People v. Stoecker CA5 ( 2022 )

Filed 6/28/22 P. v. Stoecker CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F081459
Plaintiff and Respondent,
(Fresno Super. Ct. No. CF01662794)
v.
ROLAND FRIEDRICH STOECKER, OPINION
Defendant and Appellant.
THE COURT *
APPEAL from a judgment of the Superior Court of Fresno County. Jonathan B.
Conklin, Judge.
Maureen M. Bodo, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Cavan M.
Cox II, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Hill, P. J., Levy, J. and Poochigian, J.
INTRODUCTION
Appellant and defendant Roland Friedrich Stoecker pleaded guilty to eight counts
and was sentenced to 27 years four months in prison. He filed a petition pursuant to
Proposition 47 and his sentenced was reduced by 16 months. In this appeal, he contends
his defense counsel was prejudicially ineffective for failing to move the court to dismiss
the one-year term imposed for the prior prison term enhancement. We decline to find
counsel was ineffective but remand for further appropriate proceedings, pursuant to the
agreement of the parties, as to the validity of the prior prison term enhancement based on
a recently enacted statute.
FACTS1
On August 14, 2001, defendant broke into an apartment and was ransacking the
interior when the resident returned home. Defendant, whose face was covered,
repeatedly punched the victim’s head and face, dragged her into the bedroom, tied her to
the bed, and gagged her; he said he was sorry for what he was doing. He took several
items from the residence, loaded them into the victim’s vehicle, and drove away in the
victim’s vehicle. The victim managed to partially free herself and called 911. When the
police arrived, she was bleeding from the back and side of her head and her eye was
swollen. She was admitted to the hospital and had blurred vision, multiple soft tissue
injuries, blood loss, and mild anemia.
The victim’s vehicle was found the following day and had been set on fire. A few
days later, the police received a tip that defendant was a possible suspect. Defendant was
located and taken into custody on a parole violation. The victim’s property was found
inside defendant’s car. Defendant was also in possession of marijuana and
1 At defendant’s plea hearing, the parties stipulated to a factual basis for his pleas
based on the preliminary hearing transcript and the police reports. The preliminary
hearing transcript is not part of the instant appellate record. In their appellate briefs, the
parties have cited to the police reports, as summarized in the probation report, for the
facts in this case, and we shall do the same.
2.
methamphetamine. Defendant admitted he committed the burglary, claimed he did not
mean to do it and did not want to hurt the victim. He asked how long he would get.
PROCEDURAL BACKGROUND
On October 17, 2001, an information was filed in the Superior Court of Fresno
County case No. F662794-7 charging defendant count 1, first degree residential robbery
(Pen. Code, § 211);2 count 2, first degree burglary with a nonparticipant present (§ 459);
count 3, assault by means likely to cause great bodily injury (§ 245, subd. (a)(1));
count 4, false imprisonment by violence (§ 236); count 5, carjacking (§ 215, subd. (a));
count 6, unlawful driving or taking a vehicle (Veh. Code, § 10851, subd. (a)); and
count 7, arson of the victim’s 1997 Jeep Cherokee vehicle (§ 451, subd. (d)).
Defendant was also charged with count 8, possession of a controlled substance,
methamphetamine (Health & Saf. Code, § 11377, subd. (a)); and count 9, misdemeanor
possession of 28.5 grams or less of marijuana (Health & Saf. Code, § 11357, subd. (b)).
As to counts 1, 3, 4, and 5, it was alleged defendant personally used a deadly and
dangerous weapon, a blunt object (§ 12022, subd. (b)(1)) and personally inflicted great
bodily injury on the victim (§ 12022.7, subd. (a)).
It was further alleged defendant had one prior serious felony conviction
enhancement (§ 667, subd. (a)) and one prior strike conviction, both based on his
conviction for first degree burglary (§§ 459, 460) in Sacramento County in 1999; and one
prior prison term enhancement (§ 667.5, subd. (b)) based on his conviction for possession
of a controlled substance, in violation of Health and Safety Code section 11350, in
Orange County in 1997.
Plea
On February 27, 2002, defendant pleaded guilty to all charges and admitted all the
special allegations and enhancements, with the exception of count 5, which the court
2 All further statutory citations are to the Penal Code unless otherwise indicated.
3.
dismissed on the prosecutor’s motion. The parties stipulated to the preliminary hearing
transcript and the police reports as the factual basis.
Sentencing
On April 2, 2002, the court held the sentencing hearing. The victim addressed the
court and stated defendant’s “violent rage” left her with a “haunting fear,” people would
be safer every day he was in prison, and she would “still be here” whenever he was
eligible for parole to ensure that he serves “every minute” of his prison sentence. The
prosecutor urged the court to impose consecutive terms and stated that the other offenses
were separate and apart from the burglary. The prosecutor further stated that defendant
left on a kitchen burner after he incapacitated and restrained the victim.
The court stated that the case was “extremely disturbing.” Defendant was not
eligible for probation because of his prior strike. The court found he would not be a
suitable candidate because of his prior criminal record, he was a parolee at large at the
time of the offenses, and he committed an extremely violent act. The court
acknowledged defendant apologized and explained his addiction was the reason for the
offenses but said that did not excuse his behavior.
The court sentenced defendant to 27 years four months in state prison: as to
count 1, the upper term of six years, doubled to 12 years as the second strike term, plus
three years for the great bodily injury enhancement, one year for the personal use
enhancement, five years for the prior serious felony enhancement, and one year for the
prior prison term enhancement; consecutive terms of eight months, doubled to 16 months
(one-third the midterms, doubled as the second strike terms) for each of counts 4, 6, 7,
and 8; a concurrent upper term of six years, doubled to 12 years, for count 2; and stayed
the term imposed for count 3 pursuant to section 654.
PROPOSITION 47
Proposition 47 was approved in November 2014, and “makes certain drug- and
theft-related offenses misdemeanors, unless the offenses were committed by certain
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ineligible defendants. These offenses had previously been designated as either felonies
or wobblers (crimes that can be punished as either felonies or misdemeanors).” (People
v. Rivera (2015) 233 Cal.App.4th 1085, 1091.) Proposition 47 “also added …
section 1170.18, which permits those previously convicted of felony offenses that
Proposition 47 reduced to misdemeanors to petition to have such felony convictions
resentenced or redesignated as misdemeanors.” (People v. Buycks (2018) 5 Cal.5th 857,
871, fn. omitted.)
“The ultimate burden of proving section 1170.18 eligibility lies with the
petitioner.” (People v. Romanowski (2017) 2 Cal.5th 903, 916.) In reviewing a
section 1170.18 petition, “the court has no obligation to hold an evidentiary hearing
where the petitioner’s eligibility or ineligibility for relief is evident as a matter of law.”
(People v. Simms (2018) 23 Cal.App.5th 987, 993.) “In many cases, the threshold issue
of eligibility for relief … may be determined as a matter of law from the uncontested
allegations of the petition or from the record of conviction.” (Ibid.)
Defendant’s First Petition
At some point in 2015, defendant apparently filed a petition pursuant to
section 1170.18; the petition is not in the instant record. On September 11, 2015, the
court filed an order in case No. F662794-7, summarily denying defendant’s petition with
prejudice because his convictions were ineligible for relief under section 1170.18.
Defendant’s Second Petition
On January 21, 2020, defendant, in pro. per., filed another petition in case
No. 6627947-2, requesting reduction of a felony conviction to a misdemeanor pursuant to
section 1170.18. The petition did not specify which conviction was at issue but stated
that he was sentenced to 16 months.
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The Court’s Ruling
On June 22, 2020, the court held a hearing on defendant’s second section 1170.18
petition. Defendant, who was in state prison, was not present, and defense counsel stated
defendant waived his appearance.
The prosecutor stated defendant’s conviction in count 8 for felony possession of a
controlled substance, methamphetamine (Health & Saf. Code, § 11377, subd. (a)),
qualified for resentencing under Proposition 47, and his aggregate sentence would be
reduced by 16 months. The prosecutor further stated that count 9, misdemeanor
possession of less than 28.5 grams of marijuana, separately qualified for resentencing and
dismissal under Proposition 64, and would not affect defendant’s aggregate sentence. 3
The court agreed and dismissed count 9. It also reduced count 8 from a felony to a
misdemeanor and ordered the 16-month sentence stricken. The court stated defendant’s
aggregate term in case No. 6627947-2 was reduced from 27 years four months to 26
years.
On June 30, 2020, the court filed an amended abstract of judgment in case
No. 6627947-2, that count 9 was stricken, count 8 was reclassified as a misdemeanor, and
defendant’s aggregate sentence was reduced to 26 years.
On July 23, 2020, defendant filed a notice of appeal from the court’s order of
June 22, 2020.
3“In 2016, the voters passed Proposition 64, which makes it lawful for persons
aged 21 years and older to engage in various types of conduct involving cannabis,
including the possession of up to 28.5 grams of cannabis (approximately one ounce),
subject to certain exceptions. [Citation.] The initiative also includes a remedial
provision that allows persons currently serving a sentence for a cannabis-related crime
that is no longer an offense under Proposition 64 to file a petition requesting the dismissal
of their sentence.” (People v. Raybon (2021) 11 Cal.5th 1056, 1060, fn. omitted.)
6.
DISCUSSION
In this appeal, defendant has not raised any issues about the court’s ruling when it
partially granted his section 1170.18 petition in case No. 6627947-2. Instead, he asserts
his defense attorney was prejudicially ineffective for not moving the court to also reduce
his felony conviction for the offense underlying the section 667.5, subdivision (b) prior
prison term enhancement that he admitted in case No. 6627947-2: possession of a
controlled substance, in violation of Health and Safety Code section 11350, in Orange
County in 1997.
Proposition 47
Defendant first argues his attorney should have advised the court that the
underlying conviction from Orange County was also subject to reclassification to a
misdemeanor under Proposition 47, so that the court should have reduced the Orange
County conviction to a misdemeanor and then stricken the additional term of one year for
the prior prison term enhancement based on that conviction.
The People reject defendant’s claim of ineffective assistance and assert that a
section 1170.18 petition must be filed in the county where defendant’s conviction
occurred, the conviction underlying the prior prison term enhancement occurred in
Orange County, and the court in Fresno County did not have jurisdiction to reduce that
conviction to a misdemeanor.
The People are correct. “[T]he plain language of section 1170.18 … demonstrates
that both for persons who are currently serving a sentence for a felony reduced by
Proposition 47, and for those who have completed such a sentence, the remedy lies in the
first instance by filing a petition to recall (if currently serving the sentence) or an
application to redesignate (if the sentence is completed) in the superior court of
conviction.” (People v. Diaz (2015) 238 Cal.App.4th 1323, 1331–1332, italics added.)
In order for a prior felony conviction to be reclassified as a misdemeanor, the defendant
“must file an application under section 1170.18, subdivision (f) to have the offense
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designated as a misdemeanor in the superior court of conviction ….” (Id. at p. 1332,
italics added.)
“A defense counsel is not required to make futile motions or to indulge in idle acts
to appear competent.” (People v. Torrez (1995) 31 Cal.App.4th 1084, 1091–1092.)
Defense counsel could not have requested the Fresno County Superior Court to reclassify
his underlying felony conviction from Orange County since the court lacked jurisdiction
to do so, and thus counsel was not ineffective for failing to file a meritless motion.
Senate Bill Nos. 136 and 483
As a separate matter, defendant argues that defense counsel was ineffective for
failing to move for the court to strike the section 667.5, subdivision (b) prior prison term
enhancement, that he admitted as part of his plea agreement, pursuant to the amendments
enacted by Senate Bill No. 136.
Effective January 1, 2020, Senate Bill No. 136 (2019–2020 Reg. Sess.) (Senate
Bill 136) amended section 667.5, subdivision (b), to provide that the one-year prior
prison term enhancement only applies when there is a prior separate prison term for a
sexually violent offense as defined in Welfare and Institutions Code section 6600,
subdivision (b). (Stats. 2019, ch. 590, § 1.) “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.” (People v. Winn (2020)
44 Cal.App.5th 859, 872.)
We decline to find counsel was ineffective for failing to move to strike the prior
prison term enhancement. At the time of the section 1170.18 hearing, it was not clear
whether the court could strike every enhancement admitted as part of a plea agreement.
(See, e.g., People v. Stamps (2020) 9 Cal.5th 685, 692.)
More importantly, effective on January 1, 2022, Senate Bill No. 483 added
section 1171.1 to the Penal Code. (2021–2022 Reg. Sess.) (Stats. 2021, ch. 728, § 3
(Senate Bill 483).) Senate Bill 483 extends the modifications brought about by Senate
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Bill 136 to judgments already final on appeal (Stats. 2021, ch. 728, § 3), and applies
retroactively “to all persons currently serving a term of incarceration in jail or prison for
these repealed sentence enhancements.” (Stats. 2021, ch. 728, § 1.) Senate Bill 483
expresses the Legislature’s intent “that any changes to a sentence as a result of [Senate
Bill 483] shall not be a basis for a prosecutor or court to rescind a plea agreement.”
(Stats. 2021, ch. 728, § 1, italics added.)
Section 1171.1 declares that enhancements imposed before January 1, 2020, under
former section 667.5, subdivision (b), are legally invalid except for any enhancement
imposed for a prior conviction for a sexually violent offense. (§ 1171.1, subd. (a); People
v. Flores (2022) 77 Cal.App.5th 420, 443.) It also provides for resentencing of
defendants already sentenced to prior prison term enhancements and sets out specific
instructions for any such resentencing. (§ 1171.1, subds. (c)–(e).) “Resentencing
pursuant to this section shall result in a lesser sentence than the one originally imposed as
a result of the elimination of the repealed enhancement, unless the court finds by clear
and convincing evidence that imposing a lesser sentence would endanger public safety.
Resentencing pursuant to this section shall not result in a longer sentence than the one
originally imposed.” (Id., subd. (d)(1), italics added.)
In the initial briefing in this case, the People did not address the possible
application of Senate Bill 136 to the prior prison term enhancement imposed in this case
as part of the plea agreement. We requested supplemental briefing from the parties about
the impact of Senate Bill 483 to this issue. The parties agree that remand is required
since defendant’s conviction from Orange County, underlying the prior prison term
enhancement that he admitted as part of his plea agreement in case No. 6627947-2, was
not for a sexually violent offense.
We therefore remand the matter for the trial court and parties to address the
amendments enacted by Senate Bills 136 and 483 to the prior prison term enhancement
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that defendant admitted, and the one-year term imposed in this case, and for resentencing
pursuant to the provisions of section 1171.1.
DISPOSITION
The matter is remanded for further appropriate proceedings.
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