People v. Whicker CA2/5 ( 2021 )

Filed 9/17/21 P. v. Whicker CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B307526
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA058071)
v.
STACEY JEROME WHICKER,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Daviann L. Mitchell, Judge. Modified and
affirmed.
Thomas Owen, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Gary A. Lieberman,
Deputy Attorneys General, for Plaintiff and Respondent.
____________________________
In 2014, the trial court sentenced defendant and appellant
Stacey Jerome Whicker to a lengthy prison term. In 2020, the
court was advised that the sentence was unauthorized and
accordingly resentenced defendant. Defendant timely appeals,
arguing that in resentencing defendant, the trial court erred in
not striking his prior prison term enhancement (Pen. Code,
§ 667.5, subd. (b)) due to an intervening change in the law.1 The
Attorney General agrees that the new law applies to nonfinal
convictions, but argues the resentencing did not render the
previously final judgment nonfinal. We conclude that the
resentencing reopened the finality of the judgment and defendant
is therefore entitled to the benefit of the new law. We also
observe the resentencing itself was erroneous in one respect and
must be corrected. We modify the sentence to correct these errors
and otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
As this appeal involves only sentencing issues, we omit any
discussion of the facts of defendant’s crimes.
In 2013, an information charged defendant with seven
counts, all committed on December 1, 2012. Also alleged were a
number of enhancement allegations, including two prior prison
term enhancements. In 2014, he was convicted as charged and
admitted the prior prison terms.2
1 All undesignated statutory references are to the Penal
Code.
2 On defendant’s motion, we have taken judicial notice of the
opinion in defendant’s prior appeal. (People v. Whicker (Aug. 7,
2015, B255716) [nonpub. opn.].)
2
On April 16, 2014, the court sentenced defendant. In 2015,
a prior panel of this division ordered his sentence modified.
(People v. Whicker, supra, B255716.) The sentence, as modified,
was as follows: A base term of 25 years to life (as a third strike
sentence) for one count of assault with a firearm (Pen. Code,
§§ 245, subd. (a)(2), 1170.12), enhanced with 10 years for use of a
firearm (Pen. Code, § 12022.5, subd. (a)), 5 years for a prior
serious felony (Pen. Code, § 667, subd. (a)), and 1 year for a prior
prison term3 (Pen. Code, § 667.5, subd. (b)), resulting in a term of
25 to life, plus 16 years on that count. For a second count of
assault with a firearm, the court imposed a consecutive term of
25 years to life plus 15 years (identical to count one, with the
exception of the prior prison term enhancement); for felon in
possession of a firearm (Pen. Code, § 29800, subd. (a)(1)),
defendant was sentenced to 16 months (1/3 the midterm
doubled); for possession for sale of cocaine (Health & Saf. Code,
§ 11351), defendant was sentenced to 2 years (1/3 the midterm
doubled); and for possession for sale of cocaine base (Health &
Saf. Code, § 11351.5) defendant was sentenced to 2 years (1/3 the
midterm doubled). Sentences on two counts were stayed (Pen.
Code, § 654). The total sentence was 50 years to life plus 36
years and 4 months.
Several years later, on June 15, 2020, the Department of
Corrections and Rehabilitation wrote the trial court, pointing out
what it believed to be two additional errors in defendant’s
sentence. First, as to possession for sale of cocaine base, the trial
court had used the sentencing triad which became effective in
3 Although defendant had admitted two prior prison terms,
the court imposed only a single enhancement.
3
2015 (2, 3, or 4 years); the triad effective when the crime was
committed in 2012 was 3, 4, or 5 years.4 Second, the trial court
had sentenced all determinate terms consecutively at one-third
the midterm; the court had failed to designate one of the
determinate terms as the principal term and impose either fully
consecutive or fully concurrent sentences. (See Cal. Rules of
Court, rule 4.451(a).)
Upon receiving the letter, the court set the matter for
“correction of the sentence.” On September 3, 2020, a hearing
was held, with defendant, his counsel, and the district attorney
present. The court changed defendant’s sentence, nunc pro tunc
to the initial date of sentencing. The trial court repeatedly used
the word “resentence” to describe the action it was taking. The
court restated the indeterminate terms – including the one-year
prior prison term enhancement – and modified the determinate
term. Consistent with the Department’s letter, the court selected
possession for sale of cocaine base as the principal determinate
term, imposing the full middle term of 4 years (under the statute
effective in 2012), doubled to 8 years, with the other two
determinate terms (2 years and 16 months) remaining as before.
4 When defendant was originally sentenced in 2014, the trial
court apparently used the triad which would not become effective
until 2015. While this may have been premature at the time of
the 2014 sentencing, defendant’s case was on appeal when the
new law went into effect, and he was therefore entitled to its
benefit, as we discuss below. By the time the Department of
Corrections raised the issue in 2020, the fact that the trial court
had used the 2015 triad was not error. Neither the trial court,
nor the parties, recognized the Department of Corrections was
leading them astray.
4
Defendant’s final sentence consisted of 50 years to life plus 42
years 4 months in prison.
Defendant filed a timely notice of appeal.
DISCUSSION
1. The Prior Prison Term Enhancement Was Improper
The sole issue raised by defendant on appeal is whether his
sentence was lawfully enhanced by the one-year prior prison
term. Effective January 1, 2020, Senate Bill No. 136 (Stats.
2019, ch. 590, § 1) amended section 667.5, subdivision (b) to
eliminate the one-year enhancement for prison priors for
nonsexually violent prior offenses. (People v. Shaw (2020)
56 Cal.App.5th 582, 588.) It is undisputed that defendant’s prior
prison terms were for nonsexually violent offenses. It is also
undisputed that Senate Bill No. 136 applies retroactively to
nonfinal judgments, under In re Estrada (1965) 63 Cal.2d 740,
745. (Shaw, at p. 588; see People v. Esquivel (2021) 11 Cal.5th
671, ___, fn. 1 [2021 WL 2461206, *1, fn. 1].)
“When new legislation reduces the punishment for an
offense, we presume that the legislation applies to all cases not
yet final as of the legislation’s effective date.” (People v. Esquivel,
supra, 11 Cal.5th at p. ___ [2021 WL 2461206, *1].) However,
finality “is not a binary concept and judgments can be final for
some purposes but not others.” (People v. Lopez (2020)
56 Cal.App.5th 835, 847, review granted Jan. 27, 2021, S265936.)
“A judgment becomes final when the availability of an appeal and
the time for filing a petition for certiorari with the United States
Supreme Court have expired. [Citation.]” (People v. Buycks
(2018) 5 Cal.5th 857, 876, fn. 5.) Here, defendant’s judgment
initially became final long before the 2020 resentencing. The
issue is whether the resentencing on September 3, 2020, had the
5
effect of rendering his judgment nonfinal for the purposes of
retroactivity.
Defendant was resentenced in 2020 because his initial
sentence was illegal. (See People v. Reyes (1989) 212 Cal.App.3d
852, 857 [an illegal sentence may be corrected at any time].) In
determining whether defendant’s new sentence results in a new
finality date, we look to resentencing cases under section 1170,
subdivision (d)(1). That subdivision, which permits the trial
court to recall and resentence the defendant on its own motion
within 120 days of commitment, or at any time upon the
recommendation of correctional officials, is analogous.5 This
court has previously held that recall and resentencing under
section 1170, subdivision (d)(1) renders the sentence nonfinal for
the purposes of retroactivity. (People v. Hwang (2021)
60 Cal.App.5th 358, 366, review granted Apr. 14, 2021, S267274
[resentencing permitted defendant to be eligible for Proposition
5 Section 1170, subdivision (d)(1) provides, in pertinent part,
“When a defendant subject to this section or subdivision (b) of
Section 1168 has been sentenced to be imprisoned in the state
prison or a county jail pursuant to subdivision (h) and has been
committed to the custody of the secretary or the county
correctional administrator, the court may, within 120 days of the
date of commitment on its own motion, or at any time upon the
recommendation of the secretary or the Board of Parole Hearings
in the case of state prison inmates, the county correctional
administrator in the case of county jail inmates, or the district
attorney of the county in which the defendant was sentenced,
recall the sentence and commitment previously ordered and
resentence the defendant in the same manner as if they had not
previously been sentenced, provided the new sentence, if any, is
no greater than the initial sentence.”
6
36 juvenile adjudication]; see also People v. Lopez, supra,
56 Cal.App.5th at p. 845. Contra People v. Federico (2020)
50 Cal.App.5th 318, 326-327, review granted Aug. 26, 2020,
S263082.) “Because a resentencing under section 1170,
subdivision (d)(1) replaces the original sentence, the original
sentence is no longer operative, and the finality of the original
sentence is no longer material. The only sentence that matters
after resentencing under section 1170, subdivision (d)(1) is the
new sentence, which is not final because a resentenced defendant
can still obtain review from the California Supreme Court or the
United States Supreme Court.” (Lopez, at p. 845.)
Although defendant was resentenced because his original
sentence was illegal, and not under the permissive section 1170,
subdivision (d)(1), that distinction is immaterial.6 Defendant’s
new sentence replaced his original, illegal sentence, and the
previous “finality” of the original sentence became immaterial.
(See also People v. Walker (2021) 67 Cal.App.5th 198 [when a
court is conducting a resentencing on remand, it is required to
correct a different part of the sentence that has become incorrect
by the time of resentencing]; People v. Hill (1986) 185 Cal.App.3d
6 In its respondent’s brief, the Attorney General pointed out
that defendant “was not resentenced under section 1170,
subdivision (d)(1), but pursuant to the ‘well-settled rule of law
that an illegal sentence may be corrected at any time, even if the
new sentence is more severe than the original sentence.’
[Citation.]” However, the prosecution makes no argument as to
why we should treat resentencing for illegality any differently for
purposes of retroactivity. Instead, the prosecution simply relies
on People v. Federico, supra, 50 Cal.App.5th 318, the case which
this division refused to follow in People v. Hwang, supra,
60 Cal.App.5th at page 543.
7
831, 834, 836 [when the trial court resentences the defendant due
to an illegal sentence, the court may reconsider all sentencing
choices; the original illegal sentence is void and the court may
rethink the entire sentence].) The only sentence that matters
after resentencing for illegality is the new sentence, which is not
final because the resentenced defendant may still obtain
appellate review.7
7 We are also guided by our Supreme Court’s recent opinion
in People v. Esquivel, supra, 11 Cal.5th 671 [2021 WL 2461206].
The high court had previously held that, where a defendant is
placed on probation with imposition of sentence suspended, the
sentence is not yet final if the defendant may still obtain direct
review of an order revoking probation and imposing sentence.
(People v. McKenzie (2020) 9 Cal.5th 40, 46.) In Esquivel, it held
that the same rule applies if the defendant is place on probation
with the prison sentence imposed but execution suspended.
(Esquivel, at p. ___ [2021 WL 2461206, at *1].) In considering the
presumed legislative intent of Senate Bill 136, the court stated,
“We see no persuasive reason to presume that the Legislature
would wish to extend the benefit of ameliorative legislation to
suspended-imposition defendants whose probation is revoked (per
McKenzie), but not to suspended-execution defendants whose
probation is revoked. Accordingly, we conclude that legislation
ameliorating punishment presumptively applies to suspended
execution cases pending on appeal from an order causing a
previously imposed sentence to take effect.” (Id. at p. ___ [2021
WL 2461206 at p. *6].) The present sentencing does not involve
either type of probationary sentence discussed in Esquivel.
Nevertheless, we see no reason why the Legislature would “wish
to extend the benefit” of Senate Bill No. 136 to defendants who
are resentenced under section 1170, subdivision (d)(1), but not to
defendants who are resentenced following a late-discovered
illegal sentence.
8
Defendant’s resentencing reopened the issue of finality and
rendered him eligible for relief under Senate Bill No. 136. We
modify defendant’s sentence accordingly.
2. The Term for Possession for Sale of Cocaine Base Was
Erroneous
We asked the parties for further briefing on whether the
term imposed for possession for sale of cocaine base (Health &
Saf. Code, § 11351.5) on resentencing was erroneous. In 2012,
when defendant committed the offense the sentencing triad was
3, 4 or 5 years. The statute was amended effective 2015,
reducing the triad to 2, 3, or 4 years. (Stats. 2014, ch. 749, § 3.)
When the amendment went into effect in 2015, defendant’s case
was pending on appeal. He was therefore entitled to the benefit
of the statutory reduction in punishment. (See People v. Keith
(2015) 235 Cal.App.4th 983, 985.) Both parties agree the
sentence should be recalculated.
To recap, in 2020, when the court corrected the sentence to
impose a principal determinate term of the middle term on this
offense doubled, the sentence should have been three years,
doubled to six; not four years, doubled to eight. We make the
necessary modification in our Disposition.
DISPOSITION
The judgment is modified as follows: (1) as to count 7,
possession of cocaine base, defendant’s sentence is modified from
8 years (4 years doubled) to 6 years (3 years doubled); and (2) as
to count 1, assault with a firearm, the one-year prior prison term
under section 667.5, subdivision (b) is stricken. The trial court is
directed to prepare a new abstract of judgment reflecting these
changes. The clerk shall forward the new abstract to the
9
Department of Corrections. As modified, the judgment is
affirmed.
RUBIN, P. J.
WE CONCUR:
BAKER, J.
MOOR, J.
10