People v. Walker

67 Cal.App.5th 198

281 Cal.Rptr.3d 892

The PEOPLE, Plaintiff and Respondent,

v.Maurice WALKER, Defendant and Appellant.

B301617

Court of Appeal, Second District, Division 2, California.

Filed July 29, 2021

Law Offices of Jason Szydlik and Jason Szydlik, San Francisco, for Defendant and Appellant.

Matthew Rodriquez, Acting Attorney General, Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Thomas C. Hsieh, Deputy Attorneys General.

HOFFSTADT, J.

When part of a criminal sentence is ordered stricken by an appellate court, the trial court on remand "has jurisdiction to modify every aspect of the sentence" when resentencing. ( People v. Buycks (2018) 5 Cal.5th 857, 893, 236 Cal.Rptr.3d 84, 422 P.3d 531 ( Buycks ).) But is a trial court conducting such a resentencing required to exercise that jurisdiction in order to correct a different part of the sentence that has become incorrect by the time of resentencing? We conclude that the answer is "yes." Because the trial court in this case conducted a resentencing to correct one sentencing enhancement while letting stand another enhancement that had become incorrect, we reverse and remand for a plenary resentencing.

FACTS AND PROCEDURAL BACKGROUND

I. Facts

In June 2012, Maurice Walker (defendant) stabbed a 77-year-old man with a knife.

II. Procedural Background

A. Charges, conviction and original sentencing

The People charged defendant with (1) assault with a deadly weapon ( Pen. Code, § 245, subd. (a)(1) ), and (2) elder abuse (id. , § 368, subd. (b)(1)).¹ As to both counts, the People also alleged that defendant personally inflicted great bodily injury on a person 70 years or older (§ 12022.7, subd. (c)). The People further alleged that defendant's 1983 juvenile adjudication for robbery and his 1992 conviction for assault with a deadly weapon constituted "strikes" within the meaning of our Three Strikes Law (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(j)), and that the 1992 conviction also qualified as a prior serious felony (§ 667, subd. (a)). As pertinent to this appeal, the People lastly alleged that defendant had served two prior prison terms for felonies (§ 667.5, subd. (b))—namely, the 1992 assault conviction and a 2001 felony drug possession conviction ( Health & Saf. Code, § 11350 ).

A jury found defendant guilty of these charges and found true the conduct enhancements.

Defendant admitted to the prior convictions.

The trial court sentenced defendant to prison for 20 years. Specifically, the court imposed a principal sentence of eight years on the assault count (comprised of a base term of four years, doubled for one prior "strike"), plus five years for the personal infliction of great bodily injury enhancement, plus five years for a prior serious felony, plus two one-year enhancements for the two prior prison terms detailed above. In calculating this sentence, the court stayed the sentence on the elder abuse count and dismissed defendant's 1983 juvenile adjudication as a "strike."

We affirmed defendant's conviction and sentence in an unpublished opinion. ( People v. Walker (Feb. 24, 2014, B245405) 2014 WL 700693.)

The judgment became final when the remittitur issued on April 28, 2014.

B. Reduction of 2001 felony drug possession conviction to a misdemeanor

On November 5, 2014, the Safety Neighborhoods and Schools Act took effect. ( § 1170.18.) That act, which is more commonly known as Proposition 47, redesignated several lower-level felonies as misdemeanors, prospectively, and also created a procedural mechanism by which persons previously convicted of such felonies could petition a court to have those convictions redesignated as misdemeanors "for all purposes." (Ibid .; see also id. , subd. (k).)

In May 2015, and pursuant to Proposition 47, the trial court redesignated defendant's 2001 felony drug possession conviction as a misdemeanor. However, in June 2015, the court denied defendant's request to carry that redesignation forward into this case by striking the one-year prior prison term enhancement based on that conviction.²

C. Correction of sentencing error regarding the enhancements based on the 1992 assault with a deadly weapon conviction

In October 2016, defendant petitioned this court for a writ of habeas corpus on the ground that the trial court erred in imposing the five-year enhancement for a prior serious felony and a one-year enhancement for a prior prison term for the same conviction—namely, the 1992 assault with a deadly weapon conviction.

In December 2016, we concluded that defendant "made a prima facie showing of entitlement to habeas corpus relief based on the imposition of an unlawful sentence enhancement" and issued an order to show cause that was returnable in the trial court.

In January 2017, the trial court issued an order granting relief that struck the one-year prior prison term enhancement for the 1992 assault with a deadly weapon conviction, and reduced the aggregate sentence from 20 to 19 years.

D. Habeas petition seeking further reduction of sentence based on redesignation of 2001 drug possession conviction to a misdemeanor

In December 2018,³ defendant petitioned the trial court for a writ of habeas corpus on the ground that the May 2015 redesignation of his 2001 drug possession conviction from a felony to a misdemeanor meant that the one-year enhancement for having served a prior prison term for a felony was no longer authorized when defendant's sentence was modified by the trial court in January 2017.

After receiving the People's opposition and holding a hearing, the trial court denied the petition. The court reasoned that its January 2017 order "was not a resentencing," that "the case was [therefore] final at the time Proposition 47 was enacted," and that defendant thus did not "have a right to have that ... prison prior stricken."

E. Appeal

Defendant filed this timely appeal.

DISCUSSION

Defendant argues that the trial court erred in denying his petition for a writ of habeas corpus because, at the time of the trial court's January 2017 modification of his sentence, his drug possession conviction could no longer support a one-year prison prior enhancement because it had been redesignated as a misdemeanor. This argument presents the following question: Was the trial court required to consider the Proposition 47-induced redesignation of defendant's drug possession conviction when it modified his sentence for other reasons in January 2017? We independently review this question, as it entails on questions of retroactivity and on the application of undisputed facts to the law. ( In re Marriage of Fellows (2006) 39 Cal.4th 179, 183, 46 Cal.Rptr.3d 49, 138 P.3d 200 [retroactivity]; Martinez v. Brownco Construction Co. (2013) 56 Cal.4th 1014, 1018, 157 Cal.Rptr.3d 558, 301 P.3d 1167 [law to undisputed facts].)

When an appellate court orders "part of a sentence ... stricken," the trial court on remand nevertheless has "jurisdiction" to conduct " ‘a full resentencing as to all counts ..., so the trial court can exercise its sentencing discretion in light of the changed circumstances.’ " ( Buycks , supra , 5 Cal.5th at p. 893, 236 Cal.Rptr.3d 84, 422 P.3d 531, quoting People v. Navarro (2007) 40 Cal.4th 668, 681, 54 Cal.Rptr.3d 766, 151 P.3d 1177, italics added; People v. Hill (1986) 185 Cal.App.3d 831, 834, 230 Cal.Rptr. 109 ["When a case is remanded for resentencing by an appellate court, the trial court is entitled to consider the entire sentencing scheme[ ] ... [and] may reconsider all sentencing choices."]; People v. Burns (1984) 158 Cal.App.3d 1178, 1184, 205 Cal.Rptr. 356.) Indeed, courts have consistently noted that it is "appropriate" and "proper" to conduct such a full resentencing. ( Buycks , at p. 893, 236 Cal.Rptr.3d 84, 422 P.3d 531 ; People v. Arbee (1983) 143 Cal.App.3d 351, 355-356, 192 Cal.Rptr. 13.)

Our December 2016 order did not explicitly order the trial court to dismiss the prior prison term enhancement for the 1992 assault charge; we only concluded that defendant had made a "prima facie showing" of entitlement to relief and issued an order to show cause returnable in the trial court on that issue. However, the trial court treated our order as one directing a resentencing because the court, without waiting for further briefing, issued its order granting relief and striking the enhancement at issue. Thus, while not technically a remand for resentencing as to part of a sentence, our order became the functional equivalent.

Although, by virtue of the remand, the trial court had jurisdiction to conduct a full resentencing, the court obviously elected not to do so. But was it required to do so in order to account for the redesignation of the 2001 drug possession conviction?

We conclude that the answer is "yes."

Thus far, courts have identified several circumstances in which a trial court, upon remand to fix one error in a criminal sentence, is not obligated to address other possible errors with that sentence. If the appellate court's order upon remand grants the trial court discretion whether to resentence and the court elects not to do so and leaves the prior sentence intact, there is no resentencing at all —and hence no need to address other possible errors in the sentence. ( People v. Ramirez (2019) 35 Cal.App.5th 55, 63, 246 Cal.Rptr.3d 897 ( Ramirez ).) If the appellate court's order upon remand requires correction as to one part of a sentence but the remand order limits the scope of resentencing, the trial court must adhere to the limits set forth in the remand order. ( Ramirez , at p. 64, 246 Cal.Rptr.3d 897 ["when an appellate court remands a matter with directions governing the proceedings on remand, " ‘those directions are binding on the trial court and must be followed.’ " [Citation.]"]; People v. Murphy (2001) 88 Cal.App.4th 392, 396-397, 105 Cal.Rptr.2d 779.) If the appellate court's order upon remand requires correction as to one part...