People v. Bass CA2/4 ( 2024 )

Filed 10/15/24 P. v. Bass CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B330619
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA469156
v.
AMIR ALIRASHEE BASS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, James R. Dabney, Judge. Remanded in part
with instructions, affirmed in all other respects.
William J. Capriola, 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, Wyatt E. Bloomfield and Lindsay Boyd,
Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
In 2018, appellant Amir Bass entered an open plea of no
contest to first degree burglary and was sentenced to three years
of probation and a suspended sentence of 11 years in prison. In
2023, the trial court found appellant in violation of his probation,
terminated probation, and imposed the 11-year prison sentence.
The court denied appellant’s request to strike a five-year prior
serious felony enhancement under Penal Code section 667,
subdivision (a) (section 667(a)),1 stating that it did not believe it
could revisit the sentence.
Appellant argues that the trial court erroneously believed it
lacked the discretion to strike the section 667(a) enhancement
and therefore abused its discretion. We agree and therefore
remand the matter to allow the trial court to properly exercise its
independent discretion in sentencing appellant.
BACKGROUND2
An information filed in 2018 charged appellant with two
counts of first degree burglary with a person present (§ 459;
counts one and two) and one count of grand theft of access card
account information (§ 484e, subd. (d); count three). The
information also alleged that appellant suffered a prior strike
conviction (§§ 667, subds. (b)-(j), 1170.12), a prior serious felony
conviction (§ 667(a)), and three prison priors (§ 667.5, subd. (b)).
In response to appellant’s motion to set aside the information
pursuant to section 995, the court dismissed count two and
reduced count three to a misdemeanor.
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2 We omit the underlying facts of appellant’s conviction as
they are not relevant to this appeal.
2
At a hearing on September 28, 2018, the court noted that
the prosecutor had offered appellant a plea deal of four years in
prison. Instead, appellant informed the court that he wanted to
accept the court’s offer of three years-probation, with six months
in county jail and an 11-year suspended sentence. The court
cautioned appellant that if he took that offer “and you mess up,
you go to prison for 11 years.” Appellant indicated that he
understood. Accordingly, appellant entered an open plea of no
contest to counts one and three. The court found a factual basis
and accepted the plea. For the purpose of the plea, the court
struck the prior strike allegation on the basis that appellant was
17 years old at the time of the offense and had not suffered any
other strikes until the current offense. The court also found that
the suspended 11-year sentence was “sufficient to protect society
and punish the defendant and hopefully provide incentive for
changed behavior.” Appellant admitted the prior serious felony
enhancement and the prison priors.
On December 28, 2018, the court placed appellant on three
years of probation and imposed an 11-year suspended sentence.
The sentence consisted of the upper term of six years on count
one, plus a consecutive five-year term for the prior serious felony
(§ 667(a)).3
In 2020, the court revoked appellant’s probation after
appellant was arrested for vandalism and then failed to appear.
After a probation revocation hearing, the court found appellant in
violation of probation, but placed appellant on a new three-year
term of probation in July 2021 with the same terms and
conditions.
3 Appellant had already served his six-month sentence on
count three.
3
In April 2022, the court again revoked appellant’s
probation and issued a bench warrant for his arrest. Following a
contested hearing, the court found appellant had violated his
probation by failing to obey a stay away order.
At the sentencing hearing on May 8, 2023, the court
terminated probation and indicated it intended to impose the
previously suspended 11-year sentence. Defense counsel inquired
whether the court “would be amenable” to striking the section
667(a) prior serious felony enhancement and sentencing
appellant to “the six-year term that I think he would have
deserved.” The court responded, “The problem is that the
sentence was already imposed by another judge, and also Mr.
Bass had the prior strike. It was stricken which is why it was
justified high term in this matter.” The court continued, stating
that the sentencing court “went to great lengths” explaining to
appellant that he would have to serve 11 years if he violated
probation, compared to the four-year sentence offered by the
prosecution, and that the court had given appellant “another
opportunity” by reinstating probation after appellant’s vandalism
charge. The court imposed the 11-year sentence, but struck the
prison priors “by operation of law.” The court discussed with
counsel whether appellant’s plea had included the admission that
there was a person present during the burglary, and then
imposed a previously stayed restitution fine and various fees.
The court concluded by stating, “I don’t believe I can revisit the
sentence. So if I’m wrong, then Mr. Bass has a basis to appeal
the sentence. . . . [¶] I mean, at this point I think I can’t.”
Appellant timely appealed from this order after judgment.
(§ 1237, subd. (b); see People v. Lazlo (2012) 206 Cal.App.4th
1063, 1067, fn. 3.)
4
DISCUSSION
Appellant argues that the trial court erred in denying his
request to strike the five-year prior serious felony enhancement
on the basis that it lacked the discretion to do so. We agree with
appellant.
When appellant was granted probation in 2018, trial courts
lacked the discretion to strike or dismiss a prior serious felony
enhancement under section 667, subdivision (a). (Former § 1385,
subd. (b); former § 667, subd. (a); see People v. Valencia (1989)
207 Cal.App.3d 1042, 1045-1047.) Effective January 1, 2019,
Senate Bill No. 1393 (S.B. 1393) amended sections 667,
subdivision (a) and 1385, subdivision (b) to allow a court to
exercise its discretion to strike or dismiss a prior serious felony
conviction for sentencing purposes. (Stats. 2018, ch. 1013, §§ 1, 2;
see People v. Garcia (2018) 28 Cal.App.5th 961, 971.)
The parties agree, as do we, that S.B. 1393 applies to
appellant’s case retroactively because his judgment is not yet
final and the statute constitutes an ameliorative change within
the meaning of In re Estrada (1965) 63 Cal.2d 740. (People v.
Stamps (2020) 9 Cal.5th 685, 699.) Appellant further contends
that the court’s statements at the sentencing hearing
demonstrate that it erroneously believed it lacked the discretion
to strike the section 667, subdivision (a) enhancement. We agree.
When appellant’s counsel inquired whether the court would
consider striking the prior serious felony enhancement, the trial
court denied the request, stating, “The problem is that the
sentence was already imposed by another judge.” The court later
reiterated that “I don’t believe I can revisit the sentence. So if
I’m wrong, then Mr. Bass has a basis to appeal the sentence.” On
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this record, it is clear that the court did not believe it had the
discretion to strike appellant’s five-year prior serious felony
enhancement.
Respondent points to the court’s awareness of a separate
change in the law, noting that the court struck appellant’s three
prison prior enhancements under section 667.5, subdivision (b)
because “by operation of law they no longer apply.” These
statements do not indicate that the court was similarly aware of
its discretion regarding enhancements under section 667(a),
particularly in light of the court’s comments that it did not
believe it could revisit the previously imposed 11-year sentence.
Where a court is unaware of or misunderstands the scope of
its discretion, its ruling is not the exercise of properly “‘informed
discretion.’” (People v. Salazar (2023) 15 Cal.5th 416, 424,
quoting People v. Gutierrez (2014) 58 Cal.4th 1354, 1391; see also
People v. Bruce G. (2002) 97 Cal.App.4th 1233, 1247–1248.) In
such circumstances, the trial court’s ruling is an abuse of
discretion and the matter is properly remanded to allow the trial
court to exercise its discretion in sentencing the defendant.
(People v. Carmony (2004) 33 Cal.4th 367, 376; People v.
Rodriguez (1998) 17 Cal.4th 253, 257; see also People v. Salazar,
supra, 15 Cal.5th at p. 424.) We conclude that the trial court
abused its discretion here and therefore remand for a
resentencing hearing. We express no opinion on how the court
should exercise its discretion on remand.4
4
We need not reach appellant’s other contention that
changes to section 1170 under Senate Bill No. 567 require the
trial court to reconsider whether to impose the upper term or the
now-presumptive middle term to the burglary conviction. On
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DISPOSITION
The matter is remanded for resentencing, including to
allow the superior court to exercise its discretion in considering
whether to strike the prior prison term pursuant to section
667(a). The judgment of the court is affirmed in all other
respects.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
CURREY, P.J.
MORI, J.
remand, the court may exercise its sentencing discretion in light
of the changed circumstances, including the imposition of the
upper term pursuant to section 1170, subdivision (b).
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