People v. Pryer CA2/7 ( 2020 )

Filed 10/9/20 P. v. Pryer CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B298869
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA068111)
v.
DESMOND ROMELL PRYER,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Joel L. Lofton, Judge. Affirmed with directions.
Alan Siraco, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Zee Rodriguez and Douglas L. Wilson, Deputy
Attorneys General, for Plaintiff and Respondent.
_______________________
Defendant Desmond Romell Pryer appeals from the
judgment of conviction entered after a jury trial for multiple
sexual and violent offenses against his girlfriend, including
forcible oral copulation, assault by means likely to produce great
bodily injury, felony false imprisonment, attempting to dissuade
a witness, and inflicting corporal injury on a person in a dating
relationship. In Pryer’s first appeal, we rejected his argument
the trial court violated his constitutional right to a jury trial by
using his prior juvenile adjudication for purposes of sentencing
under the three strikes law (Pen. Code, §§ 667, subds. (b)-(i),
1170.12).1 (People v. Pryer (Nov. 19, 2018, B283602 [nonpub.
opn.] (Pryer I).) However, we agreed with Pryer substantial
evidence did not support Pryer’s conviction of attempting to
dissuade a witness under section 136.1, subdivision (a)(2), and
the trial court erred in imposing a five-year sentence
enhancement under section 667, subdivision (a)(1), because
Pryer’s prior juvenile adjudication did not constitute a prior
serious felony conviction for purposes of the enhancement. We
remanded for resentencing and directed the trial on remand to
exercise its discretion whether to impose or strike the prior
prison term sentence enhancement under section 667.5,
subdivision (b), and the great bodily injury enhancement under
section 12022.7, subdivision (e), the court had imposed on count 5
for corporal injury on someone in a dating relationship. We also
ordered the trial court to correct Pryer’s prejudgment custody
credit to reflect 776 actual days of credit.
1 All undesignated statutory references are to the Penal
Code.
2
On remand, the trial court resentenced Pryer to an
aggregate term of 21 years in state prison, again sentencing him
as a second-strike offender based on his prior juvenile
adjudication for robbery. Pryer again appealed, asserting the
identical contention we rejected in Pryer I that the trial court
violated his constitutional right to a jury trial by using his prior
juvenile adjudication for purposes of sentencing under the three
strikes law. We agree with the People the law of the case
doctrine bars reconsideration of whether use of Pryer’s prior
juvenile adjudication to sentence him under the three strikes law
violated his constitutional rights. Further, Pryer has not
presented any legal basis for concluding application of our prior
decision would be unjust, thereby warranting an exception to the
law of the case doctrine. However, Pryer also contends, the
People concede, and we agree the abstract of judgment should be
corrected to reflect 1,478 days of actual custody credit and the
correct date of the resentencing hearing.
FACTUAL AND PROCEDURAL BACKGROUND
A. The 2017 Trial
Pryer was convicted after a jury trial of forcible oral
copulation (former § 288a, subd. (c)(2)(A); count 1), assault by
means likely to produce great bodily injury (§ 245, subd. (a)(4);
count 2), false imprisonment by violence (§ 236; count 3),
attempting to dissuade a witness (§ 136.1, subd. (a)(2); count 4),
and inflicting corporal injury on a person in a dating relationship
3
(§ 273.5, subd. (a); count 5).2 The jury also found true as to
counts 2 and 5 that Pryer’s commission of the offenses resulted in
great bodily injury to the victim under circumstances involving
domestic violence (§ 12022.7, subd. (e)).
The trial court bifurcated the trial on Pryer’s alleged prior
convictions, and Pryer waived his right to a jury trial. The court
found true the allegation Pryer suffered a prior conviction of a
serious or violent felony, which constituted a strike within the
meaning of the three strikes law (§§ 667, subds. (b)-(i), 1170.12),
specifically, a 1991 juvenile adjudication for robbery (§ 211). The
trial court’s finding as to the 1991 robbery was based on a
juvenile delinquency proceeding under Welfare and Institutions
Code section 602, in which Pryer admitted the allegation he
committed a robbery in violation of section 211 and the juvenile
court found Pryer was 17 years old at the time of the offense.
The court also found true Pryer suffered a 2013 conviction for
possession for sale of cannabis for which he served a prison term
(§ 667.5, subd. (b)).
The trial court sentenced Pryer to an aggregate state prison
sentence of 33 years four months. The court sentenced Pryer as a
second-strike offender based on the prior juvenile adjudication
and imposed additional five-year terms on counts 2 and 4 under
section 667, subdivision (a)(1). The court stayed imposition of a
one-year prior prison term enhancement under section 667.5,
subdivision (b). The court did not address the great bodily injury
enhancement allegation the jury found true as to count 5. The
court calculated Pryer’s prejudgment custody credit as 775 days
2 The procedural history is taken from Pryer I, supra,
B283602. We do not set forth the evidence at trial because it is
not at issue in this appeal.
4
actual custody plus 116 days of conduct credit under section
2933.1. Pryer timely appealed.
B. Pryer I
In Pryer I, we rejected Pryer’s constitutional challenge to
the trial court’s use of his prior juvenile adjudication to enhance
his sentence as a second-strike offender. We explained, “Pryer
contends because he did not have a right to a jury trial in his
1991 juvenile adjudication for robbery, the trial court’s reliance
on that adjudication to enhance his sentence under the three
strikes law in the present proceeding violated his Sixth
Amendment right to a jury trial. Pryer acknowledges the
Supreme Court has held that use of prior juvenile adjudications
to enhance a defendant’s sentence, notwithstanding the lack of a
right to a jury trial, does not violate the defendant’s Sixth
Amendment right to a jury trial. (See People v. Nguyen (2009)
46 Cal.4th 1007, 1028 (Nguyen) [‘[T]he absence of a constitutional
or statutory right to jury trial under the juvenile law does not,
under Apprendi,[3] preclude the use of a prior juvenile
adjudication of criminal misconduct to enhance the maximum
sentence for a subsequent adult felony offense by the same
person.’].) However, Pryer contends recent decisions by the
United States and California Supreme Courts have undermined
the holding of Nguyen. We disagree.” (Pryer I, supra, B283602.)
“Relying on Descamps v. United States (2013) 570 U.S.
254 . . . , Mathis v. United States (2016) 579 U.S. ___ [136 S.Ct.
2243] . . . , and People v. Gallardo (2017) 4 Cal.5th 120(Gallardo), Pryer contends Nguyen is no longer controlling
3 Apprendi v. New Jersey (2000) 530 U.S. 466.
5
precedent. However, these cases did not involve the validity of
using prior juvenile adjudications rendered without the right to a
jury trial to enhance a sentence subsequently imposed on an
adult convicted of a felony. Instead, each involved limits on
judicial factfinding with respect to whether a prior conviction was
for conduct that qualifies as a sentence enhancement.” (Pryer I,
supra, B283602.)
We concluded with respect to the Supreme Court’s decision
in Gallardo, supra, 4 Cal.5th 120, “Although Gallardo limited the
scope of permissible factfinding by the sentencing court in
determining whether the defendant suffered a prior conviction, it
did not disturb Nguyen’s holding that a sentencing court may
validly impose a sentence enhancement based on the fact of a
prior juvenile adjudication, despite the lack of right to a jury trial
in that proceeding. Nguyen remains controlling precedent
binding on this court. (People v. Martin (2018) 26 Cal.App.5th
825, 832-833 [‘“Courts exercising inferior jurisdiction must accept
the law declared by courts of superior jurisdiction. It is not their
function to attempt to overrule decisions of a higher court.”’];
People v. Chavez (2018) 22 Cal.App.5th 663, 712 [same].)”
(Pryer I, supra, B283602.)
We also rejected Pryer’s argument the trial court engaged
in impermissible factfinding regarding Pryer’s prior juvenile
adjudication. We concluded, “As a threshold matter, Pryer
waived his right to a jury trial as to his prior conviction
allegations. Thus, he cannot now complain that the trial court
improperly usurped his right to have a jury decide whether he
suffered a prior conviction under the three strikes law. (See
Nguyen, supra, 46 Cal.4th at p. 1012 [‘California statutory law
afforded defendant the right to have a jury determine the
6
existence of the sentencing fact here at issue—whether he
suffered a “prior felony conviction” as defined by the Three
Strikes Law—but he waived that right.’].) [¶] Even if Pryer had
not waived his right to a jury trial, the trial court did not engage
in impermissible factfinding.” (Pryer I, supra, B283602.)
However, we concluded substantial evidence did not
support Pryer’s conviction on count 4 for attempting to dissuade a
witness under section 136.1, subdivision (a)(2), and the trial court
erred by considering Pryer’s juvenile adjudication for purposes of
the five-year enhancements imposed under section 667,
subdivision (a)(1). (Pryer I, supra, B283602.) We also found
several sentencing errors and an error in calculation of Pryer’s
custody credits. We reversed Pryer’s conviction on count 4 and
remanded for resentencing with directions for the trial court (1)
to vacate the five-year sentence enhancements under section 667,
subdivision (a)(1); (2) to exercise its discretion under section 1385
whether to impose or strike the prior prison term allegation
under section 667.5, subdivision (b); (3) to strike or impose but
stay the enhancement on count 5 under section 12022.7,
subdivision (e); and (4) to modify Pryer’s prejudgment custody
credits to reflect 776 actual days of credit. (Pryer I, supra,
B283602.)
C. Resentencing on Remand
Following issuance of the remittitur, on June 5, 2019 the
trial court resentenced Pryer to an aggregate sentence of 21 years
in state prison. The trial court selected count 1 for forcible oral
copulation as the base term and imposed the upper term of eight
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years, doubled as a second strike, for a total of 16 years.4 On
count 2 for assault by means likely to produce great bodily injury,
the court imposed a consecutive term of one year (one-third the
middle term of three years), doubled as a second strike, plus 20
months (one-third the upper term of five years) for the great
bodily injury enhancement under section 12022.7, subdivision (e),
for a total of three years eight months.5 On count 3 for false
imprisonment by violence, the court imposed a consecutive term
of eight months (one-third the middle term of two years), doubled
as a second strike, for 16 months. As to count 5 for inflicting
corporal injury on a person in a dating relationship, the court
imposed and stayed a 13-year term (the upper term of four years,
doubled as a second strike, plus the upper term of five years for
the great bodily injury enhancement under § 12022.7, subd. (e)).
The trial court dismissed the one-year prior prison term
enhancement allegation. The court calculated the prejudgment
credits as 776 actual days of credit plus 116 days of conduct
credit, for a total of 892 days of presentence custody credit.
Pryer again appealed.
4 The abstract of judgment correctly lists the 16-year term,
but incorrectly states the trial court imposed the middle term.
We order the abstract of judgment corrected to reflect that the
court imposed the upper term on count 1.
5 The trial court described the sentence on count 2 as a
“concurrent” term, but the court’s calculation of the aggregate
sentence of 21 years reflects a consecutive sentence, as shown in
the abstract of judgment.
8
DISCUSSION
A. The Law of the Case Doctrine Bars Reconsideration of
Pryer’s Constitutional Challenge to the Trial Court’s
Finding True the Allegation Pryer Committed a Robbery
When He Was 17 Years Old
Pryer asserts on appeal the identical argument we rejected
in Pryer I—that the California Supreme Court’s decision in
Gallardo, supra, 4 Cal.5th 120, is “fatally inconsistent” with its
earlier decision in Nguyen, supra, 46 Cal.4th at page 1028, and
the court’s finding Pryer had committed a prior strike offense
violated his Sixth Amendment right to a jury trial. We agree
with the People the law of the case doctrine applies to bar our
reconsideration of this argument.
“‘The doctrine of “law of the case” deals with the effect of
the first appellate decision on the subsequent retrial or appeal:
The decision of an appellate court, stating a rule of law necessary
to the decision of the case, conclusively establishes that rule and
makes it determinative of the rights of the same parties in any
subsequent retrial or appeal in the same case.’” (Morohoshi v.
Pacific Home (2004) 34 Cal.4th 482, 491; accord, People v. Turner
(2004) 34 Cal.4th 406, 417.) Under the “unjust decision
exception” to the doctrine, the Supreme Court has “declined to
adhere to it where its application would result in an unjust
decision, e.g., where there has been a manifest misapplication of
existing principles resulting in substantial injustice, or where the
controlling rules of law have been altered or clarified by a
decision intervening between the first and second appellate
determinations. The unjust decision exception does not apply
when there is a mere disagreement with the prior appellate
9
determination.” (Morohoshi, at pp. 491-492; accord, Turner, at
p. 417.)
Pryer has not pointed to a change in the law since our
decision in Pryer I that would render application of the law of the
case here unjust, instead arguing we misapplied the law in Pryer
I by rejecting his argument the Supreme Court’s decision in
Nguyen is inconsistent with its later holding in Gallardo. We did
not. As in Pryer I, Pryer’s challenge lacks merit.
B. The Abstract of Judgment Must Be Corrected To Reflect
1,478 Actual Days of Credit
Pryer contends, the People concede, and we agree the trial
court erred in awarding Pryer 776 days of actual custody credit
but not adding credit for the additional time Pryer was in custody
following his initial sentencing. (People v. Buckhalter (2001)
26 Cal.4th 20, 23 [“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
‘subsequent sentence.’”].) The parties agree, as do we, that Pryer
was entitled to 1,478 days of actual custody credit, counting the
day of his arrest on May 20, 2015 and the day of his resentencing
on June 5, 2019. (§ 2900.5, subd. (a); People v. Denman (2013)
218 Cal.App.4th 800, 814 [“Calculation of custody credit begins
on the day of arrest and continues through the day of
sentencing.”].) We order the abstract of judgment modified to
reflect 1,478 actual days of custody credit. We also order the
abstract of judgment modified, as noted by the People, to reflect
that the resentencing was on June 5, 2019 (not July 3, 2017).
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DISPOSITION
The judgment is affirmed. The abstract of judgment is
ordered corrected to reflect (1) the trial court imposed the upper
term on count 1; (2) Pryer was resentenced on June 5, 2019; and
(3) Pryer is entitled to 1,478 actual days of custody credit. The
superior court is directed to prepare a corrected abstract of
judgment and forward it to the Department of Corrections and
Rehabilitation.
FEUER, J.
We concur:
PERLUSS, P. J.
SEGAL, J.
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