Filed 1/9/20 P. v. Cox 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

Plaintiff and Respondent,

v.

CHANZIE COX,

Defendant and Appellant.

C085534

(Super. Ct. No. 15F00277)

A jury found defendant Chanzie Cox guilty of two counts of robbery, recklessly evading a police officer, felony vandalism, unlawfully possessing ammunition, and resisting a peace officer. The jury found true two enhancement allegations that defendant possessed a firearm during the robberies, and the court found true three prior prison term allegations.

On appeal, defendant argues: (1) one of her prior prison term enhancements must be stricken because the underlying conviction was reduced to a misdemeanor before the enhancement was adjudicated; (2) the trial court abused its discretion when it sentenced defendant to the upper term for robbery; (3) the trial court erred when it imposed a $1,000 restitution fine; and (4) defendant is entitled to an additional day of custody credit. In supplemental briefing, defendant requests we strike each of her one-year sentence enhancements for prior prison terms in light of Senate Bill No. 136 (2019-2020 Reg. Sess.), which amends Penal Code section 667.5, subdivision (b) to narrow the eligibility for one-year prison prior enhancements to those who have served a prior prison term for a sexually violent offense. (Statutory section references that follow are to the Penal Code unless otherwise set forth.) We disagree the trial court abused its discretion in imposing the upper term for defendant’s robbery conviction, but otherwise we agree with each of defendant’s contentions. We vacate the sentence and remand the matter to the trial court for resentencing with directions.

FACTS AND PROCEEDINGS

Defendant went into a pizza shop around closing time and asked an employee if the shop was open; the employee, who was working alone, said it was not. Codefendant, Michael Ortiz, then went into the shop, pulled out a handgun, and said he was there to rob the store. Defendant returned to the car, and Ortiz stole at least $1,000 from the cash register and back office.

Early the next morning, defendant and Ortiz went into a gas station. Defendant told an employee water was leaking from the bathroom drain. As the employee checked the bathroom, Ortiz pulled out a gun and stole the employee’s cell phone. Ortiz then took money out of the cash register before leaving the store.

That evening, defendant and an unknown man were stopped by police officers for driving without working taillights. During the stop, defendant, who was the driver of the car, sped off. Police officers chased defendant and, after a 14-minute, 11-mile pursuit, disabled the car. Defendant ran away on foot, but she was eventually arrested after vandalizing two homes. Ortiz was later arrested, and during trial he pleaded guilty to multiple counts and admitted multiple enhancements.

As noted ante, the jury found defendant guilty of two counts of second degree robbery (§ 211), driving recklessly to evade police (Veh. Code, § 2800.2, subd. (a)), felony vandalism (§ 594, subd. (a)), resisting police (§ 148, subd. (a)), and possession of ammunition by a person previously convicted of a felony (§ 30305, subd. (a)(1)). The jury found enhancement allegations that defendant was armed with a firearm during the robberies to be true. (§ 12022, subd. (a)(1).)

On September 1, 2017, the court found true allegations defendant had served three prior prison terms. (§ 667.5, subd. (b).) One of the prior prison terms was for a 2011 felony drug possession conviction (Health & Saf. Code, § 11377, subd. (a)), which had been reduced to a misdemeanor by a different court on May 26, 2016. The two remaining prior prison terms were for separate convictions for reckless evasion of a peace officer (Veh. Code, § 2800.2, subd. (a).)

At sentencing, defendant read a statement that did not address whether she felt remorse toward the victims of her crimes. After that fact was highlighted by the prosecutor during his sentencing remarks, defendant addressed the court again. Defendant did not remark on whether she felt remorse until directly asked by the court. When asked, defendant stated she felt remorse and claimed she had changed her life because of what she put her victims through.

The trial court denied probation and sentenced defendant to prison for an aggregate term of 12 years four months, including the upper term of five years for the principal robbery count. In imposing the upper term for the robbery conviction, the trial court observed the existence of “an overwhelming amount of aggravating factors.” The trial court found the robberies were planned and well-executed and defendant was an instigator rather than a follower. The trial court also found defendant had multiple prior adult convictions and sustained juvenile petitions.

The trial court recognized defendant was victimized as a child. The court “was prepared to actually consider the middle term until I got a sense from you as to your regard for the other people that were involved in this case.” But the court “heard nothing [in defendant’s statement] about the remorse [she] felt towards those crime victims.” Ultimately, while defendant’s past was a mitigating factor, the court found, “the aggravating factors so outweigh the mitigating factors in your case.”

The trial court imposed a $1,000 restitution fine and stated its intent to impose the minimum fines it was statutorily required to impose. (§ 1202.4, subd. (b).) The trial court then awarded defendant a total of 1,108 days for time served (964 days) and statutory credit (144 days). Defendant was arrested on January 11, 2015, and she was sentenced on September 1, 2017. The probation report calculated defendant’s presentence credits for actual custody as 965 days.

DISCUSSION

I

Prior Prison Terms

On October 8, 2019, the Governor signed Senate Bill No. 136 into law. The new law amends section 667.5, subdivision (b). Prior to its amendment, section 667.5, subdivision (b) required trial courts to impose a one-year sentence enhancement for each separate prior prison term or county jail term imposed under section 1170, subdivision (h) where defendant had not remained free of custody for at least five years. Pursuant to the amendment, which is effective January 1, 2020 (Cal. Const., art. IV, § 8, subd. (c); Gov. Code, § 9600, subd. (a)), the one-year enhancement now only applies if a defendant served a prior prison term for a sexually violent offense as defined in Welfare and Institutions Code section 6600, subdivision (b). (See Stats. 2019, ch. 590, § 1.)

In supplemental briefing the parties agree, and we agree with the parties, that Senate Bill No. 136’s amendment to section 667.5, subdivision (b) should be applied retroactively to those whose cases are not yet final at the time the law became effective. (See In re Estrada (1965) 63 Cal.2d 740, 742; People v. Jennings, 2019 Cal.App. LEXIS 1180, (Nov. 26, 2019) ___ Cal.App.5th ___; People v. Lopez (2019) 42 Cal.App.5th 337.)

It is clear that defendant’s case will not be final on January 1, 2020, when the law goes into effect. (See People v. Vieira (2005) 35 Cal.4th 264, 306 [defendant entitled to retroactive application of criminal statute that takes effect during the time defendant has to appeal to the United States Supreme Court].) And none of defendant’s convictions underlying her prior prison terms were for sexually violent crimes. Therefore, she benefits from Senate Bill No. 136.

Because we direct the court to strike defendant’s three one-year sentence enhancements imposed under section 667.5, subdivision (b) and because the trial court did not impose the maximum sentence, we remand the matter for full resentencing to allow the court to exercise its discretion in light of the changed circumstances. (See People v. Hill (1986) 185 Cal.App.3d 831, 834; People v. Jennings, supra, ___ Cal.App.5th ___.) While the trial court is entitled to reconsider its entire sentencing scheme, defendant may not be sentenced to a term in excess of her original sentence. (See People v. Burns (1984) 158 Cal.App.3d 1178, 1184.)

Before Senate Bill No. 136 was enacted, defendant argued one of her prior prison term enhancements must be stricken because the underlying conviction was reduced to a misdemeanor under Proposition 47 before the trial court adjudicated that prison term. But because we hold that sentence enhancement must be stricken due to Senate Bill No. 136’s amendment to section 667.5, subdivision (b), we need not consider that issue.

II

Upper Term for Robbery Conviction

The trial court imposed the upper term of five years on defendant’s principal conviction for robbery. Defendant contends the trial court abused its discretion when it imposed the upper term because it failed to recognize and acknowledge defendant’s expression of remorse, and it failed to weigh defendant’s remorse and other mitigating factors against the aggravating factors it considered.

When “selecting one of the three authorized terms of imprisonment referred to in section [1170, subdivision (b)], the sentencing judge may consider circumstances in aggravation or mitigation, and any other factor reasonably related to the sentencing decision.” (Cal. Rules of Court, rule 4.420(b).) The existence of a single valid aggravating factor is legally sufficient to make the defendant eligible for the upper term. (People v. Black (2007) 41 Cal.4th 799, 813.) This is true even if the trial court improperly relies on some other aggravating factor. (See People v. Forster (1994) 29 Cal.App.4th 1746, 1759.) Courts generally have wide discretion to weigh both aggravating and mitigating factors, and a court may even disregard or minimize mitigating factors without stating its reasons. (People v. Lai (2006) 138 Cal.App.4th 1227, 1258.)

A trial court’s sentencing decisions are reviewed for abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) The trial court abuses its discretion “if it relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision.” (Ibid.)

The People argue defendant forfeited this claim by not raising it at sentencing. (See People v. Scott (1994) 9 Cal.4th 331, 356 [“complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal”].) But we agree with defendant it would have been futile for defense counsel to object to the trial court’s finding that defendant did not show remorse. (See People v. Penunuri (2018) 5 Cal.5th 126, 166 [defendant not required to proffer futile objections].) The trial court found defendant was not remorseful mere moments after defendant responded to the trial court’s inquiry into that very issue, and there is no reason to believe defense counsel’s objection would have caused the trial court to reconsider its finding.

In sentencing defendant to the upper term, the trial court found numerous relevant and proper aggravating factors. The trial court found the two robberies were planned out and well-executed. (See Cal. Rules of Court, rule 4.421(a)(8) [manner in which the crime was carried out indicated “planning, sophistication, or professionalism”].) The trial court also found defendant was an instigator of the crimes rather than a follower. (See id., rule 4.421(a)(4) [defendant occupied a position of leadership].) And the trial court found defendant had multiple adult convictions and sustained juvenile petitions. (See id., rule 4.421(b)(2) [defendant’s prior convictions are numerous].)

Each of the aggravating factors found by the trial court was supported by the record and properly considered. The existence of any one of the aggravating factors cited by the trial court was sufficient to impose the upper term on defendant’s robbery conviction. (People v. Black, supra, 41 Cal.4th at p. 813.) Hence, even if there was merit in defendant’s claim, “any such error is harmless and no remand is required.” (People v. Forster, supra, 29 Cal.App.4th at p. 1759.)

III

Restitution Fine

Defendant argues the court erred when it imposed a $1,000 restitution fine under the erroneous belief that was the minimum fine the trial court could impose. The People properly concede the issue.

“In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record.” (§ 1202.4, subd. (b).) The fine “shall be set at the discretion of the court and commensurate with the seriousness of the offense. If the person is convicted of a felony, the fine shall not be less than three hundred dollars ($300) and not more than ten thousand dollars ($10,000).” (§ 1202.4, subd. (b)(1).)

At sentencing, the court imposed a $1,000 restitution fine, among other fees. But the trial court clearly stated its intent to impose the minimum fines and fees the law required it to impose. “Upon remand, the trial court shall have the opportunity to clarify its orders regarding the fines.” (People v. Rodriguez (2012) 207 Cal.App.4th 204, 218.)

IV

Custody Credits

Defendant argues she is entitled to an additional day of custody credit. The People properly concede the issue.

“A sentence that fails to award legally mandated custody credit is unauthorized and may be corrected whenever discovered.” (People v. Taylor (2004) 119 Cal.App.4th 628, 647.) The probation report correctly calculated defendant’s presentence credits for actual custody as 965 days, from her arrest date of January 11, 2015, through the date of her sentencing on September 1, 2017. But the trial court relied on the courtroom clerk’s statement defendant had only served 964 actual days. On remand, the trial court must orally award 965 days of presentence credit for actual time served.

DISPOSITION

The sentence is vacated. The matter is remanded to the trial court for resentencing with directions to strike defendant’s three prior prison term enhancements, to reconsider the imposed $1,000 restitution fine, and to award the correct number of presentence custody credits. In all other respects, the judgment is affirmed.

HULL, Acting P. J.

We concur:

BUTZ, J.

RENNER, J.