People v. Lacy CA5 ( 2022 )

Filed 8/30/22 P. v. Lacy 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
F082128
Plaintiff and Respondent,
(Super. Ct. No. F16904373)
v.
ERIC TYRONE LACY, OPINION
Defendant and Appellant.
THE COURT *
APPEAL from a judgment of the Superior Court of Fresno County. Arlan L.
Harrell, Judge.
Erin J. Radekin, 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, Darren K. Indermill and
Christopher J. Rench, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Franson, Acting P. J., Smith, J. and Snauffer, J.
Defendant Eric Tyrone Lacy contends he is entitled to a remand for resentencing
under Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill No. 567), which took
effect during the pendency of this appeal. The People agree with Lacy that Senate Bill
No. 567 applies retroactively to this case. The People, however, assert the sentencing
court did not err under Senate Bill No. 567, or any error with respect to Senate Bill No.
567 was harmless, and therefore remand for resentencing is not required. We conclude
the trial court erred under Senate Bill No. 567 and the error was not harmless. We
remand for resentencing but otherwise affirm the judgment.
PROCEDURAL HISTORY
On January 2, 2018, a second amended information (information) was filed in the
Fresno County Superior Court, charging defendant Eric Tyrone Lacy, in count 1, with
violating Penal Code1 section 273.5, subdivision (a), by inflicting corporal injury upon
his spouse, Jane Doe, resulting in a traumatic condition (a felony); and in count 2 with
violating section 148, subdivision (a)(1), by resisting, obstructing, or delaying a peace
officer or EMT (a misdemeanor). The information alleged, as a sentence enhancement in
relation to count 1, that Lacy personally inflicted great bodily injury upon Jane Doe,
within the meaning of section 12022.7, subdivision (e) (which applies to domestic
violence offenses). The information further alleged that Lacy had suffered two prior
convictions that counted as prior strikes under the three strikes law and also triggered a
five-year prior serious felony sentence enhancement. (§§ 667, subds. (b)-(i), 1170.12,
subds. (a)-(d), 667, subd. (a)(1).) The two prior serious or violent felony convictions—
one was for rape (section 261, subdivision (a)(2)) and other was for dissuading a witness
(section 136.1, subdivision (c))—arose in the same case and dated to 1986. Finally, the
information alleged that Lacy had suffered a prison prior within the meaning of section
667.5, subdivision (b).
1 Subsequent statutory references are to the Penal Code, unless otherwise specified.
2.
On January 3, 2018, Lacy pleaded “straight-up” to the charges and enhancement
allegations set forth in the information (there was no plea agreement). On March 9, 2018,
Lacy was sentenced based on his “straight-up” plea. At the sentencing hearing, the court
noted: “The Court has read and considered the probation report dated February 6th,
2018, as well as the statement in mitigation and the invitation to strike the serious
[felony] prior convictions, as well as the People’s sentencing brief.” The court struck one
of Lacy’s prior strikes pursuant to section 1385, subdivision (a), and People v. Superior
Court (Romero) (1996) 13 Cal.4th 497. The court sentenced Lacy to an aggregate term
of 18 years in state prison.
During the sentencing hearing, the court observed: “I told Mr. Lacy at the time he
entered his plea that I would be fair when reviewing his history and determining what is
appropriate in this case. And the Court believes it is appropriate to strike one of the two
serious felony priors.” The court noted that Lacy’s “serious felony priors” arose “some
time ago” and “in a single case.” The court concluded: “For that reason, the Court is
going to strike one of the serious felony priors. And that would be the conviction for
[dissuading a witness]. That will be stricken for sentencing purposes only in this
particular case.”
The court further explained its sentencing decision: “So for the felony violation
of Penal Code section 273.5 (a), committing corporal injury to a cohabitant resulting in a
traumatic condition, the Court is selecting as the appropriate sentencing option the
aggravated term of four years. The Court is imposing that term based on the fact that the
defendant was on parole at the time … the offense was committed. And … based on the
fact the defendant engaged in violent conduct, which indicates he is a serious danger to
society. At least as to the victim in this case. That term will be further enhanced under
Penal Code section 12022.7(e), where the Court is again selecting the aggravated term of
five years. And the Court is selecting that term for the same reasons. [¶] The [count 1]
term will be further enhanced under Penal Code section 667(a)(1), given that [the instant]
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crime and the prior crime were each serious and/or violent felonies. The Court will
exercise its discretion and strike the [section] 667.5(b) prior for purposes of sentencing in
this case only. [¶] For a total commitment for the conduct in this case of 18 years.” 2
Effective January 1, 2019, Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Senate
Bill No. 1393) amended sections 667, subdivision (a) and 1385, subdivision (b), to allow
sentencing courts to strike a prior serious felony conviction for purposes of the five-year
sentence enhancement under section 667, subdivision (a)(1). (Stats. 2018, ch. 1013,
§§ 1-2.) Upon Lacy’s appeal of his sentence to this court, we remanded the matter for the
sentencing court to exercise its discretion in light of Senate Bill No. 1393. 3 On remand, a
resentencing hearing was held on October 15, 2020. At the resentencing hearing, the
court asked the parties whether they had anything to add to their arguments and briefing
from the original sentencing hearing, “specifically concerning the [section] 667(a)
allegation.” Both parties then supplemented their arguments from the initial sentencing
hearing with comments directed to the section 667, subdivision (a)(1) sentence
enhancement and whether the court should impose it or not. The sentencing court noted
it had read the appellate court opinion and the transcript from the original sentencing
hearing, and “reread” the original probation report. The court reimposed the original
sentence, reiterating precisely the same reasons it had articulated during the original
sentencing.
Thus, the court said it would “strike one of the serious felony priors,” that is, “the
[section] 136 conviction,” because it “occurred at the same time as the rape conviction”
and “in the same case.” The court again selected “the aggravated term of four years” for
the section 273.5 conviction because Lacy “was on parole at the time that the offense was
2 The court imposed a one-year county jail term on count 2, to run concurrently with
the sentence on count 1.
3 As requested by Lacy, we take judicial notice of our opinion in Lacy’s prior
appeal, People v. Lacy (Mar. 20, 2020, F077146 [nonpub. opn.]).
4.
committed, also based on the fact that [he] engaged in violent conduct which indicates
that he was a serious danger to society, at least as to this particular victim.” The
aggravated term of four years was doubled on account of the prior strike. The court
observed: “And the term will be further enhanced pursuant to Penal Code section
12022.7(e) for the personal infliction of great bodily injury, where the Court is selecting
as the appropriate term[,] the aggravated term of five years. And the Court is selecting
that five-year term for the same reasons that the Court selected the aggravated term as to
the underlying offense.” As for the five-year serious felony enhancement pursuant to
section 667, subdivision (a)(1), the court added, “[t]he term [on count 1] will be enhanced
pursuant to Penal Code section 667 (a)(1).” The court noted it understood it had the
discretion to not impose the section 667, subdivision (a)(1), enhancement but declined
not to impose it. In imposing sentence, the court did not consider Lacy’s conduct in
prison following his original sentencing, which took place over two and half years
previously.
DISCUSSION
I. Lacy is Entitled to Resentencing Pursuant to Senate Bill No. 567
Lacy argues on appeal: “Senate Bill 567 amended section 1170, affecting a trial
court’s sentencing discretion, including its ability to impose the upper term for a
conviction. (Stats. 2021, ch. 731, § 1.3.) The legislation limits the trial court’s ability to
impose the upper term unless certain circumstances have been stipulated to by the
defendant or found true beyond a reasonable doubt. The amendments took effect January
1, 2022, while this appeal was still pending. (Ibid.) [¶] It is appellant’s position that he
is entitled to remand for resentencing in light of Senate Bill 567.” The People agree with
Lacy that Senate Bill No. 567 applies retroactively to this case, but argue that remand is
unnecessary and any error by the sentencing court in failing to comply with the
amendments wrought by Senate Bill No. 567 was harmless. As explained below, we
agree with Lacy and will remand the matter for resentencing in light of Senate Bill 567
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and other applicable amendments to the sentencing laws that took effect during the
pendency of this appeal.
A. Senate Bill No. 567
When the trial court sentenced Lacy, both at the original sentencing in March 2018
and the subsequent sentencing in October 2020, section 1170 provided that, at
sentencing, the selection of the lower, middle, or upper term “shall rest within the sound
discretion of the court,” based on which term “best serves the interests of justice.” In
making its selection, the court could consider “the record in the case, the probation
officer’s reports, other reports, … and statements in aggravation or mitigation submitted
by the prosecution, the defendant, or the victim, or the family of the victim if the victim
[was] deceased, and any further evidence introduced at the sentencing hearing.” (Former
§ 1170, subd. (b).) The court was required to specify the reasons for its sentencing
decision. (Former § 1170, subd. (b).) The courts rely on aggravating and mitigating
circumstances listed in the California Rules of Court, rules 4.421 & 4.423, and “any other
factor reasonably related to the sentencing decision” (Cal. Rules of Court, rule 4.420(b)).
Effective January 1, 2022, Senate Bill No. 567 amended section 1170, restricting a
trial court’s sentencing discretion, including its ability to impose the upper term for a
conviction. (Stats. 2021, ch. 731, § 1.3.) Pursuant to Senate Bill No. 567, section 1170
now precludes a trial court from imposing a sentence exceeding the middle term for any
offense with a sentencing triad, unless “there are circumstances in aggravation of the
crime that justify the imposition of a term of imprisonment exceeding the middle term,
and the facts underlying those circumstances have been stipulated to by the defendant, or
have been found true beyond a reasonable doubt at trial by the jury or by the judge in a
court trial.” (§ 1170, subd. (b)(2), italics added.) In other words, Senate Bill No. 567
provides for a presumptive middle term absent the presence of circumstances in
aggravation, the facts underlying which have either been stipulated to by the defendant or
proven beyond a reasonable doubt at trial. (§ 1170, subds. (b)(1) & (2); People v. Lopez
6.
(2022) 78 Cal.App.5th 459, 464 (Lopez).) Notwithstanding this limitation, “the court
may consider the defendant’s prior convictions in determining sentencing based on a
certified record of conviction without submitting the prior convictions to a jury.”
(§ 1170, subd. (b)(3).) Section 1170, as amended by Senate Bill No. 567 further
provides, in pertinent part: “The court shall set forth on the record the facts and reasons
for choosing the sentence imposed. The court may not impose an upper term by using the
fact of any enhancement upon which sentence is imposed under any provision of law.”
(§ 1170, subd. (b)(5), italics added.)
B. Amendments to Section 1170 Apply Retroactively
The parties agree, as do we, that Senate Bill No. 567’s amendments to section
1170, subdivision (b), make ameliorative changes to the law, that apply retroactively to
all cases not yet final as of January 1, 2022. (See Lopez, supra, 78 Cal.App.5th at pp.
464-465.) The amended statute is ameliorative because it potentially limits punishment
by requiring the imposition of the middle term absent the applicability of aggravating
circumstances, the facts underlying which must either be stipulated to by the defendant or
proven beyond a reasonable doubt. (§ 1170, subd. (b)(1), (2).) Lacy’s case was not final
on January 1, 2022; accordingly, the amendments to section 1170 apply retroactively to
his case. As relevant here, Senate Bill No. 567 affected the trial court’s discretion to
impose upper term sentences on count one and the great bodily injury enhancement
attached to count 1, respectively.
C. The Sentencing Court Did Not Comport with the Requirements of Senate
Bill No. 567 in Imposing Upper Terms on Count 1 and the Great Bodily
Injury Enhancement Attached to Count 1, Respectively
The parties disagree on whether resentencing is necessary pursuant to section
1170, as amended by Senate Bill No. 567.
Lacy maintains resentencing is the appropriate remedy: the trial court imposed the
upper term based on aggravating factors that did not include prior convictions, were not
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stipulated to by Lacy, or found true beyond a reasonable doubt at trial by a jury or the
court in a court trial. Lacy contends the trial court must resentence him within the new
parameters of section 1170, subdivision (b).
The People contend that “[i]n imposing the upper term sentence in count one here,
the trial court properly found that Lacy was on parole at the time of the crimes and that
those crimes established that he had engaged in violent conduct that indicated that he was
a serious danger to society.” First, citing section 1170, subdivision (b)(3), and authorities
that predate Senate Bill No. 567, the People argue the sentencing court could properly
rely on certified records of conviction to find that Lacy was on parole at the time he was
convicted on count 1, and therefore the facts underlying the parole aggravating
circumstance were not required to be proven beyond a reasonable doubt to a jury or the
court at a trial. The People next argue that because “Lacy admitted to the minimum
elements of count one and the great bodily injury enhancement when he pled no contest
to the crime and admitted the truth of the enhancement … [t]he trial court’s finding that
‘Mr. Lacy engaged in violent conduct which indicates that he was a serious danger to
society, at least as to this particular victim’ is thus supported by Lacy’s own admissions.”
The People posit that “because Lacy admitted the minimum elements of the crime and the
enhancement, a court or jury finding was not required to comport with Senate Bill No.
567.” (See § 1170, subd. (b)(1), (2).)
The People’s arguments do not pass scrutiny. First, as to the sentencing court’s
reliance on the aggravating circumstance that Lacy was on parole when he committed the
instant felony offense (see Cal. Rules of Court, rule 4.421(b)(4)), the People do not
dispute that the facts underlying this aggravating circumstance were not stipulated to by
the defendant, nor were they found true beyond a reasonable doubt by a jury or the court.
Moreover, even were we to accept the People’s argument that a defendant’s parole status
is exempt from the requirements of section 1170, subdivision (b)(2) and may properly be
established with reference to the certified record of a defendant’s prior convictions
8.
pursuant to section 1170, subdivision (b)(3), here the record did not contain any certified
records related to Lacy’s prior convictions and the court did not rely on any such records.
Rather, in concluding Lacy was on parole when he committed the instant offense, the
sentencing court relied on the probation report. To the extent the People cite authorities
that predate Senate Bill No. 567 for the proposition that the sentencing court could
properly rely on the probation report in this regard, this concept is no longer valid in light
of Senate Bill No. 567’s amendments to section 1170, subdivision (b). In sum, the
court’s imposition of the upper terms on count one and the great bodily injury
enhancement on grounds that Lacy was on parole at the time of the instant offense was
erroneous under section 1170, subdivision (b), as amended by Senate Bill No. 567.
As noted above, the People further argue the court properly imposed the upper
terms on count 1 and on the great bodily injury enhancement based on the aggravating
circumstance that Lacy had engaged in violent conduct that indicates a serious danger to
society. (See Cal. Rules of Court, rule 4.421(b)(1).) In this regard, the People posit that
because “Lacy admitted the minimum elements of the crime and the enhancement,” the
facts underlying the aggravating circumstance were “supported by Lacy’s own
admissions,” and, in turn, “a court or jury finding was not required to comport with
Senate Bill No. 567.”
To the extent Lacy’s straight-up plea meant he “admitted the minimum elements
of the crime and the enhancement,” his bare plea did not automatically establish all the
requisite facts underlying the aggravated circumstance at issue here (i.e., that he had
engaged in violent conduct indicating a serious danger to the public or his wife). Lacy
notes he did not stipulate his conduct indicated he was a serious danger to society; rather,
at sentencing, defense counsel emphasized that Lacy’s commission of the instant offense
was “aberrant,” and highlighted various facts in support of this contention (for example,
counsel represented that Lacy had been with his wife for 27 years, married for 21 of those
years, and his wife had reported this was the first instance of domestic violence in that
9.
entire time, and it occurred at a time when Lacy and his wife were going through a
divorce).
Further, the People’s arguments are also not persuasive because, under the
rationale posited by the People, any time a defendant pleads guilty or no contest to a
charge under section 273.5 and admits an associated great bodily injury enhancement
allegation, it would automatically justify the imposition of the upper term with reference
to the aggravating circumstance at issue here (i.e., that the defendant had engaged in
violent conduct that indicates a serious danger to society), regardless of the factual
circumstances. In addition, the People’s contentions conflict with section 1170,
subdivision (b)(5), which provides, “The court may not impose an upper term by using
the fact of any enhancement upon which sentence is imposed under any provision of
law.”
Amended section 1170 creates a presumption that the defendant will be sentenced
to the middle term, absent the presence of aggravating circumstances, the facts
underlying which have either been stipulated to by the defendant or proven beyond a
reasonable doubt at a trial before a jury or the court. Since Lacy did not stipulate to all
the facts relevant to the aggravating circumstance (i.e., that he had engaged in violent
conduct that indicated a serious danger to society), and nor were such facts found true
beyond a reasonable doubt by a jury or the court, the court erred, under Senate Bill No.
567, in relying on this aggravating circumstance to impose the upper terms on count 1
and the related great bodily injury enhancement, respectively.
D. The Sentencing Court’s Errors in Imposing the Upper Terms on Count 1
and on the Great Bodily Injury Enhancement Were Not Harmless
The People contend any errors on the part of the sentencing court under the
amendments effected by Senate Bill No. 567, were harmless. We disagree.
As discussed above, the sentencing court did not have the benefit of the
amendments to section 1170 when it sentenced Lacy to the upper terms on count 1 and
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the related great bodily injury enhancement, respectively. However, to the extent the
sentencing court erred with regard to the requirements of amended section 1170, “ ‘[s]uch
an error does not require reversal if the reviewing court determines it was harmless
beyond a reasonable doubt, applying the test set forth in Chapman v. California (1967)
386 U.S. 18.’ ” (Lopez, supra, 78 Cal.App.5th at p. 465 [where a sentencing factor must
be found true by a jury and the court fails to ensure that it is, the error does not require
reversal if determined on appeal to be harmless beyond a reasonable doubt under the test
set forth in Chapman v. California, supra, 386 U.S. 18].) The error may be found
harmless if the evidence supporting the factor in question is “ ‘overwhelming and
uncontested, and there is no “evidence that could rationally lead to a contrary
finding.” ’ ” (Lopez, supra, at p. 465.) “In order to conclude that the trial court’s
reliance on improper factors ... was not prejudicial, we would have to conclude beyond a
reasonable doubt that [a jury or the court] would have found true beyond a reasonable
doubt every factor on which the court relied.” (Ibid.)
Even assuming a jury or the court would certainly have found true beyond a
reasonable doubt that Lacy was on parole when he committed the instant offense, here
the court, in imposing the upper terms on count 1 and the related great bodily injury
enhancement, also considered that Lacy engaged in violent conduct that indicated he was
a “serious danger to society”—a fact not stipulated to by Lacy or found true beyond a
reasonable doubt by a trier of fact.
The issue whether Lacy’s conduct made him “a serious danger to society” was
hotly contested at sentencing. Defense counsel argued that Lacy’s criminal history did
not include any violent offense for over 30 years, and his only prior violent conduct had
occurred in 1986 when he was 21 years old (Lacy was 54 years old at the time of
sentencing). Counsel noted Lacy’s recent prior felony conduct amounted to petty thefts
that were “now misdemeanors.” Counsel also argued that “the circumstances of this
particular case are quite unusual, in the sense that there [have] been no reports of any
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domestic violence throughout [Lacy and his wife’s] 21 years, or 27 years of being
together and then 21 years of marriage.… This was the first occasion … that has
occurred.” The prosecutor, for her part, countered: “There had been no reported prior
incidents of domestic violence, but the victim did testify at the preliminary hearing of
prior instances of emotional abuse that she went through throughout this relationship.”
Defense counsel argued the domestic violence was aberrant in that it arose from a
confluence of unusually stressful circumstances in Lacy’s life, including the fact that he
and his wife were going through a divorce.
“ ‘Defendants are entitled to sentencing decisions made in the exercise of the
“informed discretion” of the sentencing court. [Citations.] A court which is unaware of
the scope of its discretionary powers can no more exercise that “informed discretion”
than one whose sentence is or may have been based on misinformation regarding a
material aspect of a defendant’s record.’ [Citation.] In such circumstances, [our
Supreme Court has] held that the appropriate remedy is to remand for resentencing unless
the record ‘clearly indicate[s]’ that the trial court would have reached the same
conclusion ‘even if it had been aware that it had such discretion.’ ” (People v. Gutierrez
(2014) 58 Cal.4th 1354, 1391.)
We cannot conclude the record before us clearly indicates the court would have
imposed the upper terms absent its consideration of this disputed factor. We also cannot
conclude that remand for resentencing is unnecessary because a jury or court surely
would have found this aggravating circumstance true beyond a reasonable doubt. In
other words, it is possible, in light of Lacy’s lack of a history of domestic violence and
the circumstances surrounding the offense, that a trier of fact could disagree as to whether
Lacy’s conduct indicated he posed a serious danger to the public.
Because the record before us does not clearly establish the court would have
imposed the same sentence without considering the aggravating circumstance that Lacy
had engaged in violent conduct such that he was a serious danger to society, we agree
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with Lacy that remand is appropriate so the sentencing court may exercise its informed
discretion in sentencing him in line with the new legislative changes.
Before resentencing, the court must give the People an opportunity to elect
whether to accept resentencing on the current record or seek upper term sentences in
compliance with newly amended section 1170, subdivision (b). Either way, the court
shall conduct a “ ‘full resentencing’ ” on remand. (See People v. Buycks (2018) 5 Cal.5th
857, 893.) At resentencing, the court shall also consider other applicable amendments to
sentencing laws that became effective during the pendency of this appeal, including on
January 1, 2022. At resentencing, the court will be entitled to consider evidence of
Lacy’s “postsentencing conduct in prison.” (People v. Yanaga (2020) 58 Cal.App.5th
619, 627-628.) We express no view as to how the trial court should exercise its
discretion.
II. Lacy is Entitled to a Supplemental Probation Report at Resentencing
Lacy notes he was originally sentenced in March 2018, and that was when his
probation report was prepared. Lacy asks us to “direct the trial court to order preparation
of [a] supplemental probation report and allow the parties to provide additional
information to the court to inform the court’s sentencing choices at the resentencing
proceeding.” Lacy contends these measures are necessary in order to provide the court
with postsentencing information and information relevant to amended section 1170.
Lacy cites California Rules of Court, rule 4.411(a)(2) [the court shall order a
supplemental probation officer’s report in preparation for sentencing proceedings that
occur a significant period of time after the original report was prepared] and People v.
Dobbins (2005) 127 Cal.App.4th 176, 180-181 [trial court erred by proceeding to
sentencing hearing without ordering a supplemental or updated probation report where
more than six months had elapsed between preparation of the probation report and
sentencing].) The People do not dispute that “six months may be a significant period of
time warranting a supplemental report”; here, over four years will have elapsed between
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the time the original probation report was prepared and sentencing. The People urge the
trial court should decide, in the first instance, whether to order a supplemental probation
report. The People do not cite persuasive authority in support of their position. Under
California Rules of Court, rule 4.411(a)(2), in the circumstances that apply here, the trial
court is required to obtain a supplemental probation report. Accordingly, we will direct
the trial court to order a supplemental probation report ahead of resentencing.
DISPOSITION
The sentence is vacated, and the matter is remanded for resentencing consistent
with this opinion and in compliance with section 1170 as amended by Senate Bill No.
567. The judgment is otherwise affirmed.
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