People v. Smith CA4/3 ( 2024 )

Filed 10/16/24 P. v. Smith CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, G063591
v. (Super. Ct. No. FSB18000008)
ALONZO LERON SMITH, OPINION
Defendant and Appellant.
Appeal from a postjudgment order of the Superior Court of San
Bernardino County, Steve Malone, Judge. Reversed and remanded.
Matthew A. Siroka, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A.
Swenson and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff
and Respondent.
* * *
In 2018, defendant Alonzo Smith pleaded no contest to one count
of voluntary manslaughter (Pen. Code, § 192, subd. (a)),1 three counts of
aggravated assault (§ 245, subd. (a)(4)), and one count of criminal threats (§
422.) He also admitted one prison prior under section 667.5, subdivision (b).
Per the plea agreement, the court sentenced defendant to 10 years in state
prison as follows: (1) six years for the voluntary manslaughter; (2) one year
for each of the aggravated assaults; and (3) one year for the prior prison term.
In September 2022, defendant filed a petition for writ of habeas
corpus in the superior court requesting relief under section 1172.75 and other
sentencing reform statutes. The habeas court denied the petition but directed
the court clerk to place the matter on calendar for resentencing. At the
subsequent resentencing hearing in September 2023, the trial court held it
lacked jurisdiction to resentence defendant. Defendant appeals from that
order.
Defendant raises three arguments on appeal. First, he contends
the court had jurisdiction to strike the one-year sentence enhancement for his
prior prison term because the habeas court placed the matter on calendar for
resentencing. Second, he argues he was entitled to request full resentencing.
Finally, assuming a full resentencing were to occur, defendant claims the
prosecution cannot withdraw from the plea agreement.
We agree the trial court had jurisdiction to strike the one-year
sentence enhancement but for reasons different from those articulated by
defendant. The court had jurisdiction because the California Department of
Corrections and Rehabilitation (CDCR) identified defendant as eligible for
1 All further statutory references are to the Penal Code.
2
relief under section 1172.75 before the resentencing hearing. This triggered
the court’s resentencing obligations under section 1172.75, subdivision (c).
We also agree remand for the possibility of a full resentencing hearing is
warranted. But we need not address whether the prosecution can withdraw
from the plea agreement because any opinion at this stage would be advisory.
We accordingly remand for further proceedings consistent with section
1172.75 and this opinion.
STATEMENT OF FACTS
As noted ante, the court sentenced defendant to 10 years in state
prison pursuant to the parties’ plea agreement in 2019. The sentence
included one year for a prior prison term.
In 2021, the Legislature enacted Senate Bill No. 483 (2021-2022
Reg. Sess.) (Senate Bill 483), which added section 1171.1 (later renumbered
to 1172.75) to the Penal Code. Under section 1172.75, one-year sentence
enhancements for prison priors are “legally invalid” unless the enhancement
was imposed for certain sexually violent offenses. (§ 1172.75, subd. (a).) The
statute also details a specific recall and resentencing procedure that begins
with corrections officials. (§ 1172.75, subd. (b)-(c).)
In September 2022, defendant filed a petition for writ of habeas
corpus in the superior court requesting relief under various sentencing
reform statutes, including Senate Bill 483.2 In October 2022, the habeas
court denied the petition and found most of the sentencing reform statutes
did not apply to defendant. As to Senate Bill 483, the court explained habeas
corpus relief was not available to a defendant with invalid prison priors
because the Legislature established a specific recall and resentencing
2 Defendant’s petition for writ of habeas corpus is not part of the
record on appeal.
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procedure. The court emphasized: “Inmates must wait and allow the process
approved in section 1172.75 . . . to proceed, and may not circumvent that
procedure by seeking habeas relief.” But the court directed the court clerk to
place defendant’s case on calendar for resentencing “in the interest of judicial
economy.”
On November 1, 2022, the trial court received a list from the
CDCR that listed defendant as eligible for relief under section 1172.75.3
The parties later filed sentencing briefs and agreed resentencing
was appropriate but disagreed as to what the new sentence should be.
Defendant argued the court should resentence him to a mitigated term under
section 1170, subdivision (b)(6) and provided a psychological report in
support. The prosecutor objected to a mitigated term due to aggravating
factors and requested the court resentence defendant to 9 years and 8 months
in state prison.
At the subsequent resentencing hearing in September 2023,
defendant’s counsel stated: “I think it’s quite clear that [defendant] . . . is
entitled to a full resentencing. We did take care of his one-year prison prior
as appropriate, but that was never addressed as to whether or not it was
appropriate to impose a mitigated term.” The trial court ultimately held that
it lacked jurisdiction to modify defendant’s sentence. According to the court,
it lacked jurisdiction because: (1) there were no sentencing enhancements at
play; and (2) section 1170.6 sets forth factors for a trial court to consider at
sentencing after a jury trial but not when sentencing is pursuant to a plea
3 On our own motion, we augment the record to include the
superior court’s docket, which reflects the November 1, 2022 date when the
trial court received the resentencing list from the CDCR.
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agreement.4 The court did not make any specific findings regarding Senate
Bill 483 or the one-year sentence imposed for defendant’s prior prison term.
Defendant filed a timely notice of appeal.
DISCUSSION
Relying on section 1172.75, defendant contends the court erred by
failing to strike the one-year sentence enhancement for his prior prison term.
He claims the court had jurisdiction to resentence him because the habeas
court exercised its inherent power to place the matter on calendar for
resentencing. Defendant further argues he is entitled to full resentencing and
the prosecution cannot withdraw from the plea agreement.
For the reasons below, we agree the trial court had jurisdiction
because the CDCR identified defendant as eligible for relief under section
1172.75 before the resentencing hearing. On remand, defendant is entitled to
a full resentencing, but we need not address whether the prosecution can
withdraw from the plea agreement at this juncture.
I.
APPLICABLE LAW AND STANDARD OF REVIEW
Before January 1, 2020, trial courts were required 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.” (People v. Burgess (2022) 86 Cal.App.5th
375, 379-380.) “Effective January 1, 2020, Senate Bill 136 (Stats. 2019, ch.
590) . . . amended section 667.5 by limiting the prior prison term enhancement
to only prior terms for sexually violent offenses. [Citations.] Enhancements
4 Although the trial court referred to section 1170.6, it appears
the trial court may have intended to refer to section 1170, subdivision (b)(6).
5
based on prior prison terms served for other offenses became legally invalid.”
(Id. at p. 380.)
In 2021, the Legislature enacted Senate Bill 483, which made the
changes implemented by Senate Bill No. 136 (2019-2020 Reg. Sess.)
retroactive. (People v. Burgess, supra, 86 Cal.App.5th at p. 380.) Senate Bill
483 also added section 1171.1 (later renumbered to 1172.75). Section 1172.75,
subdivision (a) states: “Any sentence enhancement that was imposed prior to
January 1, 2020, pursuant to subdivision (b) of Section 667.5, except for any
enhancement imposed for a prior conviction for a sexually violent offense . . .
is legally invalid. (§ 1172.75, subd. (a).)
As pertinent here, section 1172.75, subdivision (b) establishes the
following resentencing procedure: “The Secretary of the Department of
Corrections and Rehabilitation and the county correctional administrator of
each county shall identify those persons in their custody currently serving a
term for a judgment that includes an enhancement described in subdivision
(a) and shall provide the name of each person, along with the person’s date of
birth and the relevant case number or docket number, to the sentencing court
that imposed the enhancement.” (§ 1172.75, subd. (b).) The above information
“shall be provided” to the court by: (1) “March 1, 2022, for individuals who
have served their base term and any other enhancements and are currently
serving a sentence based on the enhancement”; and (2) “July 1, 2022, for all
other individuals.” (§ 1172.75, subd. (b)(1)-(2).)
The trial court’s receipt of the above information triggers its
review: “Upon receiving the information described in subdivision (b), the
court shall review the judgment and verify that the current judgment
includes a sentencing enhancement described in subdivision (a). If the court
determines that the current judgment includes an enhancement described in
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subdivision (a), the court shall recall the sentence and resentence the
defendant.” (§ 1172.75, subd. (c).) The trial court’s review and resentencing
“shall be completed” by: (1) “October 1, 2022, for individuals who have served
their base term and any other enhancement and are currently serving a
sentence based on the enhancement”; and (2) “December 31, 2023, for all
other individuals.” (§ 1172.75, subd. (c)(1)-(2).)
Thus, once the CDCR provides the identification to the trial
court, section 1172.75, subdivision (c) establishes “a statutorily authorized
exception to the general rule that a trial court has no jurisdiction to modify a
final judgment.” (People v. Cota (2023) 97 Cal.App.5th 318, 332.) “Absent
factual or evidentiary disputes, our review for subject matter jurisdiction is
de novo.” (Id. at p. 329.)
II.
JURISDICTION TO RECALL DEFENDANT’S SENTENCE
Here, the parties disagree as to whether the trial court had
jurisdiction to resentence defendant. The People contend section 1172.75 does
not authorize a defendant to seek resentencing on his or her own petition.
The People accordingly claim the habeas court “should have denied relief and
stopped there.” Defendant argues his case is different because the habeas
court exercised its inherent power to place the matter on calendar for
resentencing. We need not rely on defendant’s petition for writ of habeas
corpus or the actions of the habeas court. The trial court had jurisdiction
because it received information from the CDCR indicating defendant was
eligible for relief on November 1, 2022—10 months before the resentencing
hearing. (§ 1172.75, subd. (b).) Indeed, after receiving this information, the
court was required to “review the judgment and verify that the current
judgment include[d] a sentencing enhancement described in [section 1172.75,
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subdivision (a)].” (§ 1172.75, subd. (c).) If the court determined there was
such an enhancement, the court was required to “recall the sentence and
resentence . . . defendant.” (Ibid.) The court had to complete this process by
December 31, 2023, which has now passed. (§ 1172.75, subd. (c)(1)-(2).)
Based on our review of the record, it is not clear if the trial court
ever reached a decision on the one-year prison prior term. At the resentencing
hearing, defendant’s counsel asked the court to consider the propriety of a
mitigated term and alluded to the prior having been stricken: “We did take
care of his one-year prison prior as appropriate.” Despite this statement, the
record does not indicate when or how the issue was addressed, and there is no
amended abstract of judgment reflecting the new sentence. We accordingly
remand the matter with instructions to the court to conduct further
proceedings consistent with section 1172.75, subdivision (c).
III.
DEFENDANT’S ENTITLEMENT TO A FULL RESENTENCING
Defendant next argues he is entitled to a full resentencing. We
agree remand for further proceedings, including the possibility of a full
resentencing hearing, is warranted.
“By its plain terms, section 1172.75 requires a full resentencing,
not merely that the trial court strike the newly ‘invalid’ enhancements.”
(People v. Monroe (2022) 85 Cal.App.5th 393, 402; see People v. Carter (2023)
97 Cal.App.5th 960, 968 (Carter) [finding the defendant who was originally
sentenced pursuant to a plea agreement was entitled to a full resentencing
under section 1172.75].) The statute provides the following instructions for
resentencing: (1) “[r]esentencing . . . shall result in a lesser sentence than the
one originally imposed as a result of the elimination of the repealed
enhancement, unless the court finds by clear and convincing evidence that
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imposing a lesser sentence would endanger public safety”; (2) “[t]he court
shall apply the sentencing rules of the Judicial Council and . . . any other
changes in law that reduce sentences or provide for judicial discretion so as to
eliminate disparity of sentences and to promote uniformity of sentencing”; (3)
“[t]he court may consider postconviction factors”; (4) “[u]nless the court
originally imposed the upper term, the court may not impose a sentence
exceeding the middle term unless there are circumstances in aggravation”;
and (5) “[t]he court shall appoint counsel.” (§ 1172.75, subd. (d)(1)-(5).)
We accordingly remand the matter to the trial court for the
possibility of a full resentencing. But we express no views as to whether
defendant is entitled to any other ameliorative changes in the law.
IV.
WITHDRAWAL FROM THE PLEA AGREEMENT
Defendant finally contends a full resentencing should not permit the
prosecution to withdraw from the plea agreement. California appellate courts
are divided on whether the prosecution may withdraw from a plea agreement
when other ameliorative changes in the law are applied to reduce a
defendant’s sentence. (People v. Coddington (2023) 96 Cal.App.5th 562, 565-
568 [holding the prosecution can withdraw from the plea agreement if the
trial court reduces the defendant’s sentence beyond striking the one-year
prison prior enhancement]; but see Carter, supra, 97 Cal.App.5th at p. 972
[concluding the prosecution is not entitled to withdraw from the plea
agreement]; People v. Montgomery (2024) 100 Cal.App.5th 768, 774, review
granted May 29, 2024, S284662 [agreeing with Carter’s conclusion].)
Indeed, another panel of this court has held the prosecution
cannot withdraw from a plea agreement because of a trial court order
striking a great bodily injury enhancement allegation. (People v. Hernandez
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(2024) 103 Cal.App.5th 981, 986, review granted Oct. 2, 2024, S286527.)
Because of the procedural posture of this case, however, the prosecution has
not yet taken a position on whether it will seek to withdraw from the plea
agreement. As such, we need not decide this issue at this time. (People v.
Slayton (2001) 26 Cal.4th 1076, 1084 [“As a general rule, we do not issue
advisory opinions indicating ‘“what the law would be upon a hypothetical
state of facts”’”].)
DISPOSITION
The order is reversed. The matter is remanded to the trial court
for a full resentencing hearing consistent with section 1172.75 and this
opinion. Upon conclusion of the new sentencing hearing, the court is
instructed to prepare an amended abstract of judgment and to forward a
certified copy to the CDCR.
SANCHEZ, ACTING P. J.
WE CONCUR:
DELANEY, J.
GOODING, J.
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