California Cases February 23, 2022: People v. Davis

Case Description

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NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Madera County. No. MCR060756, Dale J. Blea, Judge.

Catherine White, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Ivan P. Marrs, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

THE COURT

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Defendant Rakia Davis contends on appeal that her case must be remanded for resentencing because the trial court was unaware it had discretion to sentence her to concurrent terms. We agree the court did not believe it had discretion to sentence defendant to concurrent terms. However, remand is unnecessary as the court clearly indicated its intent to impose a consecutive sentence.

PROCEDURAL SUMMARY

On May 14, 2019, the Madera County District Attorney charged defendant by information with battery upon a nonconfined person by a prisoner (Pen. Code, § 4501.5; count 1), and resisting an executive officer (§ 69; count 2). The information also alleged that defendant had suffered two prior qualifying felony strike convictions within the meaning of the "Three Strikes" law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).

Defendant entered into a plea agreement. She pled guilty to count 2 and admitted the prior strike conviction allegations. In exchange, her maximum sentence was capped at four years and count 1 was dismissed with a Harvey waiver.

The trial court sentenced defendant to the two-year midterm for count 2, doubled to four years under the Three Strikes law. The court imposed that term consecutive to the nine-year term she was already serving on a separate offense.

On March 2, 2021, defendant filed a notice of appeal.

FACTUAL SUMMARY

Defendant, a prison inmate, pulled away from a correctional officer escorting her in the prison's administrative segregation unit and attempted to spit on him. She then attempted to headbutt another officer who responded to the situation.

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DISCUSSION

Defendant contends remand for resentencing is required because the trial court erroneously believed it had no discretion, pursuant to section 667, subdivision (c)(8), to impose the four-year term at issue here concurrent to the nine-year sentence defendant was already serving in prison. The People agree that section 667, subdivision (c)(8), must be interpreted to give trial courts discretion to impose new Three Strike sentences concurrently or consecutively to current prison terms, pursuant to Proposition 36. However, the People argue that remand here is unnecessary because the court clearly indicated its intent to impose a consecutive sentence. We agree with the People.

I. Proposition 36

A. Statutory Framework

"The Three Strikes law consists of two, nearly identical statutory schemes designed to increase the prison terms of repeat felons. The earlier provision, which the Legislature enacted, was codified as section 667, subdivisions (b) through (i). The later provision, which the voters adopted though the initiative process, was codified as section 1170.12." ( People v. Superior Court ( Romero ) (1996) 13 Cal.4th 497, 504; see § 667, subds. (b)-(i), added by Stats. 1994, ch. 12, § 1, eff. Mar. 7, 1994; § 1170.12, added by Prop. 184, as approved by voters, Gen. Elec. (Nov. 8, 1994).) Prior to 2012, both versions contained substantively identical mandates that any three strike sentence "be imposed consecutive to any other sentence which the defendant is already serving, unless otherwise provided by law." (§§ 667, subd. (c)(8), 1170.12, former subd. (a)(8).)

Proposition 36 enacted the Three Strikes Reform Act of 2012 (Prop. 36, as approved by voters, Gen. Elec. (Nov. 6, 2012)). It deleted section 1170.12, subdivision (a)(8), the specific consecutive sentencing mandate in the voter-enacted initiative. (§ 1170.12, amended by Prop. 36, as approved by voters, Gen. Elec. (Nov. 6, 2012). However, the Three Strikes Reform Act did not delete the nearly identical subdivision in the legislature-enacted law, section 667, subdivision (c)(8). Commentators

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noted the discrepancy soon after the initiative's passage and theorized it was attributable to a drafting error. (See People v. Buchanan (2019) 39 Cal.App.5th 385, 395, fn. 2 (conc. & dis. opn. of Needham, J.) [noting that "the failure to delete section 667, subdivision (c)(8) in addition to section 1170.12, subdivision (a)(8), appears to be an oversight"].)

Reviewing courts must give effect to the intended purpose of the legislation. ( California Cannabis Coalition v. City of Upland (2017) 3 Cal.5th 924, 933-934 [addressing the interplay between two constitutional provisions, one of which was added by voter initiative]; see People v. Arroyo (2016) 62 Cal.4th 589, 593.) When construing constitutional provisions and statutes, including those enacted through voter initiative, the "primary concern is giving effect to the intended purpose of the provisions at issue. [Citation.] In doing so, [courts] first analyze provisions' text in their relevant context, which is typically the best and most reliable indicator of purpose. [Citations.] [Courts] start by ascribing to words their ordinary meaning, while taking account of related provisions and the structure of the relevant statutory and constitutional scheme. [Citations.] If the provisions' intended purpose nonetheless remains opaque, [courts] may consider extrinsic sources, such as an initiative's ballot materials. [Citation.] Moreover, when construing initiatives, [courts] generally presume electors are aware of existing law. [Citation.] Finally, [courts] apply independent judgment when construing constitutional and statutory provisions." ( Cannabis Coalition , supra , at pp. 933-934.)

If a drafting error is identified in a statute, a reviewing court may reconstruct or reform the statute if such action is "compelled by necessity and supported by firm evidence of the drafters' true intent." ( People v. Garcia (1999) 21 Cal.4th 1, 6.) Reformation is only necessary when the individual components of the law cannot be harmonized without disregard or alteration. ( Ibid .)

The parties agree that section 667, subdivision (c)(8), is inoperative. They argue that the legislative and initiative versions of the Three Strikes law cannot be harmonized

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because they contend that each deal with the same subject matter in conflicting ways. By striking section 1170.12, former subdivision (a)(8), the initiative version of the law now provides trial courts with discretion to run nonserious and nonviolent new felony sentences concurrent to a current prison term. But in retaining section 667, subdivision (c)(8), the legislative version continues to deny trial courts the same discretion.

The parties therefore agree that the most reasonable resolution of this statutory conflict is to treat section 667, subdivision (c)(8), as if it were also repealed. However, we need not resolve that question because, as we explain below, the record conclusively demonstrates that the trial court would not have imposed the terms concurrently if it had the discretion to do so.

B. Exercise of Discretion

Regardless of whether the trial court had discretion to sentence defendant to a concurrent, rather than consecutive, term, the case does not need to be remanded for resentencing. Even though the court did not believe it had discretion to sentence defendant to concurrent terms, it still clearly indicated it would not have sentenced defendant to concurrent terms even if it had discretion to do so.

" '[W]hen the record shows that the trial court proceeded with sentencing on the … assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing. [Citations.] Defendants are entitled to "sentencing decisions made in the exercise of the 'informed discretion' of the sentencing court," and a court that is unaware of its discretionary authority cannot exercise its informed discretion.'" ( People v. McDaniels

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(2018) 22 Cal.App.5th 420, 425 [remand in light of amendment which vested courts with discretion to strike or dismiss firearm enhancements].)

However, "[w]e are not required to remand to allow the court to exercise its discretion if 'the record shows that the trial court clearly indicated when it originally sentenced the defendant that it would not [have imposed a different sentence]' even if it had the discretion." ( People v. Jones (2019) 32 Cal.App.5th 267, 272-273.) "The trial court need not have specifically stated at sentencing it would not [have sentenced defendant differently] if it had the discretion to do so. Rather, we review the trial court's statements and sentencing decisions to infer what its intent would have been." ( Jones , at p. 273; see People v. McVey (2018) 24 Cal.App.5th 405, 419 [no remand where, "[i]n light of the trial court's express consideration of the factors in aggravation and mitigation, its pointed comments on the record, and its deliberate choice of the highest possible term for the firearm enhancement, there appears no possibility that, if the case were remanded, the trial court would exercise its discretion to strike the enhancement altogether"]; People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 [case not remanded for resentencing even though court did not expressly state it would not have stricken a strike prior but indicated in statements and rulings that it would not exercise any discretion to reduce the sentence, regardless of the particular enhancement at issue].) Defendant argues that the trial court did not clearly indicate it would have sentenced defendant consecutively, regardless of whether it had discretion to do so. However, as the court here was unaware of any discretion to sentence defendant to a concurrent term, it had no reason to explicitly discuss the possibility of concurrent sentencing. Nor is the court's failure to consider a concurrent term dispositive regarding our determination of whether the court would have imposed a concurrent term if it had known that it had discretion to do so. Review of "the trial court's statements and sentencing decisions to infer what its intent would have been" had it been aware of its discretion, shows that the court would not have imposed a concurrent sentence even if it had the discretion to do so. ( Jones , at p. 273.)

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In exercising its discretion to impose sentences concurrently or consecutively, trial courts consider the nonexclusive list of factors affecting concurrent or consecutive sentences set out in rule 4.425 of the California Rules of Court, which incorporates the circumstances in aggravation set out in rule 4.421 and circumstances in mitigation set out in rule 4.423. Under rule 4.421(a), factors to be considered in aggravation include being charged with a crime of violence and threatening a witness. (Rule 4.421(a)(1), (6).) The same aggravating and mitigating factors listed in rules 4.421 and 4.423 must also be considered by a trial court when determining whether to sentence a defendant to the lower, upper, or middle term. They also overlap with the factors recognized in People v. Superior Court ( Romero ), supra , 13 Cal.4th 497, that a trial court must consider when determining whether to strike a defendant's prior strike conviction. (See Romero , at p. 531 [the trial court must consider the defendant's background, character, prospects, and other individualized factors in determining whether to strike the defendant's prior strike conviction].)

In addition to the aggravating and mitigating factors incorporated by rule 4.425 from rules 4.421 and 4.423, rule 4.245(a)(1) through (3) states that when a trial court is determining whether to sentence a defendant to concurrent or consecutive terms, it must also consider (1) whether the crimes and their objectives were predominantly independent of each other, (2) whether the crimes involved separate acts of violence or threats of violence, or (3) whether the crimes were committed at different times or separate places and were not part of a single period of aberrant behavior.

The trial court here discussed some of those factors in this case in other contexts.

As discussed above, the trial court here indicated that it would not reduce defendant's new felony to a misdemeanor. It stated, "She was combative, and kicking, and the officer indicated that she had attempted to headbutt him. I believe the felony is

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appropriate under the circumstances." (See rule 4.421(a)(1).) Defendant argues that this does not shed light on the court's thoughts on exercising discretion to impose a consecutive or concurrent term because the court only relied on these facts to deny defendant's motion to reduce the felony count to a misdemeanor under section 17, subdivision (b). However, this statement shows the court explicitly considered that the charged offense was a crime of violence, and that it occurred in a separate location and that its objective and location were separate from the offenses for which she was already serving her nine-year term. (See rules 4.421(a)(1), 4.425(a)(1)-(3).) Considering these factors, the court believed defendant's conduct was serious enough to warrant a more serious felony charge, rather than a misdemeanor. This indicates that, had the court been aware of any discretion to sentence defendant to a concurrent term, it still would not have done so.

When discussing its choice of a middle term sentence for defendant, the trial court also noted that the offense for which defendant was already serving a prison term included witness intimidation and a threat of violence, stating:

"I think given the criminal history, the proximity of the prior convictions to the incidents that occurred at CDCR, the 211 and 136.1, they're so close in time. It indicates to me that [defendant] is under the circumstances properly middle terms [ sic ] is the appropriate term. [¶] … [¶]

"She has numerous prior convictions. The court finds that she is currently serving a prison term at the time of the offense. The offense was committed in prison, and I don't find that there are any mitigating factors, other than what has been stated.

"I think it could have easily been an upper term imposed. The agreed upon term [of defendant's plea agreement] was the middle term of [two] years double, I'm going to impose that term." (See rule 4.421(a)(6).)

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Defendant contends the court only noted defendant's criminal history to deny defendant's motion to impose the lower term, stating," '[i]t indicates to me that … middle terms [ sic ] is the appropriate term.'" Defendant argues that this "does not explain how the court's reliance on criminal history to impose the middle term 'clearly indicated' the court would not have opted to impose that term concurrently," and "[t]he fact that the court believed there was sufficient evidence of an aggravating factor (or factors) that would have supported an upper term says nothing about whether the court would ultimately have imposed the highest possible term if given the opportunity," arguing that the court also found mitigating factors. We disagree. As discussed above, the court was unaware of any discretion to sentence defendant to concurrent terms. Accordingly, it would not have a reason to explicitly discuss this issue. However, the discussed considerations were aggravating factors that supported a consecutive sentence. (Rule 4.421(b)(1)-(3).) The court's discussion of defendant's criminal history in imposing the middle term, rather than the lower term, shows the court intended to sentence defendant to the highest term available to it, as the upper term was not available to the court under defendant's plea agreement. As discussed above, this also indicates that, had the court been aware of any discretion to sentence defendant to a concurrent term, it still would not have done so.

Defendant also contends the trial court's comment about an upper term was only an "off-hand remark" and not a" 'clearly indicated' intent to impose consecutive terms no matter its understanding of its discretion." Again, we disagree. The court's comment that it "could have easily been an upper term" was not an "off-hand remark," as defendant contends, but rather shows that the court believed defendant's conduct was serious enough for it to sentence her to an even higher term, but for the plea agreement. Indeed, the factors guiding the court's discretion regarding imposition of consecutive terms are the same factors considered in whether to impose an upper term. (See rules 4.421, 4.425(b).)

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Defendant last argues that the trial court was referring to numerous mitigating factors it had already found when it stated," 'I don't find that there are any mitigating factors, other than what has been stated[, ]'" including that defendant was" 'very young'" when she committed a prior serious felony (§ 211), successfully completed a three-year probation period, was diagnosed with depression and anxiety disorders, was a high school graduate, and did not inflict serious bodily injury. (See rule 4.423.) That reference, defendant argues, showed the court would not have imposed a consecutive sentence because of the numerous mitigating factors. We again disagree with defendant. While the court's discussion shows that it did recognize there were some mitigating factors in defendant's case, the context of the court's entire discussion shows that the court found those factors to be insufficient to justify a reduction of defendant's sentence. Despite acknowledging those mitigating factors, it still found defendant's conduct to be a felony, not a misdemeanor, imposed the middle, not lower, term, and stated it could have easily been an upper term, but for the plea agreement. This again indicates that, had the court been aware of any discretion to sentence defendant to a concurrent term, it still would not have done so.

Reviewing the evidence in the record, we conclude the trial court clearly indicated there is no possibility it would sentence defendant to concurrent terms, were we to remand defendant's case for resentencing, even if it had believed as the parties do that it had discretion to do so. (See People v. McDaniels , supra , 22 Cal.App.5th at p. 425; accord, People v. McVey , supra , 24 Cal.App.5th at p. 419.)

DISPOSITION

The judgment is affirmed.

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Notes:

Before Hill, P. J., Detjen, J. and Peña, J.

All statutory references are to the Penal Code.

See People v. Harvey (1979) 25 Cal.3d 754 [facts supporting charges which are dismissed may not be used to impose sentencing consequences unless the parties waive this right].

But see People v. Gonzalez (2019) 39 Cal.App.5th 115, 121 [a defendant must be sentenced consecutively if he falls under the purview of section 667, subdivision (c)(8)].

All further rule references are to the California Rules of Court.

Section 136.1, subdivision (c)(1) punishes witness intimidation by force or "threat of force or violence." Section 211 punishes robbery by "force or fear."

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