People v. Boles CA3 ( 2021 )

Filed 11/8/21 P. v. Boles CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Yolo)
----
THE PEOPLE, C092134
Plaintiff and Respondent, (Super. Ct. No. CRF11732)
v.
JARED DANIEL BOLES,
Defendant and Appellant.
This is the second appeal in this case challenging the sentence imposed by the trial
court. Defendant Jared Daniel Boles stands convicted of various drug-related and other
offenses in three different cases. In his first appeal, he challenged the trial court’s 2017
sentencing order, which embraced all three cases. In March 2019, we issued an
unpublished opinion vacating the 2017 sentencing order and remanding the matter for
resentencing. (People v. Boles (March 8, 2019, C084971) [nonpub. opn.] (Boles).) In
July 2019, defendant was resentenced on all three cases and did not appeal. After the
California Department of Corrections and Rehabilitation (CDCR) notified the trial court
1
of potential sentencing errors, defendant was resentenced in May 2020 on all three cases.
This appeal followed. In his second appeal, defendant raises a number of sentencing-
related claims, including that the sentence imposed by the trial court must be reversed
because he is entitled to the ameliorative benefits of recently enacted laws.
We will modify the judgment by striking the three-year sentences imposed for two
prior drug conviction enhancements (Health & Saf. Code, § 11370.2)1 and also to reflect
that the sentence was stayed on certain counts (Pen. Code, § 654). We remand with
directions to recalculate custody credits and otherwise affirm the judgment.
BACKGROUND
The details of defendant’s offenses and cases are not pertinent to his claims on
appeal. We discuss only his relevant convictions and subsequent sentencings. We
incorporate the procedural history set forth in our prior unpublished opinion, Boles, and
summarize the most recent trial court proceedings giving rise to the claims raised in this
appeal.2
“2011 Case
“In the earliest case (No. 11-732, the 2011 case), defendant pleaded guilty to four
felony drug charges and one misdemeanor resisting charge, counts 1 through 5. (Health
& Saf. Code, §§ 11378, 11379, subd. (a); Pen. Code, § 148, subd. (a).) [fn. omitted.] He
also admitted two prior drug conviction allegations (§ 11370.2) for each felony drug
charge and three prior prison term allegations (Pen. Code, § 667.5, subd. (b)).
“The two prior drug convictions were alleged to have occurred on January 31,
2007, and March 5, 2004, respectively. We refer to these convictions hereafter as the
2007 and 2004 drug allegations.
1 Undesignated statutory references are to the Health and Safety Code.
2 While this appeal was pending, we granted defendant’s request to incorporate the
record in his first appeal, case number C084971.
2
“At the initial sentencing, the trial court imposed a sentence of the upper term of
four years on count 1, plus three years consecutive for each of the 2007 and 2004 drug
allegations and one consecutive year for each of the three prior prison term allegations,
for a total of 13 years in prison. The court stayed the sentences and their corresponding
allegations on counts 2 and 4 (Pen. Code, § 654), dismissed count 3 (id., § 1385), and
imposed a concurrent one-year jail term on count 5. The court suspended execution of
the imposed sentence and granted defendant a three-year term of formal probation with
various conditions; defendant did not appeal.” (Boles, supra, C084971, fn. omitted.)
“2016 Case
“In early 2017 a jury found defendant guilty of various drug and gun charges (No.
16-3458, the 2016 case), including . . . counts 1 and 2, which were two felony drug
charges (§§ 11378, subd. (a), 11379, subd. (a)), each including five prior drug conviction
allegations admitted prior to trial (§ 11370.2). Two of the five prior drug conviction
allegations appear[ed] to be the 2007 and 2004 drug allegations admitted by defendant in
3
the 2011 case. [ ] The remaining three enhancements consisted of the charges from the
2011 case itself.
“Probation Violation and Combined Sentencing
“The trial court found defendant had violated his probation in the 2011 case based
4
on the evidence adduced at trial in the 2016 case. [ ]
3 In the first appeal, the parties agreed without elaboration that the 2007 and 2004 drug
allegations were for the same convictions in both the 2011 and 2016 cases. However, we
noted that although one prior conviction allegation bore the same date (January 31, 2007)
on both charging documents, the other overlapping prior was identified in the 2011 case
as occurring on March 5, 2004, and in the 2016 case as occurring on February 3, 2004.
(Boles, supra, C084971.)
4 In the first appeal we noted: “There appears to be no dispute that defendant was still
on probation in the 2011 case at the time he was alleged to have committed the 2016
offenses. The record provided to us shows that on April 8, 2013, defendant’s probation
3
“While in jail awaiting sentencing in the 2016 case, defendant was charged in case
No. 17-150 (the 2017 case), alleging he possessed drugs while in jail pending sentencing
on the jury verdicts in the 2016 case and the violation of probation in the 2011 case.
Defendant pleaded no contest to possessing drugs in jail in exchange for a one-year
consecutive sentence. There [was] no issue presented [in the prior] appeal as to this plea
and sentence.
“On May 1, 2017, the trial court sentenced defendant on all three cases, including
execution of sentence previously imposed and suspended in the 2011 case, as we next
describe.
“The trial court initially selected the 2016 case as the principal term and
announced its intent to run ‘the original 13-year case’ concurrent thereto. [F]or the 2016
case the court imposed the midterm of three years on count 1 and added consecutive
three-year terms for all five prior drug conviction enhancements, including the 2007 and
2004 drug allegations. It then imposed consecutive sentences of eight months each on
four additional counts, and stayed sentence on several other counts pursuant to Penal
Code section 654. With the addition of three separate consecutive one-year terms for
prior prison term enhancements, defendant received a total state prison sentence of 23
years and eight months on the 2016 case.
“The trial court then addressed the 2011 case, ordering the four-year upper term on
count 1 executed and the remaining two felony counts executed but again stayed (Pen.
Code, § 654), consistent with the original order. The court also executed the concurrent
one-year sentence on count 5. The court next purported to vacate the portion of the 2011
order imposing sentence on the enhancements (including the 2007 and 2004 drug
allegations . . .); after vacating the portion of the 2011 order imposing sentence on the
was extended to August 22, 2016, to allow him to complete a residential drug program.
His offenses in the 2016 case were alleged to have occurred June 20 of that year.”
(Boles, supra, C084971.)
4
enhancements, the court ordered ‘for all counts and case enhancements is that both the
imposition and execution of sentence on those is stayed in order to avoid double-
sentencing’ with the 2016 case. (Italics added.)
“This change to the previously imposed sentence in the 2011 case resulted in a
total sentence of four years, rather than the originally imposed 13-year sentence, ordered
to run concurrent with the 2016 case. Defendant timely appealed from the order after the
2017 sentencing hearing.” (Boles, supra, C084971, fn. omitted.)
The First Appeal
In his first appeal, defendant’s primary contention was that new legislation, Senate
Bill No. 180 (2017-2018 Reg. Sess.), effective January 1, 2018, applied to his 2017
sentence and required striking all five of the drug conviction enhancements imposed in
the 2016 case. (Boles, supra, C084971.)
The Attorney General agreed as to the three later enhancements, based on the
counts of conviction in the 2011 case itself and imposed for the first time at sentencing on
the 2016 case, but disagreed as to the 2007 and 2004 drug allegations. (Boles, supra,
C084971.) He argued that because the 2007 and 2004 drug allegations were originally
imposed at the first sentencing in the 2011 case, from which defendant did not appeal,
those two allegations are final and the new legislation does not apply to them. (Ibid.) He
argued those two allegations should be reapplied to defendant’s sentence on remand.
(Ibid.)
In March 2019, we issued an unpublished opinion vacating the 2017 sentencing
order and remanding the matter for resentencing on all three cases. (See Boles, supra,
C084971.) We concluded that the trial court did not have the authority to alter
defendant’s previously imposed (and long final) 2011 sentence by vacating sentence on
the 2007 and 2004 drug allegations and subsequently staying imposition of sentence
therefor. (Ibid.) We explained that the trial court was required to either reinstate
probation or lift the suspension of the previously imposed sentence, including all
5
components thereof. (Ibid.) Because we determined that the sentences for the 2007 and
2004 drug allegations should have remained part of defendant’s previously imposed
sentence in the 2011 case, we remanded for resentencing. (Ibid.) We agreed with the
parties that the three drug conviction enhancements for the 2011 charges, imposed for the
first time at the 2017 sentencing hearing, were not final and should be stricken in light of
Senate Bill No. 180, which eliminated a three-year enhancement for a prior drug
conviction except in certain circumstances not applicable here. (Stats. 2017, ch. 677, § 1,
eff. Jan. 1, 2018; see § 11370.2.) (Boles, supra, C084971.)
In remanding the matter, we stated: “Sentence in the 2011 case must be executed
as previously imposed. [¶] There is no issue briefed as to the consecutive one-year
sentence imposed in the 2017 case, and that sentence was part of the bargained-for plea.
[¶] The trial court’s discretion comes into play regarding the 2016 case. If the court had
realized it lacked authority to vacate portions of the sentence in the 2011 case, it may
well have made different sentencing choices in the 2016 case. Further, the non-final prior
drug conviction enhancements are no longer available. Thus, the proper disposition is to
remand for a new sentencing hearing.” (Boles, supra, C084971.)
2019 Resentencing
In July 2019, the trial court resentenced defendant on all three cases. In the 2011
case, the court imposed the upper term of four years on count 1, plus a consecutive three-
year term for each of the 2007 and 2004 drug allegations, and a consecutive one-year
term for each of the three prior prison term allegations, for a total of 13 years in prison.
The court imposed concurrent four-year upper-term sentences and stayed the
corresponding enhancement allegations on counts 2 and 4 (Pen. Code, § 654), and
imposed a concurrent one-year jail term on count 5.
In the 2016 case, the trial court imposed a consecutive one-year term on count
1 and consecutive eight-month terms on four additional counts, for a total of 3 years eight
months. The court imposed and stayed a 2-year sentence on count 2 (Pen. Code, § 654).
6
In the 2017 case, the trial court imposed a consecutive one-year term on the only
count alleged in that case.
In total, defendant was sentenced to 17 years eight months in prison. Defendant
did not appeal from the 2019 sentencing order.
2020 Resentencing
In a January 2020 letter, the CDCR notified the trial court of potential sentencing
errors in connection with the 2019 resentencing. The letter stated that the “Abstract of
Judgment and/or Minute Order may be in error or incomplete” for the following reasons:
(1) the abstract of judgment and minute order reflected that the trial court imposed a four-
year term on count 2 in the 2011 case, but the sentencing triad for that offense was one-
year four months, two years, or three years; and (2) the abstract of judgment reflected that
six prior prison term enhancements were imposed with three of those enhancements
stayed, whereas the minute order reflected that only three prior prison term enhancements
were imposed with no mention of any other prior prison term enhancement. The letter
further stated: “Please review your file to determine if a correction is required. When
notified by the [CDCR] that an illegal sentence exists, the trial court is entitled to
reconsider all sentencing choices, People v. Hill [(1986)] 185 Cal.App.3d 831.”
In May 2020, the trial court resentenced defendant on all three cases. The
sentence was identical to the sentence imposed at the July 2019 resentencing hearing,
with a few exceptions. As relevant here, the trial court imposed a concurrent three-year
upper-term sentence on count 2 in the 2011 case and stayed the corresponding
enhancement allegations (Pen. Code, § 654), and imposed and stayed sentence (ibid.) on
the three prior prison term enhancements alleged in the 2016 case. The aggregate
sentence was the same as the aggregate sentence imposed at the 2019 resentencing
hearing: 17 years eight months.
7
Custody Credits
Less than two weeks after the May 2020 resentencing hearing, defendant filed a
motion asking the trial court to recalculate his custody credits. The trial court denied the
motion on June 1, 2020.
Notice of Appeal
On June 18, 2020, defendant filed a notice of appeal. The case was fully briefed
on July 17, 2021; the parties waived oral argument and the case was submitted on
September 17, 2021.
DISCUSSION
Defendant raises a number of sentencing-related claims, including that the trial
court imposed an unauthorized sentence because he is entitled to the ameliorative benefits
of recently-enacted laws. With one exception, we agree with defendant, as we explain
below.
I
Recently Enacted Laws
A. Applicable Legal Principles
Generally, “where [an] amendatory statute mitigates punishment and there is no
saving clause, the rule is that the amendment will operate retroactively so that the lighter
punishment is imposed,” so long as the amended statute takes effect before the judgment
of conviction is final. (In re Estrada (1965) 63 Cal.2d 740, 744-745, 748 (Estrada);
People v. Floyd (2003) 31 Cal.4th 179, 184 (Floyd).) “This rule rests on an inference that
when the Legislature has reduced the punishment for an offense, it has determined the
‘former penalty was too severe’ [citation] and therefore ‘must have intended that the new
statute imposing the new lighter penalty . . . should apply to every case to which it
constitutionally could apply.’ ” (People v. DeHoyos (2018) 4 Cal.5th 594, 600.)
Estrada’s retroactivity rule pertains both to statutory amendments that reduce penal
sanctions and those that eliminate penal sanctions entirely. (People v. McKenzie (2020) 9
8
Cal.5th 40, 45.) “ ‘[F]or purposes of Estrada retroactivity, the focus is not on when a
conviction becomes final but rather when the sentence imposed on that conviction
becomes final,’ a question of law that we review de novo.” (People v. Andahl (2021) 62
Cal.App.5th 203, 208.)
B. Senate Bill No. 180
Defendant contends that the three-year sentences imposed in the 2011 case for the
2007 and 2004 drug allegations must be stricken because he is entitled to the ameliorative
benefits of Senate Bill No. 180. We agree.
When the trial court originally sentenced defendant in the 2011 case, it was
required to impose consecutive three-year sentences for the 2007 and 2004 drug
allegations. (See People v. Edwards (2011) 195 Cal.App.4th 1051, 1058; Stats. 1998, ch.
936, § 1, eff. Sept. 28, 1998).) As we noted ante, effective January 1, 2018, Senate Bill
No. 180 eliminated the three-year enhancement for a prior drug conviction, except in
certain circumstances not applicable here. (Stats. 2017, ch. 677, § 1, eff. Jan. 1, 2018; see
§ 11370.2.) We agree with the parties that Senate Bill No. 180’s amendments to section
11370.2 apply retroactively to all judgments not yet final on the date it became effective.
(People v. McKenzie (2018) 25 Cal.App.5th 1207, 1213.) Thus, the question for us is
whether defendant’s judgment was final for purposes of Estrada retroactivity prior to
January 1, 2018. As we explain, the answer to that question is “no.”
In our prior March 2019 unpublished opinion, we determined that defendant’s
sentence in the 2011 case, which included consecutive three-year sentences for the 2007
and 2004 drug allegations, was final for purposes of Estrada retroactivity when he failed
to timely appeal from the 2011 sentencing order. (Boles, supra, C084971.) As such, it is
not surprising that defendant received consecutive three-year sentences in the 2011 case
for the 2007 and 2004 drug allegations when he was resentenced in July 2019 and May
2020. However, during the pendency of this appeal, our Supreme Court decided
People v. Esquivel (2021) 11 Cal.5th 671, which held that a judgment imposing but
9
suspending execution of sentence and placing a defendant on probation is not yet final for
purposes of Estrada retroactivity when the defendant can “still timely obtain direct
review of [the] order revoking probation and causing the state prison sentence to take
effect.” (Id. at p. 673.) Under Esquivel, defendant’s sentence in the 2011 case did not
become final when he failed to timely appeal the 2011 sentencing order. Nor was his
sentence in the 2011 case final for purposes of Estrada retroactivity at the time he was
resentenced in July 2019. Defendant’s criminal proceeding was clearly ongoing, as the
trial court’s order revoking his probation and executing the previously imposed sentence
had not yet reached final disposition in the highest court in which review is available.
(See People v. McKenzie, supra, 9 Cal.5th at p. 45 [making clear that the appropriate
question in the context of Estrada retroactivity is whether the criminal proceeding has
reached final disposition in the highest court authorized to review it]; People v. Martinez
(2020) 54 Cal.App.5th 885, 891 [a sentence becomes final for purposes of Estrada
retroactivity “ ‘when all available means to avoid its effect have been exhausted;’ ” “[i]t
has not become final ‘if there still remains some legal means of setting it aside’ on direct
appeal”].)
In short, because Senate Bill No. 180 took effect during the pendency of
defendant’s first appeal and prior to resentencing on remand, the three-year sentences
imposed in the 2011 case for the 2007 and 2004 drug allegations are unauthorized and
must be stricken. (People v. Shaw (2020) 56 Cal.App.5th 582, 588 [post-Senate Bill No.
136, prior prison term enhancements “are unauthorized and must be stricken”]; People v.
Harvey (1980) 112 Cal.App.3d 132, 139 [“in computing one’s sentence under a plea
bargain, even though agreed to by the parties, the court may not give effect to an
enhancement unauthorized by law”].)
We reject the Attorney General’s contention that defendant is not entitled to the
ameliorative benefits of Senate Bill No. 180 because the 2011 case became final when
defendant failed to timely appeal from the 2019 sentencing order. (See People v.
10
Barboza (2018) 21 Cal.App.5th 1315, 1318-1319 [once a criminal sentence is imposed, it
becomes a final judgment if the defendant does not appeal within 60 days]; Cal. Rules of
Court, rule 8.308(a) [notice of appeal must be filed within 60 days after rendition of the
judgment].)
“ ‘A defendant may appeal from a final judgment of conviction or from any order
after judgment which affects his or her substantial rights. ([Pen. Code,] § 1237.)
“Judgment is synonymous with the imposition of sentence.” ’ ” (People v. Chamizo
(2019) 32 Cal.App.5th 696, 699-700.) A trial court typically lacks jurisdiction to change
a defendant’s sentence once execution of the sentence begins. (People v. Karaman
(2001) 4 Cal.4th 335, 344.) An exception to this rule is that an unauthorized sentence
may be corrected at any time. (People v. Scott (1994) 9 Cal.4th 331, 354-355; People v.
Turrin (2009) 176 Cal.App.4th 1200, 1205.) Another exception is provided in Penal
Code section 1170, subdivision (d)(1). (People v. McCallum (2020) 55 Cal.App.5th 202,
210.) It authorizes a trial court to, “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 . . . 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.” (Pen Code, § 1170, subd. (d)(1).) Under this provision, the
prior sentence and order of commitment is effectively “vacate[d],” and the trial court may
sentence defendant anew, to an equal or lesser sentence. (Dix v. Superior Court (1991)
53 Cal.3d 442, 456.)
Here, the CDCR’s 2020 letter, which was submitted to the trial court more than
120 days after the July 2019 resentencing hearing, indicated that defendant’s sentence
was “illegal” and advised the trial court that it could “reconsider all sentencing choices,”
citing to People v. Hill, supra, 185 Cal.App.3d 831. The Hill court held that upon receipt
of a letter from the CDCR advising the court that a sentence was illegal, the trial court is
11
authorized by Penal Code section 1170, subdivision (d)(1) to rethink the entire sentencing
scheme and wholly resentence the defendant. (Hill, at p. 834.) As the letter here advised
the trial court that defendant’s sentence was unlawfully imposed, the trial court had
authority to resentence defendant. Indeed, the trial court responded to the letter by
resentencing defendant on all three cases, including correcting the unauthorized sentence
on count 2 in the 2011 case and imposing and staying sentence on the three prior prison
term enhancements alleged in the 2016 case. On this record, we conclude that the
CDCR’s letter triggered defendant’s May 2020 resentencing under Penal Code section
1170, subdivision (d)(1). (See, e.g., People v. Arias (2020) 52 Cal.App.5th 213, 217, 219
[CDCR letter recommending recall of the defendant’s sentence based on trial court’s
illegal imposition of two enhancements triggered resentencing under Pen. Code, § 1170,
subd. (d)(1)].)
The Attorney General does not dispute that the 2020 sentencing order is an
appealable order. 5 (See People v. Arias, supra, 52 Cal.App.5th at p. 220 [an appeal may
be taken from a sentence imposed under the recall and resentencing provision].) Instead,
the Attorney General contends that defendant’s failure to timely appeal the 2019
sentencing order prevents us from striking the sentences imposed for the 2007 and 2004
drug allegations in the 2011 case. We disagree. Even if we were to agree with the
Attorney General that the 2020 resentencing did not “reopen” the judgment (i.e., render
the judgment non-final) for purposes of retroactive application of ameliorative
legislation, the existence of a final judgment does not prevent the correction of an
5 Even if we construed the 2020 sentencing order to be a post-judgment order, it would
be appealable under Penal Code section 1237, subdivision (b), which authorizes a
defendant to appeal “any order made after judgment, affecting the substantial rights of the
party.” The 2020 sentencing order necessarily implicates defendant’s interest in his
personal liberty and, therefore, his “substantial rights” for purposes of allowing a post-
judgment appeal.
12
unauthorized sentence at any time by a court with jurisdiction over the judgment. (See In
re G.C. (2020) 8 Cal.5th 1119, 1130; People v. Cabrera (2018) 21 Cal.App.5th 470,
477.)6
Accordingly, we will strike as unauthorized the three-year sentences imposed in
the 2011 case for the 2007 and 2004 drug allegations. (See People v. Petri (2020) 45
Cal.App.5th 82, 94 [striking prior prison term enhancement due to change in law while
appeal pending]; People v. Tillotson (2007) 157 Cal.App.4th 517, 542 [striking
erroneously imposed drug conviction enhancement].) We need not and do not address
defendant’s related claim of ineffective assistance of counsel.
C. Senate Bill No. 136
When the trial court originally sentenced defendant in the 2011 case, it was
required to impose consecutive one-year sentences for the three prior prison term
allegations. (See former § 667.5, subd. (b); People v. Buycks (2018) 5 Cal.5th 857, 889.)
Effective January 1, 2020, Senate Bill No. 136 (2019-2020 Reg. Sess.) amended section
667.5, subdivision (b) to limit application of the one-year enhancement to prison terms
that were served for sexually violent offenses, which defendant’s prior offenses were not.
(Pen. Code, § 667.5, subd. (b); Stats. 2019, ch. 590, § 1.) It is not disputed that Senate
Bill 136’s amendment to section 667.5, subdivision (b) applies retroactively to all cases
not yet final as of its effective date. (People v. Andahl, supra, 62 Cal.App.5th at p. 208;
see also People v. Jennings (2019) 42 Cal.App.5th 664, 682.)
6 We recognize there is recent case law standing for the proposition that when a sentence
is recalled, the original sentence is rendered inoperative, allowing the defendant to take
advantage of ameliorative changes in the law because his judgment is no longer final for
purposes of Estrada retroactivity. (See People v. Hwang (2021) 60 Cal.App.5th 358,
review granted Apr. 14, 2021, S267274; People v. Lopez (2020) 56 Cal.App.5th 835,
review granted Jan. 27, 2021, S265936; contra, People v. Federico (2020) 50
Cal.App.5th 318, 321, review granted Aug. 26, 2020, S263082.) However, given our
conclusion, we need not discuss these cases further.
13
On appeal, defendant contends that the one-year sentences imposed for the prior
prison term allegations in the 2011 case must be stricken. Although defendant concedes
that his judgment was final for purposes of Estrada retroactivity before the effective date
of Senate Bill No. 136, he nonetheless asserts that “[a]pplying the benefits of amended
section 667.5, subdivision (b) to non-final cases, but denying those benefits to final cases,
violates the equal protection clauses of the federal and state constitutions.” We disagree.
“ ‘The right to equal protection of the law generally does not prevent the state
from setting a starting point for a change in the law. “[T]he Fourteenth Amendment does
not forbid statutes and statutory changes to have a beginning and thus to discriminate
between the rights of an earlier and later time.” [Citation.] The same rule applies to
changes in sentencing law that benefit defendants.’ [Citations.]
“ ‘A criminal defendant has no vested interest “ ‘in a specific term of
imprisonment . . . .’ ” ’ [Citation.] ‘[E]qual protection of the law is denied only where
there is no “rational relationship between the disparity of treatment and some legitimate
governmental purpose.” [Citation.] In other words, the legislation survives constitutional
scrutiny as long as there is “ ‘any reasonably conceivable state of facts that could provide
a rational basis for the classification.’ ” [Citation.] This standard of rationality does not
depend upon whether lawmakers ever actually articulated the purpose they sought to
achieve. Nor must the underlying rationale be empirically substantiated. [Citation.]
While the realities of the subject matter cannot be completely ignored [citation], a court
may engage in “ ‘rational speculation’ ” as to the justifications for the legislative choice.’
” (People v. Baltazar (2020) 57 Cal.App.5th 334, 341.)
Defendant has not cited any authority recognizing an equal protection violation
arising from the timing of the effective date of an ameliorative change in the law. (See
Floyd, supra, 31 Cal.4th at p. 188 [acknowledging that the effective date of all legislation
is arbitrary but rejecting an equal protection claim on that basis].) Indeed, retroactive
application of such a change in the law “ ‘is not a question of constitutional right but of
14
legislative intent.’ ” (People v. Lizarraga (2020) 56 Cal.App.5th 201, 210.) Our
Supreme Court has generally recognized that the Legislature has a rational reason for
refusing to make an ameliorative change in the law fully retroactive to all criminal
defendants: “assur[ing] that penal laws will maintain their desired deterrent effect by
carrying out the original prescribed punishment as written.” (In re Kapperman (1974)
11 Cal.3d 542, 546.) This helps to “deflect[ ] any assumption by offenders that future
acts of lenity will necessarily benefit them.” (People v. Kennedy (2012) 209 Cal.App.4th
385, 398.) In light of this rationale, equal protection principles do not compel the
retroactive application of Senate Bill No. 1136 to cases that became final before its
effective date. (Floyd, supra, 31 Cal.4th at p. 189 [“ ‘[a] reduction of sentences only
prospectively from the date a new sentencing statute takes effect is not a denial of equal
protection’ ”]; Baker v. Superior Court (1984) 35 Cal.3d 663, 668, [“ ‘[a] refusal to apply
a statute retroactively does not violate the Fourteenth Amendment’ ”].)
II
Sentencing Errors
We agree with the parties that the trial court improperly sentenced defendant to
concurrent terms on counts 2 and 4 in the 2011 case without staying execution of
sentence. When the trial court originally sentenced defendant in that case, it stayed the
sentences on counts 2 and 4 pursuant to Penal Code section 654. (Boles, supra,
C084971.) As we explained in our prior opinion, when, as here, probation is granted and
sentence has been imposed but its execution suspended, the trial court must order the
exact sentence into effect upon revocation of probation. (Ibid.; see also People v. Scott
(2014) 58 Cal.4th 1415, 1423-1424; People v. Howard (1997) 16 Cal.4th 1081, 1088.)
Because the sentencing errors only involve the failure to stay execution of
sentence on two counts, remand for resentencing is unnecessary, as the errors result in an
unauthorized sentence that does not affect the other components of defendant’s sentence.
(See People v. Hester (2000) 22 Cal.4th 290, 295 [“a court acts in excess of its
15
jurisdiction when it fails to stay execution of a sentence under [Pen. Code] section 654”].)
When errors in a sentence involve “only a question of law,” due process does not require
the court to hold a resentencing hearing to correct them. (People v. Shabazz (1985) 175
Cal.App.3d 468, 474 [trial court did not error in correcting unauthorized sentence without
holding a hearing].) Accordingly, rather than remand for resentencing, we will modify
the judgment to reflect that execution of sentence was stayed on counts 2 and 4 in the
2011 case pursuant to Penal Code section 654, and direct the trial court to amend the
2020 sentencing minute order to show this modification. (See People v. Alford (2010)
180 Cal.App.4th 1463, 1473 [modifying the judgment to correct unauthorized sentence
by imposing and staying sentence rather than remanding for resentencing where record
clearly indicated the sentence the trial court would impose]; People v. Quintero (2006)
135 Cal.App.4th 1152, 1156, fn. 3 [vacating unauthorized sentence and modifying
judgment rather than remanding for resentencing where record clearly reflected trial
court’s intention], disapproved on another ground as stated in People v. Poisson (2016)
246 Cal.App.4th 121, 125.)
III
Custody Credits
We agree with the parties that the trial court erred in refusing to recalculate
custody credits when it resentenced defendant. When, as here, an appellate remand
results in modification of a felony sentence during the term of imprisonment, the trial
court must calculate the actual time the defendant has already served and credit that time
against the sentence imposed at resentencing. (People v. Buckhalter (2001) 26 Cal.4th
20, 37 [“the trial court, having modified defendant’s sentence on remand, was obliged, in
its new abstract of judgment, to credit him with all actual days he had spent in custody,
whether in jail or prison, up to that time”].) We will remand with directions to the trial
court to determine, with input from the parties, the number of actual days defendant had
16
served at the time of resentencing and prepare an amended abstract of judgment
reflecting his total custody credits.
IV
Clerical Error
We agree with the parties that the 2020 sentencing minute order contains a clerical
error that must be corrected. When there is a discrepancy between the oral
pronouncement of judgment and the sentencing minute order, the oral pronouncement
controls. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186.) It is well settled that
appellate courts may correct clerical errors in a minute order that do not accurately reflect
the oral pronouncement of judgment. (Id. at pp. 185-187; People v. Contreras (2009)
177 Cal.App.4th 1296, 1300, fn. 3.) The 2020 sentencing minute order incorrectly states
that defendant’s conviction on count 4 in the 2011 case was for a violation of Penal Code
section 148, subdivision (a)(1). The record reflects that defendant was convicted of
violating section 11379, subdivision (a). We will direct the trial court to correct this
clerical error. Because the error does not appear in in the abstract of judgment, the
abstract need not be modified in this regard.
V
Remedy for Unauthorized Sentence
As we have explained, we agree with defendant that he is entitled to the
ameliorative benefits of Senate Bill No. 180. We need not address the applicability of
People v. Stamps (2020) 9 Cal.5th 685, 705-709 to this case because we agree with the
Attorney General that Stamps is not on point to this case. 7 Here, defendant pleaded
guilty to all counts and admitted all enhancement allegations in the 2011 case in an open
plea; he was sentenced to the maximum possible term of imprisonment. Thus, we will
7 Defendant did not address Stamps in his briefing.
17
simply strike the enhancement and affirm the judgment as modified. (See People v.
Gastelum (2020) 45 Cal.App.5th 757, 772 [“where, as here, an enhancement is
erroneously imposed and the trial court has already imposed the maximum possible
sentence, a remand for resentencing is unnecessary”]; People v. Francis (2017) 16
Cal.App.5th 876, 887 [remand unnecessary where court imposed the maximum possible
sentence and could not alter sentence following modification of judgment].)
DISPOSITION
The judgment is modified to strike the two three-year enhancements (§ 11370.2)
imposed in the 2011 case and to stay the sentences on counts 2 and 4 in the 2011 case
(Pen. Code, § 654). The matter is remanded with directions to the trial court to
recalculate custody credits, amend the 2020 sentencing minute order consistent with this
opinion, and prepare an amended abstract of judgment with a certified copy provided to
the Department of Corrections and Rehabilitation. In all other respects, the judgment is
affirmed.
/s/
Duarte, J.
We concur:
/s/
Blease, Acting P. J.
/s/
Robie, J.
18