People v. Wilson

THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY LEONARDO WILSON, Defendant and Appellant.

B305961

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE

April 28, 2021

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. YA089874)

APPEAL from an order of the Superior Court of Los Angeles County, Thomas Sokolov, Judge. Affirmed.

Jennifer Hansen, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Matthew Rodriguez, Acting Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Michael R. Johnsen, Zee Rodriguez and Douglas L. Wilson, Deputy Attorneys General, for Plaintiff and Respondent.

____________________ Timothy Leonardo Wilson challenges the trial court's denial of a recommendation by the California Department of Corrections and Rehabilitation (CDCR) that the court recall his sentence in light of Senate Bill No. 1393. We conclude that Senate Bill No. 1393 does not apply retroactively to final judgments such as Wilson's, and therefore we affirm.

FACTUAL AND PROCEDURAL SUMMARY

A. Wilson's Underlying Conviction

On March 26, 2014, Martin Robles was operating a trash truck in Manhattan Beach.¹ Robles saw Wilson enter an open garage and leave with a bicycle. Robles contacted the homeowner and told her what he had witnessed. She reported the incident.

Approximately 15 minutes later, a police officer observed Wilson riding the bicycle. The officer instructed Wilson to stop pedaling. Wilson stumbled off the bicycle and fled on foot. The officer caught up to Wilson and detained him.

On March 28, 2014, the People charged Wilson with first degree burglary while a person was present in the residence (Pen. Code, §§ 459, 667.5, subd. (c); count 1),² and resisting a police officer (§ 148, subd. (a)(1); count 2). As relevant here, the complaint further alleged that Wilson suffered two prior serious or violent felonies within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12), and that the prior convictions were serious felonies pursuant to section 667, subdivision (a)(1).

On October 14, 2014, Wilson pleaded no contest to count 1 and admitted one of the prior serious felonies. Pursuant to the terms of the plea agreement, the trial court sentenced Wilson to state prison for an aggregate term of nine years, calculated as follows: the low term of two years doubled pursuant to the Three Strikes law, plus five years for the prior serious felony conviction enhancement.

B. CDCR's Request to Recall the Sentence

On October 22, 2019, CDCR recommended that the trial court recall Wilson's sentence pursuant to section 1170, subdivision (d), and resentence him in light of Senate Bill No. 1393, which amended section 1385, subdivision (b), and granted trial courts the discretion to strike prior serious felony conviction enhancements. The request enclosed documents detailing Wilson's programming history, assignment history, and records of two rules violation reports.

In response to CDCR's request, the prosecutor filed a sentencing memorandum and attached four probation reports for Wilson's most recent convictions. The memorandum argued that Wilson should be resentenced to a total of nine years based on his "uninterrupted pattern of property crimes spanning a period of over 25 years," and noted that "three of the last four criminal convictions involved property taken from residences."

The probation reports attached to the prosecution's memorandum indicated that Wilson had been convicted of one strike prior for burglary in 1992 (§ 459), and one strike prior for robbery in 1984 (§ 211). He had convictions for numerous theft related crimes dating back to 1978, and had served multiple terms in state prison.

On February 18, 2020, the trial court held a hearing on CDCR's request, in which Wilson was present and represented by counsel. Defense counsel advocated for a reduced sentence on the basis of Wilson's educational and work experience in prison and his negligible disciplinary record. He noted that Wilson had participated in 29 programs in prison. He reminded the court that Wilson's prior strike convictions were from 1984 and 1992.

The trial court observed that prior to entry of his plea, Wilson had been facing a sentence of 35 years to life due to the two prior strike convictions, but he received a sentence of nine years pursuant to the plea agreement. The court concluded that Wilson's present offense was "not only a residential burglary," but it included an allegation that a person was present at the time of the offense. It denied the request to resentence Wilson.

Wilson timely appealed.

DISCUSSION

Wilson argues the trial court abused its sentencing discretion by failing to consider the underlying facts of his crime, his age,³ the low risk of violence to the community if he were to be released, and the weight of his admirable post-conviction conduct while in prison.

In response, respondent contends the trial court did not err in denying Wilson's request because Senate Bill No. 1393's amendment of section 1385 does not apply retroactively to Wilson's 2014 conviction, which was a final judgment when the bill took effect on January 1, 2019. For the reasons that follow, we agree with this argument. We note that the People did notraise this issue at the time of the underlying hearing, but instead proceeded on the assumption the trial court had the discretion to resentence Wilson. Thus, the trial court did not have occasion to consider the retroactivity issue. Nonetheless, "on appeal we are concerned with the correctness of the superior court's determination, not the correctness of its reasoning. [Citation.] ' "[W]e may affirm a trial court judgment on any [correct] basis presented by the record whether or not relied upon by the trial court. [Citation.]" [Citation.]' [Citation.]." (People v. Perkins (2016) 244 Cal.App.4th 129, 139; see also People v. Zamudio (2008) 43 Cal.4th 327, 351, fn. 11 [" 'we review the ruling, not the court's reasoning and, if the ruling was correct on any ground, we affirm' "].) Given that we conclude Senate Bill No. 1393 does not apply to final judgments, the trial court's order was not erroneous.

A. Senate Bill No. 1393

Prior to enactment of Senate Bill No. 1393, trial courts had no authority to strike enhancements under section 667, subdivision (a)(1). (People v. Alexander (2020) 45 Cal.App.5th 341, 344 (Alexander).) Senate Bill No. 1393, which became effective January 1, 2019, removed the prohibition on striking such enhancements by deleting the following provision of former section 1385, subdivision (b), which stated: "This section does not authorize a judge to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667." (Sen. Bill No. 1393 (2017-2018 Reg. Sess.) ch. 1013, § 2.) Section 1385, subdivision (b)(1), now provides that "[i]f the court has the authority . . . to strike or dismiss an enhancement, the court may instead strike the additional punishment for that enhancement in the furtherance of justice . . . ."

Whether Senate Bill No. 1393's amendment of section 1385 is to be applied retroactively to cases that are final is a question of law that we review de novo. (People v. Failla (2006) 140 Cal.App.4th 1514, 1520.)

B. CDCR's Recommendation to Recall Wilson's Sentence

Section 1170, subdivision (d)(1), authorizes a court to "recall the sentence and commitment previously ordered," and resentence a defendant "at any time upon the recommendation of" the Secretary of CDCR. Of relevance here, the secretary may recommend that a sentence be recalled when there is a change in sentencing law "due to new statutory or case law authority with statewide application." (Cal. Code Regs., tit. 15, § 3076.1, subds. (a)(3) & (d)(1).)

CDCR's recommendation that the trial court recall and resentence Wilson in light of Senate Bill No. 1393 raises the preliminary question whether its amendment of section 1385 should be applied to Wilson's sentence.

Respondent contends the trial court is not obliged to accept CDCR's recommendation. Rather, the court first should consider whether there is a legal basis to recall the sentence. We agree. By virtue of its permissive language, authorizing CDCR to make a "recommendation," and specifying the court "may" recall the sentence, section 1170, subdivision (d)(1), affords the trial court the opportunity first to determine whether to recall the sentence, and then to conduct a resentencing hearing in the event it does recall the sentence. (See Dix v. Superior Court (1991) 53 Cal.3d 442, 459 & fn. 13 [the trial court is not required to accept CDCR's recommendation to recall a sentence]; People v. Frazier (2020) 55 Cal.App.5th 858, 866 [a recommendation by CDCR does nottrigger "any right to the recommended relief"]; see also People v. McCallum (2020) 55 Cal.App.5th 202, 214 [concluding that upon receiving a recommendation from CDCR under § 1170, subd. (d)(1), the trial court should have considered the briefing submitted by the parties before deciding whether to recall the sentence].)

Therefore, we first examine the basis for CDCR's recommendation to determine whether the trial court had the authority to apply amended section 1385 to Wilson's sentence.

C. Senate Bill No. 1393 Does Not Apply Retroactively to Final Judgments

Wilson entered his plea, and was convicted and sentenced in October 2014. Because he did not appeal from the judgment, his conviction became final in December 2014. (Alexander, supra, 45 Cal.App.5th at pp. 344-345, citing In re Spencer (1965) 63 Cal.2d 400, 405...