People v. Acosta ( 2018 )

Filed 11/13/18; on remand
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B263849
(Super. Ct. No. 2012039886)
Plaintiff and Respondent, (Ventura County)
v.
OPINION ON REMAND
JUAN GABRIEL ACOSTA,
Defendant and Appellant.
Prior prison term enhancements do not attach to a
particular count or case. Instead, they attach to the aggregate
sentence irrespective of whether that sentence is pronounced for
multiple convictions in the same case or in multiple cases. Here,
the trial court pronounced an aggregate sentence for multiple
felony convictions in three separately brought cases, including
the present case. The trial court “dismissed” six prior prison
term enhancements in the present case because it had already
imposed them in one of the other two cases. Such enhancements
can be imposed only once on the aggregate sentence.
The purported dismissals of the six prior prison term
enhancements in the present case were of no significance because
the enhancements attached to the aggregate sentence and had
been imposed to increase that sentence. Thus, when the felony
convictions in the two other cases were later reduced to
misdemeanors pursuant to Proposition 47, there was no
impediment to the reimposition of the six prior prison term
enhancements upon resentencing in the present case unless the
reimposition was barred by Proposition 47.
Juan Gabriel Acosta appeals from the judgment entered
following Proposition 47 resentencing on the sole remaining
felony conviction in the present case. The trial court originally
sentenced him to a consecutive term of eight months (one-third
the middle term of two years) and, as discussed above, dismissed
six prior prison term enhancements. After the other felony
convictions comprising the aggregate sentence had been reduced
to misdemeanors pursuant to Proposition 47, on the remaining
felony conviction the court resentenced him to prison for eight
years: the middle term of two years plus six years for the six
previously dismissed prior prison term enhancements.
Appellant contends that, although the trial court properly
increased the sentence on the remaining felony conviction from
eight months to two years (People v. Sellner (2015) 240
Cal.App.4th 699), it exceeded its jurisdiction by enhancing that
sentence with the six previously dismissed prior prison term
enhancements. In our original opinion filed on May 31, 2016
(People v. Acosta (2016) 247 Cal.App.4th 1072), we decided that
all six prior prison term enhancements had been properly
imposed even though the convictions underlying three of the prior
prison terms were reduced to misdemeanors pursuant to
Proposition 47. The California Supreme Court granted
appellant’s petition for review. On September 26, 2018, the
Supreme Court transferred the matter back to us with directions
2
to “vacate [our] decision and . . . reconsider the cause in light of
People v. Buycks (2018) 5 Cal.5th 857 [(Buycks)].”
We vacate our prior decision. Pursuant to Buycks, we
remand the matter to the trial court for resentencing with
directions to strike the three prior prison term enhancements
based on felony convictions that were reduced to misdemeanors
under Proposition 47. We follow the law as declared by our
Supreme Court. (See Myers v. Carini (1968) 262 Cal.App.2d 614,
620.) In all other respects, we affirm.
Procedural Background
Pursuant to a negotiated disposition in the present case, in
April 2014, appellant pleaded guilty to two felonies: second
1
degree commercial burglary (count 1; Pen. Code, § 459) and
resisting an executive officer (count 3; § 69). He also pleaded
guilty to a misdemeanor: disobeying a court order (count 4;
§ 166, subd. (a)(4)). He admitted six prior prison term
enhancements (§ 667.5, subd. (b)) and one prior “strike” within
the meaning of California’s “Three strikes” law. (§§ 667, subds.
(b)-(i), 1170.12, subds. (a)-(d).) It was agreed that a felony charge
of petty theft with a prior (count 2; § 666, subd. (b)) would be
dismissed at the time of sentencing. In a felony disposition
statement, appellant acknowledged that he could be sentenced to
state prison for 13 years four months.
On May 15, 2014, appellant was sentenced on the
convictions in the present case and two other cases: case No.
2014001248 (hereafter case 2) and case No. 2013039248
(hereafter case 3). In case 2, appellant was sentenced to prison
1
All statutory references are to the Penal Code unless
otherwise stated.
3
for 11 years: three years for possession of a controlled substance
(Health & Saf. Code, § 11350, subd. (a)), plus six years for six
prior prison terms enhancements (§ 667.5, subd. (b)), plus two
years for an out-on-bail enhancement. (§ 12022.1, subd. (b).) In
case 3 he was sentenced to a consecutive term of eight months for
petty theft with a prior. (§ 666.) In the present case he was
sentenced to a consecutive term of 16 months: eight months for
each of the two felony convictions. The court dismissed the strike
prior. The court dismissed the strike prior. It purported to
dismiss the six prior prison term enhancements because in case 2
the same enhancements had been used to add six years to
appellant’s prison sentence. The parties informed the court that
the prior prison term enhancements could “only [be] imposed
once.” The aggregate sentence in all three cases was 13 years.
However, the trial court suspended the execution of the sentence
and placed appellant on probation.
In September 2014 the trial court found that appellant had
violated the terms of his probation. It terminated probation and
ordered into effect the previously suspended 13-year prison
sentence.
As a result of the passage of Proposition 47 in November
2014, the felony offenses in the three cases were reclassified as
misdemeanors with one exception: resisting an executive officer
in the present case. (§ 69.) In April 2015 appellant filed a
petition for the recall of his felony sentence for second degree
commercial burglary (§ 459) in the present case. Appellant
requested that he be resentenced to misdemeanor shoplifting
2
(§ 459.5) pursuant to section 1170.18, subdivisions (a) and (b).
Section 1170.18, subdivision (a) provides, “A person
2
currently serving a sentence for a conviction . . . of a felony or
4
At the hearing on his petition, appellant orally modified the
petition to include case 2 and case 3. The court resentenced
appellant to misdemeanors in both of these cases. It did not
impose any jail time for the misdemeanor convictions. In
addition, the court granted an application to designate as
misdemeanors three prior felony convictions (case nos.
2001028823, 2006032094, and 2010008753) underlying three of
the six prior prison term enhancements. The designation was
3
pursuant to section 1170.18, subdivisions (f) and (g).
In the present case, the court reduced appellant’s felony
burglary conviction to misdemeanor shoplifting. On the
remaining felony conviction (§ 69), the court resentenced
appellant to prison for the middle term of two years plus six
felonies who would have been guilty of a misdemeanor under the
act that added this section . . . had this act been in effect at the
time of the offense may petition for a recall of sentence . . . to
request resentencing” to a misdemeanor. Section 1170.18,
subdivision (b) provides: “If the petitioner satisfies the criteria in
subdivision (a), the petitioner’s felony sentence shall be recalled
and the petitioner resentenced to a misdemeanor . . . unless the
court, in its discretion, determines that resentencing the
petitioner would pose an unreasonable risk of danger to public
safety.”
Section 1170.18, subdivision (f) authorizes “[a] person who
3
has completed his or her sentence for a conviction . . . of a felony
or felonies who would have been guilty of a misdemeanor under
[Proposition 47] had [it] been in effect at the time of the offense”
to apply to have the felony designated as a misdemeanor.
Subdivision (g) of section 1170.18 provides, “If the application
satisfies the criteria in subdivision (f), the court shall designate
the felony offense or offenses as a misdemeanor.”
5
years for the six previously dismissed prior prison term
enhancements. Thus, the aggregate prison sentence in the
present case was eight years.
Subject to Proposition 47, the Trial Court Had the
Authority to Reimpose the Previously Dismissed Prior
Prison Term Enhancements
When appellant was originally sentenced, the trial court
purportedly dismissed the six prior prison term enhancements in
the present case only because the same enhancements had been
imposed in case 2 and, therefore, could not be imposed again.
(People v. Edwards (2011) 195 Cal.App.4th 1051, 1060 [“Prior
prison term enhancements are status enhancements which can
be imposed only once, on the aggregate sentence. [Citation.]
Here, the sentence in [the present case] was made consecutive to
the sentence in case [2], creating a single aggregate term”].)
When appellant was resentenced in the present case the trial
court imposed a one-year term for each of the six previously
dismissed prior prison term enhancements. Appellant contends
that the trial court “did not have the authority to resurrect [any
of the] dismissed prison priors.”
The purported dismissal of the six prior prison term
enhancements in the present case was not a “true” dismissal
because it did not insulate appellant from the enhancements’
additional punishment. The same enhancements were imposed
in case 2 as part of the aggregate sentence for all three cases.
The sole reason for the purported dismissal in the present case
was that they had already been imposed in case 2 and therefore
could not be imposed again to increase the aggregate sentence.
When the trial court resentenced appellant to a misdemeanor in
case 2, the prior prison term enhancements in that case became
6
inapplicable because they can be imposed only where the new
offense is a felony. (§ 667.5, subd. (b).) But the enhancements
did not simply vanish by legal legerdemain. Subject to
Proposition 47, they remained available for sentencing purposes
because they had been imposed on the aggregate sentence and
were not attached to a particular count or case. The trial court
did not need to “resurrect” them. “Enhancements for prior
convictions . . . have nothing to do with particular counts but,
since they are related to the offender, are added only once as a
step in arriving at the aggregate sentence.” (People v. Tassell
(1984) 36 Cal.3d 77, 90, overruled on another ground in People v.
Ewoldt (1994) 7 Cal.4th 380, 401-402; see also People v. Coronado
(1995) 12 Cal.4th 145, 156 [“Prior prison term enhancements . . .
are attributable to the defendant’s status as a repeat offender”].)
Upon resentencing appellant for the sole remaining felony offense
of resisting an executive officer, the six prior prison term
enhancements were “added only once as a step in arriving at the
aggregate sentence.” (People v. Tassell, supra, at p. 90.)
The Trial Court Must Strike the Three Prior Prison Terms
Based on Felony Convictions Reduced To Misdemeanors under
Proposition 47
In Buycks our Supreme Court held, “[A] successful
Proposition 47 petitioner may subsequently challenge, under
subdivision (k) of section 1170.18, any felony-based enhancement
that is based on that previously designated felony, now reduced
to misdemeanor, so long as the judgment containing the
4
enhancement was not final when Proposition 47 took effect.”
Section 1170.18, subdivision (k) provides in relevant part:
4
“Any felony conviction that is . . . designated as a misdemeanor
7
(Buycks, supra, 5 Cal.5th at p. 879; see also id. at p. 888 [“as to
nonfinal judgments containing a section 667.5, subdivision (b)
one-year [prior prison term] enhancement, we conclude that
Proposition 47 and the Estrada rule [In re Estrada (1965) 63
Cal.2d 740] authorize striking that enhancement if the
underlying felony conviction attached to the enhancement has
been reduced to a misdemeanor under the measure”].)
The judgment containing the enhancements was not final
when Proposition 47 took effect on November 5, 2014. Therefore,
Buycks requires the trial court to strike the three prior prison
term enhancements based on felony convictions reduced to
misdemeanors under Proposition 47.
On Remand, the Trial Court Shall
Conduct a Full Resentencing Hearing
“[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.’ [Citation.]”
(Buycks, supra, 5 Cal.5th at p. 893.) Thus, on remand the trial
court will have “‘jurisdiction to modify every aspect of
[appellant’s] sentence . . . , including the [two-year middle] term
imposed as the principal term.’” (Ibid., quoting from People v.
Burbine (2003) 106 Cal.App.4th 1250, 1259.)
5
under subdivision (g) shall be considered a misdemeanor for all
purposes.”
5
In Buycks the Supreme Court noted, “Because the
resentencing court had imposed the maximum possible sentence,
. . . there is no need to remand the matter to the trial court to
exercise its sentencing discretion anew.” (Buycks, supra, 5
Cal.5th at p. 896, fn. 15.) Here, the trial court did not impose the
8
Disposition
Our prior decision is vacated. The matter is remanded to
the trial court with directions to strike the three prior prison
term enhancements based on felony convictions reduced to
misdemeanors under Proposition 47. The case numbers for the
stricken prior prison term enhancements are 2001028823,
2006032094, and 2010008753. The court shall conduct a full
resentencing hearing as explained in the preceding section of this
opinion. In all other respects, the judgment is affirmed. The trial
court shall prepare an amended abstract of judgment and send a
certified copy to the Department of Corrections and
Rehabilitation.
CERTIFIED FOR PUBLICATION.
YEGAN, J.
We concur:
GILBERT, P. J.
PERREN, J.
maximum possible sentence. Instead of the two-year middle term
for the section 69 felony conviction, it could have imposed the
three-year upper term. Thus, a full resentencing hearing is
appropriate.
9
David Hirsch, Judge
Superior Court County of Ventura
______________________________
Stephen P. Lipson, Public Defender, Michael C. McMahon,
Chief Deputy and William Quest, Senior Deputy Public Defender,
for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Senior
Assistant Attorney General, Mary Sanchez, Timothy M. Weiner,
Deputy Attorneys General, for Plaintiff and Respondent.