Opinion
C086041
11-29-2018
THE PEOPLE, Plaintiff and Respondent, v. FREDRICK LAMAR JOHNSON, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. 02F05812, 03F05484)
In 2002, defendant Fredrick Lamar Johnson went on a crime spree, robbing and assaulting numerous people at gunpoint. In exchange for a stipulated sentence of 46 years two months in prison, he pleaded no contest to multiple charges and admitted several firearm enhancements in two separate cases. In 2003, the trial court sentenced him in both cases to an aggregate term of 46 years four months in state prison.
In 2017, after the Department of Corrections and Rehabilitation (CDCR) pointed out that the sentence was unauthorized for various reasons, the court resentenced defendant to 46 years by striking a Penal Code section 12022.5 firearm enhancement. The court did so without a supplemental probation report and before Senate Bill No. 620 (2017-2018 Reg. Sess.) (hereafter Senate Bill 620) went into effect, which now gives trial courts discretion to strike firearm enhancements.
Undesignated statutory references are to the version of the Penal Code in effect at the time.
On appeal, defendant contends the court abused its discretion by not ordering a supplemental probation report before resentencing him given the passage of time and his relative youth when he committed the crimes. He also argues that the court should have but did not consider striking several of the firearm enhancements under section 12022.53 rather than just the one firearm enhancement under section 12022.5. He claims his counsel was ineffective for failing to raise the issue of striking additional firearm enhancements.
Defendant was 22 years old when he committed the crimes in March and April of 2002.
We conclude that although the court erred when it struck the section 12022.5 firearm enhancement because at the time it did not have authority to do so, the error was harmless. Because Senate Bill 620, which went into effect in January 2018, now gives trial courts discretion to strike firearm enhancements, we shall vacate defendant's sentence and remand the matter to the trial court to determine whether to exercise its new discretion to strike one or more of defendant's firearm enhancements. Given the extensive amount of time that had passed since defendant was originally sentenced—14 years—we further conclude that the trial court abused its discretion by not obtaining a supplemental probation report before resentencing him. We find the error harmless, however, because the court may order a supplemental probation report prior to determining whether to exercise its discretion to strike any of defendant's firearm enhancements upon remand.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The facts underlying the charges to which defendant pleaded no contest are not relevant to the issues on appeal. Briefly summarized, in 2002, defendant robbed and assaulted multiple people at gunpoint, demanding money and their property. He was charged in two cases with multiple counts of second degree robbery and assault with a firearm as well as kidnapping, carjacking, and assault with intent to commit rape. Firearm enhancements were attached to most of the charges. (§§ 12022.5, subd. (a), 12022.53, subd. (b).)
Sacramento County Superior Court cases Nos. 02F05812 and 03F05484.
In July 2013, defendant agreed to a plea deal resolving both cases. He pleaded no contest to carjacking (§ 215, subd. (a)), five counts of second degree robbery (§ 211), and one count of assault with a firearm (§ 245, subd. (a)(2)) in case No. 02F05812. He also pleaded no contest to one count of second degree robbery and one count of assault with a firearm in case No. 03F05484. As part of the plea deal, defendant admitted seven firearm enhancements alleged pursuant to section 12022.53, subdivision (b), which were attached to the robbery counts, and two firearm enhancements alleged under section 12022.5, subdivision (a), which were attached to the assault with a firearm charges. In exchange for his plea, all other counts and allegations were dismissed. The plea agreement included a stipulated prison term of 46 years two months.
The next month, the court sentenced defendant to 46 years four months in prison. After serving nearly 14 years of his stipulated sentence, the CDCR sent a letter to the trial court in July 2017 noting that defendant's sentence exceeded the plea bargain by two months and also that certain components of the 46-year four-month sentence were improper.
Given CDCR's letter, the court scheduled a resentencing hearing for defendant in October 2017. Prior to the hearing, defense counsel requested that the court obtain a supplemental probation report. The court denied counsel's request.
The court resentenced defendant on October 25, 2017, to 46 years in state prison. It did so by striking a section 12022.5 firearm enhancement. Defendant timely appealed.
DISCUSSION
1.0 Firearm Enhancements
Defendant contends he is entitled to a resentencing hearing so that the trial court may consider striking the section 12022.53, subdivision (b) firearm enhancements under Senate Bill 620. In his view, prematurely striking the section 12022.5, subdivision (a) firearm enhancement attached to count fourteen in case No. 02F05812 did not satisfy Senate Bill 620, and his counsel's failure to request that the court strike additional firearm enhancements constitutes ineffective assistance of counsel.
We conclude that the court erred at the resentencing hearing when it struck the section 12022.5, subdivision (a) firearm enhancement as a means of fixing defendant's illegal sentence, which exceeded the stipulated term to which the parties agreed in the plea deal. We find the error harmless, however, since the error favored defendant and the trial court gained the authority to strike the enhancement a short time later. Nevertheless, we shall remand the matter for resentencing so the trial court may consider exercising its newly granted discretion to strike any of defendant's other remaining firearm enhancements.
On October 11, 2017, the Governor signed Senate Bill 620 (2017-2018 Reg. Sess.) into law. Although passed in October 2017, the new law did not become effective until January 1, 2018. (People v. Hurlic (2018) 25 Cal.App.5th 50, 54 (Hurlic).) Senate Bill 620 granted trial courts, for the first time, the discretion to strike firearm enhancements under sections 12022.5 and 12022.53. (§§ 12022.5, subd. (c) & 12022.53, subd. (h), as amended by Stats. 2017, ch. 682, §§ 1 & 2, respectively; cf. People v. Thomas (1992) 4 Cal.4th 206, 207 [trial court lacked authority to strike firearm enhancements].)
The court resentenced defendant on October 25, 2017. At the time of the resentencing hearing, Senate Bill 620 had not yet gone into effect. (Hurlic, supra, 25 Cal.App.5th at p. 54; Cal. Const., art. IV, § 8, subd. (c)(1); §§ 12022.5, subd. (c) & 12022.53, subd. (h), as amended by Stats. 2017, ch. 682, §§ 1 & 2, respectively.) The trial court, then, had no authority to strike the section 12022.5, subdivision (a) firearm enhancement attached to count fourteen as a means of correcting defendant's illegal sentence when it acted. (See, e.g., In re Andres G. (1998) 64 Cal.App.4th 476, 482-483 [court had no power to act except in a particular manner].)
Defendant concedes the court acted prematurely in striking the section 12022.5, subdivision (a) firearm enhancement. --------
While the court erred by acting in excess of its jurisdiction, the error was not prejudicial. (In re Andres G., supra, 64 Cal.App.4th at p. 482 [" 'an act in excess of [a court's] jurisdiction is valid until set aside, and the parties may be precluded from setting it aside by such things as waiver, estoppel, or the passage of time' "].) The error favored defendant by reducing his sentence, and the court gained the authority to strike the firearm enhancement only three months later when Senate Bill 620 went into effect. Under these circumstances, the error was harmless.
Given that the trial court did not have authority to strike any of the firearm enhancements in October 2017 when the resentencing hearing occurred, we reject defendant's claim that his counsel was constitutionally ineffective for failing to ask the court to strike one or more of his additional firearm enhancements at the hearing.
In light of Senate Bill 620's passage, however, we agree that the matter should be remanded to allow the trial court to determine whether to exercise its newly granted discretion to strike any of defendant's remaining firearm enhancements. As we have noted, defendant's sentence in this case included seven firearm enhancements pursuant to section 12022.53, subdivision (b), and two firearm enhancements under section 12022.5, subdivision (a) (one of which the court has already struck). The recent amendments to sections 12022.53 and 12022.5 now empower trial courts "in the interest of justice pursuant to Section 1385 and at the time of sentencing, [to] strike or dismiss an enhancement otherwise required to be imposed by this section." (§§ 12022.53, subd. (h), 12022.5, subd. (c).) The authority provided by these subdivisions "applies to any resentencing that may occur pursuant to any other law." (§§ 12022.53, subd. (h), 12022.5, subd. (c).)
We are not persuaded by the People's argument that remand would be futile because the trial court cannot reduce defendant's sentence to less than the 46 years imposed since he stipulated to a prison term of 46 years two months. The fact that the parties stipulated to a specific term does not insulate the plea agreement from future changes in the law that the Legislature intended to apply retroactively, which the People concede Senate Bill 620 does. (People v. Woods (2018) 19 Cal.App.5th 1080, 1091 [Senate Bill 620 amendments apply retroactively]; Harris v. Superior Court (2016) 1 Cal.5th 984, 987 [defendant who pleaded no contest to grand theft offense in exchange for stipulated six-year sentence could petition to reduce his conviction to a misdemeanor and recall his sentence under subsequently enacted Proposition 47 and the People were not permitted to rescind the plea agreement and reinstate dismissed charges].)
While plea agreements are a form of contract, and their terms, like the terms of any contract, are to be enforced, "[u]nless a plea agreement contains a term requiring the parties to apply only the law in existence at the time the agreement is made" (Hurlic, supra, 25 Cal.App.5th at p. 57), "the general rule in California is that the plea agreement will be ' "deemed to incorporate and contemplate not only the existing law but the reserve power of the state to amend the law or enact additional laws for the public good and in pursuance of public policy . . . " ' " (Doe v. Harris (2013) 57 Cal.4th 64, 66). Although the parties to a particular plea bargain might affirmatively agree that the consequences of the plea will remain fixed despite amendments to the relevant law (Harris v. Superior Court, supra, 1 Cal.5th at p. 991), courts will not amend a plea agreement to add such a provision (Hurlic, supra, 25 Cal.App.5th at p. 57).
There is nothing in the record that shows defendant's plea agreement contains a term incorporating only the law in existence at the time of execution. We decline to infer such a provision on appeal. Defendant's plea agreement is deemed to incorporate the subsequent enactment of Senate Bill 620, giving defendant the benefit of its provisions without depriving the People of the benefit of their bargain. (Hurlic, supra, 25 Cal.App.5th at p. 57 [defendant's plea agreement with a stipulated term of imprisonment was subject to later enacted Senate Bill 620].) We shall remand the matter to allow the trial court to consider whether to exercise its discretion to strike the section 12022.53 and 12022.5 enhancements accordingly.
2.0 Supplemental Probation Report
Defendant contends that the court erred by not obtaining a supplemental probation report before resentencing him. While he concedes such a supplemental report was not mandatory, he argues that his relative youth when he committed the crimes, which the law now views differently than when he was originally sentenced, as well as his conduct while incarcerated, should have been included in a supplemental probation report before he was resentenced. Even if the court did not abuse its discretion by not ordering a supplemental probation report before correcting defendant's sentence by a few months at the first resentencing hearing in October 2017, defendant argues that a supplemental probation report should now be required for any additional resentencing hearing where the court exercises its Senate Bill 620 discretion.
Section 1203, subdivision (b)(1), unchanged since defendant committed his crimes, provides in relevant part that "if a person is convicted of a felony and is eligible for probation, before judgment is pronounced, the court shall immediately refer the matter to the probation officer to investigate and report to the court, at a specified time, upon the circumstances surrounding the crime and the prior history and record of the person, which may be considered either in aggravation or mitigation of the punishment." Except in unusual cases, probation shall not be granted to a person who is armed with a deadly weapon while committing a robbery or carjacking or to any person who used a deadly weapon while perpetrating a crime. (§ 1203, subd. (e)(1)-(2).)
Although defendant was not eligible for probation because he was convicted of multiple counts of robbery as well as carjacking and admitted personally using a deadly weapon during the offenses, the trial court originally referred the case to the probation officer before it imposed the first sentence. Despite that referral, nothing in section 1203 mandated that the court order the preparation of a supplemental probation report upon resentencing. (People v. Webb (1986) 186 Cal.App.3d 401, 408-409 [when a defendant is ineligible for probation, a referral to the probation officer is not mandatory but is a matter committed to the sound discretion of the sentencing court], disagreeing with People v. Brady (1984) 162 Cal.App.3d 1, 6-7 [Fifth Appellate District decision holding that preparation of a supplemental probation report is required on remand even when the defendant is ineligible for probation]; see People v. Bullock (1994) 26 Cal.App.4th 985, 987-989 [Fifth Appellate District decision disavowing Brady as inconsistent with section 1203's express statutory language, and finding that a trial court has discretion to order a supplemental probation report upon remand where a defendant is not eligible for probation]; § 1203, subd. (g) ["If a person is not eligible for probation, . . . [t]he judge, in his or her discretion, may direct the probation officer to investigate all facts relevant to the sentencing of the person."].)
On this record, we conclude the trial court abused its discretion in refusing to order a supplemental probation report at the resentencing hearing in October 2017. Fourteen years had passed since defendant was originally sentenced. That amount of time was significant, especially since defendant was relatively young when he committed the offenses. Defendant's conduct in prison throughout that period as well as societal changes in how youthful offenders are viewed constituted critical information the trial court should have obtained prior to resentencing defendant.
In People v. Tatlis (1991) 230 Cal.App.3d 1266, 1273, the court acknowledged the utility of obtaining a current probation report upon remand even when a defendant is not eligible for probation. A trial court's discretion to not order a probation report for an ineligible defendant, the court concluded, is narrow given the strong suggestion in the California Rules of Court that obtaining a probation report is the preferred practice. We agree. As the Tatlis court explained, "[i]f a remanded defendant requests a current probation report, the request in itself suggests the report will reveal favorable, or mitigating, information." (Ibid.) "[T]hat the court ordered the preparation of a probation report before sentencing the defendant originally suggests the efficacy and utility of evaluating the current information in the same form." (Ibid.)
Here, although defendant was not eligible for probation, the court nevertheless ordered a probation report before originally sentencing defendant. That report undoubtedly contained valuable information regarding the appropriate sentence under the circumstances. As circumstances may have drastically changed given the lengthy passage of time, it was an abuse of discretion not to obtain a supplemental probation report before resentencing defendant.
While the court erred in denying defendant's request for a supplemental probation report, we find the error harmless since the court may request a supplemental probation report upon remand for resentencing. We shall direct the court to order a supplemental probation report before determining whether to exercise its discretion to strike one or more of defendant's firearm enhancements.
DISPOSITION
The sentence is vacated and the matter is remanded for resentencing. The trial court shall order and consider a supplemental probation report before deciding whether to exercise its discretion to strike one or some of defendant's firearm enhancements.
BUTZ, J. We concur: BLEASE, Acting P. J. ROBIE, J.