People v. Cooper CA3

Filed 10/13/22 P. v. Cooper CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C095245
Plaintiff and Respondent, (Super. Ct. No. 18FE012454)
v.
JUSTIN MICHAEL COOPER,
Defendant and Appellant.
In this appeal, defendant Justin Michael Cooper contends that his sentence should
be vacated and the case remanded for the trial court to impose a sentence consistent with
the changes to Penal Code section 1170, subdivision (b),1 made by Senate Bill No. 567
(2021-2022 Reg. Sess.) (Senate Bill 567) and Assembly Bill No. 124 (2021-2022 Reg.
Sess.) (Assembly Bill 124), measures enacted by the Legislature to limit the discretion of
1 All undesignated statutory references are to the Penal Code.
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trial courts in imposing lengthy sentences.2 The People agree that the amendments to
section 1170, subdivision (b), apply retroactively to defendant’s case, which is not yet
final on appeal. However, the People maintain that remand is unnecessary because
defendant’s sentence was imposed consistent with section 1170, subdivision (b), as
amended. We agree.
Additionally, defendant contends that the trial court failed to recalculate the days
credited against his sentence for his time in custody. We will direct the court to
recalculate defendant’s custody credits and amend the abstract of judgment accordingly.
BACKGROUND
The second amended information charged defendant with a single count of theft of
a 2007 Ford F250 truck on June 26, 2018 (Veh. Code, § 10851, subd. (a)).3 For purposes
2 Assembly Bill 124 is not independently effective. Three bills proposing changes
to section 1170, effective January 1, 2022, were enacted by the Legislature in September
2021 and signed by the Governor on October 8, 2021: Assembly Bill 124, (Stats. 2021,
ch. 695, § 5), Assembly Bill No. 1540 (2021-2022 Reg. Sess.) (Assembly Bill 1540)
(Stats. 2021, ch. 719, § 2), and Senate Bill 567 (Stats. 2021, ch. 731, § 1.3). (See People
v. Flores (2022) 73 Cal.App.5th 1032, 1038; People v. Jones (2022) 79 Cal.App.5th 37,
44, fn. 11.) Since Senate Bill 567 was the last bill the Governor signed and bears the
highest chapter number, its amendments to section 1170 prevail over the amendments to
that section specified in the other two bills. (Gov. Code, §§ 9510, 9605, subd. (b); In re
Thierry S. (1977) 19 Cal.3d 727, 738-739.) However, Senate Bill 567 provides that if
that bill is enacted last of the three, section 1.3 of the bill incorporating the amendments
proposed by Assembly Bill 124 and Assembly Bill 1540 shall become operative. (Stats.
2021, ch. 731, § 3.) Therefore, the amendments to section 1170, subdivision (b)(6) that
defendant contends were made by Assembly Bill 124 became effective only through
Senate Bill 567. Accordingly, we review defendant’s claims under the changes made to
section 1170, subdivision (b), by Senate Bill 567.
3 The second amended information was included in the record of defendant’s prior
appeal of his vehicle theft conviction. We granted defendant’s request for judicial notice
of the record of this appeal.
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of section 666.5, subdivision (a),4 specifying the sentencing triad where the defendant has
prior convictions for vehicle theft or receiving a stolen vehicle, the information further
alleged defendant was previously convicted of receiving a stolen vehicle (§ 496d, subd.
(a)) in April 2004, as well as vehicle theft (Veh. Code, § 10851, subd. (a)) in February
2006, July 2007, November 2007, and July 2014.
The information also alleged that defendant had a prior conviction in February
2016 for battery with serious bodily injury (§ 243, subd. (d)) that qualified as a prior
strike (§§ 667, subds. (b)-(i), 1170.12) and that a prison term served on this conviction
and on the conviction in November 2007 for vehicle theft (Veh. Code, § 10851, subd. (a))
supported one-year prior prison term enhancements under former section 667.5,
subdivision (b).5 The trial court granted defendant’s motion to bifurcate the trial on the
prior convictions and prison terms.
On November 1, 2018, the jury found defendant guilty of violating Vehicle Code
section 10851, subdivision (a). The prosecution thereafter presented evidence regarding
defendant’s prior convictions to the jury in the bifurcated proceeding. The court admitted
as evidence certified copies of records of defendant’s prior convictions, including three
abstracts of judgment. (See People v. Delgado (2008) 43 Cal.4th 1059, 1070 [abstract of
judgment supported finding of prior conviction]; People v. Haney (1994) 26 Cal.App.4th
472, 475 [“Generally the prosecutor proves the prior conviction by introduction of
4 Section 666.5 provides in relevant part that “[e]very person who, having been
previously convicted of a felony violation of Section 10851 of the Vehicle Code . . . or a
felony violation of Section 496d . . . shall be punished by imprisonment . . . for two,
three, or four years . . . .”
5 Defendant’s prior vehicle theft conviction in November 2007 did double duty as a
basis for the application of section 666.5 and for a prior prison term enhancement under
former section 667.5, subdivision (b).
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certified copies of the abstract of judgment and records of the Department of Corrections
showing imprisonment.”].)
The abstracts of judgment documented defendant’s prior convictions for: vehicle
theft (Veh. Code, § 10851, subd. (a)) and receiving stolen property (§ 496, subd. (a)) in
October 2007; violation of the same statutes in July 2007; second degree commercial
burglary (§ 459) in September 2006; second degree commercial burglary and petty theft
with prior convictions (§§ 484, subd. (a), 666) in September 2011; battery with serious
bodily injury (§ 243, subd. (d)) in February 2016; and vehicle theft and receiving stolen
property in May 2014.
The jury found that defendant was convicted of battery with serious bodily injury
in February 2016 and vehicle theft in November 2007 and that defendant served prison
terms on these convictions.
On December 7, 2018, the trial court conducted a sentencing hearing. The court
stated at the outset that it had received and considered the probation report. After hearing
argument from counsel for the parties, the court sentenced defendant to the upper term of
four years for vehicle theft (Veh. Code, § 10851) doubled by a prior strike conviction for
battery to eight years (§§ 667, subd. (c)(2), 1170.12, subd. (a)), plus one year each for the
prior prison terms defendant served on the battery conviction in February 2016 and the
vehicle theft conviction in November 2007 (former § 667.5, subd. (b)), for an aggregate
total sentence of 10 years.
The court stated it had “selected the upper term for the following reasons: That
Mr. Cooper’s record is lengthy, and he continues to offend.”
Defendant appealed and this court reversed the prior prison term sentences under
Senate Bill No. 136 (2019-2020 Reg. Sess.) (Stats. 2019, ch. 590, § 1), which amended
section 667.5, subdivision (b) to narrow eligibility under the statute to a prison term
served for a sexually violent offense. (People v. Cooper (June 23, 2021, C088522)
[nonpub. opn.].) Since defendant was not convicted of a sexually violent offense, the
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matter was remanded to the trial court with directions to strike the prior prison term
enhancements and to exercise its discretion in light of the changed circumstances.
(People v. Jennings (2019) 42 Cal.App.5th 664, 682.)
On November 12, 2021, the trial court conducted a resentencing hearing. Defense
counsel argued that under Senate Bill 567, which would become effective on January 1,
2022, before defendant’s case was final, the court should impose the middle term of three
years doubled to six years. The prosecutor responded that the trial court should only
address the directions in the remittitur to strike the prior prison term enhancements. The
trial court stated: “I’m not willing to wait until after January 1. I don’t have a full and
complete understanding of the new law. I need to look into it, and certainly if it does
apply to Mr. Cooper, Mr. Cooper would have the right to appeal that, and he certainly
would be back, and certainly we could discuss at that time with a full hearing for both
sides. [¶] At this point in time, the Court has been -- there’s a remittitur through the
Third District Court of Appeal to come back here and address the issue that is before us,
which is the Senate Bill 136, which amended Penal Code [s]ection 667.5, and that is what
I’m prepared to do today.”
The trial court sentenced defendant to four years doubled to eight years for the
prior strike found true by the jury and struck the prior prison term sentences imposed
under former section 667.5.
Defendant timely appealed.
DISCUSSION
Senate Bill 567
Defendant contends that the amendments made by Senate Bill 567 to section 1170,
subdivision (b)(1)-(2) and (6), constitute ameliorative legislation that applies retroactively
to cases such as his still pending on appeal and requires this court to vacate his sentence
and remand to the trial court for resentencing.
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Section 1170, subdivision (b)(1) provides that the middle term is the presumptive
sentence. “A trial court may impose an upper term sentence only where there are
aggravating circumstances in the crime and the defendant has either stipulated to the facts
underlying those circumstances or they have been found true beyond a reasonable doubt.
(§ 1170, subd. (b)(1)-(2).) In making this determination, the ‘court may consider the
defendant’s prior convictions in determining sentencing based on a certified record of
conviction without submitting the prior convictions to a jury.’ (§ 1170, subd. (b)(3);
Stats. 2021, ch. 731, § 1.)” (People v. Flores (2022) 75 Cal.App.5th 495, 500.)
Section 1170, subdivision (b)(6) provides in relevant part: “[U]nless the court
finds that the aggravating circumstances outweigh the mitigating circumstances that
imposition of the lower term would be contrary to the interests of justice, the court shall
order imposition of the lower term if any of the following was a contributing factor in the
commission of the offense: [¶] (A) The person has experienced psychological, physical,
or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual
violence.”
The People concede these amendments are retroactive and apply to defendant’s
nonfinal case pending on appeal. We accept the People’s concession. (See People v.
Flores (2022) 73 Cal.App.5th 1032, 1039; see also People v. Flores, supra, 75
Cal.App.5th at p. 500.) The People contend, however, that based on the record,
defendant does not benefit from the amendments to section 1170, subdivision (b). We
agree.
Beginning with section 1170, subdivision (b)(1)-(2), defendant did not stipulate to
the facts underlying the aggravating circumstances specified by the trial court in
imposing the upper term, nor were they found true beyond a reasonable doubt. However,
the People argue that, in the initial sentencing hearing, the court relied on certified
records of defendant’s prior convictions as evidence supporting the prison term
enhancements under former section 667.5 and then cited defendant’s “lengthy” criminal
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record in imposing the upper term, effectively relying on certified records of defendant’s
prior convictions to select the upper term. (§ 1170, subd. (b)(3).) On remand in 2021,
the trial court again imposed the upper term, but without specifying its reasoning. The
People imply that this sentence, like the prior sentence, was based on certified records of
defendant’s prior convictions.
In reply, defendant acknowledges that the record includes certified records of
conviction that the prosecution offered as evidence of prior convictions. However,
defendant argues that the trial court failed to state that imposition of the upper term was
exclusively based on the certified records of conviction. Moreover, defendant maintains
the trial court could not rely on the two prior convictions found true by the jury because
of the ban on dual use of a single fact to support an element or enhancement of a crime
and as a factor in aggravation in sentencing. (See People v. Scott (1994) 9 Cal.4th 331,
350 (Scott) [“the court generally cannot use a single fact both to aggravate the base term
and to impose an enhancement, nor may it use a fact constituting an element of the
offense either to aggravate or to enhance a sentence”]; People v. Calhoun (1981) 125
Cal.App.3d 731, 733 [“court violated the ban on dual use of facts [citation], by
aggravating his sentence because he previously did not perform well on probation and
imposing an enhancement because he served a prior prison term”]; see also Cal. Rules of
Court, rule 4.406(a)6 [“The court may give a single statement explaining the reason or
reasons for imposing a particular sentence or the exercise of judicial discretion, if the
statement identifies the sentencing choices where discretion is exercised and there is no
impermissible dual use of facts.”].) Defendant argues that one of the prior convictions
for vehicle theft was used to support an increased prison term for vehicle theft under
6 All undesignated references to rules are to the California Rules of Court.
7
section 666.5 and the other prior conviction was used to double the base term under the
three strikes law.
Defendant’s failure to object to dual use of facts in sentencing forfeits this
contention on appeal. (Scott, supra, 9 Cal.4th at p. 353.)
In any event, “Section 666.5 is an alternate punishment scheme that prescribes an
elevated sentencing triad for recidivist car thieves who have a prior felony conviction for
car theft or related conduct. Section 666.5 does not define a new offense and it is not an
enhancement; it simply increases the punishment for the crime.” (People v. Lee (2017)
16 Cal.App.5th 861, 869, fn. omitted; People v. Young (1991) 234 Cal.App.3d 111, 115
[“the prior [Vehicle Code] conviction is not an element of a substantive offense under
section 666.5, subdivision (a)”].) An “ ‘Enhancement’ means an additional term of
imprisonment added to the base term.” (Rule 4.405(5).) A statute that employs a prior
conviction to define the base term “is entirely different from a statute which imposes an
‘enhancement’ in addition to that base term.” (People v. Demara (1995) 41 Cal.App.4th
448, 452; see also People v. Garcia (2003) 107 Cal.App.4th 1159, 1165-1166 [same].)
Similarly, a prior conviction used as a strike to double the base term under the
three strikes law (§§ 667, subds. (c)(1) & (e)(1), 1170.12, subd. (c)(1)) does not involve
an “ ‘enhancement’ ” but an “ ‘alternative sentencing scheme.’ ” (People v. Frutoz
(2017) 8 Cal.App.5th 171, 174, fn. 3; see also People v. Anderson (2009) 47 Cal.4th 92,
102; People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 527; People v. Sipe
(1995) 36 Cal.App.4th 468, 485.) The three strikes law is not a sentence enhancement
because it “does not provide for any kind of ‘added term’ ”; instead “it defines the term
for the crime itself, supplanting the term that would apply but for the prior serious or
violent felony.” (People v. Martin (1995) 32 Cal.App.4th 656, 667, disapproved on
another ground in People v. Deloza (1998) 18 Cal.4th 585, 600, fn. 10.)
On the other hand, prior convictions used to increase a sentence under section
667.5, subdivision (b), may not also be used to impose an aggravated sentence. (People
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v. McFearson (2008) 168 Cal.App.4th 388, 392.) Therefore, the prior prison terms that
the jury found true—vehicle theft in November 2007 and battery in February 2016—were
facts used to support an enhancement and could not also be used as an aggravating factor
to support imposition of the upper term for vehicle theft. However, even excluding these
two prior convictions, the prosecution presented certified records of eight other prior
convictions, including two convictions for burglary and a conviction for petty theft with
priors not alleged as prior convictions in the information. As the probation report stated,
rule 4.421(b)(2) provides that circumstances in aggravation include “defendant’s prior
convictions as an adult and sustained petitions in juvenile delinquency proceedings are
numerous or of increasing seriousness.” Eight prior convictions are “numerous” under
rule 4.421(b)(2). (See People v. Black (2007) 41 Cal.4th 799, 818 [three misdemeanor
and two felony convictions were “numerous” under rule 4.421]; People v. Searle (1989)
213 Cal.App.3d 1091, 1098 [three prior convictions are numerous].) Therefore, the trial
court properly considered defendant’s “numerous” prior convictions, proved by certified
records, as a factor in aggravation.
We conclude that trial court’s imposition of the upper term was based on certified
records of his prior convictions and therefore proper under the amendments to section
1170, subdivision (b), made by Senate Bill 567. The record establishes that, in selecting
the upper term, the trial court relied exclusively on the defendant’s criminal history,
which the prosecution proved with certified records of prior convictions presented at trial.
We note that the probation report, which the court stated it had reviewed, set forth as an
aggravating factor defendant’s prior convictions, citing rule 4.421(b)(2), but also cited
several other aggravating factors (e.g., the crime indicated planning and sophistication
(rule 4.421(a)(8)), defendant engaged in violent conduct (rule 4.421(b)(1))).7 However,
7 The probation report and the trial court found no mitigating circumstances.
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the court specified defendant’s criminal history alone as the basis for imposing the upper
term. In resentencing defendant on remand, the record shows that the court decided only
to strike the prior prison term enhancements and leave the remainder of the sentence
intact, including the reasons for sentencing defendant to the upper term. Based on this
record, we conclude the trial court sentenced defendant to the upper term consistent with
the amendments to section 1170, subdivision (b)(1)-(3), made by Senate Bill 567.
As for section 1170, subdivision (b)(6), defendant claims that the trial court
wrongly failed to consider whether defendant experienced psychological trauma that
contributed to his criminal conduct. However, there is nothing in the record suggesting in
any way that defendant experienced trauma.8 (Compare People v. Banner (2022) 77
Cal.App.5th 226, 236, 242 [where the record “contained significant evidence of Banner’s
mental illness,” remand was warranted to determine if mental illness was a contributing
factor to the crime].) To the contrary, when defendant’s counsel argued that the trial
court should delay sentencing until Senate Bill 567 was in effect, counsel made no
mention of section 1170, subdivision (b)(6), enacted at the same time, and its
ameliorative effect for defendants who have suffered trauma, even though this statute
potentially could require the court to impose the lower term as opposed to the middle
term under section 1170, subdivisions (b)(1) and (2).
Defendant agrees with the People that the trial court had no duty to investigate
whether he suffered trauma. Nonetheless, defendant asserts we should remand the case
8 Defendant notes that in the sections of the probation report regarding
psychological and substance abuse issues, the report stated defendant “declined to
provide any statement under advice of his legal counsel,” which advice was rendered
prior to the enactment of Senate Bill 567. Defendant suggests this advice might change
on remand. This is mere speculation. Defendant also notes that defense counsel
advocated for defendant’s placement with Delancey Street, which offers rehabilitation to
ex-convicts for substance abuse and alcoholism. However, defense counsel confirmed in
response to the court’s inquiry that defendant’s conduct was not drug related.
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so that defense counsel can communicate with defendant regarding section 1170,
subdivision (b)(6), and perhaps make the appropriate record, noting that defendant and
his counsel had little incentive to do so prior to passage of Senate Bill 567. Defendant
points us to no authority that this section entitles a defendant to remand without anything
in the record—e.g., in the probation report, evidence at trial, a plea agreement, the
statements of counsel for the parties, or the statements of the trial court—indicating or
suggesting in any way that the enumerated conditions required for application of section
1170, subdivision (b)(6), are present. If remand were mandated without any support for a
claim of trauma in the existing record, every defendant sentenced prior to the adoption of
section 1170, subdivision (b)(6), would be entitled to remand to attempt to create a
record. We decline to interpret section 1170, subdivision (b)(6) in this manner.
Recalculating Custody Credits
Defendant contends the trial court failed to recalculate custody credits on remand.
The People agree that the trial court should have recalculated defendant’s custody credit
to include his days in custody from the original sentence in 2018 to the sentence imposed
in 2021.
When defendant was sentenced in 2018, the abstract of judgment stated that total
credit he received for time in custody was 329 days. After resentencing defendant on
remand in 2021, the trial court said defendant “will have all [the] credits that apply from
his date of arrest to the present, which can be calculated by [the Department of
Corrections and Rehabilitation].” The abstract of judgment continued to state that
defendant had 329 days of custody credits.
It was the trial court’s responsibility to recalculate defendant’s custody credits.
“When . . . an appellate remand results in modification of a felony sentence during the
term of imprisonment, the trial court must calculate the actual time the defendant has
already served and credit that time against the ‘subsequent sentence.’ ” (People v.
Buckhalter (2001) 26 Cal.4th 20, 23, quoting § 2900.1 [“Where a defendant has served
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any portion of his sentence under a commitment based upon a judgment which judgment
is subsequently declared invalid or which is modified during the term of imprisonment,
such time shall be credited upon any subsequent sentence he may receive upon a new
commitment for the same criminal act or acts”].) In Buckhalter, the California Supreme
Court held “the Court of Appeal erred in concluding that the trial court had no
responsibility whatever to recalculate custody credits upon the remand. . . . [U]nder
section 2900.1, the trial court, having modified defendant’s sentence, should have
determined all actual days defendant had spent in custody, whether in jail or prison, and
awarded such credits in the new abstract of judgment.” (Buckhalter, at p. 41; People v.
Saibu (2011) 191 Cal.App.4th 1005, 1011-1013.)
Accordingly, we will direct the trial court to recalculate defendant’s custody
credits and prepare an amended abstract of judgment. (People v. Saibu, supra 191
Cal.App.4th at p. 1013.)
DISPOSITION
The trial court is directed to recalculate defendant’s presentence custody credits, to
prepare an amended abstract of judgment incorporating those credits, and forward the
amended abstract to the Department of Corrections and Rehabilitation. The judgment is
otherwise affirmed.
/s/
HOCH, J.
We concur:
/s/
DUARTE, Acting P. J.
/s/
EARL, J.
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