Filed 1/8/20 P. v. Wardzala 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

JOHN LAWRENCE WARDZALA,

Defendant and Appellant.

H046149

(Santa Clara County

Super. Ct. No. C1104912)

After the trial court resentenced defendant John Lawrence Wardzala pursuant to Proposition 47 (Pen. Code, § 1170.18), he appeals. He contends: (1) the matter must be remanded to allow the trial court to exercise its discretion to strike the prior serious felony convictions (§ 667, subd. (a)) for sentencing purposes; and (2) the abstract of judgment must be modified to reflect the number of credits awarded by the trial court. We reverse.

I. Statement of the Case
II.
Following a court trial in August 2012, defendant was convicted of first degree burglary (§§ 459, 460, subd. (a) – count 1) and receiving stolen property (§ 496, subd. (a) – count 2). The trial court also found true the allegations that defendant had three prior strike convictions (§§ 667, subd. (b), 1170.12, subd. (c)(1)) and two prior serious felony convictions (§ 667, subd. (a)), and had served one prior prison term (§ 667.5, subd. (b)). In January 2013, the trial court sentenced defendant to a term of 25 years to life for count 1 and a concurrent prison term of 25 years to life for count 2. The sentence for count 2 was stayed pursuant to section 654. The trial court also imposed a consecutive 10-year term for the prior serious felony convictions. This court affirmed the judgment. (People v. Wardzala (Dec. 15, 2014, H039227 [nonpub. opn.].) On February 25, 2015, the California Supreme Court denied review. (People v. Wardzala (Feb. 25, 2015, S223858 [nonpub. opn.].) This court issued the remittitur on February 26, 2015.

On February 27, 2015, defendant filed a petition for resentencing pursuant to section 1170.18, subdivision (a). On April 28, 2016, the trial court denied the petition on the ground that he was disqualified for resentencing, because he was serving a life sentence under the “Three Strikes” law. This court reversed the order denying the petition for resentencing and remanded the matter for a determination of whether resentencing defendant “would pose an unreasonable risk of danger to public safety.” (§ 1170.18, subd. (b).) (People v. Wardzala (Mar. 19, 2018, H043564 [nonpub. opn.].)

On July 20, 2018, the trial court granted the resentencing petition after concluding that there was no risk to public safety in resentencing defendant, because it would not affect the total term that he was serving. The trial court recalled the original sentence, declared count 2 a misdemeanor, and imposed a six-month jail term, which was stayed pursuant to section 654. The trial court sentenced defendant to 25 years to life for count 1 and a consecutive 10-year term for the prior serious felony convictions.

On August 30, 2018, defendant filed a timely notice of appeal.

III. Discussion
IV.
A. Finality of Judgment
B.
When defendant was originally sentenced in 2013, subdivision (b) of section 1385 provided: “[t]his section does not authorize a judge to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667.” In September 2018, the Governor signed Senate Bill No. 1393, which was effective January 1, 2019. This legislation amended sections 667, subdivision (a) and 1385, subdivision (b) to afford the trial court the opportunity to exercise its discretion to 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, “[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.) Since nothing in Senate Bill No. 1393 suggests a legislative intent that the amendments, apply prospectively only, “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.)

A judgment is final “ ‘where the judgment of conviction was rendered, the availability of appeal exhausted, and the time for petition for certiorari had elapsed . . . .’ [Citations.]” (People v. Kemp (1974) 10 Cal.3d 611, 614.) The time to file a petition for a writ of certiorari in the United States Supreme Court is 90 days after judgment is entered by a state court of last resort or discretionary review is denied by a state court of last resort. (U.S. Supreme Ct. Rules, rule 13.1.)

The Attorney General argues that the judgment of conviction and the sentence in the present case became final on May 26, 2015, which was 90 days after February 25, 2015, the date on which the California Supreme Court denied review. Thus, he argues that the judgment became final approximately three and a half years before the effective date of Senate Bill No. 1393.

Defendant argues that the judgment was not final on that date, because he brought a resentencing petition under section 1170.18 prior to May 26, 2015. After the trial court granted the petition, it ordered his original sentence recalled and resentenced him in July 2018. Defendant thus reasons that since the judgment was not final when he was resentenced and he has filed an appeal, he may now seek remand to allow the trial court to exercise its discretion to consider whether to strike the additional punishment for one or both of the prior serious felony convictions. We agree with defendant.

To support his position, defendant first notes that a defendant may file a petition for resentencing under both Propositions 47 and 36 (Three Strikes Reform Act of 2012; § 1170.126) regardless of whether his or her original sentence is “final.” Pursuant to Proposition 47, “[a] person who, on November 5, 2014, was serving a sentence for a conviction, . . . of a felony or felonies who would have been guilty of a misdemeanor under the act . . . had this act been in effect at the time of the offense may petition for a recall of sentence . . . to request resentencing . . . .” (§ 1170.18, subd. (a).) Similarly, Proposition 36, provides that “[a]ny person serving an indeterminate term of life imprisonment . . . may file a petition for a recall of sentence . . . to request resentencing . . . .” (§ 1170.126, subd. (b).)

Defendant then analogizes the present case to People v. Hubbard (2018) 27 Cal.App.5th 9 (Hubbard), which involved resentencing under Proposition 36.

In Hubbard, supra, 27 Cal.App.5th 9, the defendant was convicted of attempted robbery and felony reckless evasion and sentenced to a Three Strikes term as to both counts in 1996. (Hubbard, at p. 11.) In 1999, the Hubbard court affirmed his conviction. (Ibid.) In 2012, the trial court denied the defendant’s petition for resentencing under section 1170.126, because he was also serving a Three Strikes sentence for a disqualifying serious felony, the attempted robbery count. The Hubbard court affirmed. (Hubbard, at p. 11.) The California Supreme Court granted review and remanded the matter for reconsideration of resentencing on the reckless evasion count. The Hubbard court reversed and remanded for a determination as to whether the defendant presented “ ‘an unreasonable risk of danger to the public if resentenced.’ [Citation.]” (Ibid.).

The defendant argued on remand that he was also entitled to discretionary relief under section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497. (Hubbard, supra, 27 Cal.App.5th at p. 11.) The prosecutor conceded that the defendant was not an unreasonable risk of danger to the public and that he was not ineligible for resentencing on the reckless evasion count. (Ibid.) But the prosecutor opposed the Romero motion and argued that the trial court had previously denied the motion. The prosecutor also argued that the trial court lacked jurisdiction to reconsider all of its sentencing choices. (Hubbard, at p. 11.) The trial court found that the defendant was eligible for resentencing on the reckless evasion count, but concluded it lacked jurisdiction to resentence the defendant as to the attempted robbery count. (Id. at p. 12.)

The Hubbard court concluded that “ ‘ “[w]hen a case is remanded for resentencing by an appellate court, the trial court is entitled to consider the entire sentencing scheme. Not limited to merely striking illegal portions, the trial court may reconsider all sentencing choices. [Citations.]” ’ ” (Hubbard, supra, 27 Cal.App.5th at p. 13.) The Hubbard court also noted that our Supreme Court cited the “ ‘full resentencing rule’ ” with approval in People v. Buycks (2018) 5 Cal.5th 857, 893-895 “in determining that, when a person is eligible for resentencing under section 1170.18, subdivision (a), the trial court must ‘resentence the defendant generally and must therefore reevaluate the continued applicability of any enhancement based on a prior felony conviction.’ ” (Hubbard, at p. 13.)

The case before us is procedurally similar to Hubbard. After the judgment of conviction was affirmed, and before the time for petitioning for a writ of certiorari had elapsed, defendant brought a petition for resentencing under section 1170.18 in February 2015. After the petition was denied, this court reversed and remanded the case in March 2018. The trial court recalled the original sentence and resentenced defendant. This appeal followed. Thus, the judgment was not final when Senate Bill No. 1393 went into effect in January 2019. Accordingly, the case must be reversed to allow the trial court to exercise its discretion to strike the prior serious felony convictions (§ 667, subd. (a)) for sentencing purposes.

B. Abstract of Judgment

Defendant contends, and the Attorney General concedes, that the abstract of judgment incorrectly states the number of credits that the trial court awarded.

The trial court stated: “The defendant had presentence credits of 652 actual, 97 pursuant to 2933.1 for a total of 749 days of presentence credits. I calculated the defendant’s post-sentence actual custody credits, that’s since the original sentencing date of January 18, 2013, he has 2,010 days of actual credits and CDCR will calculate the conduct credits for that period pursuant to Penal Code section 2933.1.” However, the abstract of judgment records 749 days of total credits, which consists of 652 actual days and 97 days of local conduct credit.

In People v. Buckhalter (2001) 26 Cal.4th 20, the California Supreme Court concluded that after the trial court had modified a defendant’s sentence on remand, it “was obliged, in its new abstract of judgment, to credit him with all actual days he had spent in custody, whether in jail or prison, up to that time. As we have seen, the court’s duty in this respect arose from section 2900.1, which specifies that when a sentence is modified while in progress, the ‘time’ already served ‘shall be credited upon any subsequent sentence [the defendant] may receive upon a new commitment for the same criminal act or acts.’ ” (Id. at p. 37.) Here, since the abstract of judgment shows only the credits that accrued before the original sentencing, it must be modified to reflect the total number of days that the trial court awarded.

V. Disposition
VI.
The judgment is reversed. The matter is remanded to allow the trial court to exercise its discretion to strike the prior serious felony convictions (§ 667, subd. (a)) for sentencing purposes. The trial court is also directed to correct the abstract of judgment to reflect all custody credits to which defendant is entitled and to forward a certified copy to the California Department of Corrections and Rehabilitation.

_______________________________

Mihara, J.

WE CONCUR:

______________________________

Elia, Acting P. J.

______________________________

Bamattre-Manoukian, J.

People v. Wardzala

H046149