People v. Provost CA4/3 ( 2022 )

Filed 3/16/22 P. v. Provost CA4/3
Opinion following rehearing
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G059248
v. (Super. Ct. No. 17WF0720)
BRIAN ANTHONY PROVOST, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Michael
J. Cassidy, Judge. Affirmed in part, reversed in part, and remanded with directions.
Gene D. Vorobyov, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Kathy S.
Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.
This is the third opinion we have written in this case. Following our most
recent one, we granted rehearing to consider the effect of Assembly Bill No. 518 (AB
518) on appellant’s sentence. Effective January 1, 2022, AB 518 amended Penal Code
section 654 to give trial courts the authority to impose sentence for any offense, not just
the greatest offense, when that section applies to preclude multiple punishment for crimes
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that were based upon a single act or omission. Because the judgment in this case is not
yet final, we agree with the parties that appellant is entitled to the benefit of AB 518, as
well as any other new sentencing provisions that may apply to his case. Therefore, we
reverse appellant’s sentence and remand the matter for a new sentencing hearing. We
also direct the trial court to resolve a key factual issue relating to appellant’s presentence
credits. In all other respects, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A detailed statement of facts is set forth in our first opinion in this case,
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People v. Provost (Mar. 4, 2020, G056297) [nonpub. opn.] (Provost I).) For purposes of
this appeal, it is sufficient to note that when the police arrested appellant as part of an
undercover drug sting, they found heroin, methamphetamine, and a loaded handgun in his
car.
Following a jury trial, appellant was convicted of 10 crimes. As relevant
here, in counts 4 through 7, the jury found appellant guilty of possessing a firearm after
having previously been convicted of a violent offense, possessing a firearm in a vehicle
while a felon, possessing a firearm while a felon, and possessing heroin while armed with
a loaded firearm. (§§ 29900, 25400, 29800; Health & Saf. Code, § 11370.1.) It is
undisputed all four of those counts stemmed from appellant’s single act of unlawfully
possessing a firearm in his car. As a third-strike offender, appellant was sentenced to 33
1
Unless noted otherwise, all further statutory references are to the Penal Code.
2
At the parties’ request, we take judicial notice of the appellate record in that case. (Evid. Code, §§
452, subd. (d), 459.)
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years to life in prison. The trial court granted him 377 days of presentence custody
credit, but it did not award him any presentence conduct credit.
On appeal, we affirmed appellant’s convictions but remanded the matter for
resentencing with directions for the trial court to confirm the period of appellant’s actual
presentence custody and award him presentence credits as appropriate. (Provost I, supra,
G056297, at pp. 15-16.) On remand, the trial court sentenced appellant to 25 years to
life, plus 7 years and 4 months. That sentence included a 6-year term on count 7, plus
concurrent 4-year sentences on counts 4 through 6. The court also awarded appellant 403
days of custody credit and 403 days of conduct credit, for a total of 806 days of
presentence credit.
Targeting various aspects of his sentence, appellant again appealed. We
agreed with him that his sentences on counts 4 through 6 violated section 654 because
those counts were based on the same act as count 7, i.e., possessing a single firearm in his
car. (People v. Provost (Oct. 26, 2021, G059248) [nonpub. opn.] (Provost II). Because
count 7 carried the longest term of imprisonment, we affirmed appellant’s sentence on
that count and ordered the trial court to stay sentence on counts 4 through 6. (Id. at pp. 3-
5.) We also directed the trial court to ascertain the date appellant was arrested and
calculate his presentence custody and conduct credits accordingly, and to amend the
abstract of judgment to correct a clerical error on count 11. (Id. at pp. 4-5.) In all other
respects, we affirmed. (Id. at p. 5.)
But legislative events overtook us. We granted rehearing to determine the
effect of AB 518 on appellant’s sentence. For the reasons explained below, we agree
with the parties that AB 518 necessitates a reversal of appellant’s sentence, which moots
any issues pertaining to the clerical error on count 11. However, our analysis of the
credits issue remains unchanged from our prior opinion.
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DISCUSSION
Section 654
Appellant contends the trial court violated section 654 by imposing
sentence on counts 4 through 6 because they were based on the same act that formed the
basis for his conviction on count 7. As respondent concedes, the claim is well taken. It is
also undisputed AB 518 applies retroactively to authorize the imposition of sentence on
any one of those four counts, not just the count that carries the longest prison term.
At the time appellant was resentenced on remand, section 654 provided,
“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.” (Former § 654, subd. (a).) As we noted in Provost II, this provision applied
to appellant because he was convicted of four separate crimes in counts 4 through 7 based
on the lone act of unlawfully possessing a single firearm in his car. (Provost II, supra,
G059248, at p. 3, citing People v. Jones (2012) 54 Cal.4th 350, 357 [section 654 bars
multiple punishment for multiple offenses based on the unlawful possession of a single
firearm]; People v. Washington (2021) 61 Cal.App.5th 776, 777-780 [same].)
However, with the passage of AB 518, which became effective on the first
of this year, section 654 now provides, “An act or omission that is punishable in different
ways by different provisions of law may be punished under either of such provisions, but
in no case shall the act or omission be punished under more than one provision.” (§ 654,
subd. (a), italics added, as amended by Stats. 2021, ch. 441.) Therefore, trial courts are
no longer required to impose punishment for the crime that carries the longest term of
imprisonment. This change affords trial courts greater discretion to fashion a sentence
that is commensurate with the defendant’s culpability.
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Regarding AB 518’s applicability in this case, respondent concedes that
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because appellant’s judgment is not yet final, he is entitled to the benefit of that new law.
Indeed, the law is well established that ameliorative changes to criminal statutes
generally apply to all cases that are not yet final when the change takes effect. (See, e.g.,
People v. Frahs (2020) 9 Cal.5th 618 [applying rule to diversion statute]; People v.
Superior Court (Lara) (2018) 4 Cal.5th 299 [applying rule to juvenile transfer hearing
statute]; In re Estrada (1965) 63 Cal.2d 740 [applying rule to penalty reduction statute].)
We see no reason to deviate from that rule in this case.
To his credit, the Attorney General also admits that, in addition to AB 518,
appellant may be entitled to the benefit of other sentencing provisions that became
effective on January 1, 2022, such as Assembly Bill No. 124 and Senate Bills No. 81 and
567, which are favorable to criminal defendants. Although we express no opinion on
whether those provisions apply in this case, appellant is entitled to a full resentencing
hearing so the trial court can make that determination in the first place. (See People v.
Valenzuela (2019) 7 Cal.5th 415, 424-425 [when part of a sentence is reversed on appeal,
the full resentencing rule permits the trial court to revisit all prior sentencing decisions
and sentence the defendant anew].) Therefore, we will remand for a new sentencing
hearing under current law.
Presentence Credits
As noted above, the trial court did not award appellant any presentence
conduct credits at his original sentencing hearing. On appeal, respondent conceded this
was error, and we agreed. However, because the record was unclear as to when appellant
was taken into custody, we remanded for the trial court to determine the period of
appellant’s actual custody and award him appropriate custody and conduct credits based
on that determination.
3
This concession is consistent with respondent’s position in other cases that we have judicially
noticed at appellant’s request. (Evid. Code, §§ 452, subd. (d), 459.)
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On remand, the trial court did not do this. Instead, it calculated appellant’s
presentence credits based on the date he was transported to prison. This was error. The
court also failed to recognize appellant was entitled to presentence custody credit from
the time he was taken into custody until the time he was resentenced. (See People v.
Buckhalter (2001) 26 Cal.4th 20, 29 [although a defendant cannot receive presentence
conduct credit once he starts serving his prison sentence, “when a prison term already in
progress is modified as a 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”].) Accordingly, as part of the resentencing
process, the trial court must recalculate appellant’s presentence credits and award him all
such credits to which he is legally entitled.
DISPOSITION
Appellant’s sentence is reversed, and the matter is remanded for full
resentencing consistent with the views expressed herein. In all other respects, the
judgment is affirmed.
BEDSWORTH, J.
WE CONCUR:
O’LEARY, P. J.
ZELON, J.*
*Retired Justice of the Court of Appeal, Second Appellate District, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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