People v. Jefferson CA2/2 ( 2022 )

Filed 9/14/22 P. v. Jefferson CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B315872
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA153155)
v.
LAMAR JEFFERSON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Hector E. Gutierrez, Judge. Affirmed in part;
vacated in part and remanded.
Nicholas Seymour, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Scott A. Taryle and Kristen J. Inberg, Deputy
Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Lamar Jefferson (defendant)
appeals from the judgment entered after he was convicted of one
count of second degree robbery and one count of misdemeanor
theft. He contends that the sentence imposed must be vacated
and the matter remanded for resentencing in compliance with
Penal Code section 1170, subdivision (b),1 as amended effective
January 1, 2022. The People agree, as do we. Accordingly we
affirm the judgment of conviction but vacate the sentence and
remand for resentencing.
BACKGROUND
Though defendant was originally charged with nine
felonies and two misdemeanors, following a preliminary hearing,
three counts were dismissed. Defendant was held to answer on
three counts of robbery in violation of section 211 (counts 1, 5,
and 10), three counts of grand theft in violation of section 487,
subdivision (a) (counts 4, 7, and 8), and two misdemeanor counts
of petty theft in violation of section 484, subdivision (a) (counts 9
and 11). The information also alleged that defendant had
suffered a prior serious felony conviction (robbery), which
rendered him subject to sentencing under sections 1170.12,
subdivision (b), and 667, subdivisions (b)-(j). Prior to trial, the
court granted defendant’s motion to dismiss counts 4, 5, 8, 9, 10,
and 11 after the prosecution announced it was unable to proceed.
The matter proceeded to jury trial on counts 1 and 7.
The jury found defendant guilty of second degree robbery,
as alleged in count 1, and of misdemeanor petty theft, a lesser
1 All further statutory references are to the Penal Code,
unless otherwise indicated.
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included offense of grand theft, as alleged in count 7. Defendant
admitted his prior serious felony conviction. On September 22,
2021, defendant was sentenced on count 1 to the high term of five
years in prison, doubled to 10 years as a second strike. The court
imposed a six-month term for count 7 with credit for time served.
Presentence credits were calculated as a total of 335 days,
comprised of 309 actual days and 46 days of conduct credit.
Defendant filed a timely notice of appeal from the
judgment.
Prosecution evidence
Count 7
On April 8, 2020, Lora Balajadia was seated in her
wheelchair at a Metro station waiting for a train, when a man
approached her and struck up a friendly conversation. He then
directed her attention to a building under construction. As she
looked toward the building, he grabbed her purse from between
her feet and ran up the nearby escalator. Balajadia testified that
the purse was made by Coach and contained her cellphone, a
tablet, and medication. She described the thief as wearing gold-
rimmed glasses.
Count 1
Alexis McCloud, a resident of Indiana, was visiting Los
Angeles on October 26, 2020. While waiting for her sister to pick
her up from the Metro train station, she was doing schoolwork
with her laptop open on her lap. Several men were standing
nearby, and some of them approached her and made
conversation. One asked if she could make change for a $100 bill,
which made her suspicious that he was trying to see if she had
any money on her. McCloud brushed them off and continued to
do her schoolwork. Then a man with a bicycle circled around the
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group of men, chatting with them and coming close to her at
times. While standing close to her, he said, “Have y’all seen some
dice over here?” He then snatched her computer bag from under
her arm. As her bag contained her car keys, driver’s license,
credit cards, and $600 in cash, she was afraid she would be stuck
in California without them, so she followed him.
McCloud testified that as the man tried to get on his bicycle
she grabbed his rear tire causing them both to fall and caused
McCloud to scrape her knees. She testified that the man reached
behind his back, pulled out a folding knife with the blade
showing, cursed her and threatened to cut her. She continued to
try to get her bag until she realized that she had left her phone
and computer where she had been sitting near the other men.
She turned back to retrieve them and then resumed chasing the
thief, who was riding away on his bicycle. When he went through
a gate that closed behind him, McCloud pleaded for him to take
the cash and return her other items. He threw her keys, credits
cards and driver’s license over the gate and left with her bag,
money, and computer charging cord.
The Investigation
Los Angeles County Sheriff’s Department Detective
Wilfredo Mullings viewed surveillance video of both the April and
October incidents. The suspect in both videos looked similar.
When defendant was later arrested, he was wearing a white hat
and metal-framed glasses similar to what the suspect was
wearing during the April theft. Detective Mullins interviewed
defendant, who identified himself in still photographs taken from
the video recordings of the two incidents, including photographs
with defendant and the victims in the frame. Defendant
admitted the incident involving McCloud and gave some details
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of the theft but denied using a knife and claimed that he never
carried weapons.
Detective Mullins testified at trial that when he spoke to
McCloud, she did not say defendant threatened her while holding
the knife. She said only that he had a knife and she backed away
from him. When he viewed the video, he saw that at some point
during the struggle between McCloud and defendant, defendant
appeared to lunge toward McCloud who put up her hands and
backed away from him, looking as though she was afraid.2
DISCUSSION
Defendant contends that his sentence must be vacated and
his case remanded for resentencing under the recent changes to
section 1170 made by Senate Bill No. 567 (2021-2022 Reg. Sess.)
(Senate Bill 567), effective January 1, 2022. The People agree.
Senate Bill 567 amended the determinate sentencing law,
which affects the trial court’s discretion and authority to impose
one of three statutory terms of imprisonment, known as the
lower, middle, or upper terms. (See Stats. 2021, ch. 731, § 1.3.)
Section 1170, subdivision (b)(1) now provides: “When a judgment
of imprisonment is to be imposed and the statute specifies three
possible terms, the court shall, in its sound discretion, order
imposition of a sentence not to exceed the middle term, except as
2 Neither the video recordings nor the photographs are in the
record on appeal. No witness testified that a knife could be seen
in the video, and the prosecutor did not claim that it could be
seen, although she argued that defendant could be seen waving
something. Defense counsel acknowledged that defendant’s hand
moved just before McCloud stepped back but argued that nothing
could be seen in his hand.
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otherwise provided in paragraph (2).” Subdivision (b)(2) provides
in relevant part: “The court may impose a sentence exceeding the
middle term only when there are circumstances in aggravation of
the crime that justify the imposition of a term of imprisonment
exceeding the middle term, and the facts underlying those
circumstances have been stipulated to by the defendant, or have
been found true beyond a reasonable doubt at trial by the jury or
by the judge in a court trial.” (§ 1170, subd. (b)(2).)
Section 1170, subdivision (b)(3) provides: “Notwithstanding
paragraphs (1) and (2), the court may consider the defendant’s
prior convictions in determining sentencing based on a certified
record of conviction without submitting the prior convictions to a
jury. This paragraph does not apply to enhancements imposed on
prior convictions.” Among other requirements in subdivision (b),
paragraph (5), the sentencing court must “set forth on the record
the facts and reasons for choosing the sentence imposed. The
court may not impose an upper term by using the fact of any
enhancement upon which sentence is imposed under any
provision of law.” (§ 1170, subd. (b)(5).)
The amendments apply retroactively to sentences that are
not yet final on appeal. (People v. Garcia (2022) 76 Cal.App.5th
887, 902.)
Here, the trial court selected the high term for count 1 and
explained its choice as follows:
“The court feels that selection of the high term is
warranted based on the following: the use of a
weapon, the injury suffered by the victim, the fact
that Mr. Jefferson was tried and convicted of two
separate theft offenses, albeit one of them was a
misdemeanor, per the jury’s findings. The court
selects the high term based on Mr. Jefferson’s adult
history, which, as I’ve stated—and I’m not going to go
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into each and every offense—dates from the year
2005. It involves a violation of Penal Code section 69.
Again, that’s a long time ago. But the reason I bring
up his adult history is it dates from 2005 and
continues in 2007, 2012, 2013, 2014, culminating in a
two-year state prison commitment for robbery, 2017,
two offenses on the pre-plea report in 2017.”
The trial court relied on defendant’s long criminal history,
the fact that he was convicted of two theft offenses in this trial,
and the use of a weapon in this case. The People concede that the
trial court’s reliance on defendant’s criminal history (other than
the strike offense) was not based on a certified record of
conviction or an admission by defendant. We note that there was
no jury finding on the use of a weapon. The jury was instructed
that robbery was a theft accomplished by force or fear, and the
prosecutor argued both theories.
We thus find that the sentence must be vacated and the
case remanded for resentencing in compliance with section 1170,
subdivision (b), as amended effective January 1, 2022. “[W]hen
part of a sentence is stricken on review, on remand for
resentencing ‘a full resentencing as to all counts is appropriate,
so the trial court can exercise its sentencing discretion in light of
the changed circumstances.’” (People v. Buycks (2018) 5 Cal.5th
857, 893.) On remand, the trial court may thus revisit all its
sentencing choices in light of the new legislation. (People v.
Garcia, supra, 76 Cal.App.5th at p. 902, citing People v.
Valenzuela (2019) 7 Cal.5th 415, 424-425 & People v. Buycks,
supra, at p. 893.) We take no position on the choices available to
the trial court.
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DISPOSITION
The judgment of conviction is affirmed. The sentence is
vacated, and the matter is remanded for resentencing in
compliance with section 1170, subdivision (b), as amended
effective January 1, 2022.
________________________
CHAVEZ, J.
We concur:
________________________
LUI, P. J.
________________________
HOFFSTADT, J.
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