People v. Davis CA4/1 ( 2020 )

Filed 11/5/20 P. v. Davis CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D077387
Plaintiff and Respondent,
v. (Super. Ct. No. SCE348117)
JAMES LEONARD DAVIS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Daniel B. Goldstein, Judge. Reversed and remanded with directions.
Siri Shetty, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Michael
Pulos, and Nora S. Weyl, Deputy Attorneys General, for Plaintiff and
Respondent.
James Leonard Davis appeals from his resentencing after remand from
our prior decision in this case (Case No. D073408), in which we reversed his
conviction of burglary, vacated his sentence, and remanded the matter to the
trial court with directions to permit him to bring a motion to dismiss his
serious prior felony conviction under Senate Bill No. 1393.1 We further
directed the trial court “to exercise its discretion as may be appropriate” and
to prepare an amended abstract of judgment and forward a certified copy to
the Department of Corrections and Rehabilitation.
Davis contends the trial court erred at the resentencing hearing by (1)
failing to orally pronounce the sentence as to all counts, (2) failing to
understand and exercise its discretion to revisit all of its sentencing choices,
and (3) failing to recalculate custody credits. Davis additionally contends the
trial court should be directed to stay punishment under Penal Code2 section
654 on his assault conviction, which was premised on the same conduct as his
conviction for attempted murder, and to prepare an amended abstract of
judgment. The People concede and we agree with all of Davis’s contentions.
Accordingly, we remand for a new sentencing hearing.
1 Davis’s notice of appeal states that his appeal is “[f]rom resentencing
2/26/20.” In his opening brief, Davis states that his appeal is from a
postjudgment order under Penal Code section 1237, subdivision (b).
However, he is challenging his sentence, which is deemed to be a final
judgment within the meaning of Penal Code section 1237. (See People v.
Arias (2020) 52 Cal.App.5th 213, 219-220; People v. Bauer (1966) 241
Cal.App.2d 632, 635 [“[T]he judgment and the sentence are in fact one in
common parlance and contemplation.”].)
2 All further statutory references are to the Penal Code unless otherwise
specified.
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FACTUAL AND PROCEDURAL BACKGROUND3
In February 2015, Davis entered his mother’s home and went into her
bedroom, carrying a hatchet. He hit her in the forehead and chest with the
hatchet and also bit her finger and punched her face. Her nose bled, and she
passed out. Davis’s stepfather tried to intervene, but Davis resisted. Davis’s
brother finally separated Davis from his mother and paramedics took her to
the hospital, where she remained for two days. Her eyes and face were
bruised and swollen, and she suffered a broken nose, two broken toes, and
cuts to the forehead. She experienced pain from her injuries for a few weeks
after the incident.
Police responded to a call about the incident and observed that Davis
appeared to be under the influence of a controlled substance. Police ordered
Davis to the ground and used a taser on him but he did not comply. They
eventually used a police dog to restrain him. Davis tested positive for
methamphetamine.
A jury convicted Davis of attempted murder of his mother (§§ 664, 187,
subd. (a) (count 1); burglary (§ 459) (count 2); assault by means likely to
3 The factual and procedural background prior to the resentencing
hearing after remand is taken from our prior opinion in Case No. D073408, of
which we have taken judicial notice.
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produce great bodily injury (§ 245, subd. (a)(4)) (count 3)4; and resisting a
peace officer (§ 148, subd. (a)(1)) (count 5). The jury found that as to count 1,
Davis personally used a deadly and dangerous weapon (§§ 12022, subd. (b)(1),
1192.7, subd. (c)(23)) and that as to counts 2 and 3, he personally inflicted
great bodily injury upon the victim (§§ 1192.7, subd. (c)(8), 12022.7, subd.
(a)). As to count 2 the jury also found that the burglary was of an inhabited
dwelling (§ 460, subd. (a)). In bifurcated proceedings, the court found Davis
had suffered a serious felony prior conviction (§ 667, subd. (a)(1)) and a strike
prior conviction (§§ 1170.2, 667, subds. (b)-(i), 668).
The court denied Davis’s motion to strike the strike prior and sentenced
Davis to 23 years in state prison as follows: the midterm of seven years
doubled to 14 years for the attempted murder; three years on the section
12022.7, subdivision (a) allegation; one year on the deadly weapon
enhancement; and five years on the great bodily injury enhancement. The
court also sentenced Davis to a concurrent eight-year term on the residential
burglary conviction, which it stayed under section 654, and a concurrent four-
year term on the assault conviction.
Davis appealed and this court reversed his burglary conviction based
on instructional error. The disposition of Davis’s prior appeal also vacated
his sentence and remanded the matter to the trial court with directions to
4 The opinion in Davis’s prior appeal states that Davis’s conviction on
count 3 was for assault with a deadly weapon (§ 245, subd. (a)(1)), but cites
section 245, subdivision (a)(4), defining assault by means of force likely to
produce great bodily injury, as the statute violated in count 3. The opinion
states in a footnote that “[t]he parties agreed that the verdict form for the
section 245, subdivision (a) offense in count 3 had a typographical error.” In
this appeal, Davis explains: “The verdict form reflects a conviction under
section 245 (a)(1), and the jury was instructed on assault with a deadly
weapon, but the parties agreed to ‘conform the docket to reflect’ a conviction
under section 245 (a)(4).”
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permit Davis to bring a motion to dismiss the serious felony prior conviction
(section 667, subdivision (a)(1)) in light of Senate Bill No. 1393, and to
exercise its discretion as may be appropriate. The disposition directed the
trial court to prepare an amended abstract of judgment, and forward a
certified copy to the Department of Corrections and Rehabilitation.
After the case was remanded and before the resentencing hearing, the
court granted the People’s oral motion to dismiss the burglary charge (count
2) in light of this court’s reversal of the conviction on that count. Davis filed a
motion for resentencing under section 1170, subdivision (d), asking the trial
court to exercise its discretion to strike the five-year prior serious felony
conviction enhancement that it imposed under section 667, subdivision (a)(1).
At the resentencing hearing, the court stated, “So the only question is
under [section] 1170, now the law, do I revisit the [serious felony] prior?” The
court declined to strike the prior serious felony conviction because the court
found Davis was a serious risk to his mother. The resentencing hearing
concluded immediately after the court announced its decision not to strike
Davis’s serious felony prior conviction. The court did not revisit or orally
pronounce Davis’s entire sentence as to all remaining counts, recalculate his
custody credits, or take any other action with respect to Davis’s sentence.5
5 In a “CLERK’S CERTIFICATE” filed in this court on July 16, 2020, the
Clerk of the Superior Court certified that “[t]he Appeals Clerk received an
omission letter from [Davis’s appellate counsel], filed on 6/29/2020,
requesting an amended abstract of judgment. A review of the trial court file
reveals that there is not an amended abstract of judgment contained in the
file. The Court declined to strike the felony prior and resentence Mr. Davis
during resentencing hearing on 2/26/2020.”
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DISCUSSION
Davis contends, the People concede, and we agree that the trial court
on remand was required to pronounce a new sentence on all remaining
counts, recalculate custody credits, and forward an amended abstract of
judgment to the Department of Corrections and Rehabilitation.
Under the “full resentencing rule,” “when part of a sentence is stricken
on review, on remand for resentencing ‘a full resentencing as to all counts is
appropriate, so the trial court can exercise its sentencing discretion in light of
the changed circumstances.’ ” (People v. Buycks (2018) 5 Cal.5th 857, 893.)
The trial court here had discretion to reassess Davis’s total sentence on
remand based on the reversal of the conviction on the burglary count and
subsequent dismissal of that count, but the court apparently was unaware of
that discretion. A court that is unaware of the scope of its discretionary
powers cannot exercise informed discretion. (People v. Belmontes (1983) 34
Cal.3d 335, 348, fn. 8.) “Failure to exercise a discretion conferred and
compelled by law constitutes a denial of a fair hearing and a deprivation of
fundamental procedural rights, and thus requires reversal.” (People v. Penoli
(1996) 46 Cal.App.4th 298, 306.) In the present case, the court on remand
must exercise its sentencing discretion based on the current changed
circumstances and render judgment by orally pronouncing Davis’s full
sentence in his presence. (People v. Karaman (1992) 4 Cal.4th 335, 344, fn. 9;
People v. Hartsell (1973) 34 Cal.App.3d 8, 13; § 1193.)
In resentencing Davis, the court must also recalculate his custody
credits. “[W]hen a prison term already in progress is modified as the result of
an appellate sentence remand, the sentencing court must recalculate and
credit against the modified sentence all actual time the defendant has
already served, whether in jail or prison, and whether before or since he was
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originally committed and delivered to prison custody.” (People v. Buckhalter
(2001) 26 Cal.4th 20, 29.)
Finally, the parties and we agree that section 654 requires the trial
court to stay the sentence on Davis’s assault conviction because it was
premised on the same conduct as his conviction for attempted murder.
Section 654, subdivision (a) provides: “An act or omission that is punishable
in different ways by different provisions of law shall be punished under the
provision that provides for the longest potential term of imprisonment, but in
no case shall the act or omission be punished under more than one provision.”
“ ‘Errors in the applicability of section 654 are corrected on appeal
regardless of whether the point was raised by objection in the trial court or
assigned as error on appeal.’ [Citation.] This is an exception to the general
rule that only those claims properly raised and preserved by the parties are
reviewable on appeal. This exception is not required by the language of
section 654, but rather by case law holding that a court acts in excess of its
jurisdiction and imposes an unauthorized sentence when it fails to stay
execution of a sentence under section 654.” (People v. Hester (2000) 22
Cal.4th 290, 295.)
DISPOSITION
The judgment is reversed with respect to Davis’s sentence and the
matter is remanded for resentencing. The trial court is directed to exercise
its sentencing discretion based on the current changed circumstances and
orally pronounce a new sentence on all remaining counts. We take no
position on how the court should exercise its discretion on remand. The court
is further directed to stay the sentence on count 3 under section 654 and to
recalculate custody credits. After resentencing, the court is directed to
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forward an amended abstract of judgment to the Department of Corrections
and Rehabilitation.
O'ROURKE, Acting P. J.
WE CONCUR:
DATO, J.
GUERRERO, J.
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