People v. Lawhorn CA3 ( 2022 )

Filed 5/24/22 P. v. Lawhorn 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Siskiyou)
----
THE PEOPLE, C093423
Plaintiff and Respondent, (Super. Ct. No. 2015955)
v.
JEFFREY STUART LAWHORN,
Defendant and Appellant.
Defendant Jeffrey Stuart Lawhorn is before this court for a second time.
An information charged defendant with multiple offenses related to
methamphetamine, including as relevant here possession for sale of methamphetamine
(Health & Saf. Code, § 11378; count 3) in an amount more than one kilogram (id.,
§ 11370.4, subd. (b)(1); enhancement 2 to count 3). The information also charged
defendant with four prior strikes, providing details of those convictions, and citing Penal
Code sections 667, subdivisions (b) through (i) and 1170.12, subdivisions (a) through
1
(d).1 Pursuant to the three strikes law, defendant faced a sentence of 25 years to life if
convicted of count 3 and the corresponding weight allegation. (Pen. Code, §§ 667, subd.
(e)(2)(C)(i), 1170.12, subd. (c)(2)(C)(i); Health & Saf. Code, § 11370.4, subd. (b)(1).)
However, before trial and apparently unaware that defendant faced a life sentence if
convicted as charged, the parties and the court agreed that each side should be allotted
only 10 peremptory challenges rather than the 20 mandated by exposure to life in prison.
(Code Civ. Proc., § 231, subd. (a).)
The jury found defendant guilty of count 3, among other counts, and found true
the weight allegation, and the trial court found three of the prior strike allegations true.2
The matter was referred to the probation department, which initially provided several
determinate sentencing options in its report. After the court denied defendant’s motion
pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), the
court re-referred the matter to probation; the second report opined that defendant should
be sentenced to 25 years to life in prison pursuant to the three strikes law.
Defendant objected to the trial court’s following the second probation report; the
basis for the objection was that he had been allotted only 10 peremptory challenges
during jury selection (and therefore could not face a life sentence). The court granted
defendant’s motion, observing at a hearing that it would be unjust to sentence defendant
to a term that was unanticipated at the time trial was set, and recording in the minutes that
it would be unjust to sentence defendant to an indeterminate sentence where he was
allotted only 10 peremptory challenges during jury selection. The court did not dismiss
or strike any of defendant’s remaining strikes, but sentenced defendant as a second strike
offender to a determinate sentence of 17 years.
1 Further undesignated statutory references are to the Penal Code.
2 The fourth strike was not submitted to the trial court for determination, as we discuss
post.
2
Defendant appealed, and we reversed two of his counts of conviction and an
enhancement. (People v. Lawhorn (Nov. 15, 2019, mod. on denial of rehg., Dec. 4, 2019,
C084119) [nonpub. opn.].)3 We remanded the matter to the trial court for a full
resentencing hearing, and because the court had failed to dismiss or strike the strikes on
which it did not sentence defendant, we directed the court to “address all of defendant’s
strikes on remand.”
On remand, the trial court denied defendant’s Romero motion. Although
defendant objected to the imposition of a 25-years-to-life sentence on the basis that he
lacked fair notice of the enhancement allegations or his maximum exposure, as relevant
here the court sentenced defendant to 25 years to life on count 3 and its corresponding
weight enhancement.
Defendant appeals. He contends the trial court abused its discretion by not
striking or dismissing his prior strikes on remand because the information failed to
adequately notify him that he faced a maximum term of 25 years to life in prison on
count 3, the prosecutor affirmatively misrepresented his sentencing exposure by agreeing
that he should receive only 10 peremptory challenges at trial, and, to the extent he had
notice of his maximum exposure, trial counsel was constitutionally ineffective for failing
to adequately advise him of his exposure. Defendant further argues that he suffered
adverse consequences from his first appeal, and his sentence for maintaining a place for
selling methamphetamine must be stayed pursuant to section 654.
We requested and received supplemental briefing from both parties on whether the
trial court misconstrued our directions on remand as precluding its exercise of discretion
3 On our own motion, we take judicial notice of our opinion in defendant’s direct appeal.
(Evid. Code, §§ 459, subd. (a) [“The reviewing court may take judicial notice of any
matter specified in Section 452”], 452, subd. (d) [permitting a court to take judicial notice
of records of “any court of this state”].)
3
to dismiss the prior strikes in the interest of justice. As we will explain, we agree with
defendant that the trial court misunderstood our directions as restricting its exercise of
discretion; accordingly, we vacate the sentence and remand for full resentencing.
FACTS AND PROCEEDINGS
Factual Background
We summarize the underlying facts related to defendant’s offenses that were
recounted in our opinion on defendant’s initial appeal. (People v. Lawhorn, supra,
C084119.)
On July 9, 2015, police officers searched defendant’s residence in Yreka.
Defendant and codefendant Amanda Wilson, who was asleep on the couch when the
police arrived, were present during the search. Officers found more than a pound of
methamphetamine, a digital scale, a ledger sheet, over one thousand small plastic bags
(packaging for methamphetamine sales), and items associated with methamphetamine
use. In a separate search of defendant’s parents’ residence in Hornbrook, officers found a
safe containing cash, documents bearing defendant’s name, and two one-gallon bags of
methamphetamine weighing approximately four pounds total. They also found
containers and digital scales covered with methamphetamine residue in a nearby desk.
The packaging found at the two residences was indistinguishable, and the
methamphetamine appeared to have been packaged by the same person. (People v.
Lawhorn, supra, C084119.)
Procedural History of Underlying Convictions
Defendant was charged by information with five counts; as relevant here,
defendant was charged in count 3 with possession for sale of methamphetamine (Health
& Saf. Code, § 11378) in an amount more than one kilogram (id., § 11370.4, subd.
(b)(1)). (People v. Lawhorn, supra, C084119.)
4
The information further alleged as to multiple counts, including count 3, that
defendant had been previously convicted of four serious or violent felonies. (§§ 1170.12,
subds. (a)-(d), 667, subds. (b)-(i).) The weight enhancement allegation attached to count
3--that defendant possessed for sale methamphetamine in an amount more than one
kilogram--exposed him to a life sentence if the factfinder found true the prior strike
allegations (Pen. Code, § 1170.12, subd. (c)(2)(C)(i); Health & Saf. Code, § 11370.4,
subd. (b)(1)), although the information did not expressly so state.
The case proceeded to trial. Before jury selection, the trial court and the
prosecutor agreed that the charges necessitated allotting each side only 10 peremptory
challenges.4 The court acknowledged that it “wasn’t sure if any of the priors, if they are
not excluded, would make it anything but” a case requiring 10 peremptory challenges,
and the prosecutor confirmed that each side needed to be allotted only 10 peremptory
challenges “regardless of priors.”
The jury found defendant guilty of all counts still before it and found true all
enhancement allegations. (People v. Lawhorn, supra, C084119.) The probation
department initially provided multiple sentencing options in its report, each of which was
premised on the sentence-doubling provision of the three strikes law. (§§ 667, subd.
(e)(2)(C), 1170.12, subd. (c)(2)(C).) There was no mention of a potential life sentence
under the three strikes law.
4 In cases where the maximum punishment is death or life in prison, both the prosecution
and defense are allotted 20 peremptory challenges. (Code Civ. Proc., § 231, subd. (a).)
In other cases, with exceptions not relevant here, each side is allotted only 10 peremptory
challenges. (Ibid.)
5
In bifurcated proceedings, the trial court found true three prior strike allegations.5
The court stated its intent to deny defendant’s Romero motion, but it authorized the
parties to submit additional briefing on that issue. The court again referred the case to
probation.
The probation department submitted a second report in which it acknowledged its
previous recommendations, but observed that defendant was subject to an indeterminate
sentence of 25 years to life in addition to the recommended determinate sentence on the
other counts of conviction. (§§ 1170.12, subd. (c)(2)(C)(i), 667, subd. (e)(2)(C)(i).)
Defendant objected to the second report on the basis that he was not allotted 20
peremptory challenges, as is required in any case in which the defendant is exposed to a
life sentence. He asserted that because he had been allotted only 10 peremptory
challenges, he could not be constitutionally sentenced to life in prison.
At sentencing, the trial court recognized that during jury selection both parties
agreed defendant was not exposed to a life sentence, and therefore both parties were
allotted only 10 peremptory challenges. The court expressed concern that defendant was
now exposed to a penalty that was not anticipated by the court or the parties before trial,
and it concluded that it would be “unjust” to impose a life sentence. Accordingly, the
court “demonstrated an intent to grant the motion and to proceed on sentencing today on
the basis of the first [probation] report and order,” which had provided several
5 The prosecutor stated that he decided not to pursue the fourth alleged prior conviction
as a strike. The prosecutor was not entitled to unilaterally abandon the prosecution of this
strike allegation (see Romero, supra, 13 Cal.4th at pp. 517, 530 [once strike has been
alleged, the disposition of that charge becomes a judicial responsibility, and the
prosecutor only has the discretion to move to strike a prior serious felony conviction in
the furtherance of justice]; People v. Roman (2001) 92 Cal.App.4th 141, 145 [district
attorney can only recommend dismissal to the court; dismissal is within the court’s
discretion].) On remand, we direct the trial court to decide whether to utilize its
discretion to dismiss this prior strike conviction allegation in the interest of justice.
6
determinate sentence options. The prosecutor agreed that the indeterminate life term was
improper given the pre-trial limitation on peremptory challenges. The minutes from the
sentencing hearing stated: “Court states would be unjust to sent[ence] as [the second]
[probation] report states 25 to life due to 10 peremp[tory challenges] as opposed to 20
peremp[tory challenges] if this was going to be a 25 to life case.” The trial court then
denied defendant’s Romero motion to strike or dismiss the prior strikes. The court did
not orally strike or dismiss the prior strikes or the additional punishment. (§ 1385.)
The trial court sentenced defendant to an aggregate determinate term of 17 years
in prison, including three years on count 3, doubled to six years due to defendant’s prior
strike. (People v. Lawhorn, supra, C084119.)
Defendant’s First Appeal
On defendant’s direct appeal to this court, we reversed the judgment as to two
counts of conviction and concluded defendant’s three-year sentence for a prior drug
offense conviction must be stricken. We remanded the matter for a full resentencing
hearing.
Although the parties did not brief the issue, we recognized that while the trial
court sentenced defendant as a second strike offender, it did not actually dismiss the
remaining prior strikes, leaving those strikes outstanding, which resulted in an
unauthorized sentence. Accordingly, the opinion reminded the trial court that on remand
it “must also address all of defendant’s strikes.” (People v. Lawhorn, supra, C084119.)
We also observed that defendant had objected to the second probation report
solely on the basis that he was allotted 10 peremptory challenges, the trial court orally
stated its intent to grant defendant’s motion to disregard that report, and the minutes of
the hearing reflected that the trial court concluded it would be unjust to sentence
defendant as a third strike offender where he was allotted only 10 peremptory challenges.
Accordingly, we also noted that the trial court had failed to analyze whether having been
7
allocated too few peremptory challenges prejudiced defendant. (People v. Lawhorn,
supra, C084119 [opn. before mod.].)
Defendant petitioned for rehearing, arguing that the parties did not raise or brief
the issue of whether he was appropriately sentenced as a second strike offender.
Defendant further argued that the trial court’s basis for treating him as a second strike
offender was his lack of notice that he was facing a life sentence, rather than an error
regarding the number of peremptory challenges. We modified the opinion to delete
footnote 3 (referencing peremptory challenges and prejudice) and denied defendant’s
rehearing petition.
Proceedings Following Remand
On remand, the prosecution initially suggested that count 3 should again be treated
as the base term, and the court should impose a sentence of nine years: six years as a
second strike offender, and three years for the weight enhancement. However, in a
written sentencing brief, the prosecution argued that sentencing defendant as a second
strike offender was unauthorized. Citing footnote 3 that we had previously deleted from
our modified opinion in defendant’s initial appeal, the prosecution stated: “The Court of
Appeal further noted that treating the defendant as a single striker was not an appropriate
remedy for having only 10 peremptory challenges.” The prosecution argued that
defendant must be sentenced to 25 years to life based on his conviction in count 3. The
record does not reflect that the trial court was ever informed that our initial opinion had
been modified to delete footnote 3.
Defendant responded that the trial court’s original decision to sentence him as a
second strike offender was not related to his allotment of peremptory challenges, but
rather to his lack of notice that he was facing a life sentence if convicted. He argued in
the alternative that, if the court intended to impose a life sentence, he should receive a
new trial because trial counsel was constitutionally ineffective for failing to adequately
advise him of his maximum exposure. Defendant also asserted that principles of double
8
jeopardy prohibited the court from imposing an increased punishment following his
successful appeal and that the court should reconsider its previous rulings on his Romero
motions. In a renewed Romero motion, defendant contended the prior strikes were
remote in time and he would still receive a lengthy sentence if the strikes were stricken,
and he noted the posture of the case and “issues that have arisen and previously been
briefed.”
The trial court denied defendant’s Romero motion. Neither the court nor the
parties addressed defendant’s notice argument. Defendant then requested a hearing
pursuant to People v. Marsden (1970) 2 Cal.3d 118, claiming he felt misled in making the
decision to go to trial because he did not know he faced a life term. The court denied the
motion on the basis that his attorney was not substandard for trying a case where there
“were no real offers.”
The probation department recommended the trial court sentence defendant to 25
years to life on count 3. At a subsequent resentencing hearing, defense counsel again
objected to the imposition of an indeterminate sentence on the basis that he did not have
fair notice of the specific enhancement allegations or his maximum exposure. He
observed that defendant had not been informed by counsel, the prosecution, or the court
that he was facing a life sentence if convicted.
The trial court appeared to conclude that it had no choice but to sentence
defendant to a life sentence under the circumstances. The court stated: “And I do
appreciate the frustration that you must be feeling. I’m not without frustration on this as
well. However, as I was rightfully instructed, the sentence that I imposed previously was
an illegal sentence and may not stand. . . .
[¶] . . . [¶] . . . This Court has instructed the—and made orders that will
incorporate and have incorporated the instructions from the appellate court in this
proposed sentence. [¶] And the Court believes that it is now consistent with the
instructions that this Court received from the Court of Appeal[]. So I am going to be
9
going forward with that.” The trial court sentenced defendant in part to 25 years to life
on count 3 (Health & Saf. Code, §§ 11370.4, subd. (b), 11378; Pen. Code, §§ 667, subds.
(b)-(i), 1170.12, subd. (c)(2)(C)(i)).
Defendant timely appealed on January 19, 2021. The case was fully briefed in
September 2021 and was assigned to this panel on September 30, 2021. On December 1,
2021, we requested supplemental briefing on the issues of whether the trial court
misinterpreted our remand order to preclude its exercise of discretion to dismiss
defendant’s prior strikes, whether the prosecutor’s and trial court’s misrepresentations
regarding defendant’s exposure could have deprived him of notice where notice was
otherwise adequately provided by the information, and whether the trial court failed to
consider defendant’s constitutional rights as required by Romero. Supplemental briefing
was completed on January 3, 2022. Defendant requested oral argument and the case was
argued and submitted on May 16, 2022.
DISCUSSION
In response to our supplemental briefing order, defendant contends the trial court
misunderstood or misconstrued our opinion on his initial appeal to preclude the court
from exercising its discretion to dismiss the prior strike allegations to conform the
judgment to the parties’ and court’s pretrial understanding of defendant’s sentencing
exposure. The Attorney General argues the trial court was aware of defendant’s notice
argument, and it declined to dismiss his strikes based on his “serious and unrepentant
criminal record.” We agree with defendant that the court misconstrued our prior opinion
as foreclosing any exercise of its discretion to dismiss defendant’s prior strikes in the
interests of justice. Therefore, we will remand the matter for a full resentencing.
At the initial sentencing, the trial court agreed with defendant’s objection to the
second probation report and proceeded with sentencing as if defendant were a second
strike offender. However, as we have discussed, the court failed to dismiss any of
defendant’s remaining prior strikes that it had found true. In the absence of such a
10
dismissal, the sentence imposed by the trial court was unauthorized. (See People v.
Vizcarra (2015) 236 Cal.App.4th 422, 436 [failure to impose enhancement and double
sentence under three strikes law or exercise discretion under § 1385 to strike the prior
resulted in unauthorized sentence]; People v. Morales (2003) 106 Cal.App.4th 445, 454-
456 [reversing where trial court failed to double terms for current offenses despite serious
prior felony conviction or to exercise discretion to strike the prior conviction]; People v.
Bradley (1998) 64 Cal.App.4th 386, 391 [“The failure to impose or strike an
enhancement is a legally unauthorized sentence subject to correction for the first time on
appeal”]; People v. Irvin (1991) 230 Cal.App.3d 180, 191 [failure to either impose or
dismiss a sentence on a criminal count, which has been properly pleaded and proved,
results in an unauthorized sentence].) Accordingly, we directed the trial court to address
these outstanding strikes on remand, by which we intended to convey that the court must
either dismiss the strikes or the additional punishment in strict compliance with section
1385 (People v. Williams (1998) 17 Cal.4th 148, 158), or sentence in accordance with the
three strikes law. (People v. Lawhorn, supra, C084119 [opn. following mod.].)
In footnote 3 in our opinion before modification, we cautioned that the trial court
must consider whether defendant suffered prejudice before dismissing strikes based on
having allotted too few peremptory challenges. (People v. Lawhorn, supra, C084119
[opn. before mod.].) This footnote accounted for defendant’s opposition to the second
probation report, in which he exclusively argued that a life sentence could not be
constitutionally imposed based on the allotment of too few peremptory challenges, the
trial court’s stated intention to grant defendant’s motion to disregard the probation report,
and the minutes of the hearing reflecting the court’s conclusion that it would be unjust to
sentence defendant to life in prison “due to 10 peremp[tory challenges] as opposed to 20
peremp[tory challenges] if this was going to be a 25 to life case.” Recognizing that issue
had not been briefed and the matter was being remanded for a full resentencing, we
deleted that footnote.
11
However, on remand, the prosecution’s sentencing brief cited our deleted footnote
to support its arguments that defendant’s initial sentence was unauthorized, that
sentencing defendant as a second strike offender was not an appropriate remedy for
having been allotted only 10 peremptory challenges, and that he must be sentenced to life
in prison. Consistent with the prosecution’s assertions, the trial court stated at sentencing
it was “not without frustration,” noted it “was rightfully instructed”--presumably
referring to our opinion--that the sentence it had previously imposed was illegal, and
stated the sentence it was imposing on remand was intended to incorporate and be
consistent with our instructions on remand. The court did not expressly address
defendant’s argument that he lacked notice of the specific enhancement allegations or his
maximum exposure.
We must now acknowledge that our directions failed to make clear that the trial
court was not precluded from dismissing the strikes on any basis, including on the basis
of a lack of notice, if an adequate record were made to support the court’s exercise of its
discretion. To clarify: the trial court must either dismiss the remaining strikes or account
for them in the sentence, and must conduct a prejudice analysis if it intends to dismiss the
strikes based on its allotment of too few peremptory challenges. 6
It is clear to us that the prosecution and trial court misinterpreted our opinion and
remittitur as precluding the court from exercising its discretion to dismiss defendant’s
strikes on any basis. Thus, we disagree with the Attorney General, who argues the trial
court was aware of its discretion to dismiss the strikes, and declined to do so in the
6 This direction includes the fourth prior strike alleged in the information that was
abandoned by the prosecutor but not dismissed by the trial court. (Romero, supra, 13
Cal.4th at pp. 517, 530 [once strike has been alleged, the disposition of that charge
becomes a judicial responsibility, and the prosecutor only has the discretion to move to
strike a prior serious felony conviction in the furtherance of justice]; People v. Roman,
supra, 92 Cal.App.4th at p. 145 [district attorney can only recommend dismissal to the
court; dismissal is within the court’s discretion].)
12
context of defendant’s Romero motion. In our view, the trial court clearly did not realize
it was entitled to exercise its discretion to dismiss defendant’s strikes on the bases of lack
of notice or fundamental fairness. Accordingly, we will remand the matter to allow that
court to consider defendant’s arguments for dismissing his strikes or additional
punishment, including those based in fairness or lack of notice. (See People v. Sawyers
(2017) 15 Cal.App.5th 713, 718, 723, 726 [trial court improperly sentenced the defendant
under the three strikes law where information did not provide notice that prior conviction
was a strike]; People v. Brown (2007) 147 Cal.App.4th 1213, 1228 [remand necessary
where record shows trial court proceeded with sentencing on erroneous assumption it
lacked discretion]; People v. Carmony (2004) 33 Cal.4th 367, 373 [court’s discretionary
decision to dismiss or to strike sentencing allegation under § 1385 is reviewable for abuse
of discretion]; People v. Superior Court of Marin County (1968) 69 Cal.2d 491, 505
[“When balance falls clearly in favor of the defendant, a trial court not only may but
should exercise the powers granted to him by the Legislature and grant a dismissal in the
interests of justice,” italics added]; People v. Langevin (1984) 155 Cal.App.3d 520, 524
[court abuses its discretion where it was not “aware of its discretion” to dismiss].)
On remand, the trial court may consider whether dismissal of one or more of
defendant’s strikes is warranted in the interest of justice based on a ground previously
stated or based on a new ground. (See, e.g., People v. Bonnetta (2009) 46 Cal.4th 143,
153 [“Judicial economy is furthered by allowing the trial court to correct what, upon
reconsideration and reflection, it perceives to have been an unwarranted dismissal, or to
consider if a dismissal should be ordered for some new or different reason. In such cases,
the court must also have the power to take action such as reconvening the sentencing
hearing or allowing a defendant to withdraw a plea entered on the understanding a count
or an enhancement would be dismissed”].) Until such time as the court has exercised its
discretion as to each of defendant’s strikes and thus has “address[ed] all of defendant’s
13
strikes,” we decline to reach the merits of defendant’s remaining arguments raised in this
appeal.7
DISPOSITION
Defendant’s sentence is vacated, and the matter is remanded to the trial court for a
full resentencing hearing.
/s/
Duarte, J.
We concur:
/s/
Raye, P. J.
/s/
Hoch, J.
7 In conjunction with his resentencing hearing, defendant may also argue application of
the new laws in place that may apply to his situation, such as the recent amendments to
section 654 referenced in his supplemental authority letter to this court dated March 16,
2022, as his judgment is not yet final.
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