People v. Rodgers CA3 ( 2022 )

Filed 8/30/22 P. v. Rodgers 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Sacramento)
----
THE PEOPLE, C095203
Plaintiff and Respondent, (Super. Ct. No. 13F04912)
v.
ELIJAH RODGERS,
Defendant and Appellant.
In an earlier appeal, we affirmed defendant Elijah Rodgers’s convictions, but
remanded the matter to allow the trial court to exercise its discretion to strike defendant’s
firearm enhancements in light of legislative changes to sentencing law. On remand, the
trial court declined to strike defendant’s firearm enhancements. Defendant appeals,
arguing the trial court on remand apparently did not understand the scope of its discretion
to impose a lesser included firearm enhancement. The People disagree, but ask us to
correct an unauthorized aspect of the sentence as originally imposed.
1
We agree with the Attorney General that part of defendant’s original sentence was
unauthorized and conclude it must be vacated and the matter remanded for a full
resentencing hearing. That conclusion moots the parties’ other contentions.
FACTUAL AND PROCEDURAL BACKGROUND
The underlying facts and procedural history of defendant’s case are not material to
the instant appeal. It suffices to say that in a prior opinion we (1) affirmed defendant’s
2015 convictions for murder (Pen. Code, § 187, subd. (a)—count one)1 and shooting at
an occupied vehicle (§ 246—count two), and the jury’s true findings regarding
allegations defendant personally and intentionally discharged a firearm, causing death,
personally used a firearm, and committed the offenses for the benefit of a criminal street
gang (§§ 12022.53, subd. (d), 12022.5, subd. (a), 186.22, subd. (b)(1)); and (2) remanded
the matter to allow the trial court to exercise discretion granted to it by a 2018
amendment to section 12022.53, subdivision (h), which permits trial courts to strike or
dismiss firearm enhancements. (People v. Rodgers (May 4, 2021, C080976) [nonpub.
opn.].)2
At resentencing on remand in October 2021, defense counsel told the trial court,
“You don’t have to strike the entirety of the enhancement. It’s a 10, 20, to life. Some
striking and some leniency . . . wouldn’t hurt.”
The trial court characterized the issue before it, explaining that this court “sent [the
matter] back to the Trial Court only for consideration of whether a Judge should, in the
interest of justice, strike [defendant’s] personal use of a firearm because the law changed
on that.” And, “[A]ll [defendant] is here for in front of me is to see if I would be willing
1 Undesignated statutory references are to the Penal Code.
2 The People’s request for judicial notice filed on June 17, 2022, is denied as moot,
as the record and unpublished opinion in appeal No. C080976 was already incorporated
by reference by this court’s order filed on March 18, 2022.
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to strike his gun enhancement, which is significant, right? It’s an additional 25 years to
life.”
The trial court declined to strike defendant’s firearm enhancement on remand,
explaining, “[T]here is not significant responsibility in my view that would demonstrate
[defendant] should receive a leniency, a re-sentencing, by eliminating a 25-year to life
sentence for the gun enhancement.
“I am motivated by the statute itself which says Courts in the interest of justice can
exercise their discretion, and everything I have read and everything I have heard, I am not
motivated to exercise my discretion to strike that punishment.”
Defendant timely appealed.
While the appeal was pending, our Supreme Court issued its opinion in People v.
Tirado (2022) 12 Cal.5th 688 (Tirado), holding the 2018 amendment to section 12022.53,
subdivision (h) gives trial courts the discretion to strike a firearm enhancement found true
by the jury and to impose a lesser uncharged statutory enhancement instead. (Tirado,
supra, at p. 692.) “To summarize: When an accusatory pleading alleges and the jury
finds true the facts supporting a section 12022.53[, subdivision] (d) enhancement, and the
court determines that the section 12022.53[, subdivision] (d) enhancement should be
struck or dismissed under section 12022.53[, subdivision] (h), the court may, under
section 12022.53[, subdivision] (j), impose an enhancement under section 12022.53[,
subdivisions] (b) or (c).” (Tirado, at p. 700.) “[T]he Legislature has permitted courts to
impose the penalties under section 12022.53[, subdivisions] (b), (c), or (d) so long as the
existence of facts required by the relevant subdivision has been alleged and found true.”
(Tirado, at p. 702.)
In so ruling, our Supreme Court resolved a split on the issue in the Courts of
Appeal. (Tirado, supra, 12 Cal.5th at p. 696.)
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DISCUSSION
Defendant contends we should (again) remand this matter because the trial court’s
discretion to impose a lesser firearm enhancement “was unclear at the time of
sentencing,” and the trial court’s “somewhat ambiguous” comments at resentencing
indicate the trial court “did not appear to recognize its ability to impose a lesser included
offense.”
The People disagree, contending “the record does not affirmatively demonstrate
that the court failed to understand its discretion to impose the lesser firearm
enhancement,” and the trial court’s statements at resentencing “indicate[ ] clearly that it
was not inclined to impose any form of lesser punishment.”
But in an unexpected twist, the People contend the sentence on count two is
unauthorized as a statutory matter, and ask us to modify it (from a base term of seven
years to a base term of 15 years to life imprisonment) and otherwise affirm the matter on
appeal.
In his reply brief, defendant does not dispute that the sentence on count two is
contrary to statute. But he contends the People effectively forfeited the issue by failing
properly to plead it at trial, implicating due process concerns. Defendant further contends
that if we do determine the sentence on count two must be modified, the case should be
remanded to the trial court for a full resentencing.
We conclude the matter must be remanded for a full resentencing because the
sentence on count two is unauthorized. That conclusion moots the parties’ other
contentions.
I
When the trial court sentenced defendant in 2015, section 186.22, subdivision (b)
provided (and, except for very minor differences, still does today): “(1) Except as
provided in paragraphs (4) and (5), a person who is convicted of a felony committed for
the benefit of, at the direction of, or in association with a criminal street gang, with the
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specific intent to promote, further, or assist in criminal conduct by gang members, shall,
upon conviction of that felony, in addition and consecutive to the punishment prescribed
for the felony or attempted felony of which the person has been convicted, be punished as
follows: [¶] . . . [¶] (4) A person who is convicted of a felony enumerated in this
paragraph committed for the benefit of, at the direction of, or in association with a
criminal street gang, with the specific intent to promote, further, or assist in criminal
conduct by gang members, shall, upon conviction of that felony, be sentenced to an
indeterminate term of life imprisonment with a minimum term of the indeterminate
sentence calculated as the greater of: [¶] . . . [¶] (B) Imprisonment in the state prison
for 15 years, if the felony is . . . a felony violation of Section 246 . . . .” (§ 186.22, subd.
(b)(1), (4), italics added.)
In People v. Jones (2009) 47 Cal.4th 566, our Supreme Court explained: “[A]
violation of section 246 . . . by itself carries a maximum prison sentence of seven years.
But when . . . the crime is committed to benefit a criminal street gang, the provision that
comes into play is section 186.22[, subdivision] (b)(4), which calls for a term of life
imprisonment (with a minimum parole eligibility of 15 years).” (Jones, supra, at p. 575.)
The parties agree that⸺rather than a term of 15 years to life, as mandated by
section 186.22, subdivision (b)(4)⸺the trial court imposed a seven-year term for
defendant’s section 246 offense (count two), which was committed to benefit a criminal
street gang. That unauthorized aspect of defendant’s sentence is subject to judicial
correction now, despite the possibility of more severe punishment. (See In re Renfrow
(2008) 164 Cal.App.4th 1251, 1256.)
II
Defendant invokes People v. Mancebo (2002) 27 Cal.4th 735 in support of his
argument that we “deny [the People’s] claim that the sentence on Count 2 is
unauthorized.”
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In People v. Mancebo, supra, 27 Cal.4th 735, our Supreme Court ruled the
prosecution must allege “which qualifying circumstance or circumstances are being
invoked for One Strike sentencing . . . .” (Id. at p. 752.) That result was due to the
language of the One Strike law, which contained “express pleading and proof
requirements” (id. at p. 739), and due process concerns of fair notice. (Id. at pp. 746-747,
751-752.) The court in Mancebo concluded that the trial court erred in sentencing the
defendant under the One Strike law for an unpled multiple victim circumstance, even
though the prosecution convicted the defendant of committing crimes against two
women. (Id. at p. 753.) This was so because the prosecution’s pleadings gave the
defendant notice that gun use would be one of the circumstances supporting One Strike
prison terms, but at sentencing the trial court substituted a multiple victim circumstance
that was never alleged. (Ibid.)
Here, as defendant concedes (and in contrast to the statutory provision at issue in
Mancebo), section 186.22 “contains no explicit pleading and proof requirements.”
Defendant nevertheless maintains section 1170.1, subdivision (e) and due process
principles require the prosecution “to plead and prove the statutory basis for imposing
gang enhancements.”
Section 1170.1, subdivision (e) requires “[a]ll enhancements . . . be alleged in the
accusatory pleading and either admitted by the defendant in open court or found to be
true by the trier of fact.” But section 1170.1, subdivision (e), is not germane here, as
section 186.22, subdivision (b)(4) is an “alternate penalty provision,” not an
“enhancement.” (People v. Jones, supra, 47 Cal.4th at p. 576; id. at p. 578 [the
“difference between” an enhancement and an alternate penalty provision “is subtle but
significant”].)
And while there is authority for the proposition that, strictly “[a]s a matter of due
process, an alternative punishment provision must be pleaded and proved ” (People v.
Sweeney (2016) 4 Cal.App.5th 295, 301), due process was satisfied here because
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defendant had sufficient notice of a potential sentence under section 186.22, subdivision
(b)(4).
Count two of defendant’s February 2014 information alleged he committed the
offense “for the benefit of” and “with the specific intent to promote . . . criminal conduct
by gang members, pursuant to . . . Section 186.22[, subdivision] (b)(1).” And, as noted
above, section 186.22, subdivision (b)(1) provides that “[e]xcept as provided in
paragraphs (4) and (5), a person who is convicted of a felony committed for the benefit
of . . . a criminal street gang, with the specific intent to promote . . . criminal conduct by
gang members, shall . . . be punished as follows . . . .” (Italics added.) Thus, because
subdivision (b)(1) explicitly refers to subdivision (b)(4) as an exception to the shorter
punishment that subdivision (b)(1) contemplates, defendant had sufficient notice of the
longer possible prison term under subdivision (b)(4). (Cf. People v. Zaldana (2019) 43
Cal.App.5th 527, 535 [because the subdivision identified in the information “itself
referr[ed] to” a different subdivision, “identifying it as an exception to the shorter . . .
term,” the defendant had constitutionally “adequate notice of the longer possible prison
term” under the different subdivision], review granted Mar. 18, 2020, S259731.)
Accordingly, defendant has not provided a persuasive reason why his
unauthorized sentence should be left in place.
III
We agree with defendant that full resentencing is the proper remedy for his
unauthorized sentence. (See People v. Shaw (2020) 56 Cal.App.5th 582, 588-589
[“remand[ing] for a full resentencing hearing as to all counts” in light of an unauthorized
aspect of the defendant’s sentence, citing People v. Buycks (2018) 5 Cal.5th 857, 893];
People v. Zaldana, supra, 43 Cal.App.5th at p. 536 [though the appellate court “ha[d]
authority to correct [the defendant’s] sentence (citation), the better course in th[e] case
[was] to remand for resentencing,” as the trial court “retain[ed] discretion” as to other
aspects of the sentence]; People v. Delgado (2010) 181 Cal.App.4th 839, 855 [“ ‘It is
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perfectly proper for this court to remand for a complete resentencing after finding an
error with respect to part of a sentence’ ”].)
Because we remand for full resentencing, we need not address the parties’ other
arguments.
DISPOSITION
The sentence is vacated, and the matter is remanded for resentencing.
KRAUSE , J.
We concur:
ROBIE , Acting P. J.
MAURO , J.
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