Filed 1/8/20 P. v. Jefferson CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

DUANE JOSEPH JEFFERSON,

Defendant and Appellant.

H045728

(Monterey County

Super. Ct. No. SS161583)

Defendant Duane Joseph Jefferson was convicted by jury trial of possession of heroin for sale (Health and Saf. Code, § 11351—count one), possession of methamphetamine for sale (Health and Saf. Code, § 11378—count two), possession of a controlled substance while armed (Health and Saf. Code, § 11370.1, subd. (a)—count three), and possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1)—count four). The jury found true allegations that, for counts one and two, defendant was personally armed (§ 12022, subd. (c)), and for all four counts, he acted for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). The trial court found that defendant had suffered two prior convictions that qualified as strikes (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and as prior serious felony convictions (§ 667, subd. (a)), and four prison priors (§ 667.5, subd. (b)). The court sentenced defendant on count one to an indeterminate term of 25 years to life and a determinate term of 17 years, which consisted of a two-year term for the gang enhancement, a three-year term for the gun enhancement, two five-year terms for the prior serious felony enhancements, and two one-year terms for prison priors. The court stayed the sentences on counts two through four under section 654.

On appeal, defendant challenges only his sentence. He argues, and the Attorney General concedes, that his case should be remanded so that the trial court may exercise its discretion to strike the two prior serious felony enhancements. In addition, defendant contends, and the Attorney General also concedes, that his two-year sentence for the gang enhancement must be stayed under section 654. We agree with both contentions and reverse the judgment. On remand, the trial court shall stay the two-year gang enhancement pursuant to section 654 and decide whether to exercise its discretion to strike the prior serious felony enhancements. Defendant additionally argues that the two one-year enhancements imposed for prison priors must be stricken in light of a recent amendment to section 667.5, subdivision (b). We do not address this argument because defendant will necessarily be resentenced.

I. Background

Defendant was a known and admitted member of the Norteno criminal street gang. On September 25, 2016, defendant was wanted on a parole violation after he had cut off his “GPS bracelet” a few days earlier. Officers observed defendant exiting a white Dodge Charger parked in his driveway. As they moved in to arrest him, he ran. During the chase, an object that “appeared to be a firearm or some object fell out of his . . . waistband or pocket.” Officers confronted defendant and tasered him, causing him to fall to the ground, where he was arrested.

At the time of his arrest, defendant was carrying approximately $8,917 in cash, in various denominations. About $5,000 in cash, also in various denominations, was found on the driver’s seat of the Charger. A loaded gun was found along defendant’s flight route. Inside the Charger’s trunk were 439.1 grams of pure methamphetamine and 353.9 grams of uncut heroin, in total worth approximately $100,000. The trunk also contained a “pay-owe sheet,” which included monikers of other Norteno gang members. Defendant’s GPS ankle bracelet was found in his garage.

At sentencing, defendant requested that the trial court strike the prior strike findings under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). He noted that the prior strike convictions qualified as strikes only because they included gang enhancements. He also noted the many “supportive letters” written on his behalf, which reflected his family’s “support” and “respect.” The court declined to strike any of the prior strikes, concluding that defendant was not outside the spirit of the “Three Strikes” law. The court and the parties then had an off-the-record in-chambers discussion to “make sure we’re all on the same page on how to get certain numbers.”

The court proceeded to sentence defendant as follows: (1) for count one, 25 years to life and a 17-year determinate term, consisting of a three-year term for the gun enhancement, a two-year term for the gang enhancement, two five-year terms for the prior serious felony enhancements, and two one-year terms for prison priors; (2) for count two, the same sentence as for count one; (3) for count three, 25 years to life and a 14-year determinate term, with the same enhancements as in count one, except for the gun enhancement; and (4) for count four, the same sentence as for count three. The court stayed the sentences for counts two, three, and four under section 654.

II. Discussion

A. Prior Serious Felony Enhancements

Defendant contends that the case must be remanded to permit the trial court to exercise its discretion to strike the prior serious felony enhancements.

When the trial court imposed the two five-year terms in April 2018 for the prior serious felony enhancements under section 667, subdivision (a), it was statutorily required to do so. (Former § 667, subd. (a).) “On September 30, 2018, the Governor signed Senate Bill [No.] 1393 which, effective January 1, 2019, amend[ed] sections 667(a) and 1385(b) to allow a court to exercise its discretion to strike or dismiss a prior serious felony conviction for sentencing purposes. (Stats. 2018, ch. 1013, §§ 1-2.)” (People v. Garcia (2018) 28 Cal.App.5th 961, 971 (Garcia).)

Under In re Estrada (1965) 63 Cal.2d 740 (Estrada), “[w]hen the Legislature has amended a statute to reduce the punishment for a particular criminal offense, we will assume, absent evidence to the contrary, that the Legislature intended the amended statute to apply to all defendants whose judgments are not yet final on the statute’s operative date. [Citation.]” (People v. Brown (2012) 54 Cal.4th 314, 323, fn. omitted.) “The rule in Estrada has been applied to statutes governing penalty enhancements, as well as to statutes governing substantive offenses. [Citations.]” (People v. Nasalga (1996) 12 Cal.4th 784, 792.) Since nothing in Senate Bill No. 1393 suggests a legislative intent that the amendments to sections 667, subdivision (a), and 1385, subdivision (b), apply only prospectively, “it is appropriate to infer, as a matter of statutory construction, that the Legislature intended Senate Bill [No.] 1393 to apply to all cases to which it could constitutionally be applied, that is, to all cases not yet final when Senate Bill [No.] 1393 becomes effective on January 1, 2019. [Citations.]” (Garcia, supra, 28 Cal.App.5th at p. 973.) Here, defendant’s case was not final on January 1, 2019. (People v. Vieira (2005) 35 Cal.4th 264, 306.)

“ ‘Defendants are entitled to sentencing decisions made in the exercise of the “informed discretion” of the sentencing court. [Citations.]’ ” (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) When the record shows that the trial court proceeded with sentencing on the assumption that it lacked discretion, remand for resentencing is necessary “unless the record ‘clearly indicate[s]’ that the trial court would have reached the same conclusion ‘even if it had been aware that it had such discretion.’ [Citations.]” (Ibid.)

Here, the record does not clearly indicate whether the trial court would have decided to strike either of the prior serious felony enhancements if it had been aware it had such discretion. Although the court refused to dismiss any of the prior strike findings under Romero, it did so in sympathetic terms with respect to defendant’s upbringing and background. The court noted that it “was moved by some of the letters” it had received on defendant’s behalf, and acknowledged that defendant “didn’t have a lot of the opportunities other people might otherwise have had” given “the lifestyle” that he grew up in. However, the court stated that it could not “in good conscience . . . say that [defendant’s] commitment to the Norteno criminal street gang put[] [him] outside the spirit of the [T]hree [S]trikes law.” In addition, after imposing the required 25-year-to-life sentence, the court selected the low terms for the applicable enhancements. (Cf. People v. McVey (2018) 24 Cal.App.5th 405, 419 [refusing to remand where trial court imposed “highest possible term” for firearm enhancement and made “pointed comments on the record” that indicated “no possibility” court would exercise discretion to strike prior serious felony enhancements].) The Attorney General concedes that “because the court showed some leniency at sentencing” and did not clearly indicate it would have refused “to exercise any additional discretion if such discretion existed, remand is appropriate.” Under these circumstances, we agree that remand is required.

B. Section 654

Defendant argues that for count one, the two-year gang enhancement under section 186.22, subdivision (b)(1)(A) must be stayed because its imposition “constitute[d] double punishment” under section 654. This is so, he contends, because the same gang-related conduct that triggered the gang enhancement also elevated the substantive offense of possession of heroin for sale into a “serious felony,” thus triggering an indeterminate sentence of 25 years to life under the Three Strikes law. Because he was punished under the Three Strikes law for his gang-related conduct, defendant asserts that he cannot be punished a second time for the same gang-related conduct under section 186.22, subdivision (b)(1)(A), and thus the two-year gang enhancement must be stayed.

1. Procedural Background

Defendant was convicted in count one of possession of heroin for sale in violation of Health and Safety Code section 11351. The jury found true the allegation that the crime was committed for the benefit of a criminal street gang under section 186.22, subdivision (b)(1). The trial court imposed a two-year term under section 186.22, subdivision (b)(1)(A), which provides for an enhancement term of two, three, or four years when the defendant has been convicted of a felony committed for the benefit of a criminal street gang.

The trial court determined that defendant previously had been convicted of two prior serious or violent felonies within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). Because the jury had found the gang enhancement true, defendant’s current possession of heroin for sale conviction also qualified as a “ ‘serious felony’ ” conviction. (§ 1192.7, subd. (c)(28) [defining “ ‘serious felony’ ” to include “any felony offense, which would also constitute a felony violation of Section 186.22”].)

Under the post-Proposition 36 versions of the Three Strikes Law, it is no longer true that a defendant with two prior strikes will receive an indeterminate Three Strikes life term for any new felony conviction. Instead, under the amended versions of sections 667 and 1170.12, a defendant who has been convicted of two prior strikes is subject to such a sentence only if the current, third felony is itself a serious or violent felony, or if certain enumerated circumstances apply. Thus, if the third felony is not a serious or violent felony and none of the enumerated circumstances applies, a defendant with two prior strikes will be sentenced as a second-strike offender. (People v. White (2014) 223 Cal.App.4th 512, 517.) In other words, prior to the passage of Proposition 36, it was simply a defendant’s status as a recidivist offender and the commission of any additional felony that triggered the 25-year-to-life sentence, while subsequent to its passage, with some limited exceptions, such a sentence is triggered only where the current conduct is serious or violent or satisfies one of the other enumerated circumstances. Consequently, in this case, defendant was subject to a Three Strikes life term not simply due to his recidivism but because of the nature of his current conduct.

2. Analysis

Section 654, subdivision (a), provides: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” Where a term is prohibited under section 654, the proper procedure is to impose and stay the sentence. (People v. Dominguez (1995) 38 Cal.App.4th 410, 420.)

In People v. Ahmed (2011) 53 Cal.4th 156 (Ahmed), the California Supreme Court addressed the application of section 654 when a single act or omission triggers multiple enhancements for a single crime. (Ahmed, at pp. 159, 161-162.) In Ahmed, the defendant shot his girlfriend in the stomach with a handgun. A jury convicted him of assault with a firearm and found true two enhancement allegations: personal use of a firearm (§ 12022.5, subd. (a)) and infliction of great bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)). (Ahmed, at p. 160.) The Court of Appeal ruled that one of the enhancements should have been stayed pursuant to section 654, holding that the statute “bars the imposition of separate enhancements for using a firearm and inflicting great bodily injury because both enhancements were based on the same act—shooting the victim in the stomach.” (Ahmed, at p. 160.)

The Ahmed court reversed and set forth a two-stage analysis for considering when a court may impose multiple enhancements for a single crime. (Ahmed, supra, 53 Cal.4th at pp. 160-161.) “[C]ourts should look first to the statutory language concerning the enhancements to determine how they interact and consider section 654 only if those statutes do not provide the answer.” (Id. at p. 161.) The court explained that statutes will “[o]ften” supply the answer to whether multiple enhancements may be imposed. (Id. at p. 163.) “Because specific statutes prevail over general statutes,” courts “should,” if possible, “apply that answer and stop there.” (Id. at p. 159.) Thus, the Ahmed court examined section 1170.1, subdivisions (f) and (g), which addressed the enhancements at issue, and found that section 1170.1 was intended “to permit the sentencing court to impose both one weapon enhancement and one great-bodily-injury enhancement for all crimes.” (Ahmed, at p. 168.)

“Only if the specific statutes do not provide the answer should the court turn to section 654.” (Ahmed, supra, 53 Cal.4th at p. 163.) The court explained that enhancements require a different section 654 analysis. “[E]nhancements are different from substantive crimes, a difference that affects how section 654 applies to enhancements. Provisions describing substantive crimes, such as the assault with a firearm of this case, generally define criminal acts. But enhancement provisions do not define criminal acts; rather, they increase punishment for those acts. They focus on aspects of the criminal act that are not always present and that warrant additional punishment. [Citations.]” (Ahmed, at p. 163.) “Thus, when applied to multiple enhancements for a single crime, section 654 bars multiple punishments for the same aspect of a criminal act.” (Id. at p. 164.)

The statutes at issue here are section 186.22 and the post-Proposition 36 versions of the Three Strikes law. The Three Strikes law is an alternative sentencing scheme, and such schemes are usually not subject to section 654. (People v. DeSimone (1998) 62 Cal.App.4th 693, 700 [“A penalty provision which relates solely to a defendant’s status as a repeat offender does not punish an ‘act or omission’ and is not subject to section 654.”].) However, in some instances, the application of an alternative sentencing scheme is “functionally equivalent to a conduct enhancement because it focuses on the manner in which the underlying offense was committed, rather than the status of the offender.” (People v. Kelly (2016) 245 Cal.App.4th 1119, 1131 (Kelly).) In Kelly, the Fifth District Court of Appeal found that the one-strike law, an alternative sentencing scheme for sex offenses, was akin to a conduct enhancement when its application depended on the manner of commission of the underlying offense. (Ibid.) The Fifth District therefore proceeded under Ahmed to consider whether the applicable statutes or section 654 barred punishing the defendant under multiple provisions for the same conduct and found that section 654 did. (Kelly, at p. 1131.)

As Ahmed instructed, we begin by examining the statutes at issue to determine whether they resolve the multiple punishment issue. First, we consider section 186.22, subdivision (b)(1)(A), which in its current form was enacted by the voters as part of Proposition 21, the “Gang Violence and Juvenile Crime Prevention Act.” “[Proposition 21] amended section 186.22, subdivision (b)(1), to punish gang-related felonies with two, three, or four years in prison, except if the felony was serious, as defined by subdivision (c) of section 1192.7.” (People v. Arroyas (2002) 96 Cal.App.4th 1439, 1448 (Arroyas).) Proposition 21 also “added several new felony violations to the list of serious felonies in section 1192.7, subdivision (c), including section 1192.7(c)(28), which makes ‘any felony offense, which would also constitute a felony violation of Section 186.22,’ a serious felony.” (People v. Briceno (2004) 34 Cal.4th 451, 458 (Briceno).) “Proposition 21 was enacted to combat gang crime.” (Robert L. v. Superior Court (2003) 30 Cal.4th 894, 905 (Robert L.).) The electorate’s intent in enacting Proposition 21 was “to punish all gang crime more severely . . . .” (Robert L., at p. 907.)

“ ‘In interpreting a voter initiative . . . we apply the same principles that govern statutory construction. [Citation.] Thus, “we turn first to the language of the statute, giving the words their ordinary meaning.” [Citation.] The statutory language must also be construed in the context of the statute as a whole and the overall statutory scheme [in light of the electorate’s intent]. [Citation.] When the language is ambiguous, “we refer to other indicia of the voters’ intent, particularly the analyses and arguments contained in the official ballot pamphlet.” [Citation.]’ [Citation.] In other words, ‘our primary purpose is to ascertain and effectuate the intent of the voters who passed the initiative measure.’ [Citation.]” (Briceno, supra, 34 Cal.4th at p. 459.)

Nothing in the language of section 186.22, subdivision (b) or its related provisions allows us to “discern a legislative intent” by the voters to permit or exclude application of the gang enhancement when the same conduct that triggered the gang enhancement also provides the basis for punishment under the Three Strikes law. (Ahmed, supra, 53 Cal.4th at p. 168.) “The only relevant statement of intent” is found in “section 37 of [Proposition 21].” (Arroyas, supra, 96 Cal.App.4th at p. 1448.) “That section states that ‘if any provision in this act conflicts with another section of law which provides for a greater penalty or longer period of imprisonment that the latter provision shall apply, pursuant to Section 654 of the Penal Code.’ [Citation.] This statement voices the intent of the people that gang-related crimes receive enhancement punishment, but voices no intent that a defendant receive double punishment because his or her crime fell within the scope of two statutes. Rather, section 37 of the proposition advises that where a crime does fall within the scope of two statutes, only the statute yielding the longer period of punishment should apply.” (Ibid.) Overall, this statement of intent suggests that the voters intended that when gang-related conduct is punishable under two different provisions only the “longer period of imprisonment . . . shall apply.” (Ibid.) On the other hand, former section 667, subdivision (e) and former section 1170.12, subdivision (c) provided that a Three Strikes sentence “shall apply” “in addition to any other enhancements or punishment provisions which may apply . . . .”

Since a review of the language of the statutes does not unambiguously resolve whether both punishment provisions should be applied here, under Ahmed, the next step is to apply section 654. Here, as in Kelly, it was defendant’s gang-related conduct, specifically his possession for sale of heroin for the benefit of a criminal street gang, that triggered both the 25-year-to-life sentence under the Three Strikes law and the gang enhancement under section 186.22, subdivision (b)(1)(A). Section 654 applies where two provisions provide punishment for the same conduct. That is true here. The punishment provisions of the Three Strikes law and section 186.22, subdivision (b) punish the same aspect of the crime—the gang-related nature of the underlying offense. Accordingly, the trial court should have stayed the two-year sentence for the gang enhancement under section 654.

C. Prison Prior Enhancements

Defendant argues that the two one-year enhancements imposed for prison priors must be stricken in light of a recent amendment to section 667.5, subdivision (b). On October 8, 2019, the Governor signed Senate Bill No. 136, which amended section 667.5, subdivision (b) to eliminate the enhancement for prior prison terms, except for prison terms served for a sexually violent felony. Defendant contends that under In re Estrada (1965) 63 Cal.2d 740, the statutory amendment applies retroactively to his case because his conviction is not yet final. Because defendant will necessarily be resentenced, we need not consider this issue.

III. Disposition

The judgment is reversed, and the matter is remanded for resentencing. On remand, the trial court shall (1) stay under section 654 the sentence imposed for the gang enhancement in count one, and (2) consider whether to exercise its discretion pursuant to section 1385 to strike one or both of defendant’s section 667, subdivision (a) enhancements.

_______________________________

Mihara, J.

WE CONCUR:

_____________________________

Elia, Acting P.J.

_____________________________

Bamattre-Manoukian, J.

People v. Jefferson

H045728