Filed 1/16/20 P. v. Vance CA4/2

Opinion following rehearing.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

CALVIN RAY VANCE,

Defendant and Appellant.

E071074

(Super.Ct.No. FSB1100293)

OPINION

APPEAL from the Superior Court of San Bernardino County. Gregory S. Tavill, Judge. Affirmed in part, revered in part with directions.

Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.

I.

INTRODUCTION

While defendant and appellant, Calvin Ray Vance (defendant), waited in the car, codefendant Dwayne Riley, who is not a party to this appeal, robbed a fast food restaurant. Riley entered the restaurant, directed several employees at gunpoint to move within the restaurant during the robbery and demanded money retrieved from a safe and cash register. After receiving a total of $169, Riley absconded with the cash, with defendant driving the getaway vehicle.

Defendant appeals the judgment entered after a jury convicted him of multiple counts of kidnapping for robbery, robbery, evading a police officer, felon in possession of a firearm, and street terrorism. (Pen. Code, §§ 186.22, subd. (a), 209, subd. (b)(1), 211, 12021, subd. (a)(1); Veh. Code, § 2800.2, subd. (a).) The jury also found true firearm and gang allegations. (§§ 186.22, subd. (b), 667, 667.5, 1170.12, 12022.53, subd. (b), (e)(1).) In a bifurcated trial, the court found defendant sustained a prior strike conviction, a serious felony conviction, and four prison prior convictions, one of which was the serious felony.

This is the second appeal in this case. In the first appeal, this court reversed and ordered vacated defendant’s conviction on count 1 (kidnapping for robbery) and directed the trial court to impose the stayed sentence on count 6 (robbery). (People v. Vance (Oct. 29, 2013, E054460) [nonpub.opn.] (Vance opn. E054460).) The federal district court also granted in part defendant’s petition for writ of habeas corpus, ordering reversal of defendant’s conviction on count 13 (felon in possession of a firearm). During resentencing as a result of the first appeal and habeas corpus order, the trial court reduced defendant’s original aggregate sentence of 207 years four months to life, to 182 years eight months to life.

Defendant contends in this second appeal that the trial court abused its discretion during resentencing by “reflexively” adopting the findings made during defendant’s original sentencing in 2011, without taking into account the changed circumstances in the case. Defendant alternatively argues ineffective assistance of counsel (IAC) in the event this objection is deemed forfeited because his attorney did not raise it in the trial court. Defendant further contends this case must be remanded under Senate Bill No. 1393 (2017-2018 Reg. Sess.) (SB 1393) to allow the trial court to exercise its discretion to strike defendant’s prior serious felony enhancement. In addition, defendant argues that his convictions for kidnapping for robbery (counts 2 through 5) under section 209(b), must be reversed as void for vagueness, in violation of his constitutional right to due process.

After this court filed its decision in this appeal on October 9, 2019, defendant filed a petition for rehearing, asserting that his four one-year prison prior enhancements must be stricken under recently signed Senate Bill No. 136 (2019-2020 Reg. Sess.; SB 136), effective January 1, 2020. The People filed an answer to defendant’s petition for rehearing, agreeing. This court granted defendant’s petition for rehearing, vacated its decision filed on October 9, 2019, deemed the petition for rehearing and answer the parties’ supplemental briefs, and ordered the case resubmitted for issuance of a new opinion.

We conclude defendant has not established the trial court improperly resentenced defendant without fully considering changed circumstances. Because we conclude on the merits that there was no abuse of discretion when the trial court resentenced defendant, we reject defendant’s alternative IAC objection. We also reject defendant’s contention that section 209(b) is unconstitutionally vague. We further hold this case must be remanded under SB 1393 to allow the trial court to exercise its discretion to strike defendant’s prior serious felony conviction enhancement. In addition, we conclude that SB 136, which amends section 667.5, subdivision (b), retroactively applies to defendant, and therefore his four one-year prison prior enhancements must be stricken. We therefore reverse defendant’s sentence but affirm the judgment in all other respects.

II.

FACTUAL BACKGROUND

In defendant’s previous appeal, we provided a lengthy statement of the facts. Because the facts for the most part are not germane to the appeal, we provide only a brief summary of the facts, which are taken from a more detailed statement of facts in the first appeal (Vance opn. E054460). (Evid. Code, §§ 452, 459.)

About 9:00 p.m. on January 18, 2011, Riley entered a Jack in the Box restaurant. Five employees were present. Riley demanded money and ordered the employees to enter the manager’s office. The manager gave Riley about $17 from a safe in the office. The manager then told another employee to give Riley money from a cash register at the front counter. Riley received a total of about $169. He then ran out of the restaurant and entered a nearby car, driven by defendant.

Law enforcement pursued defendant in a high speed chase, which ended when defendant’s vehicle spun out of control, struck a truck, and veered into a pole. Defendant and Riley fled from the vehicle and were apprehended shortly thereafter. A loaded gun was found in the vehicle. At trial, a gang expert testified that defendant and Riley were active members of a criminal street gang. The gang expert further testified that the crimes were committed for the benefit of defendant’s gang.

During the trial, the prosecution presented evidence that defendant was involved in a similar robbery on January 8, 2011, 10 days before the Jack in the Box robbery. The same car, owned by defendant’s mother, was used in both robberies.

III.

PROCEDURAL BACKGROUND

The jury found defendant guilty on all counts and allegations, and the trial court found all prior conviction allegations true. The trial court sentenced defendant on August 19, 2011, to an aggregate term of 207 years four months, consisting of an indeterminate term of 190 years to life and a determinate term of 17 years four months.

In defendant’s prior appeal, Vance opinion E054460, defendant challenged the gang enhancements imposed on counts 1 through 10; the five convictions of kidnapping for robbery (counts 1 through 5); the conviction for possession of a firearm (count 13); the sufficiency of evidence of aiding and abetting; the sufficiency of evidence that defendant drove the getaway car; and the admission of evidence of an uncharged act. Defendant also argued sentencing error.

On October 29, 2013, this court issued its decision in defendant’s first appeal (Vance opn. E054460), reversing defendant’s conviction in count 1 for kidnapping for robbery, and ordered the trial court to impose the stayed sentence on count 6 for robbery. This court affirmed the judgment in all other regards.

In February 2015, in a habeas action concerning the instant case, a federal court magistrate recommended granting defendant’s petition for writ of habeas corpus in part directing reversal on insufficiency of evidence grounds of defendant’s conviction on count 13 for felon in possession of a firearm. The federal magistrate also recommended directing the superior court to resentence defendant within 90 days from the conclusion of the appellate proceedings.

In July 2015, the federal district court granted in part defendant’s petition for writ of habeas corpus, directing the state court to reverse defendant’s conviction on count 13 for felon in possession of a firearm, on insufficiency of evidence grounds. (Vance v. W.L. Montgomery (C.D. Cal. July 10, 2015, case No. ED CV 14-1752-MMM.)

On February 7, 2017, the trial court amended the abstract of judgment to reflect this court’s 2013 opinion, directing the court to delete from the abstract of judgment the count 1 conviction for kidnapping for robbery, and add the stayed sentence for count 6 (robbery). In March 2018, the matter was set for resentencing pursuant to the federal habeas corpus order. At the resentencing hearing on July 20, 2018, the court denied defendant’s request to strike his firearm enhancements and resentenced defendant to an aggregate sentence of 182 years eight months to life.

IV.

RESENTENCING

Defendant contends the trial court abused its discretion during resentencing in 2018, by “reflexively” and mechanically adopting the court’s sentencing findings made during defendant’s sentencing in 2011, without taking into account changed circumstances and engaging in an independent review. Alternatively, defendant argues that, if this court deems this issue forfeited because it was not raised in the trial court, defendant’s trial attorney committed IAC by not raising the objection during resentencing.

We conclude that, regardless of whether defendant forfeited his objection to resentencing under People v. Scott (1994) 9 Cal.4th 331, 356, defendant has not demonstrated that the trial court “reflexively” adopted the court’s 2011 sentencing findings. The record shows that before resentencing, the trial court reviewed the record and prepared a three-page analysis of appropriate sentences for each count and enhancement. In addition, the trial court’s statements made during the resentencing hearing show that the court independently exercised its discretion.

A. Resentencing Procedural Background

During sentencing in 2011, defense counsel argued that the proposed sentence exceeding 200 years was excessive relative to the facts of the case and defendant’s criminal conduct. In addition, defense counsel argued defendant was relatively young, there were no injuries, and defendant was not as culpable as his codefendant, given defendant remained in the car while Riley committed the crimes. Defense counsel urged the court to impose concurrent, rather than consecutive sentences.

When the court in 2011, rejected defendant’s request for concurrent sentences, the court stated that it found that “the crime did involve separate acts of violence, the threats of violence to numerous individuals. The crimes and their objectives were independent of each other in several respects. The defendant himself has served three prior prison terms. His convictions as an adult are numerous and increasing in seriousness. [¶] And with respect to circumstances in aggravation and mitigation, . . . the defendant’s prior performance on probation and parole was unsatisfactory. [¶] The Court find[s] that he was an active participant in the crime based on the circumstances of the offense. The nature of the circumstances of the crime are serious compared with other instances. And the crime involved a severe threat of great bodily injury. The manner in which the crime was carried out in the case indicates planning, sophistication and professionalism.” The trial court also found that there were no mitigating factors. Based on these findings, the court sentenced defendant to an aggregate term of 207 years four months to life.

After this court reversed defendant’s conviction on count 1 and the federal district court granted defendant habeas writ relief ordering defendant’s conviction on count 13 stricken, defendant was resentenced. Before resentencing, defendant filed a motion to strike his stayed firearm enhancements on the ground section 12022.53 was recently amended to provide the trial court with discretion to strike firearm enhancements.

During the resentencing hearing, the trial court stated it was adopting the findings made by the trial court during sentencing in 2011 and denied defendant’s motion to strike the firearm enhancements “under the circumstances in this case.” The court imposed on each conviction the same sentence imposed in 2011, with the exception of counts 1 and 13 which had been stricken; count 6, in which the sentence was stayed in 2011; and count 11. In accordance with this court’s order in the previous appeal, the trial court imposed a sentence on count 6.

The previous sentence on count 1 was 38 years to life, and the previous sentence on count 13 was a consecutive term of two years four months. During defendant’s 2011 sentencing, the court sentenced defendant on count 6 to 10 years to life, plus 20 years for the enhancements, but stayed defendant’s sentence on count 6. During resentencing, the court imposed a 20-year term on count 6. The court also reduced the sentence on count 11 from 10 years, to two years eight months, and added three one-year prison prior enhancements. Defendant’s resentencing resulted in a reduction of his aggregate sentence from 207 years four months to life, to 182 years eight months to life.

B. Applicable Law

The following principles apply to defendant’s resentencing challenge. “[W]hen 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. Navarro (2007) 40 Cal.4th 668, 681, citing People v. Burbine (2003) 106 Cal.App.4th 1250, 1259 [‘upon remand for resentencing after the reversal of one or more subordinate counts of a felony conviction, the trial court has jurisdiction to modify every aspect of the defendant’s sentence on the counts that were affirmed, including the term imposed as the principal term’].)” (People v. Buycks (2018) 5 Cal.5th 857, 893.)

During resentencing, the trial court may consider the entire sentencing scheme and all sentencing choices, provided it does not impose a greater term than the original sentence. (People v. Hill (1986) 185 Cal.App.3d 831, 834.) This is because an aggregate prison term is one term comprised of interdependent components. One invalid component may infect the entire sentence and require reconsideration of the entire sentencing scheme. (Ibid.; People v. Burbine, supra, 106 Cal.App.4th at pp. 1257-1258.)

The trial court thus has broad discretion when sentencing. (People v. Lent (1975) 15 Cal.3d 481, 486.) The court’s sentencing decisions will be subject to review by this court for abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) The burden is on the party challenging the sentence to show that the sentencing decision was irrational or arbitrary. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) “‘In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.’ [Citation.] Concomitantly, ‘[a] decision will not be reversed merely because reasonable people might disagree. “An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.” [Citations.]’ [Citation.]” (Id. at pp. 977-978.)

C. Discussion

During defendant’s previous appeal and federal habeas writ petition, his convictions on counts 1 and 13 were reversed, and the stayed sentence on count 6 was ordered imposed. These circumstances warranted remand for a full resentencing. (People v. Navarro, supra, 40 Cal.4th at p. 681; People v. Burbine, supra, 106 Cal.App.4th at p. 1259.) During resentencing, the trial court had jurisdiction to modify every aspect of defendant’s sentence on the counts that were affirmed. (People v. Burbine, supra, at p. 1259.)

Defendant assumes that, because the trial court did not elaborate on its reasons for its resentencing choices, that the trial court “reflexively” adopted the 2011 findings, without exercising independent discretion to modify the original sentence based on subsequent changed circumstances. Defendant further argues that the trial court abused its discretion during resentencing by not significantly reducing his sentence after this court and the federal court reversed his convictions for robbery for kidnapping (count 1) and felon in possession of a firearm (count 13). Defendant maintains these changed circumstances show he was less culpable and therefore, during resentencing, the trial court should have substantially reduced his sentence.

We do not assume or conclude from the record on appeal that the trial court misunderstood the scope of its resentencing discretion and failed to independently exercise its sentencing discretion by adopting the 2011 sentencing findings. It is generally presumed that a trial court has understood and followed established law. (People v. Jeffers (1987) 43 Cal.3d 984, 1000.)

Defendant has failed to point to any part of the record which affirmatively shows that during resentencing, the trial court misunderstood the scope of its sentencing discretion, and merely adopted the findings of the court sentencing defendant in 2011. Furthermore, the record shows several instances in which the trial court deviated from the 2011 sentence, including sentencing on counts 6 and 11. As to count 6, the trial court originally sentenced defendant to a stayed 20-years-to-life term, plus 10 years for the gun enhancement. During resentencing, the court reduced the count 6 sentence to a determinate imposed term of 10 years, plus 10 years for the gang enhancement. As to count 11, the trial court originally sentenced defendant to a six-year term, plus four years for the gang enhancement. During resentencing, the court reduced defendant’s sentence on count 11 to a one-year four-month term, plus a one-year four-month term for the gang enhancement. We therefore conclude the trial court did not “reflexively” resentence defendant, and we do not presume the trial court misunderstood its discretion. “To do so would require us to engage in pure speculation, and violate a basic tenet of appellate review.” (People v. Alvarez (1996) 49 Cal.App.4th 679, 695.) “[I]n light of the presumption on a silent record that the trial court is aware of the applicable law, including statutory discretion at sentencing, we cannot presume error where the record does not establish on its face that the trial court misunderstood the scope of that discretion. (People v. Gutierrez (2009) 174 Cal.App.4th 515, 527.)

Furthermore, the trial court’s statements during resentencing and three-page sentencing chart demonstrate that it exercised independent discretion when resentencing defendant, rather than “reflexively” adopting the 2011 findings without any consideration of subsequent changed circumstances. In response to defense counsel arguing that the petition for resentencing was moot regarding the gun enhancements, the court disagreed, stating: “The [c]ourt still has discretion under [section 12022.53] as a practical matter. I don’t think it makes a whole lot of difference” that defendant’s section 12022.53 gun enhancements were stayed. Defense counsel argued that defendant was requesting the court to exercise its discretion and strike those enhancements under section 12022.53, as recently amended to provide the court with discretion to strike the gun enhancements. The trial court stated it was denying defendant’s motion to strike the section 12022.53 gun enhancements because the circumstances in the case did not warrant doing so.

The court then stated “that takes us then to the resentencing, I guess with the whole case. We have a resentence on the whole case.” When asked if either party wished to argue, counsel for both parties declined. The court proceeded with resentencing defendant, noting that, “[b]ecause this is a resentencing in terms of the findings made by [t]he [c]ourt on August 19, 2011, . . . I make no additional findings. Court adopts his findings that he made back on the original sentencing date.” The trial court noted that this court reversed count 1, and then addressed resentencing on each remaining count and the enhancements. As ordered by this court in defendant’s previous appeal, the court imposed sentencing on count 6, which had previously been stayed. The court further noted that the sentence on count 11 became subordinate to the count 6 term “because the life term is no longer applicable under count 1,” which was dismissed. After stating defendant’s new sentence, the court asked defense counsel if he wished to add anything, and defense counsel said no.

The record of the resentencing proceedings demonstrates that the trial court carefully exercised its discretion in resentencing defendant. Although the court stated it was making no additional findings to those made in 2011, and was adopting the previous findings, this does not refute the presumption that the trial court was aware of the applicable law, including statutory discretion at resentencing. The trial court merely indicated it agreed with the prior findings in 2011. There is nothing in the record demonstrating that the court “reflexively” adopted those findings. To the contrary, the record shows the trial court carefully exercised its sentencing discretion when resentencing defendant. We therefore “cannot presume error where the record does not establish on its face that the trial court misunderstood the scope of that discretion.” (People v. Gutierrez, supra, 174 Cal.App.4th at p. 527.)

Defendant argues that the dismissal of convictions on counts 1 and 13 constitute significant changed circumstances warranting remand for a full resentencing. Defendant notes that his conviction for count 1, kidnapping for robbery, was vacated for insufficiency of evidence, and replaced with sentencing on his conviction for count 6, robbery.

First, as discussed above, defendant has not established that the trial court did not properly resentence defendant or that the court abused its discretion by “reflexively” resentencing defendant.

Second, the dismissal of counts 1 and 13 do not demonstrate a significant change of circumstances showing reduced culpability. The previous sentence on count 13 was a consecutive term of only two years four months for felon in possession of a firearm. In addition, the trial court imposed a 20-year sentence on count 6 (robbery) in place of the vacated 38-year-to-life sentence on count 1 (kidnapping for robbery). Defendant argues robbery is a less serious crime than kidnapping for robbery, and therefore the trial court abused its discretion in not significantly reducing his sentence to reflect this. We note defendant’s resentencing resulted in a reduction of his aggregate sentence from 207 years four months to life, to 182 years eight months to life. This was, in part, the result of a lesser sentence on count 6 than on the vacated count 1 conviction, and a reduced sentence on count 11 (evading an officer).

Defendant has not demonstrated that the trial court abused its discretion by not reducing defendant’s sentence to a greater extent. We further conclude defendant has not established that the trial court misunderstood its discretion and did not fully and properly resentence defendant. Concluding otherwise would constitute pure speculation. (People v. Alvarez, supra, 49 Cal.App.4th at pp. 695-696)

V.

DISCRETION TO STRIKE PRIOR SERIOUS FELONY CONVICTION

Defendant contends that SB 1393 requires this case to be remanded so that the trial court can exercise its newly authorized discretion to strike defendant’s prior serious felony conviction under recently amended sections 667 and 1385. We agree SB 1393 applies retroactively and that remand is necessary to allow the court to exercise its discretion and decide whether to strike defendant’s prior serious felony enhancement.

At the time of defendant’s resentencing hearing on July 20, 2018, section 1385 included the following provision: “(b) This section does not authorize a judge to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under [s]ection 667.” This provision was deleted from section 1385 by SB 1393, enacted on September 30, 2018, and effective January 1, 2019. As amended, section 1385, subdivision (b) gives the trial court discretion to dismiss or strike a prior serious felony conviction for sentencing purposes. (People v. Garcia (2018) 28 Cal.App.5th 961, 971 (Garcia).) The trial court therefore is no longer prohibited from striking prior serious felony convictions during sentencing.

SB 1393 applies retroactively to all cases in which the trial court imposed a five-year enhancement for a prior serious felony conviction, provided the judgment was not final when SB 1393 became effective on January 1, 2019. (Garcia, supra, 28 Cal.App.5th at p. 972.) This is because, “[w]hen an amendatory statute either lessens the punishment for a crime or, as [SB] 1393 does, ‘“vests in the trial court discretion to impose either the same penalty as under the former law or a lesser penalty,”’ it is reasonable for courts to infer, absent evidence to the contrary and as a matter of statutory construction, that the Legislature intended the amendatory statute to retroactively apply to the fullest extent constitutionally permissible—that is, to all cases not final when the statute becomes effective.” (Ibid.)

The People argue that, assuming SB 1393 applies retroactively, this court should not remand this matter because it is clear the trial court would not strike defendant’s serious felony prior. SB 1393 is similar to Senate Bill No. 620 (2017-2018 Reg. Sess.) (SB 620), which amended section 12022.53, subdivision (h) to provide that “[t]he court may, in the interest of justice pursuant to [s]ection 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section.” (See also People v. McDaniels (2018) 22 Cal.App.5th 420, 424; People v. Billingsley (2018) 22 Cal.App.5th 1076, 1079.)

In McDaniels, the court held that a remand for resentencing under SB 620 was required “unless the record show[ed] that the trial court clearly indicated when it originally sentenced the defendant that it would not in any event have stricken a firearm enhancement.” (People v. McDaniels, supra, 22 Cal.App.5th at p. 425.) In other words, “if ‘“the record shows that the trial court would not have exercised its discretion even if it believed it could do so, then remand would be an idle act and is not required.”’” (Ibid.; see also People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530, fn. 13.)

Here, we disagree with the People’s assertion that the record is clear that during resentencing the trial court would not strike defendant’s serious felony prior, had the court believed it had discretion to do so. The People argue this is clear based on the circumstances during the resentencing hearing, in which the trial court imposed an aggregate sentence of over 182 years to life and denied defendant’s request to strike his firearm enhancements, even though they were stayed. But during resentencing, the trial court merely stated it denied defendant’s firearm enhancements because the trial court did not believe they were appropriate under the circumstances. This, along with defendant’s lengthy sentence and the trial court’s additional statements during resentencing, does not make it clear that the trial court would have also denied a request to strike defendant’s serious felony prior, had the court had discretion to do so.

We thus conclude the trial court’s sentencing choices and statements at sentencing do not foreclose the possibility the trial court would strike defendant’s prior serious felony conviction for sentencing purposes if it had the discretion to do so. (People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896.) Accordingly, remand is appropriate to allow the trial court to exercise its discretion to determine whether to strike defendant’s prior serious felony enhancement under SB 1393.

VI.

KIDNAPPING CONVICTION

Defendant contends that his kidnapping for robbery convictions (§ 209(b)(1); counts 2 through 5) must be reversed because section 209(b) is unconstitutionally vague, and therefore, his convictions for aggravated kidnapping in violation of section 209(b) violate his constitutional right to due process. The People argue defendant forfeited his constitutional challenge to section 209(b) by not raising it in the trial court.

We agree that, as a general rule, “a litigant cannot raise a new issue for the first time on appeal; among other things, the practice is unfair to the trial court and any opposing litigants.” (Bonner v. City of Santa Ana (1996) 45 Cal.App.4th 1465, 1476.) But there are exceptions to this general principle. “California courts have held that constitutional issues can be raised for the first time on appeal,” especially when enforcement of a penal statute is involved. (Ibid.; see also People v. Blanco (1992) 10 Cal.App.4th 1167, 1172-1173 [appellate court exercised discretion to review whether evidentiary statute violated due process rights even though constitutional objection was not raised at trial]; Conservatorship of Delay (1988) 199 Cal.App.3d 1031, 1035-1036, fn. 3 [“issues may be raised for the first time on appeal when they involve pure questions of law or constitutional issues”]; In re J.C. (2017) 13 Cal.App.5th 1201, 1206 [“We have discretion to decide a pure question of law based on undisputed facts raised for the first time on appeal.”].)

Here, defendant is raising a constitutional issue, which this court has discretion to review, even though defendant did not raise it in the trial court. (Bonner v. City of Santa Ana, supra, 45 Cal.App.4th at p. 1476.) We will thus consider on the merits whether section 209(b) is unconstitutionally vague, and review the issue de novo. (People v. Scott (2016) 3 Cal.App.5th 1265, 1272.)

“The constitutional interest implicated in questions of statutory vagueness is that no person be deprived of ‘life, liberty, or property without due process of law,’ as assured by both the federal Constitution (U.S. Const., Amends. V, XIV) and the California Constitution (Cal. Const., art. I, § 7).” (Williams v. Garcetti (1993) 5 Cal.4th 561, 567; accord, People v. Garcia (2014) 230 Cal.App.4th 763, 768.) “All presumptions and intendments favor the validity of a statute and mere doubt does not afford sufficient reason for a judicial declaration of invalidity. Statutes must be upheld unless their unconstitutionality clearly, positively and unmistakably appears.” (Lockheed Aircraft Corp. v. Superior Court (1946) 28 Cal.2d 481, 484; accord, People v. Garcia, supra, at p. 763.) Defendant fails to satisfy this demanding standard.

“The essence of aggravated kidnapping is the increase in the risk of harm to the victim caused by the forced movement.” (People v. Dominguez (2006) 39 Cal.4th 1141, 1152.) Subparagraph (1) of the aggravated kidnapping statute, section 209(b), punishes “[a]ny person who kidnaps or carries away any individual to commit robbery . . . .” (§ 209(b)(1).) Subparagraph (2) of section 209(b) further provides that section 209 applies only “if the movement of the victim is [1] beyond that merely incidental to the commission of, and [2] increases the risk of harm to the victim over and above that necessarily present in, the intended underlying offense.” (§ 209(b)(2).)

Defendant argues section 209(b) is unconstitutionally vague in two ways. First, defendant argues the determination of whether movement of the victim increased the victim’s risk of harm, requires measuring the risk against an imagined, ordinary case, which injects indeterminacy into the risk-of-harm inquiry. Second, the appellate courts are split on their definition of “more than incidental movement” and whether unnecessary movement must be considered incidental.

Defendant cites Johnson v. United States (2015) 135 S.Ct. 2551 (Johnson), for the proposition that the court violates the Fifth Amendment right to due process “by taking away someone’s life, liberty, or property under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement.” (Id. at p. 2556.) As recognized in Sessions v. Dimaya (2018 584 U.S. __ [138 S.Ct. 1204, 1212] (Dimaya), “‘[t]he prohibition of vagueness in criminal statutes,’ our decision in Johnson explained, is an ‘essential’ of due process, required by both ‘ordinary notions of fair play and the settled rules of law.’ [Citations.] The void-for-vagueness doctrine, as we have called it, guarantees that ordinary people have ‘fair notice’ of the conduct a statute proscribes. [Citation.] And the doctrine guards against arbitrary or discriminatory law enforcement by insisting that a statute provide standards to govern the actions of police officers, prosecutors, juries, and judges.” (Id. at p. 1212.)

In Johnson, the court held the “residual clause” of the Armed Career Criminal Act (ACCA) was unconstitutionally vague. (Johnson, supra, 135 S.Ct. at p. 2557; 18 U.S.C. § 924(e)(2)(B).) The clause is part of the ACCA definition of a violent felony, which is part of a federal statute that provides increased punishment for defendants with three or more prior violent felony convictions. (Johnson, supra, at pp. 2555-2556.). The ACCA definition of “violent felony” lists several crimes as violent felonies and then adds the residual clause, which states: “[O]r otherwise involves conduct that presents a serious potential risk of physical injury to another . . . .” (18 U.S.C. § 924(e)(2)(B).) The court in Johnson concluded the “residual clause” was unconstitutionally vague because the application of the enhancement statute required linking assessment of risk to a hypothetical ordinary case and required the court to apply an imprecise, qualitative measure to that ordinary case. (Johnson, supra, at p. 2558.)

The Johnson court explained: “The residual clause, however, requires application of the ‘serious potential risk’ standard to an idealized ordinary case of the crime. Because ‘the elements necessary to determine the imaginary ideal are uncertain[,] . . .’ this abstract inquiry offers significantly less predictability than one’ [t]hat deals with the actual . . . facts.” (Johnson, supra, 135 S.Ct. at p. 2561.) The Johnson court therefore concluded that, “[b]y combining indeterminacy about how to measure the risk posed by a crime with indeterminacy about how much risk it takes for the crime to qualify as a violent felony, the residual clause” violates the guarantee of due process. (Id. at p. 2558.)

The court in Dimaya similarly held that language in the Immigration and Nationality Act, 18 U.S.C. section 16(b), defining a crime of violence, was unconstitutionally vague based on the same rationale as in Johnson. (Dimaya, supra, 138 S.Ct. at pp. 1215-1216.) Section 16(b) defines a crime of violence as “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” (§ 16(b).) The Dimaya court concluded that, section “16(b) has the same ‘[t]wo features’ that ‘conspire[d] to make [ACCA’s residual clause] unconstitutionally vague.’ [Citation.] It too ‘requires a court to picture the kind of conduct that the crime involves in “the ordinary case,” and to judge whether that abstraction presents’ some not-well-specified-yet-sufficiently-large degree of risk. [Citation.] The result is that section 16(b) produces, just as ACCA’s residual clause did, ‘more unpredictability and arbitrariness than the Due Process Clause tolerates.’” (Dimaya, supra, at p. 1216; see also United States v. Davis (2019) __ U.S. __ , 139 S.CT. 2319, 2323-2324, 2326-2327, 2336, 2339.)

In the instant case, defendant argues the section 209(b) asportation standard is unconstitutionally vague in two ways: (1) the “increased risk of harm” element is vague and (2) the “‘substantial distance’” asportation factor is also imprecise. The increased risk of harm element requires the court to imagine a baseline risk inherent in ordinary kidnapping. Defendant concludes that, under Johnson and Dimaya, section 209(b) is unconstitutionally vague because it requires the court and fact finder to compare relative risk and apply a substantial distance standard using a hypothetical, ordinary-case baseline. (Johnson, supra, 135 S.Ct. at p. 2561; Dimaya, supra, 138 S.Ct. at pp. 1213-1214.) Defendant further argues the appellate courts’ disagreement over the meaning of the incidental asportation and the California State Supreme Court’s failure to resolve the disagreement demonstrates that section 209(b) is unconstitutionally vague.

Defendant acknowledges that the court in People v. Ledesma (2017) 14 Cal.App.5th 830, 833 (Ledesma), rejected defendant’s vagueness challenge to section 209(b), holding that unlike the provision in Johnson, “California’s asportation requirement compels juries and courts to apply a legal standard to real-world facts.” The court in Ledesma, an aggravated kidnapping-for-rape case, explained that, unlike the categorical analysis the court in Johnson was required to engage in under the ACCA, the asportation requirement in section 209 does not require using a hypothetical, ordinary-case baseline when determining the asportation element. (Ledesma, supra, at p. 838.) The Ledesma court added that the jury in Ledesma (and in all aggravated kidnapping cases) assessed whether the defendant’s movement of the victim “was merely incidental to the rape and whether that movement substantially increased the risk of harm over and above the risk of harm inherent in rape. This is precisely the type of determination that Johnson held was beyond the void-for-vagueness problem presented by the residual clause.” (Ledesma, supra, at pp. 838-839, citing Johnson, supra, 135 S.Ct. at p. 2561.)

In holding section 209(b) is not unconstitutionally vague, the Ledesma court further concluded that “California cases on the asportation element of aggravated kidnapping, . . . show broad agreement on both the nature of the inquiry required and the relevant factors to evaluate when deciding whether the facts in a case are sufficient to satisfy the asportation element of the aggravated kidnapping statute . . .” (Ledesma, supra, 14 Cal.App.5th at p. 839.)

Defendant urges this court to disregard Ledesma, supra, 14 Cal.App.5th 830, as not persuasive, and reverse his convictions in counts 2 through 5 for aggravated kidnapping. Relying on Johnson, supra, 135 S.Ct. 2551 and Dimaya, supra, 138 S.Ct. 1204, defendant argues the analysis in Ledesma is flawed because section 209(b) requires jurors to measure risk against a hypothetical ordinary case. This, defendant asserts, produces unconstitutional unpredictability and arbitrariness, which deprives a defendant of fair notice of the prosecuted crime and creates a standardless statute inviting arbitrary enforcement.

We disagree that Ledesma’s reasoning is flawed. We therefore follow the holding in Ledesma, that section 209(b) is not unconstitutionally vague. California cases on the asportation element of aggravated kidnapping “show broad agreement on both the nature of the inquiry required and the relevant factors to evaluate when deciding whether the facts in a case are sufficient to satisfy the asportation element of the aggravated kidnapping statute.” (Ledesma, supra, 14 Cal.App.5th at p. 839.)

As stated in Ledesma, there are two, interrelated aspects of the asportation requirement: “[M]ovement beyond that which is incidental to the underlying crime and movement that increases the risk of harm to the victim.” (Ledesma, supra, 14 Cal.App.5th at p. 836.) When determining whether the movement is merely incidental to the underlying crime, the jury must consider the “‘“‘scope and nature’ of the movement. [Citation.] This includes the actual distance a victim is moved. However, . . . there is no minimum number of feet a defendant must move a victim in order to satisfy the first prong.” [Citations.] [¶] “The second prong . . . refers to whether the movement subjects the victim to a substantial increase in risk of harm above and beyond that inherent in [the underlying crime]. [Citations.] This includes consideration of such factors as the decreased likelihood of detection, the danger inherent in a victim’s foreseeable attempts to escape, and the attacker’s enhanced opportunity to commit additional crimes. [Citations.]”’” (Ledesma, supra, at p. 836, quoting People v. Martinez (1999) 20 Cal.4th 225, 232-233.)

The court in Ledesma notes that, since modification of section 209(b) in 1997, “appellate courts have routinely assessed the validity of aggravated kidnapping convictions in published decisions without suggestion that the section 209, subdivision (b)(2) asportation requirement is unworkable or too vague to be constitutional.” (Ledesma, supra, 14 Cal.App.5th at p. 836.) Unlike the residual clause in Johnson, supra, 135 S.Ct. 2551, the section 209(b) asportation standard is not too imprecise or unacceptably indeterminate to determine whether the asportation is sufficient for a crime to qualify as an aggravated kidnapping. (Ledesma, supra, at p. 838.) As the court in Ledesma concluded, “[u]nlike the residual clause at issue in Johnson, California’s asportation requirement compels juries and courts to apply a legal standard to real-world facts.” (Ledesma, supra, at p. 838.) We therefore conclude, consistent with Ledesma, that section 209(b) is not unconstitutionally vague.

VII.

STRIKING DEFENDANT’S PRISON PRIORS UNDER SB 136

The parties agree, as does this court, that under SB 136, signed by the Governor on October 8, 2019, and effective January 1, 2020, defendant’s four one-year prison prior enhancements (§ 667.5, subd. (b)) must be stricken and the matter should be remanded for resentencing. The four enhancements include convictions for violating section 246 (shooting at an inhabited dwelling or occupied building or vehicle); former section 12021 (possession of a concealable weapon); former section 12316, subdivision (b)(1) (unlawful possession of ammunition); and Health & Safety Code section 11351.5 (possession of cocaine base for sale). The People agree that none of these prison priors qualify as enhancements under amended section 667.5, subdivision (b), which as amended, only applies to convictions for a sexually violent offense. It is also agreed section 667.5, subdivision (b), as amended, applies retroactively to defendant because his judgment was not final on the amended statute’s operative date. (People v. Brown (2012) 54 Cal.4th 314, 323, citing In re Estrada (1965) 63 Cal.2d 740, 742-748.)

Because defendant’s four one-year prison prior enhancements must be stricken under section 667.5, subdivision (b) and, as discussed in section V of this opinion, this case must also be remanded for the trial court to consider whether to strike defendant’s serious felony prior under SB 1393, this matter shall be remanded for resentencing. (People v. Buycks, supra, 5 Cal.5th at p. 893 [“We have 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.’”].)

VIII.

DISPOSITION

Defendant’s four one-year enhancements must be stricken under recently amended section 667.5, subdivision (b). Therefore, defendant’s sentence is reversed. During resentencing, the trial court is directed to exercise its discretion under SB 1393, to determine whether to reimpose defendant’s prior serious felony enhancement under recently amended sections 667 subdivision (a) and 1385, subdivision (b). The judgment is otherwise affirmed. Following resentencing, the trial court is directed to prepare a new abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

J.

We concur:

McKINSTER

Acting P. J.

MILLER

J.