People v. Dawkins CA5 ( 2024 )

Filed 5/13/24 P. v. Dawkins 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
F086476
Plaintiff and Respondent,
(Super. Ct. No. 1488209)
v.
DOUGLAS LEVON DAWKINS, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from an order of the Superior Court of Stanislaus County. Dawna
Reeves, Judge.
Theresa Osterman Stevenson, under appointment by the Court of Appeal, for
Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
* Before Peña, Acting P. J., Smith, J. and DeSantos, J.
INTRODUCTION
Appellant and defendant Douglas Levon Dawkins (appellant) was convicted after
a jury trial of robbery with prior conviction enhancements, and sentenced to the
third strike term of 25 years to life plus 16 years. On remand after his direct appeal, the
trial court ordered certain enhancements stricken and modified his sentence to 25 years to
life plus five years. After another remand, the court found appellant had already received
the benefit of the amended sentencing statutes and ordered the matter dropped from
calendar.
On appeal from that ruling, appellant’s counsel filed a brief that summarized the
facts with citations to the record, raised no issues, and asked this court to independently
review the record. (People v. Delgadillo (2022) 14 Cal.5th 216.) Appellant has filed a
supplemental brief. We review his arguments and affirm the trial court’s order.
PROCEDURAL BACKGROUND1
On July 14, 2015, an information was filed in the Superior Court of
Stanislaus County charging appellant with robbery (Pen. Code,2 § 211), with three prior
strike convictions (§ 667, subd. (d)); three prior serious felony conviction enhancements
(§ 667, subd. (a)); and five prior prison term enhancements (§ 667.5, subd. (b)).
On September 10, 2015, after a jury trial, appellant was convicted of robbery. The
trial court found true three prior strike convictions, three prior serious felony
enhancements, and three prior prison term enhancements. On December 1, 2016,
appellant was sentenced to the third strike term of 25 years to life for robbery, with
1 We grant appellant’s unopposed request to take judicial notice of this court’s
record and nonpublished opinion in his direct appeal, People v. Dawkins (Dec. 14, 2018,
F074796), that affirmed his conviction and remanded the matter for resentencing.
(Evid. Code, §§ 450, 452, subd. (d), 459; In re W.R. (2018) 22 Cal.App.5th 284, 286,
fn. 2.)
2 All further statutory citations are to the Penal Code.
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three consecutive five-year terms for the prior serious felony enhancements, and one year
for a prior prison term enhancement.
Direct Appeal
On December 14, 2018, this court filed the nonpublished opinion in People v.
Dawkins, supra, F074796 that affirmed appellant’s conviction, and remanded the matter
for the trial court to determine whether to exercise its discretion to dismiss the prior
serious felony enhancements pursuant to the amendments to section 667, subdivision (a)
enacted by Senate Bill No. 1393.
Remand for Resentencing
On March 9, 2020, the trial court held the resentencing hearing on remand. The
court dismissed the prior prison term enhancement and two prior serious felony
enhancements. Appellant was again sentenced to 25 years to life, with five years for the
one remaining prior serious felony enhancement. On July 16, 2020, the abstract of
judgment was filed.
SUBSEQUENT HEARING
On April 4, 2023, the trial court filed an order stating that it had received
information from the California Department of Corrections and Rehabilitation (CDCR)
pursuant to Senate Bill No. 483 that appellant had served his base term and was currently
serving a sentence based on an enhancement, and for the court to review the judgment,
verify the enhancement, and consider resentencing appellant. The court appointed
counsel and placed the matter on calendar.
On May 30, 2023, the trial court convened the hearing pursuant to Senate Bill
No. 483. The court stated it had reviewed appellant’s record and found the sentence
imposed for the section 667.5, subdivision (b) prior prison term enhancement was already
stricken. Appellant’s counsel concurred that when the matter was remanded after appeal,
the court dismissed two prior serious felony enhancements and the one prior prison term
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enhancement, and appellant was no longer eligible for resentencing on the remaining
enhancement. The court agreed and dropped the matter from calendar.
On June 21, 2023, appellant filed a notice of appeal from the trial court’s order of
May 30, 2023. He also requested a certificate of probable cause, which was not ruled
upon by the court.
DISCUSSION
As noted above, appellant’s counsel has filed a Delgadillo brief with this court.
The brief also includes counsel’s declaration indicating that appellant was advised he
could file his own brief with this court. By letter on January 29, 2024, we invited
appellant to submit additional briefing.
Appellant filed a letter brief, and asserted he was advised by his attorney that
CDCR’s notice was erroneously based on his original abstract of judgment that showed
the imposition of the prior prison term enhancement. Appellant declared he did not agree
with his attorney’s conclusions and asserted counsel acted “borderline hostile” toward
him. Appellant claimed the trial court dropped the matter from calendar solely because
of his attorney’s statements that he was not eligible for resentencing. Appellant argued
counsel was ineffective and prevented him from appearing at the May 30, 2023 hearing,
because appellant could have presented additional information that showed he was
eligible for resentencing. Appellant further argued that once CDCR sent the notice to the
court, he was entitled to a full resentencing hearing where his other prior convictions
could be stricken.
Senate Bill Nos. 136 & 483
“Prior to January 1, 2020, section 667.5, subdivision (b) required trial courts to
impose a one-year sentence enhancement for each true finding on an allegation the
defendant had served a separate prior prison term and had not remained free of custody
for at least five years. [Citation.] Effective January 1, 2020, Senate Bill No. 136
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[citation] amended section 667.5 by limiting the prior prison term enhancement to only
prior terms for sexually violent offenses. [Citations.] Enhancements based on prior
prison terms served for other offenses became legally invalid. [Citation.] The
amendment was to be applied retroactively to all cases not yet final on January 1, 2020.”
(People v. Burgess (2022) 86 Cal.App.5th 375, 379–380 (Burgess).)
“Later, in 2021, the Legislature enacted Senate Bill No. 483 .… This bill sought
to make the changes implemented by Senate Bill [No.] 136 retroactive. [Citation.] It
took effect on January 1, 2022, and added former section 1171.1, now
section 1172.75 .…” (Burgess, supra, 86 Cal.App.5th at p. 380.)
Section 1172.75 establishes a mechanism to provide affected defendants a remedy
for those legally invalid enhancements, and the resentencing process begins with
corrections officials. (People v. Cota (2023) 97 Cal.App.5th 318, 330.) “Subdivision (b)
… directs the Secretary of the [CDCR] and the correctional administrator of each county
to ‘identify those persons in their custody currently serving a term for a judgment that
includes an enhancement described in subdivision (a) and … provide the name of each
person … to the sentencing court that imposed the enhancement.’ ” (Burgess, supra,
86 Cal.App.5th at p. 380.) “After the trial court receives from the CDCR and county
correctional administrator the information included in subdivision (b) of [the statute], ‘the
court shall review the judgment and verify that the current judgment includes a
sentencing enhancement described in subdivision (a),’ and if so, ‘recall the sentence and
resentence the defendant.’ ” (Ibid.)
Analysis
The entirety of the record demonstrates that while the trial court originally
imposed the one-year sentence for a prior prison term enhancement, the matter was
remanded for a resentencing hearing after appellant’s direct appeal. At that time, the
court considered the statutory amendments that had been enacted after appellant’s
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original sentencing hearing, and dismissed the section 667.5, subdivision (b)
enhancement and two of the three prior serious felony enhancements. CDCR’s
subsequent notice was based on the erroneous conclusion that appellant was still going to
serve the one-year term for the prior prison term enhancement.
Appellant insists that he was entitled to another resentencing hearing once CDCR
sent the notice to the trial court. CDCR’s notice, however, simply advised the court to
review the judgment, verify whether appellant was serving a term for an enhancement,
and consider resentencing appellant. The court complied with the notice, appointed
counsel, and convened a hearing where it reviewed appellant’s record and correctly
determined he already received the benefit of the amended sentencing statutes and was
not entitled to another resentencing hearing.
After independent review of the record, we find that no reasonably arguable
factual or legal issues exist.
DISPOSITION
The court’s order of May 30, 2023, is affirmed.
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