Opinion
F078834 F078922
08-30-2021
THE PEOPLE, Plaintiff and Respondent, v. STEVEN DEWAYNE ELMS, Defendant and Appellant.
Jared G. Coleman, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and F. Matt Chen, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County, Nos. PCF367418, PCF333283, PCF336577 Walter L. Gorelick, Judge.
Jared G. Coleman, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and F. Matt Chen, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT[*]
Steven Dewayne Elms was sentenced to an aggregate term of five years, four months in prison on three driving under the influence cases. In 2017, he was sentenced in the first two cases to an aggregate term of four years, eight months, which included a one-year prior prison term enhancement under Penal Code section 667.5, subdivision (b). Execution of that sentence was suspended and Elms was placed on five years' probation.
While on probation in 2019, Elms was sentenced in a third driving under the influence case. The trial court revoked his probation in the 2017 cases, executed the previously imposed sentence, and imposed an additional eight-month term for the third case.
On appeal, Elms contends this one-year prior prison term enhancement must be stricken pursuant to Senate Bill No. 136's amendment to Penal Code section 667.5, subdivision (b). We agree.
BACKGROUND
I. Case Nos. PCF333283 and PCF336577
To ease the reader's task, we will refer to this case as Case 1.
On April 21, 2017, the Tulare County District Attorney filed an information charging Elms with the following: driving under the influence, a felony (Veh. Code, § 23152, subd. (a); count 1); driving with a blood alcohol content (BAC) of 0.08 percent or higher, a felony (§ 23152, subd. (b); count 2); driving with a suspended license, a misdemeanor (§ 14601.2, subd. (a); count 3); and driving without a functioning ignition interlock device, a misdemeanor (§ 23247, subd. (e); count 4). These charges arose from a single arrest on March 2, 2016.
Undesignated statutory references are to the Vehicle Code unless otherwise specified.
The information further alleged in counts 1 and 2 that Elms had suffered four prior DUI convictions (§§ 23550, 23550.5), that he had a passenger under the age of 14 (§ 23572, subd. (a)), that his BAC was more than 0.15 percent (§ 23578), and that he had suffered a prior prison term (Pen. Code, § 667.5, subd. (b)).
Penal Code section 1170, subdivision (h)(1), provides in relevant part that “a felony punishable pursuant to this subdivision where the term is not specified in the underlying offense shall be punishable by a term of imprisonment in a county jail for 16 months, or two or three years.” The four DUI convictions comprised one from 2007, one from 2012, and two from 2014. Section 23550 provides that if a person is convicted of a violation of section 23152 and the offense occurred within 10 years of three or more separate violations of section 23152, that person shall be punished by imprisonment pursuant to Penal Code section 1170, subdivision (h).
The basis of this allegation was a 2014 DUI conviction.
We refer to this case as Case 2.
Also on April 21, 2017, the Tulare County District Attorney filed a second information charging Elms with the following: driving under the influence, a felony (§ 23152, subd. (a); count 1); driving with a BAC of 0.08 percent or higher, a felony (§ 23152, subd. (b); count 2); driving with a suspended license, a misdemeanor (§ 14601.2, subd. (a); count 3); and driving without a functioning ignition interlock device, a misdemeanor (§ 23247, subd. (e); count 4). These charges arose from a single arrest on April 29, 2016.
The information further alleged in counts 1 and 2 that Elms had suffered four prior DUI convictions (§§ 23550, 23550.5), that he had a passenger under the age of 14 (§ 23572, subd. (a)), that his BAC was more than 0.15 percent (§ 23578), and that he had suffered a prior prison term (Pen. Code, § 667.5, subd. (b)).
These were the same four prior DUI convictions referenced in Case 1.
The prior prison term allegation was based on the same 2014 DUI conviction as the allegation in Case 1.
C. Plea and sentencing
On May 19, 2017, Elms pled no contest in Case 1 to counts 2 through 4 and admitted all allegations attached to count 2, and the court dismissed count 1. That same day, he pled no contest in Case 2 to counts 2 through 4 and admitted the allegations attached to count 2, and the court dismissed count 1. On the record, the parties agreed to the following indicated, aggregate sentence for both cases: four years, eight months in prison with execution of sentence suspended, Elms would waive his custody credits for the time he had spent in jail, and Elms would complete a year of in-custody substance abuse treatment followed by five years' probation.
On June 2, 2017, the court imposed a term of four years in Case 1 as follows: on count 2, the upper term of three years (Pen. Code, §§ 23550; 1170, subd. (h)), plus one year for the prior prison term enhancement (Pen. Code, § 667.5, subd. (b)). In Case 2, the court imposed a term of eight months on count 2, which was one-third the middle term of imprisonment prescribed for that count (Pen. Code, § 1170.1), to run consecutive to the term imposed in Case 1. The court suspended execution of the total sentence, placed Elms on five years' probation, and ordered Elms to serve 365 days in county jail.
We refer to this case as Case 3.
On November 5, 2018, the Tulare County District Attorney filed an information charging Elms with the following: driving under the influence, a felony (§ 23152, subd. (a); count 1); driving with a BAC of 0.08 percent or higher, a felony (§ 23152, subd. (b); count 2); driving with a suspended license, a misdemeanor (§ 14601.2, subd. (a); count 3); and driving without a functioning ignition interlock device, a misdemeanor (§ 23247, subd. (e); count 4). These charges arose from a single arrest on May 19, 2018.
The information further alleged in counts 1 and 2 Elms had suffered five prior DUI convictions (§§ 23550, 23550.5), that his BAC was more than 0.15 percent (§ 23578), and that he had suffered a prior prison term (Pen. Code, § 667.5, subd. (b)). It also alleged as to count 3 Elms had suffered a prior conviction for driving with a suspended license (§ 14601.2).
The five convictions comprised one from 2012, two from 2014, and the two from 2017.
The prior prison term allegation was based on the same 2014 DUI case as the prior prison term allegation in Cases 1 and 2.
On January 15, 2019, Elms pled no contest to counts 3 and 4 and admitted the prior prison term allegation attached to count 3. On January 15, 2019, a jury was empaneled to try counts 1 and 2. The jury convicted on both counts and found the BAC allegations true. In a bifurcated proceeding, the trial court found the prison prior allegation true. Based on the verdicts, Elms admitted violating the terms of his probation.
On February 7, 2019, the trial court revoked probation and executed the previously imposed sentence of four years, eight months. The court also in Case 3 imposed an additional term of eight months on count 2, which was one-third the middle term of imprisonment prescribed for that count (Pen. Code, § 1170.1), to run consecutive with the term in Case 2. Thus, Elms's total aggregate term of imprisonment was five years, four months.
III. Notice of appeal
On February 8, 2019, Elms filed a notice of appeal in Case 3. On March 1, 2019, he filed a notice of appeal in Case 1. On June 11, 2019, we granted Elms's motion to construe the notice of appeal filed March 1, 2019, to include Cases 1, 2, and 3.
DISCUSSION
Elms contends his one-year prior prison term enhancement must be stricken in light of Senate Bill No. 136's (SB 136) amendment to Penal Code section 667.5, subdivision (b). Although SB 136 was enacted long after the 2017 grant of probation, he contends he is entitled to retroactive application of the statutory amendment because the grant of probation is not yet a final judgment for purposes of appeal. The People initially disagreed but have since conceded Elms is correct because of the California Supreme Court's recent decision in People v. Esquivel (2021) 11 Cal.5th 671 (Esquivel).
We solicited supplemental briefing from the parties regarding the effect of People v. Esquivel. The People submitted a supplemental brief, but Elms did not.
On October 8, 2019, while this appeal was pending, the Governor signed SB 136, which amended Penal Code section 667.5, subdivision (b), effective January 1, 2020, to limit that subdivision's prior prison term enhancement only to prior prison terms for certain sexually violent offenses. (People v. Hernandez (2020) 55 Cal.App.5th 942, 947, review granted Jan. 27, 2021, S265739 (Hernandez).) Elms's prior prison term was not served for a sexually violent offense, so he is within the ambit of the amended statute. The statute is retroactive and applies to cases where the judgment is not yet final as of its effective date. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303, 308; In re Estrada (1965) 63 Cal.2d 740 (Estrada).)
The determination of when a sentence becomes a final judgment under Estrada is a question of law that we review de novo. (See People v. Arroyo (2016) 62 Cal.4th 589, 593.) “In a criminal case, judgment is rendered when the trial court orally pronounces sentence.” (People v. Karaman (1992) 4 Cal.4th 335, 344, fn. 9.) But for “ ‘purposes of the Estrada rule, a judgment is “not final so long as the courts may provide a remedy on direct review [including] the time within which to petition to the United States Supreme Court for writ of certiorari.”' ” (People v. Barboza (2018) 21 Cal.App.5th 1315, 1319.) Thus, a judgment becomes final when it has reached final disposition in the highest court authorized to review it. (People v. Rossi (1976) 18 Cal.3d 295, 304 (Rossi).)
In Esquivel, supra, 11 Cal.5th 671, the Supreme Court held that where execution of sentence is suspended, the defendant is placed on probation, and the probation is subsequently revoked, the defendant's judgment is not final for Estrada purposes if the defendant may still timely obtain review of the order revoking probation and causing the state prison sentence to take effect. (Id. at pp. 678-681.) The Esquivel defendant was permitted to seek retroactive relief under SB 136. (Id. at p. 680.) Elms is likewise entitled to retroactive application of SB 136 because his judgment is not yet final. (Rossi, supra, 18 Cal.3d at p. 304.)
In its supplemental brief, the People contend this matter must nevertheless be remanded to the trial court to allow the district attorney to withdraw its consent to Elms's 2017 plea agreement. To support this proposition, the People cite to this court's recent opinion in Hernandez, supra, 55 Cal.App.5th 942. In Hernandez, this court addressed whether the People must be allowed to rescind their consent to a plea agreement after prior prison term enhancements are stricken under SB 136's amendments to Penal Code section 667.5, subdivision (b). We held the People are entitled to withdraw their assent to a plea agreement in those circumstances because the Legislature did not intend for SB 136's amendments to Penal Code section 667.5, subdivision (b), to allow the trial court to unilaterally modify plea agreements once prior prison terms are stricken under that statute. (Hernandez, at pp. 957-959.)
We stand by our decision in Hernandez. However, since Elms was sentenced to the maximum possible aggregate time in his three cases, and that sentence has now been ordered executed, remand is not required here because it would be futile.
DISPOSITION
Elms's one-year prior prison term enhancement imposed under section 667.5, subdivision (b), is stricken. The superior court clerk is directed to amend the abstract of judgment and forward certified copies to the appropriate entities. In all other respects, the judgment is affirmed.
[*] Before Levy, Acting P.J., Poochigian, J. and Snauffer, J.