v. Tirado (2022) 12 Cal.5th 688, 694.) To resolve which interpretation of the statute is correct, "we are guided by familiar canons of statutory construction. '[I]n construing a statute, a court [must] ascertain the intent of the Legislature so as to effectuate the purpose of the law.' [Citation.] In determining that intent, we first examine the words of the respective statutes: 'If there is no ambiguity in the language of the statute, "then the Legislature is presumed to have meant what it said, and the plain meaning of the language governs." [Citation.] "Where the statute is clear, courts will not 'interpret away clear language in favor of an ambiguity that does not exist.' [Citation.]"' [Citation.] If, however, the terms of a statute provide no definitive answer, then courts may resort to extrinsic sources, including the ostensible objects to be achieved and the legislative history. [Citation.] 'We must select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences.'" (People v. Coronado (1995) 12 Cal.4th 145, 151.)

Under section 1385, subdivision (a), the trial court "may[,] ... in furtherance of justice, order an action to be dismissed." (People v. Williams (1998) 17 Cal.4th 148, 151 (Williams).) This authority under section 1385, subdivision (a) includes the power to "strike or vacate an allegation or finding under the Three Strikes law that a defendant has previously been convicted of a serious and/or violent felony . . .." (Williams, supra, 17 Cal.4th at p. 158.)

Effective January 1, 2022, Senate Bill 81 amended section...