People v. Woodson CA3

Filed 1/7/21 P. v. Woodson 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Butte)
----
THE PEOPLE, C079633
Plaintiff and Respondent, (Super. Ct. No. CM009513)
v.
DEMETRIUS PATRICK WOODSON,
Defendant and Appellant.
Defendant appeals from the trial court’s denial of his petition pursuant to
Proposition 47, the Safe Neighborhoods and Schools Act (Proposition 47) for
resentencing on his 1997 conviction of receiving stolen property (Pen. Code, § 496).1
The trial court denied defendant’s petition on the ground that defendant was ineligible
1 Further undesignated statutory references are to the Penal Code.
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based on his contemporaneous 1997 conviction for first degree burglary (§§ 459, 460) for
which he was sentenced to a term of 25 to life under the Three Strikes law.
On appeal, defendant asserts that the trial court erred in concluding that his first
degree burglary conviction, which occurred contemporaneously with his conviction of
receiving stolen property for which he was seeking Proposition 47 relief, was a “prior
conviction” within the meaning of section 1170.18 and in concluding that the first degree
burglary conviction constituted a disqualifying “super strike” within the meaning of
section 667, subdivision (e)(2)(C)(iv)(VIII). Defendant further asserts that, contrary to
the People’s contention, he did not bear the burden of proving the value of the stolen
property received was $950 or less in order to establish his prima facie eligibility for
Proposition 47 resentencing. Finally, defendant asserts the trial court, in originally
sentencing him, imposed an unauthorized sentence by imposing two prior prison term
enhancements (§ 667.5, subd. (b)), and two prior serious felony enhancements (§ 667,
subd. (a)), based on the same two convictions.2
We conclude defendant’s prior conviction did not disqualify him from Proposition
47 resentencing, but further conclude that he failed to demonstrate his prima facie
eligibility for resentencing. We affirm the denial of defendant’s petition. We also
modify the underlying judgment to strike two of defendant’s four section 667.5,
subdivision (b), prior prison term enhancements.
2 In connection with this contention, we deemed defendant’s motion for this court to take
judicial notice of his abstract of judgment and his probation report to be a motion to
augment the record to include those items and, as such, granted the motion.
In addition, in their respondent’s brief, the People requested that we incorporate by
reference the record from defendant’s original appeal from the judgment. We deem it
unnecessary to do so for purposes of this appeal.
2
FACTUAL AND PROCEDURAL BACKGROUND3
Defendant’s Convictions, Sentence, and Original Appeal
In 1997 in Butte County, a jury found defendant guilty of first degree burglary
(§§ 459, 460) and receiving stolen property (§ 496, subd. (a)). In a bifurcated
proceeding, the trial court found true allegations that defendant had two prior serious
felony convictions within the meaning of section 667, subdivision (a), and that he served
four prior prison terms within the meaning of section 667.5, subdivision (b). The trial
court sentenced defendant to an aggregate term of 39 years to life in prison, calculated as
follows: 25 years to life for defendant’s burglary conviction as a third strike within the
meaning of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12), two five-year
enhancements for each of the two prior serious felony convictions (§ 667, subd. (a)), and
four one-year enhancements for each of defendant’s four prior prison terms (§ 667.5,
subd. (b)).
In an unpublished opinion (C029262), this court affirmed defendant’s convictions
of first degree burglary (§§ 459, 460) and receiving stolen property (§ 496).
Defendant’s Proposition 47 Petition
Following the enactment of Proposition 47, defendant filed a petition seeking
resentencing on his 1997 convictions of receiving stolen property (§ 496) and first degree
burglary (§§ 459, 460). Defendant stated that he was currently serving a sentence on
those counts.
Defendant asserted that, notwithstanding the fact that one of his convictions was
defined as a violent felony in section 667.5, subdivision (c), or a serious felony in 1192.7,
subdivision (c), he was entitled to resentencing because there “were/are no actual
elements that the petitioner ever entered an inhabited dwelling with the intent to commit
3 We dispense with a recitation of the underlying facts as they are not pertinent to any
issue presented on this appeal.
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larceny.” Defendant maintained: “[T]here was no actual burglary committed by the
petitioner.” He also asserted that he had no prior convictions which would render him
ineligible for resentencing under Proposition 47.
Defendant further asserted that resentencing him would not pose an unreasonable
risk of danger to public safety. He emphasized that, in his more than 17 years of
incarceration, he had received a number of self-help diplomas, had not been disciplined,
and maintained a high grade point average in a community college program, as
demonstrated through the exhibits attached to defendant’s petition.4 He did not submit
any evidence in support of the petition relevant to the value of the stolen property
received.
Denial of Defendant’s Petition
In proceedings before the trial court, the prosecutor, citing section 667,
subdivision (e)(2), stated that defendant was “a three-striker on 459 firsts, so he’s not
eligible.” The prosecutor continued: “He is sentenced to life in prison based on repeated
459 firsts. Which makes him fall within the life exclusion, which is set forth in Prop 47.”
The prosecutor also asserted that defendant was essentially attempting to relitigate his
convictions. The trial court orally ruled: “Petition is denied. Ineligible based on a prior
conviction.” Subsequently, in a minute order, the trial court denied defendant’s
Proposition 47 petition, reiterating that defendant’s petition pursuant to section 1170.18
was ineligible based on a prior offense/conviction.
4 Defendant’s positive prison programming is commendable, but it is not pertinent to the
issues we must decide here.
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DISCUSSION
I. Proposition 47 Eligibility
A. Applicable General Provisions of Proposition 47
“On November 4, 2014, the voters enacted Proposition 47 . . . , which went into
effect the next day. (Cal. Const., art. II, § 10, subd. (a).)” (People v. Rivera (2015) 233
Cal.App.4th 1085, 1089.) Proposition 47 created a resentencing provision, codified in
section 1170.18, which provides that a person currently serving a sentence for certain
designated felonies may petition for recall of the sentence to reduce the felony to a
misdemeanor. (§ 1170.18, subds. (a), (b).)5
Section 496, subdivision (a), as amended by Proposition 47, provides, in part:
“Every person who buys or receives any property that has been stolen or that has been
obtained in any manner constituting theft or extortion, knowing the property to be so
stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or
withholding any property from the owner, knowing the property to be so stolen or
obtained, shall be punished by imprisonment in a county jail for not more than one year,
or imprisonment pursuant to subdivision (h) of Section 1170. However, if the value of
the property does not exceed nine hundred fifty dollars ($950), the offense shall be a
misdemeanor, punishable only by imprisonment in a county jail not exceeding one year,
if such person has no prior convictions for an offense specified in clause (iv) of
5 Section 1170.18, subdivision (a), provides: “A person who, on November 5, 2014, was
serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who
would have been guilty of a misdemeanor under the act that added this section (‘this act’)
had this act been in effect at the time of the offense may petition for a recall of sentence
before the trial court that entered the judgment of conviction in his or her case to request
resentencing in accordance with Sections 11350, 11357, or 11377 of the Health and
Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as those
sections have been amended or added by this act.”
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subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense
requiring registration pursuant to subdivision (c) of Section 290.”
B. Disqualifying “Prior Conviction”
1. “Prior Conviction” Defined
Subdivision (i) of section 1170.18 states: “This section does not apply to a person
who has one or more prior convictions for an offense specified in clause (iv) of
subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense
requiring registration pursuant to subdivision (c) of Section 290.” (Italics added.)
Section 667, subdivision (e)(2)(C)(iv), in turn, lists as a circumstance therein where
“[t]he defendant suffered a prior serious and/or violent felony conviction, as defined in”
section 667, subdivision (d), for any of an enumerated list of felonies, including “[a]ny
serious and/or violent felony offense punishable in California by life imprisonment or
death.” (§ 667, subd. (e)(2)(C)(iv)(VIII).) First degree burglary (§§ 459, 460) is a
serious felony within the meaning of section 1192.7, subdivision (c), and section 667.
Defendant asserts that the trial court erred in finding him ineligible for
resentencing on his receiving stolen property conviction (§ 496) on the ground that he
was serving a term of life in prison under the Three Strikes law for first degree burglary
(§§ 459, 460) with two prior strike convictions. Defendant asserts that his current first
degree burglary did not disqualify him because it was adjudicated at the same time as the
receiving stolen property conviction for which he is seeking resentencing and is thus, not
a “prior conviction.”
At least two published cases have interpreted the meaning of the term “prior
conviction” in section 1170.18, subdivision (i) to include any convictions that take place
prior to defendant filing a section 1170.18 petition. (People v. Montgomery (2016) 247
Cal.App.4th 1385, 1391-1392; People v. Zamarripa (2016) 247 Cal.App.4th 1179, 1184.)
At least three courts have held that “prior conviction” means a conviction that occurred at
any time before the trial court’s ruling on the section 1170.18 petition. (People v. Hatt
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(2019) 20 Cal.App.5th 321, 324, 328 (Hatt); People v. Casillas (2017) 13 Cal.App.5th
745, 751-752; People v. Walker (2016) 5 Cal.App.5th 872, 876.)
We agree with the aforementioned cases. The voters did not deem the sequence of
the disqualifying conviction in relation to the conviction for which redesignation was
sought to be relevant. (Hatt, supra, 20 Cal.App.5th at p. 328.) We conclude that
defendant’s conviction of first degree burglary, contemporaneous with the conviction of
receiving stolen property for which he seeks Proposition 47 resentencing, was a “prior
conviction” within the meaning of section 1170.18, subdivision (i).
2. Offense Punishable by Life Imprisonment
However, defendant also asserts that the life sentence he is serving in connection
with the conviction is not a disqualifying life sentence within the meaning of section 667,
subdivision (e)(2)(C)(iv)(VIII) because his current first degree burglary conviction is not
an offense punishable by life imprisonment or death. Instead, he asserts that his sentence
of 25 years to life resulted from his status as a third-strike recidivist. Defendant
maintains that an “ ‘offense punishable by life imprisonment’ ” within the meaning of
Proposition 47 and section 667, subdivision (e)(2)(C)(iv)(VIII), is one that, “because of
conduct involved in the commission of the offense itself, [is] punishable by a life term.”
(Italics added.) We agree with defendant and conclude that he is not disqualified from
Proposition 47 resentencing under section 1170.18, subdivision (i), based on his first
degree burglary conviction.
In People v. Hernandez (2017) 10 Cal.App.5th 192, the Court of Appeal for the
Sixth Appellate District concluded that the phrase “offense punishable in California by
life imprisonment or death” in section 667, subdivision (e)(2)(C)(iv)(VIII), “means an
offense that itself has an associated statutory punishment of life imprisonment or death,
not an offense such as robbery, which has an associated statutory punishment of two,
three, or five years. An offense such as robbery is not converted to an ‘offense
punishable in California by life imprisonment or death’ [citation] by virtue of the fact that
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the particular offender has two prior serious or violent felony convictions.” (Hernandez,
at p. 202.) We agree with the Hernandez court’s interpretation of section 667,
subdivision (e)(2)(C)(iv)(VIII), and apply it in the context of Proposition 47. Based on
Hernandez, the Attorney General has withdrawn his contention that defendant’s first
degree burglary conviction disqualified defendant from Proposition 47 relief.
Having concluded that defendant’s prior first degree burglary conviction is not a
disqualifying prior conviction under section 1170.18, subdivision (i), we turn to whether
defendant’s petition established prima facie eligibility to resentencing under section
1170.18, subdivisions (a) and (b).
II. Deficiency of the Prima Facie Showing – $950 Value
The People assert defendant is not eligible for Proposition 47 resentencing because
he failed to offer any evidence to demonstrate that the stolen property he received was
worth $950 or less. Prior to and pending this appeal, numerous courts have held it is the
defendant’s burden to establish eligibility, including that the stolen property had a value
of no more than $950. (See People v. Perkins (2016) 244 Cal.App.4th 129, 133, 136-
137, 139-140; People v. Rivas-Colon (2015) 241 Cal.App.4th 444, 449-450; People v.
Sherow (2015) 239 Cal.App.4th 875, 877, 880.) In his reply brief, defendant conceded
that the case law established that the burden is on the Proposition 47 petitioner to
establish his or her prima facie eligibility for resentencing, including making a prima
facie showing that the value of the stolen property was no more than $950. However,
defendant urges that these cases are wrongly decided and asserts that we should not
follow them. After briefing was concluded in this case, our high court settled the issue,
concluding that the defendant bears the burden of establishing his eligibility, including
that the property was valued at $950 or less. (People v. Romanowski (2017) 2 Cal.5th
903, 916; People v. Page (2017) 3 Cal.5th 1175, 1188.)
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Because defendant failed to satisfy his prima facie burden in support of his
petition for resentencing, the trial court properly denied the petition. We will therefore
affirm the denial of the petition.
III. Unauthorized Sentence
Defendant asserts that the trial court imposed an unauthorized sentence in
originally sentencing him on the underlying convictions. Specifically, he asserts that the
sentence the trial court imposed is unauthorized because the two five-year prior serious
felony enhancements and two of the one-year prior prison term enhancements were
imposed for the same convictions. He asserts that the trial court should have imposed
either the prior serious felony conviction enhancements or the prior prison term
enhancements for two of his priors, not both sets of enhancements. The People concede
that the trial court may not rely on the same prior conviction to impose both a five-year
prior serious felony enhancement and a one-year prior prison term enhancement.
Asserting that only the greater enhancement should be imposed, the People contend that
the two one-year prior prison term enhancements should be stricken.
An appellate court with jurisdiction can correct a legal error resulting in an
unauthorized sentence at any time. (People v. Sanders (2012) 55 Cal.4th 731, 743, fn.
13; People v. Scott (1994) 9 Cal.4th 331, 354 & fn. 17.) Thus, we address defendant’s
contention notwithstanding the fact that he raises it for the first time here.
“California law makes plain an intent that certain recidivism be severely
punished.” (People v. Jones (1993) 5 Cal.4th 1142, 1152-1153 (Jones).) However, our
high court stated: “the voters did not specify that enhancements under sections 667 and
667.5 were both to apply to the same prior offense; rather, subdivision (b) of section 667
and the rules of statutory construction lead us to the opposite conclusion.” (Jones, at
p. 1153.) Thus, a particular prior conviction cannot serve as the basis for both a five-year
enhancement pursuant to section 667, subdivision (a), and a one-year enhancement
pursuant to section 667.5, subdivision (b). “[W]hen multiple statutory enhancement
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provisions are available for the same prior offense, one of which is a section 667
enhancement, the greatest enhancement, but only that one, will apply.” (Jones, at
p. 1150.) Thus, because two of the four prior prison term enhancements imposed were
based on the same two convictions as those which served as the bases for defendant’s two
prior serious felony enhancements, those two prior prison term enhancements must be
stricken.
DISPOSITION
The order denying defendant’s petition for recall of sentence and for resentencing
under section 1170.18 is affirmed. Defendant’s judgment is modified to strike the prior
prison term enhancements imposed pursuant to section 667.5, subdivision (b) associated
with his 1985 and 1988 first degree burglary convictions. The trial court is directed to
prepare an amended abstract of judgment omitting these two one-year prior prison term
enhancements and to forward a certified copy to the Department of Corrections and
Rehabilitation.
/s/
MURRAY, J.
We concur:
/s/
BLEASE, Acting P. J.
/s/
DUARTE, J.
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