The People v. Ellebracht

1

THE PEOPLE, Plaintiff and Respondent, v. SEAN ALLEN ELLEBRACHT, Defendant and Appellant.

THE PEOPLE, Plaintiff and Respondent, v. SEAN ALLEN ELLEBRACHT, Defendant and Appellant.

F085677, F085678

California Court of Appeals, Fifth District

February 5, 2024

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Tulare County. Antonio A. Reyes, Judge. Super. Ct. Nos. VCF174036, VCF210024 Andrea Keith, 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, Jessica C. Leal and Robert Gezi Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

THE COURT ^[*]

INTRODUCTION

The trial court recalled defendant's sentence and resentenced him in accordance with the recommendation of the Secretary of the Department of Corrections and Rehabilitation (the Secretary). Defendant appeals from the resentencing and claims the trial court abused its discretion in striking only one of three prior serious felony conviction enhancements under the amendments to Penal Code section 1385^[1] made by Senate Bill No. 81 (2021-2022 Reg. Sess.) (Senate Bill 81) because the court (1) failed to consider or refer to any of the relevant factors in section 1385, subdivision (c), and (2) considered the terms of the original plea agreement in recalling his sentencing and resentencing him. Defendant also argues that the trial court erred in failing to recalculate his actual custody credits. The People respond that defendant's claims regarding the trial court's decision to strike only one prior serious felony conviction enhancement are forfeited and the trial court did not abuse its discretion in resentencing defendant but agree that the trial court should have recalculated defendant's actual custody credits. In response to our request for supplemental briefing, both parties also agreed that the trial court erred in staying the prior serious felony conviction enhancement because it could only strike or dismiss it.

We will remand for the trial court to calculate defendant's actual custody credits, and to correct the abstract of judgment and minutes to reflect that punishment for one prior serious felony conviction enhancement was stricken but otherwise affirm the judgment.

PROCEDURAL BACKGROUND^[2]

The District Attorney of Tulare County filed an information on May 18, 2007, charging defendant with nine counts of second degree robbery (§ 211; counts 1-9; case No. VCF174036) and, on September 17, 2008, filed a complaint^[3] charging defendant with a single count of second degree robbery (case No. VCF210024). Both charging documents also alleged that defendant had three prior serious felony convictions (§ 667, subd. (a)) that were also "strike" convictions [within the meaning of the "Three Strikes" law] (§§ 667, subds. (a), (b)-(i), 1170.12, subds (a)-(d)).

On October 6, 2008, defendant pleaded no contest to all 10 counts of second degree robbery and admitted the allegations as to his prior serious felony convictions^[4] pursuant to an agreement whereby the prosecutor would dismiss two of the strike convictions for purposes of the Three Strikes law and recommend a 43-year prison sentence.^[5]

The trial court sentenced defendant to 10 years in prison (twice the upper term of five years per §§ 213, subd. (a)(2), 667, subd. (e) &1170.12, subd. (c)(1)), plus an additional five years for each prior serious felony conviction (§ 667, subd. (a)),^[6] for a total term of 25 years as to count 1 (case No. VCF174036). As to the remaining counts in case No. VCF174036 and the single count in case No. VCF210024, the trial court sentenced defendant to consecutive two-year terms (a total of 18 years calculated as one-third of double the mid-term per §§ 213, subd. (a)(2), 667, subds. (a), (b)-(i), 1170.12, subds. (a)-(d), 1170.1, subd. (b)), for a total term of 43 years in prison.

Additionally, the court ordered defendant to pay victim restitution (§ 1202.4, subd. (f)), a $10,000 restitution fine (§ 1202.4; case No. VCF174036), a suspended $10,000 parole revocation restitution fine (§ 1202.45; case No. VCF174036), a $400 restitution fine (§ 1202.4; case No. VCF210024), a suspended $400 parole revocation restitution fine (§ 1202.45; case No. VCF210024), and $200 in court operation assessments (§ 1465.8).

The Secretary submitted a recommendation to the trial court on June 20, 2022, to recall and resentence defendant "based upon a change in sentencing law" pursuant to former section 1170.03, subdivision (a)(1) (Stats. 2021, ch. 719, §§ 1-7).^[7] The Secretary's letter further explained that, effective January 1, 2019, sections 667, subdivision (a)(1) and 1385 had been amended to permit the trial court to exercise its discretion to strike the enhancement or its punishment. The Secretary, based upon this newfound sentencing authority, as well as a review of defendant's commitment offense and in-prison custody, recommended that the court recall defendant's sentence and resentence him in accordance with former section 1170.03, subdivision (a)(1) (Stats. 2021, ch. 719, §§ 1-7).

The trial court held a hearing on July 28, 2022, and referred the matter to the probation department for an abbreviated report. According to the probation report, defendant had been placed on juvenile probation for burglary in 1991 and violated that probation approximately three times through 1994. In July 1994, defendant was sentenced to probation for grand theft but, after violating probation, was sentenced to a term of eight months in prison in March 1995. Defendant was sentenced to two years in prison in April 1995 after conviction of first degree burglary. After violating parole in 1996, defendant was returned to prison. In January 1997, defendant was arrested for grand theft and thereafter sentenced to nine years in prison. While on parole, defendant was convicted of possession of a controlled substance in November 2005, sentenced to probation and returned to prison. In November 2008, defendant was arrested for the instant offenses that were committed between September 23, 2006, and November 13, 2006.

The probation report noted the following factors in aggravation: (1) the manner of the crime indicated planning, sophistication, and professionalism; (2) defendant engaged in violent conduct indicating he was a serious danger to society; (3) defendant's prior convictions as an adult were numerous; (4) defendant served a prior prison term; (5) defendant committed the crimes while on parole; and (6) defendant's performance while on probation or parole was unsatisfactory.

The probation report also noted that defendant had completed 80 hours of substance disorder treatment, received exceptional marks while working as a cook in 2020, and received satisfactory marks for his work as companion dog trainer and fabric worker between 2014 and 2019. However, defendant received violation reports for participating in a riot in 2009, delaying a peace officer during cell extraction in 2009, failing to comply with count procedures in 2012, stealing food in 2013, "Counseling Chronos" for disrespect without the potential for violence in 2018, absence from work assignments in 2020, and disobeying an order and being out of bounds in 2022.

The probation report recommended that the trial court not strike any of the prior serious felony conviction enhancements because the court had shortened defendant's sentence by striking two prior serious felony convictions which prevented defendant from receiving a longer Three Strike sentence. In addition, while defendant's custodial behavior reflected some rehabilitation, defendant had also violated prison rules and received counseling as recently as 2022. Therefore, the probation report concluded that defendant's behavior in prison did not outweigh defendant having committed multiple serious and violent offenses while on parole.

The trial court conducted a hearing on the Secretary's motion on December 22, 2022. The trial court stated: "This matter is on for issues regarding resentencing pursuant to a letter or documents provided to the [c]ourt by the Department of Corrections asking .... [¶] ... [¶] the [c]ourt to resentence [defendant] .... [¶] My understanding, I want to get to what I can do, my discretion applies basically, to my understanding, only on the [section] 3667[, subdivison ](a)(1)s, which is five years each of the terms whether or not the [c]ourt can choose to stay those. That's my understanding of my discretion at this point. So if I'm wrong on that, just let me know, but that's my understanding of what I have to do in considering the issues of resentencing."

In response to the court's statement, the prosecutor explained that if the court resentenced defendant, the court was not bound by the Secretary's recommendation and should "consider sentencing in a manner as if the inmate had not been sentenced previously. So it's a new sentencing hearing in that situation. [¶] [A]nd it is based on the current state of the law, under the current state of the law the [c]ourt is allowed to strike [section ]667[, subdivision] (a), you know, the five-year nickels. Under the current state of the law, that's within the discretion of the [c]ourt, and the [c]ourt has the ability to exercise that discretion."

Defense counsel responded, "Your Honor, I agree with that ._" Counsel argued that defendant's prison records showed that defendant performed increasingly better while in custody, was assigned to the lowest security level, and "[f]rankly he's doing everything that is available to him and that he should be doing while he's incarcerated. So I would ask the [c]ourt to strike all three...