People v. Shelton CA2/1 ( 2021 )

Filed 10/21/21 P. v. Shelton CA2/1
Opinion on remand from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B299376
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA093524)
v.
RANDALL ALEXANDER
SHELTON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Sean D. Coen, Judge. Affirmed as modified.
Linda L. Gordon, 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 Michael J. Wise,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________
In 2019, the trial court ordered defendant and appellant
Randall Alexander Shelton to serve seven years in prison. The
sentence, which the trial court had imposed but suspended five
years earlier, included two1 1-year enhancements under Penal
Code2 section 667.5, subdivision (b) for so-called “prison-prior”
felonies. When Shelton violated his probation, the trial court
ordered the execution of the suspended sentence.
Shelton contends that the enhancements must be stricken
in light of Senate Bill No. 136 (Stats. 2019, ch. 590, § 1, eff.
Jan. 1, 2020), which became effective before Shelton’s probation
revocation became final and which eliminated section 667.5,
subdivision (b) enhancements for defendants who, like Shelton,
have not committed sexually violent offenses. In a previous
opinion, we rejected Shelton’s claim, but the Supreme Court
ordered us to vacate the decision and reconsider the case in
light of its opinion in People v. Esquivel (2021) 11 Cal.5th 671(Esquivel). We now order the enhancements stricken.
1The sentence originally included five enhancements, but
as we explain below, the trial court eliminated three of them on
the ground that they were imposed erroneously.
2Unless otherwise specified, subsequent statutory
references are to the Penal Code.
2
FACTS AND PROCEEDINGS BELOW
On September 11, 2014, Shelton pleaded no contest to
(counts 1 and 2) possession of a firearm by a felon (§ 29800,
subd. (a)(1)), (count 3) possession of ammunition by a person
prohibited from owning or possessing a firearm (§ 30305,
subd. (a)(1)), and (count 4) unlawful driving or taking of a vehicle.
(Veh. Code, § 10851, subd. (a).) Shelton also admitted that he
had suffered five prior convictions for felonies to which one-year
enhancements under section 667.5, subdivision (b) applied.
The trial court imposed an aggregate sentence of 10 years
in prison, but suspended the execution of the sentence pending
the completion of probation. The sentence consisted of the
high term of three years for count 1, plus consecutive terms
of eight months, or one-third the middle term, for each of
counts 2, 3, and 4. In addition, the court imposed five 1-year
enhancements under section 667.5, subdivision (b) to be served
consecutively. The court placed Shelton on five years of formal
felony probation and ordered him to serve 180 days in county jail.
On February 15, 2019, Los Angeles County Sheriff ’s
deputies searched a car Shelton was traveling in and discovered
a handgun. After a contested hearing, the trial court found that
Shelton had violated the terms of his probation by possessing
the gun. The court agreed with Shelton that three of the five
enhancements under section 667.5, subdivision (b) were invalid
and struck them from the sentence.3 The court then ordered
the execution of the sentence as modified, including the two
3 In one instance, Shelton had received two enhancements
based on a single prison commitment, and in two other instances,
the convictions were not for felonies for which Shelton served
prison sentences.
3
remaining enhancements, for a total term of seven years. Senate
Bill No. 136 became effective on January 1, 2020, while Shelton’s
appeal of the probation revocation order was pending.
DISCUSSION
Shelton contends we must strike the remaining two
section 667.5, subdivision (b) enhancements from his sentence.
According to Shelton, the judgment against him was not final
at the time Senate Bill No. 136, which eliminated enhancements
under section 667.5, subdivision (b) for offenses like his,
became effective. He argues that the new law therefore applies
retroactively to him. We agree.
Prior to the enactment of Senate Bill No. 136, a defendant
who was convicted of a felony was subject to a one-year
enhancement under section 667.5, subdivision (b) for each
separate prison term he had previously served for committing
a felony.4 Under the new law, the enhancement applies only if
the defendant served a prior prison term “for a sexually violent
offense as defined in subdivision (b) of [s]ection 6600 of the
Welfare and Institutions Code.” (§ 667.5, subd. (b).)
Senate Bill No. 136 applies retroactively to defendants
whose convictions were not final at the time the law became
effective. (People v. Lopez (2019) 42 Cal.App.5th 337, 341–342;
People v. Winn (2020) 44 Cal.App.5th 859, 872–873.) As the court
explained in Winn, “[g]enerally, a statute applies prospectively
4 The enhancement does not apply if the defendant has
been free from prison custody for at least five consecutive years
following the term of imprisonment without committing another
felony. (People v. Baldwin (2018) 30 Cal.App.5th 648, 654.) This
exception is not applicable to Shelton.
4
unless otherwise stated in the language of the statute, or when
retroactive application is clearly indicated by legislative intent.
(People v. Brown (2012) 54 Cal.4th 314, 319–320 . . . .) However,
‘[w]hen the Legislature has amended a statute to reduce the
punishment for a particular criminal offense, we will assume,
absent evidence to the contrary, that the Legislature intended
the amended statute to apply to all defendants whose judgments
are not yet final on the statute’s operative date.’ (Id. at
p. 323, . . . , citing In re Estrada (1965) 63 Cal.2d 740 . . . .) By
eliminating the one-year enhancement for prior prison terms
that were not imposed for sexually violent offenses, the newly
amended section reduces the punishment for such offenses.”
(Winn, supra, 44 Cal.App.5th at p. 872.) The Legislature did not
indicate otherwise, so we infer that Senate Bill No. 136 applies
retroactively. (See Winn, supra, at p. 872.)
In People v. McKenzie (2020) 9 Cal.5th 40, the Supreme
Court held that in cases where the trial court has placed the
defendant on probation and suspended the imposition of the
sentence, the case is not yet final for purposes of the retroactivity
rule. The court noted that “[i]n criminal actions, the terms
‘judgment’ and ‘ “sentence” ’ are generally considered
‘synonymous’ [citation], and there is no ‘judgment of conviction’
without a sentence.” (Id. at p. 46.) In Esquivel, the court
extended its decision in McKenzie to cases where the trial court
imposed a sentence but suspended its execution pending the
successful completion of probation. (See Esquivel, supra, 11
Cal.5th at pp. 677–678.) Senate Bill No. 136 became effective
before the order revoking the defendant’s probation was final in
Esquivel. (Esquivel, supra, at p. 673.) Although the trial court
had previously imposed a sentence, the Supreme Court reasoned
5
that the “case was not final, for purposes of the Estrada
presumption, because the ‘criminal prosecution or proceeding’
brought against defendant was not complete when the
ameliorative legislation at issue took effect.” (Id. at p. 678.)
Shelton is situated identically to the defendant in Esquivel.
Just as in Esquivel, Shelton’s sentence included enhancements
under section 667.5, subdivision (b) that would not apply under
the law in effect following Senate Bill No. 136.5 (See Esquivel,
supra, 11 Cal.5th at p. 673.) Furthermore, the trial court
in Shelton’s case, just as in Esquivel, stayed the execution of
the sentence pending probation. (See ibid.) Finally, just as
in Esquivel, the order terminating Shelton’s probation was
not yet final when Senate Bill No. 136 became effective. (See
Esquivel, supra, at p. 673.) Thus, under Esquivel, Shelton is
entitled to have those enhancements stricken from his sentence.
5 One of his enhancements was based on a conviction for
pimping (§ 266h), and the other was for obstructing or resisting
an executive officer from performing his or her duties (§ 69).
Neither of these is a sexually violent offense (see Welf. & Inst.
Code, § 6600, subd. (b)), as is required for an enhancement under
section 667.5, subdivision (b) under current law.
6
DISPOSITION
The enhancements imposed under section 667.5 are
stricken. The trial court’s order revoking probation is otherwise
affirmed. The trial court is directed to prepare an amended
abstract of judgment reflecting the stricken enhancements and
to forward a certified copy to the Department of Corrections and
Rehabilitation.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
BENDIX, J.
7