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classifying enhancements under § 11370.2 as "status enhancements"
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No. E049845.
May 24, 2011. [CERTIFIED FOR PARTIAL PUBLICATION]
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of part 2. of the Legal Analysis.
Appeal from the Superior Court of San Bernardino County, Nos. FWV900326 and FWV901833, Christopher B. Marshall, Judge.
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., Karl T. Terp and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Defendant Jean Marie Edwards appeals the sentence imposed following her plea of no contest in two cases. She contends that the trial court erred in imposing sentence enhancements more than once. She also contends that an amendment to Penal Code section 4019, which would result in additional credit for time served before sentencing, should apply retroactively.
We conclude that the trial court erred with respect to the imposition of sentence enhancements pursuant to Health and Safety Code section 11370.2 and Penal Code section 667.5. We will remand both cases for resentencing, but will otherwise affirm the judgments.
Defendant has also filed a petition for writ of habeas corpus ( In re Edwards (May 24, 2011) E050750), which we have considered with this appeal. We dispose of the habeas corpus petition by separate order.
PROCEDURAL HISTORY 1. CASE NO. FWV900326
Because defendant pleaded no contest, we omit discussion of the facts underlying the convictions.
On September 1, 2009, in an open plea agreement, defendant entered a plea of no contest to all counts and allegations. The court advised her that her maximum exposure was 47 years eight months to life.
On November 20, 2009, defendant was sentenced to a total prison term of 17 years eight months. The court selected count 4, transportation of heroin, as the principal count, and imposed the upper term of five years, plus nine years for the three prior drug conviction enhancements alleged with respect to count 4. The court imposed a consecutive term of eight months on count 1. On counts 2, 3, and 5, the court imposed concurrent terms plus nine years for the prior drug conviction enhancements on each count but stayed the entire term on each of those counts pursuant to Penal Code section 654. Finally, the court imposed three years for the three prior prison term enhancements.
The abstract of judgment does not reflect the court's oral pronouncement that the prior drug conviction enhancements were imposed per count. The abstract of judgment shows that one enhancement pursuant to Health and Safety Code section 11370.2, subdivision (a) and two enhancements pursuant to Health and Safety Code section 11370.2, subdivision (c) were imposed, and that three additional enhancements pursuant to subdivision (a) of that section were stayed.
2. CASE NO. FWV901833
On July 17, 2009, defendant was charged by felony complaint with possession of methamphetamine in a jail facility. (Pen. Code, § 4573.6.) The complaint also alleged that defendant had served three prior prison terms. (Pen. Code, § 667.5, subd. (b).)On July 23, 2009, defendant pleaded not guilty. On August 28, 2009, she waived her right to a preliminary hearing, and the case was set to trail case No. FWV900326.
On September 1, 2009, defendant changed her plea to no contest and was advised that her maximum exposure was seven years.
On November 20, 2009, defendant was sentenced to one year (one-third the midterm of three years) for the offense, to run consecutive to the sentence imposed in case No. FWV900326, and to a consecutive term of one year for each of the three prior prison term enhancements.
On December 7, 2009, defendant filed a notice of appeal in both cases, requesting a certificate of probable cause. The certificate of probable cause was issued on December 10, 2009.
The issues as to which the certificate of probable cause was issued are not raised on appeal.
LEGAL ANALYSIS 1. SENTENCING ERRORS MANDATE REVERSAL AND REMAND FOR RESENTENCING A. Introduction
In case No. FWV900326, the information alleged the same three drug-related prior convictions as enhancements to counts 2 and 3 pursuant to Health and Safety Code section 11370.2, subdivision (c) and as enhancements to counts 4 and 5 pursuant to Health and Safety Code section 11370.2, subdivision (a). The court imposed three enhancements each as to counts 2, 3, 4 and 5, staying the enhancements on all but count 4, which was the principal count. Defendant contends that the section 11370.2 enhancements are "status" enhancements which can be imposed only once, on the aggregate sentence. Consequently, she contends, the court was required to strike the enhancements which were alleged in connection with counts 2, 3 and 5 rather than imposing and staying them.The Attorney General initially agreed. However, noting that the parties did not discuss whether there was any significance to the fact that enhancements were pleaded pursuant to both subdivision (a) and subdivision (c) of section 11370.2, we asked the parties to brief the following question: "[C]ounts 4 and 5 are subject to enhancement pursuant to Health and Safety Code section 11370.2, subdivision (a), while counts 2 and 3 are subject to enhancement pursuant to Health and Safety Code section 11370.2, subdivision (c). Both subdivisions provide for a mandatory consecutive three-year term upon conviction of a qualifying offense. Was the trial court therefore required to impose unstayed enhancements pursuant to both subdivisions?"
In her supplemental brief, defendant maintained that even though the particular charged offenses mandated alleging the prior drug conviction enhancements under both subdivisions (a) and (c) of section 11370.2, an enhancement for each prior conviction could be imposed only once. The Attorney General contended that the section 11370.2 enhancements are not pure status enhancements which apply only once to the aggregate term, but rather are a hybrid form of enhancement which, although based on defendant's status as a recidivist, apply on a count-by-count basis. Consequently, he contends, the trial court was required to impose unstayed enhancements under both subdivisions (a) and (c). He did not, however, discuss whether the court had the authority pursuant to Penal Code section 654 to stay the enhancements imposed as to counts 2, 3 and 5, or whether the enhancements would run concurrently with the principal term, along with the base terms imposed on counts 2, 3 and 5.
As we discuss, we conclude that the section 11370.2 enhancements are status enhancements, which can be imposed only once, as part of the aggregate sentence. However, because of the structure of section 11370.2, we conclude that the Legislature intended that multiple enhancements can be imposed for the same prior convictions, if there are current multiple counts of conviction as to which different subdivisions of section 11370.2 apply.
B. Section 11370.2 Provides for Multiple Enhancements
Sentence enhancements are generally of two types: those which go to the nature or status of the offender, and those which go to the nature or circumstances of the offense. ( People v. Coronado (1995) 12 Cal.4th 145, 156 [ 48 Cal.Rptr.2d 77, 906 P.2d 1232].) An enhancement which is based on the defendant's conduct in committing the charged offense, such as the personal use of a weapon or the infliction of great bodily harm, is imposed on the count to which it applies. ( Id. at p. 157.) Enhancements based on prior convictions are status enhancements. Because they are related to the status of the offender, rather than the manner of commission of a crime, they are applied only once, in arriving at an aggregate sentence. ( Ibid.; People v. Williams (2004) 34 Cal.4th 397, 402 [ 19 Cal.Rptr.3d 619, 98 P.3d 876]; Pen. Code, § 1170.1.)
Penal Code section 1170.1, subdivision (a) provides: "Except as otherwise provided by law, and subject to Section 654, when any person is convicted of two or more felonies, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same or by a different court, and a consecutive term of imprisonment is imposed under Sections 669 and 1170, the aggregate term of imprisonment for all these convictions shall be the sum of the principal term, the subordinate term, and any additional term imposed for applicable enhancements for prior convictions, prior prison terms, and Section 12022.1. The principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes, including any term imposed for applicable specific enhancements. The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses."
The enhancements provided for in section 11370.2 are status enhancements, in that they pertain to defendant's status as a drug conviction recidivist. ( People v. Tillotson (2007) 157 Cal.App.4th 517, 542 [ 69 Cal.Rptr.3d 42].) Section 11370.2 provides, in pertinent part:
"(a) Any person convicted of a violation of, or of a conspiracy to violate, Section 11351, 11351.5, or 11352 shall receive, in addition to any other punishment authorized by law, including Section 667.5 of the Penal Code, a full, separate, and consecutive three-year term for each prior felony conviction of, or for each prior felony conviction of conspiracy to violate, Section 11351, 11351.5, 11352, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380, 11380.5, or 11383, whether or not the prior conviction resulted in a term of imprisonment.
"(b) Any person convicted of a violation of, or of a conspiracy to violate, Section 11378.5, 11379.5, 11379.6, 11380.5, or 11383 shall receive, in addition to any other punishment authorized by law, including Section 667.5 of the Penal Code, a full, separate, and consecutive three-year term for each prior felony conviction of, or for each prior felony conviction of conspiracy to violate, Section 11351, 11351.5, 11352, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380, 11380.5, or 11383, whether or not the prior conviction resulted in a term of imprisonment.
"(c) Any person convicted of a violation of, or of a conspiracy to violate, Section 11378 or 11379 with respect to any substance containing a controlled substance specified in paragraph (1) or (2) of subdivision (d) of Section 11055 shall receive, in addition to any other punishment authorized by law, including Section 667.5 of the Penal Code, a full, separate, and consecutive three-year term for each prior felony conviction of, or for each prior felony conviction of conspiracy to violate, Section 11351, 11351.5, 11352, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380, 11380.5, or 11383, whether or not the prior conviction resulted in a term of imprisonment."
Although the prior felonies listed in all three subdivisions are the same, each subdivision applies to different current offenses: sections 11351, 11351.5 and 11352 (subd. (a)); sections 11378.5, 11379, 11379.5, 11379.6, 11380.5 and 11383 (subd. (b)); sections 11378 and 11379 with respect to any substance containing a controlled substance specified in paragraph (1) or (2) of subdivision (d) of section 11055 (subd. (c)). And, each subdivision mandates imposition of the enhancement upon conviction of a qualifying offense, without limitation. The language of a statute is the most reliable indicator of legislative intent. ( People v. Brookfield (2009) 47 Cal.4th 583, 592 [ 98 Cal.Rptr.3d 535, 213 P.3d 988].) If the language is unambiguous, we must apply it without resort to extrinsic sources to determine the Legislature's intent. ( People v. Traylor (2009) 46 Cal.4th 1205, 1212 [ 96 Cal.Rptr.3d 277, 210 P.3d 433].) In this respect, the language of section 11370.2 is unambiguous. (7) Consequently, we conclude that the Legislature intended each subdivision to apply independently of the others, meaning that if a defendant is convicted of a violation of a qualifying offense under subdivision (a) and is also convicted of a qualifying offense under either subdivision (b) or subdivision (c), his or her sentence is to be enhanced under both subdivisions. Accordingly, in this case, where two of defendant's current convictions are for offenses specified in subdivision (a) and two are for offenses specified in subdivision (c) of section 11370.2, the court was required to impose on the aggregate term three 3-year enhancements per prior conviction pursuant to each subdivision.
Defendant was convicted of transporting methamphetamine in count 2 and of possession of methamphetamine for sale in count 3, in violation of sections 11379 and 11378, respectively. Methamphetamine is the controlled substance specified in section 11055, subdivision (d)(2).
Section 11370.2 is arguably ambiguous in one respect, however: By providing for three different sets of qualifying offenses in three separate subdivisions and providing that a conviction of any of the qualifying offenses mandates imposition of an enhancement, the statute at least arguably provides for imposition of the enhancements on each count in which the defendant is convicted of a qualifying felony, as the Attorney General contends in his supplemental brief. However, the same is true of Penal Code section 667, subdivision (a). That section, which mandates imposition of a five-year enhancement for each prior serious felony conviction when the defendant is convicted of a serious felony, should arguably apply to each new serious felony count of conviction. However, in People v. Williams, supra, 34 Cal.4th 397, the Supreme Court held that, pursuant to Penal Code section 1170.1, subdivision (a), the enhancement applies only once, even if the defendant is convicted of multiple serious felonies. ( People v. Williams, supra, at pp. 401-402.) Consequently, in the absence of any express intention to create an exception to the rule that status enhancements apply only once, regardless of the number of counts of conviction, we must presume that the Legislature did not intend that section 11370.2 enhancements attach to each qualifying count.
In People v. Tillotson, supra, 157 Cal.App.4th 517, the court held that the section 11370.2 enhancements are based on the defendant having suffered a prior conviction and are therefore status enhancements. Consequently, it held, each enhancement could be imposed only once, not once per count. ( 152 Cal.App.4th at p. 542.) However, the Attorney General conceded the point in that case, and the court did not analyze the contention the Attorney General has presented in this case.
C. The Prior Prison Term Enhancements Apply Only to the Aggregate Sentence
The charging documents in both cases alleged the same three prior prison terms as enhancements under Penal Code section 667.5, subdivision (b). Defendant contends that because the sentence in case No. FWV901833 was made consecutive to the sentence in case No. FWV900326, each prior prison term enhancement could be applied only once, to the total sentence. The Attorney General agrees, and so do we.Prior prison term enhancements are status enhancements which can be imposed only once, on the aggregate sentence. ( People v. Williams, supra, 34 Cal.4th at p. 402.) Here, the sentence in case No. FWV901833 was made consecutive to the sentence in case No. FWV900326, creating a single aggregate term. (Cal. Rules of Court, rule 4.452.)
California Rules of Court, rule 4.452 provides, in pertinent part, "If a determinate sentence is imposed under [Penal Code] section 1170.1(a) consecutive to one or more determinate sentences imposed previously in the same court or in other courts, the court in the current case must pronounce a single aggregate term, as defined in [Penal Code] section 1170.1(a), stating the result of combining the previous and current sentences. In those situations: [?] (1) The sentences on all determinately sentenced counts in all of the cases on which a sentence was or is being imposed must be combined as though they were all counts in the current case."
Consequently, the prior prison term enhancements could not be imposed in both cases.
D. The Proper Remedy Is to Reverse and Remand Both Matters for Resentencing
If correction of a sentencing error may affect the trial court's discretionary decisions in determining an appropriate sentence, the remedy is to reverse and remand for resentencing. ( People v. Rodriguez (2009) 47 Cal.4th 501, 509, 510 [ 98 Cal.Rptr.3d 108, 213 P.3d 647].) Here, because our decision significantly affects the sentences in both cases, it is appropriate to remand for resentencing.
2. PENAL CODE SECTION 4019, AS AMENDED EFFECTIVE JANUARY 25, 2010, DOES NOT APPLY
See footnote, ante, page 1051.
The appellate courts are divided on the question of the retroactivity of the amendment to section 4019. The issue is currently under review before the California Supreme Court in a number of cases, including one case emanating from this court. In that case, People v. Otubuah, supra, 184 Cal.App.4th 422, we concluded that the amendment applies prospectively only. Until the issue is decided by the California Supreme Court, we continue to take that view, for the following reasons.
The First, Second, and Third District Courts of Appeal have held that the amendment to section 4019 applies retroactively. ( People v. Landon (2010) 183 Cal.App.4th 1096 [First Dist., Div. Two], review granted June 23, 2010, S182808; People v. Norton (2010) 184 Cal.App.4th 408 [First Dist., Div. Three], review granted Aug. 11, 2010, S183260; People v. Pelayo (2010) 184 Cal.App.4th 481 [First Dist., Div. Five], review granted July 21, 2010, S183552; People v. House (2010) 183 Cal.App.4th 1049 [Second Dist., Div. One], review granted June 23, 2010, S182813; People v. Brown (2010) 182 Cal.App.4th 1354 [Third Dist.], review granted June 9, 2010, S181963.) The Fourth, Fifth, and Sixth Districts have held that the amendment applies prospectively. ( People v. Hopkins (2010) 184 Cal.App.4th 615 [Sixth Dist.], review granted July 28, 2010, S183724; People v. Otubuah (2010) 184 Cal.App.4th 422 [Fourth Dist., Div. Two], review granted July 21, 2010, S184314; People v. Rodriguez (2010) 183 Cal.App.4th 1 [Fifth Dist.], review granted June 9, 2010, S181808.)
Penal Code section 3 provides that the Penal Code shall not have retroactive effect unless expressly so declared. "Thus, `"[a] new statute is generally presumed to operate prospectively absent an express declaration of retroactivity or a clear and compelling implication that the Legislature intended otherwise. [Citation.]"` [Citation.]" ( People v. Landon, supra, 183 Cal.App.4th at p. 1106, quoting People v. Alford (2007) 42 Cal.4th 749, 753.) The Supreme Court in In re Estrada (1965) 63 Cal.2d 740, 744-745 ( Estrada), created an exception to the Penal Code section 3 presumption of prospective application. In Estrada, the court considered whether a statute mitigating punishment for escape should be applied retroactively to a defendant who escaped before the effective date of the mitigating statute. The statute was silent as to retroactive application. ( Estrada, at p. 744.) According to Estrada, a statutory amendment reducing punishment for a crime or changing procedure in favor of a defendant should be given retroactive effect as to cases that have not reached final judgment. ( Estrada, at pp. 744-745.)
We recognize that because the Supreme Court has granted review in all published decisions addressing this question, those cases are not citable as authority on the issue. (Cal. Rules of Court, rules 8.1105(e)(1), 8.1115(a).) We include discussion of some of the review-granted cases merely to illustrate the debate as it has evolved and to illuminate our reasoning in continuing to adhere to our position that the amendment applies prospectively.
"Cases in which judgment is not yet final include those in which a conviction has been entered and sentence imposed but an appeal is pending when the amendment becomes effective. [Citations.]" ( In re N.D. (2008) 167 Cal.App.4th 885, 891.)
In reaching its holding, the Estrada court explained: "When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply. The amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final. This intent seems obvious, because to hold otherwise would be to conclude that the Legislature was motivated by a desire for vengeance, a conclusion not permitted in view of modern theories of penology." ( Estrada, supra, 63 Cal.2d at p. 745.) Thus, "where the amendatory statute mitigates punishment and there is no saving clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed." ( Id. at p. 748.)
Relying on Estrada, in People v. Doganiere (1978) 86 Cal.App.3d 237, 240 (Fourth Dist., Div. Two), we held that amendments to Penal Code section 2900.5, which provided that section 4019 conduct credits are to be applied to the sentence ultimately imposed, were retroactive. (See also People v. Hunter (1977) 68 Cal.App.3d 389, 393 [amendment to Pen. Code, § 2900.5 to credit probation jail time to sentence, when probation is revoked, is retroactive].) This holding was based on the premise that there is no legal distinction between decreasing the maximum sentence for a crime and increasing presentence credits because both mitigate punishment. (See People v. House, supra, 183 Cal.App.4th at p. 1057; People v. Hunter, supra, at p. 393.) But despite numerous cases applying Estrada, the California Supreme Court has not held that increases to the custody credit scheme constitute mitigation of punishment. Rather, our Supreme Court has consistently characterized the custody credit scheme as a means of encouraging and rewarding good behavior. ( People v. Brown (2004) 33 Cal.4th 382, 405; People v. Sage (1980) 26 Cal.3d 498, 510 (conc. dis. opn. of Clark, J.); People v. Saffell (1979) 25 Cal.3d 223, 233.)
Furthermore, because conduct credits are intended to motivate good behavior, the section 4019 amendment, which increases the credit accrual rate, does not represent a determination that a prior punishment is too severe. (See People v. Rodriguez, supra, 183 Cal.App.4th at p. 9 ["it cannot be said that the punishment-reducing amendment at issue here `obviously' evinces a legislative determination that sentences for some felons are too severe, or that the Legislature intended a reduction in sentence for some felons should be extended to all to whom it lawfully can be extended"].) We thus conclude that the Estrada exception to prospective application of a new or amended statute does not apply, and there is no presumptive retroactivity. (See In re Kapperman (1974) 11 Cal.3d 542, 546; see also People v. Otubuah, supra, 184 Cal.App.4th at p. 436.)
We conclude, as we did in People v. Otubuah, supra, 184 Cal.App.4th at page 436, that, "[h]aving searched for a legislative intent regarding prospective or retroactive application, we agree with the Fifth District that `there is no "`clear and compelling implication'" [citation] that the Legislature intended the amendatory statute at issue to apply retroactively. Accordingly, the [Penal Code] section 3 presumption is not rebutted.' ([ People v.] Rodriguez, supra, [ 183 Cal.App.4th 1, 13]; see also In re E.J., supra, 47 Cal.4th at p. 1272 [`"[I]n the absence of an express retroactivity provision, a statute will not be applied retroactively unless it is very clear from extrinsic sources that the Legislature or the voters must have intended a retroactive application."`].)"
As the court in People v. Hopkins, supra, 184 Cal.App.4th 615, recently explained in support of its holding that the section 4019 amendment applies prospectively only: "Senate Bill No. 3X 18 (2009-2010 3d Ex. Sess.) (Senate Bill No. 18), the legislation which amended section 4019, was enacted in order to address the state's fiscal emergency, as proclaimed by Governor Schwarzenegger in December 2008. (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 62.) By increasing the amount of credits available to certain inmates, qualifying inmates' terms will be shortened and prison populations reduced, resulting in reduced costs to the state. Obviously, if the amendment to section 4019 operated retroactively it would result in greater savings to the state, since more inmates would be eligible to have their prison terms reduced. It does not follow, however, that applying the amendment prospectively is inconsistent with the Legislature's goal. Prospective application of the amendment also results in savings; it simply results in less savings than would retroactive application. Therefore, we do not think that the Legislature's intent to reduce prison expenditures is particularly instructive on the issue of retroactivity. It certainly cannot be conflated into a determination, as in Estrada, that the original punishment for a particular crime was too severe and that a lesser punishment was more appropriate. `Rather, because the express purpose of Senate Bill [No.] 18 was to address the state's fiscal emergency, it is also plausible the Legislature determined the following: The persons whose sentences will be reduced under the section 4019 amendment are just as culpable and deserving of punishment as they were before the amendment; after all, there has been no legislative determination that the offenses for which those persons were sentenced should be punished less severely.' [Citation.]" ( People v. Hopkins, supra, at p. 625, quoting in part People v. Rodriguez, supra, 183 Cal.App.4th at p. 9.) The court in Hopkins thus concluded the rule laid out in Estrada was not applicable "because the amendment to section 4019 does not necessarily lessen a defendant's punishment. Instead, it allows only for additional conduct credit, which must be earned, as opposed to additional custody credit which is awarded to a defendant simply because he or she is in presentence custody. Applying the amendment to section 4019 retroactively would not advance the statute's purpose of rewarding good behavior while in presentence custody, since it is impossible to influence behavior after it has occurred." ( People v. Hopkins, supra, 184 Cal.App.4th at p. 625, fn. omitted, citing People v. Rodriguez, supra, 183 Cal.App.4th 1.)
Accordingly, we conclude that the amendment to section 4019 applies prospectively and that defendant is not entitled to an increase in her custody credits.
DISPOSITION
The judgments in cases Nos. FWV900326 and FWV901833 are reversed as to the sentences only, and are otherwise affirmed. The causes are remanded to the superior court for resentencing in accordance with the views expressed in this opinion.
Richli, J., and Miller, J., concurred.