People v. Potts CA2/2

Filed 1/19/21 P. v. Potts CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B303966
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA094029)
v.
TIMOTHY POTTS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Scott T. Millington, Judge. Affirmed.
John F. Schuck, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Kathy S. Pomerantz, Deputy
Attorneys General, for Plaintiff and Respondent.
______________________________
A jury convicted defendant and appellant Timothy Potts of
inflicting corporal injury upon a person with whom he had a
“dating relationship” following a prior domestic violence
conviction (Pen. Code, § 273.5, subd. (f)(2); count 1)1 and six
counts of attempting to dissuade a witness (§ 136.1, subd. (a)(2);
counts 4–9).2 The trial court found it true that defendant had
suffered two prior “strike” convictions within the meaning of the
“Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)),
as well as two serious felony convictions (§ 667, subd. (a)(1)) and
five prior prison terms (§ 667.5, subd. (b)). The trial court
partially granted defendant’s Romero3 motion, striking one prior
conviction as to counts 5 through 9 but denying the motion as to
count 4, and sentenced defendant to serve a total of 43 years
eight months to life in state prison. The sentence included two
five-year serious felony enhancements pursuant to section 667,
subdivision (a)(1). (People v. Potts (May 3, 2019, B290757)
[nonpub. opn.], at p. 2 (Potts I).)4
Defendant appealed. We remanded so that the trial court
could exercise its new discretion pursuant to Senate Bill No. 1393
(SB 1393) to consider striking one or both of the serious felony
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2 Defendant was acquitted of criminal threats (§ 422,
subd. (a); count 2) and dissuading a witness from reporting a
crime (§ 136.1, subd. (b)(1); count 3).
3 People v. Superior Court (Romero) (1996) 13 Cal.4th 497(Romero).
4 We take judicial notice of our prior opinion in case
No. B290757. (Evid. Code, § 451, subd. (a).)
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enhancements. We affirmed in all other respects. (Potts I, supra,
B290757 at pp. 3, 24–26.)
On remand, the trial court declined to strike either of the
serious felony enhancements.
Defendant appeals again, arguing that the trial court erred
by denying defendant’s request to reconsider his Romero motion.
We affirm.
BACKGROUND
I. Prior Appeal
In defendant’s first appeal in this case, he contended that
(1) the trial court erred by permitting the introduction of a
witness’s prior testimony; (2) there was insufficient evidence to
support his conviction on count 1 and the true finding on one of
his prior convictions; and (3) he was entitled to a remand so that
the trial court could exercise its new discretion under SB 1393 to
consider striking the serious felony enhancements. (Potts I,
supra, B290757 at pp. 3, 24–26.) We rejected the first two
contentions, but we agreed with defendant on the third. (Id. at
pp. 11–25.)
Specifically, we explained that SB 1393, which went into
effect while defendant’s appeal had been pending, “amended
section 667, subdivision (a), and section 1385, subdivision (b), to
give trial courts discretion to strike the imposition of a five-year
sentencing enhancement for a prior serious felony conviction” and
“applies retroactively to nonfinal judgments of conviction where a
serious felony enhancement was imposed at sentencing.” (Potts I,
supra, B290757 at pp. 24–25.) Because the trial court had not
clearly indicated on the record whether it would have struck the
serious felony enhancements if it had discretion to do so when it
sentenced defendant, we concluded that “the matter must be
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remanded for the trial court to consider striking one or both of
defendant’s previously mandatory five-year enhancements
imposed under section 667, subdivision (a)(1).” (Potts I, at p. 25.)
The disposition of our opinion stated, “The matter is
remanded for resentencing pursuant to section 667,
subdivision (a), and section 1385, subdivision (b), as amended by
SB 1393. Upon resentencing, the trial court is directed to
prepare an amended abstract of judgment and forward a certified
copy of it to the Department of Corrections and Rehabilitation.
In all other respects, the judgment is affirmed.” (Potts I, supra,
B290757 at p. 26.)
II. Trial Court Proceedings on Remand
At the November 6, 2019, hearing following remand, the
trial court explained that the matter was remanded for
resentencing pursuant to section 667, subdivision (a), and section
1385, subdivision (b), as amended by SB 1393, and that the
question before it was “whether or not the court should strike the
two five-year enhancements that it imposed on the original
sentencing.” Defendant’s counsel submitted on the matter.
Defendant wanted to address the trial court directly, which
the court allowed. Defendant asked the court if it would be
possible to “rehear” his Romero motion. The court denied the
request, stating: “No, I sentenced you on that. That is a final
decision, and the Court of Appeal has simply directed this court
to consider the two five-year enhancements. I’m directed by a
higher court to consider one thing as it relates to the two priors
under [section] 667[, subdivision ](a)(1) only.” Defendant
reiterated his request for reconsideration of the Romero motion
based on “mitigating facts in the last Romero motion that [were]
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not presented to the court[.]” The court responded, “I’m not going
there. That’s not what I’m here for.”
Thereafter, the trial court declined to strike either of the
serious felony enhancements, citing the seriousness of the priors
and the present case.
This timely appeal ensued.
DISCUSSION
I. Relevant Law and Standard of Review
Upon an appeal in a criminal case, the appellate court “may
reverse, affirm, or modify a judgment or order appealed from, or
reduce the degree of the offense or attempted offense or the
punishment imposed, and may set aside, affirm, or modify any or
all of the proceedings subsequent to, or dependent upon, such
judgment or order, and may, if proper, order a new trial and may,
if proper, remand the cause to the trial court for such further
proceedings as may be just under the circumstances.” (§ 1260,
italics added.)
“The order of the reviewing court is contained in its
remittitur, which defines the scope of the jurisdiction of the court
to which the matter is returned.” (Griset v. Fair Political
Practices Com’n (2001) 25 Cal.4th 688, 701; accord, Snukal v.
Flightways Manufacturing, Inc. (2000) 23 Cal.4th 754, 774, fn. 5
(Snukal).) “[W]hen an appellate court remands a matter with
directions governing the proceedings on remand, ‘those directions
are binding on the trial court and must be followed. Any material
variance from the directions is unauthorized and void.’” (Ayyad
v. Sprint Spectrum, L.P. (2012) 210 Cal.App.4th 851, 860 (Ayyad);
see also Rice v. Schmid (1944) 25 Cal.2d 259, 263 [on remand, the
trial court’s “authority is limited wholly and solely to following
the directions of the reviewing court”].) The trial court must read
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the directions of the appellate court “in conjunction with the
opinion as a whole.” (Ayyad, supra, at p. 859.)
“Our remittitur directions are contained in the
dispositional language of our previous opinion.” (Ayyad, supra,
210 Cal.App.4th at p. 859.) “Whether the trial court correctly
interpreted [the dispositional language in] our [prior] pinion is an
issue of law subject to de novo review.” (Ibid.)
II. The Trial Court Properly Declined to Rehear the Romero
Motion on Remand
In Potts I, we remanded for the trial court to consider a
specific issue: whether to exercise its new discretion to strike the
previously mandatory five-year serious felony enhancements.
(Potts I, supra, B290757 at p. 26.) To that effect, our
dispositional language directed that “[t]he matter is remanded for
resentencing pursuant to section 667, subdivision (a),[5] and
section 1385, subdivision (b),[6] as amended by SB 1393.” (Potts I,
5 Section 667, subdivision (a), provides: “Any person
convicted of a serious felony who previously has been convicted of
a serious felony in this state or of any offense committed in
another jurisdiction which includes all of the elements of any
serious felony, shall receive, in addition to the sentence imposed
by the court for the present offense, a five-year enhancement for
each such prior conviction on charges brought and tried
separately. The terms of the present offense and each
enhancement shall run consecutively.” In this context, “‘serious
felony’ means a serious felony listed in subdivision (c) of
[s]ection 1192.7.” (§ 667, subd. (a)(4).)
6 Section 1385, subdivision (b), provides: “If the court has
the authority pursuant to subdivision (a) [of section 1385] to
strike or dismiss an enhancement, the court may instead strike
the additional punishment for that enhancement in the
6
supra, at p. 26.) This direction was also iterated twice in the
body of the opinion. (Id. at p. 3 [“We remand for resentencing so
that the trial court may exercise its new discretion to consider
striking one or both serious felony enhancements”]; id. at p. 25
[“the matter must be remanded for the trial court to consider
striking one or both of defendant’s previously mandatory five-
year enhancements imposed under section 667,
subdivision (a)(1)”].) And, because the abstract of judgment
incorrectly reflected the imposition of only one five-year
enhancement, we directed the trial court on remand to also
prepare an amended abstract of judgment to be forwarded to the
Department of Corrections and Rehabilitation. (Potts I, supra, at
pp. 25–26.) We otherwise affirmed the judgment. (Id. at p. 26.)
Our directions to the trial court were unambiguous. They
explicitly circumscribed the scope of the court’s authority on
remand related to resentencing. Our dispositional language,
“read in conjunction with the opinion as a whole” (Ayyad, supra,
210 Cal.App.4th at p. 859), did not permit the court to reconsider
defendant’s Romero motion, which went beyond the scope of
determining whether to strike the enhancements imposed under
section 667, subdivision (a)(1). Accordingly, “the trial court
properly refused to [re]hear [defendant’s Romero] motion,
because doing so would have exceeded its jurisdiction on
furtherance of justice in compliance with subdivision (a).” Prior
to SB 1393, a trial court had no such discretion with respect to a
section 667 enhancement. (See Legis. Counsel’s Dig., Sen. Bill
No. 1393 (2017-2018 Reg. Sess.) [“This bill would delete the
restriction prohibiting a judge from striking a prior serious felony
conviction in connection with imposition of the 5-year
enhancement”].)
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remand.” (Ayyad, supra, at p. 854; see also Snukal, supra,23 Cal.4th at p. 774, fn. 5. [“the terms of the remittitur define the
trial court’s jurisdiction to act”].)
We find no merit in defendant’s arguments to the contrary.
First, he contends that although we stated that defendant
was to be resentenced pursuant to section 667, subdivision (a), we
“did not say that this was the sole matter to be considered at the
resentencing.” Contrary to defendant’s implication, no magic
words were required to effectuate what was clear from the
language of the disposition and the context of the opinion as a
whole. “The issues the trial court may address in the remand
proceedings are . . . limited to those specified in the reviewing
court’s directions[.]” (Ayyad, supra, 210 Cal.App.4th at pp. 859–
860, italics added.) Having specified the precise issue that the
trial court was authorized to consider, it was unnecessary to set
forth all matters over which it did not have jurisdiction to
entertain.
Second, defendant relies on the general proposition that,
unless expressly limited, a trial court should consider all relevant
circumstances when resentencing on remand. Indeed, our
Supreme Court has “held that when part of a sentence is stricken
on review, on remand for resentencing ‘a full resentencing as to
all counts is appropriate, so the trial court can exercise its
sentencing discretion in light of the changed circumstances.’”
(People v. Buycks (2018) 5 Cal.5th 857, 893 (Buycks); see also
People v. Valenzuela (2019) 7 Cal.5th 415, 424–425 [“the full
resentencing rule allows a court to revisit all prior sentencing
decisions when resentencing a defendant”].) The full
resentencing rule also applies to defendants who qualify for recall
and resentencing under Propositions 36 and 47. (Buycks, supra,8
at p. 893.) Here, in contrast, no part of defendant’s sentence was
stricken, nor was his sentence recalled under an initiative. We
did not remand for resentencing in general; rather, we expressly
limited the trial court’s task on remand to exercising its
discretion regarding the imposition of the serious felony
enhancements. The full resentencing rule is inapplicable.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, Acting P. J.
ASHMANN-GERST
We concur:
________________________, J.
CHAVEZ
________________________, J.
HOFFSTADT
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