Opinion
F076241
10-30-2020
THE PEOPLE, Plaintiff and Respondent, v. JODY PRESTON MOREHOUSE, Defendant and Appellant.
Kendall Dawson Wasley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF163986A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Gary T. Friedman, Judge. Kendall Dawson Wasley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Defendant Jody Preston Morehouse approached a stranger in a parking lot, demanded his car keys, and threatened him with a knife and an unseen gun. After the victim fled on foot, defendant took the victim's car, but was later arrested after a pursuit by police.
The parties waived a jury trial and the trial court convicted defendant of the following six offenses: carjacking (Pen. Code, § 215, subd. (a); count 1), making criminal threats (§ 422; count 2), misdemeanor vandalism (§ 594, subd. (b)(1); count 3), evading a peace officer with wanton disregard for safety (Veh. Code, § 2800.2; count 4), second degree robbery (§ 212.5, subd. (c); count 5), and assault with a deadly weapon (§ 245, subd. (a)(1); count 6). The court also found true that defendant personally used a deadly weapon in the commission of counts 1, 2, and 5 (§ 12022, subd. (b)(1)), suffered a prior conviction within the meaning of the "Three Strikes" law (§§ 667, subd. (b)-(i), 1170.12, subds. (a)-(d)), suffered a prior serious felony conviction (§ 667, subd. (a)(1)), and served two prior prison terms (§ 667.5, former subd. (b)).
All further statutory references are to the Penal Code unless otherwise stated.
As discussed in part III. of the Discussion, section 667.5, subdivision (b), was amended effective January 1, 2020, to limit the convictions upon which a prior prison term enhancement may be based. (Stats. 2019, ch. 590, § 1, pp. 1-4 (Senate Bill No. 136).) Further, as discussed in part IV. of the Discussion, section 667, subdivision (a)(1), and section 1385 were amended effective January 1, 2019, to permit a trial court, in the furtherance of justice, to strike or dismiss the five-year enhancement. (Stats. 2018, ch. 1013, § 1, 2, pp. 1-6 (Sen. Bill No. 1393 or Senate Bill No. 1393).)
The trial court sentenced defendant to a total determinate term of 28 years in prison, as follows. On count 1 (carjacking), the court imposed the upper term of nine years, doubled to 18 years for the prior strike conviction, plus an additional one year for the weapon enhancement, five years for the serious felony enhancement and one year for one prior prison term enhancement. On count 2 (making criminal threats), the court imposed a consecutive term of one year four months, plus an additional four months for the weapon enhancement; and on court 4 (reckless evasion), the court imposed a consecutive term of one year four months. The court also imposed and stayed the following terms pursuant to section 654: the upper term of five years, doubled to 10, on count 5 (robbery); the upper term of four years, doubled to eight, on count 6 (assault); and 180 days in jail on count 3 (vandalism).
On counts 2 and 4, defendant was sentenced to one-third of the middle two-year term, doubled for the prior strike conviction. (§ 1170.1, subd. (a).)
On appeal, defendant claimed that because the criminal threats and carjacking were committed pursuant to a single intent and objective, the trial court erred under section 654 when it failed to stay his sentence on count 2 for making criminal threats. In supplemental briefing, defendant requested remand under Senate Bill No. 1393 to allow the court to determine whether to exercise its discretion to strike the prior serious felony conviction enhancement imposed pursuant to section 667, subdivision (a). In addition, he requested remand for a hearing on his eligibility for mental health pretrial diversion under section 1001.36. (Stats. 2018, ch. 34, § 24, pp. 34-37.)
The People opposed defendant's requests for relief and sought affirmance of the judgment.
In an unpublished opinion, we agreed with defendant that the trial court should have stayed his sentence on count 2 under section 654, and, with Justice Detjen dissenting, the majority agreed that remand was appropriate to allow the court to exercise its discretion in the first instance with respect to whether to strike or dismiss the prior serious felony conviction enhancement. (People v. Morehouse (July 30, 2019, F076241) [nonpub. opn.].) However, we rejected defendant's claim that section 1001.36 applied retroactively to this case, in accordance with our then-recent decision in People v. Craine (2019) 35 Cal.App.5th 744 (Craine), disapproved by People v. Frahs (2020) 9 Cal.5th 618, 641 (Frahs).
Defendant's petition for review in the California Supreme Court was granted and after issuing its decision in Frahs, the court transferred the case back to us on August 19, 2020, with directions to vacate our opinion and reconsider the cause. (People v. Morehouse, review granted Nov. 13, 2019, S257908.) In accordance with the California Supreme Court's order, we vacate our opinion and having reconsidered the matter in light of Frahs, we now conclude that defendant is entitled to a conditional limited remand to determine whether he is eligible for pretrial diversion. We reaffirm our decision modifying the judgment to stay the sentence imposed on count 2 under section 654, we strike the two prior prison term enhancement findings and the one-year prior prison term enhancement pursuant to Senate Bill No. 136, and we conclude defendant's request for remand under Senate Bill No. 1393 is moot given remand under section 1001.36. In the event the trial court declines to grant pretrial diversion, or defendant fails to successfully complete diversion if ordered, defendant may request relief from the prior serious felony conviction enhancement under Senate Bill No. 1393.
In response to this court's letter, the parties filed supplemental briefs addressing Senate Bill No. 136. (Gov. Code, § 68081.)
FACTUAL SUMMARY
The victim in this case was a custodian at an adult school in Bakersfield. His shift ended at 10:00 p.m. and, around that time, he was sitting inside his car in the parking lot with the engine running. Someone pounded on the driver's side window and, thinking the person might be a student who needed something, the victim got out and locked the car using the key fob in his pocket. He left the engine running.
Defendant said something, but the victim did not understand what it was. Defendant then repeatedly demanded the keys to the car. The victim eventually realized what defendant was asking for and said, "[O]h, you are trying to carjack me." Defendant responded, "[Y]eah, give me your keys." The victim told defendant the keys were in the car.
Defendant pulled a 10-inch knife from a knapsack, held it horizontally approximately one foot from the victim's neck, and repeated his demand for the victim's car keys. After the victim again said the keys were in the car, defendant told the victim that he had a gun and stated "[I]f you don't give me the keys I'm going to shoot you." The victim never saw a gun, but he turned around and fled in panic, calling 911 as he ran. Defendant chased the victim for approximately 40 feet and then stopped. Although the victim did not see defendant getting into his car, he saw defendant driving away in it.
A short while later, an officer saw a car that matched the description of the victim's stolen car and commenced pursuit. After initially yielding, defendant took off and led officers on a high-speed chase. He eventually stopped and was taken into custody. The victim identified defendant and the knife used in the crime, which officers located inside the car. The rear passenger window on the driver's side had been broken out.
DISCUSSION
I. Remand Request for Eligibility Determination Under Section 1001.36
Defendant was convicted on July 31, 2017, and sentenced on August 25, 2017. Effective June 27, 2018, the Legislature added section 1001.36 to the Penal Code. (Stats. 2018, ch. 34, § 24, pp. 34-37.) Pursuant to section 1001.36, certain defendants suffering from mental disorders may be eligible for pretrial diversion (id., subds. (a), (b)), which is defined as "postponement of prosecution, either temporarily or permanently, at any point in the judicial process from the point at which the accused is charged until adjudication, to allow the defendant to undergo mental health treatment[]" (id., subd. (c)). "If the defendant has performed satisfactorily in diversion, at the end of the period of diversion, the court shall dismiss the defendant's criminal charges that were the subject of the criminal proceedings at the time of the initial diversion...." (Id., subd. (e).)
In Frahs, the California Supreme Court held that the rule of In re Estrada (1965) 63 Cal.2d 740 (Estrada) applies and section 1001.36 is retroactive. (Frahs, supra, 9 Cal.5th at pp. 624-625, 634 ["[I]n order to rebut Estrada's inference of retroactivity concerning ameliorative statutes, the Legislature must 'demonstrate its intention with sufficient clarity that a reviewing court can discern and effectuate it.'"].) In light of the decision in Frahs and evidence in the record that defendant may suffer from a qualifying mental disorder under subdivision (b)(1)(A) of section 1001.36, defendant is entitled to a conditional limited remand for an eligibility determination under section 1001.36. (Frahs, supra, at p. 625.) Pursuant to the procedure adopted in Frahs, "'[i]f the trial court finds that [the defendant] suffers from a mental disorder, does not pose an unreasonable risk of danger to public safety, and otherwise meets the six statutory criteria (as nearly as possible given the postconviction procedural posture of this case), then the court may grant diversion. If [the defendant] successfully completes diversion, then the court shall dismiss the charges. However, if the court determines that [the defendant] does not meet the criteria under section 1001.36, or if [the defendant] does not successfully complete diversion, then his convictions and sentence shall be reinstated.'" (Id. at p. 641.) As remand is conditional, we turn to defendant's remaining claims.
II. Applicability of Section 654 to Sentence on Count 2
In his effort to obtain the victim's car keys, defendant held a knife toward the victim's throat and then threatened to shoot him with an unseen gun. Defendant was convicted by the trial court of making criminal threats on these bases. Defendant argues that because the threats and the carjacking were committed pursuant to a single intent and objective—the taking of the victim's car—the trial court erred under section 654 when it failed to stay his sentence on count 2, making criminal threats. The People disagree. For the reasons that follow, we conclude the trial court should have stayed the sentence.
Defendant did not object in the trial court, but, as he asserts, subject to an exception not relevant here, the failure to object to a sentence on section 654 grounds does not forfeit the claim because such a sentence is unauthorized. (People v. Hester (2000) 22 Cal.4th 290, 294-295.)
A. Standard of Review
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." The statute "expressly prohibits separate punishment for two crimes based on the same act, but has been interpreted to also preclude multiple punishment for two or more crimes occurring within the same course of conduct pursuant to a single intent." (People v. Vargas (2014) 59 Cal.4th 635, 642; accord, People v. Harrison (1989) 48 Cal.3d 321, 335.) Determining "[w]hether a defendant may be subjected to multiple punishment under section 654 requires a two-step inquiry ...." (People v. Corpening (2016) 2 Cal.5th 307, 311.) "We first consider if the different crimes were completed by a 'single physical act.' [Citation.] If so, the defendant may not be punished more than once for that act. Only if we conclude that the case involves more than a single act—i.e., a course of conduct—do we then consider whether that course of conduct reflects a single '"intent and objective"' or multiple intents and objectives." (Ibid.)
We review the trial court's express or implied factual findings for substantial evidence, and its conclusions of law de novo. (People v. Brents (2012) 53 Cal.4th 599, 618; People v. Perez (1979) 23 Cal.3d 545, 552, fn. 5; People v. Moseley (2008) 164 Cal.App.4th 1598, 1603.) We "affirm the trial court's ruling, if it is supported by substantial evidence, on any valid ground." (People v. Capistrano (2014) 59 Cal.4th 830, 886, fn. 14, overruled in part on another ground in People v. Hardy (2018) 5 Cal.5th 56, 103-104; accord, People v. Brents, supra, at p. 618.)
B. Analysis
1. Single Physical Act
The parties focus on whether defendant had multiple criminal objectives rather than whether, at the first step of the analysis, the crimes involved a single physical act. In our view, defendant's claim may be resolved at the first step.
"Whether a defendant will be found to have committed a single physical act for purposes of section 654 depends on whether some action the defendant is charged with having taken separately completes the actus reus for each of the relevant criminal offenses." (People v. Corpening, supra, 2 Cal.5th at p. 313.) Section 215, subdivision (a), defines carjacking as "the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence ... accomplished by means of force or fear." (Italics added.) Section 422, in turn, defines a criminal threat as a willful threat "to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety ...." (Italics added.)
In this case, defendant pounded on the window of the victim's car and when the victim got out to see what defendant wanted, defendant demanded the car keys, drew a knife and then threatened to shoot the victim if he did not hand over the keys. Defendant's use of a knife and threat to use a gun to obtain the victim's keys caused the victim to flee in panic and abandon his running car, thereby allowing defendant to complete the carjacking. As the threats underpinning defendant's conviction for making criminal threats also supply the force or fear element underpinning the carjacking offense, the act of making the criminal threats is not distinguishable from the threats that facilitated the carjacking.
The trial court concluded section 654 did not apply to the criminal threats conviction because "the incident crime [(carjacking)] could have been committed without making the threat." This analysis, however, rests on speculation as to the level of force or fear that might have been sufficient to complete the carjacking. The relevant inquiry is not whether it would have been possible for defendant to complete the carjacking without making the threat, but whether "a separate and distinct act can be established as the basis of each conviction ...." (People v. Beamon (1973) 8 Cal.3d 625, 637; accord, People v. Corpening, supra, 2 Cal.5th at p. 316.) Defendant's threats were not separate and distinct from the use of force or fear integral to the carjacking offense and, therefore, section 654 applies to his sentence for making criminal threats.
2. Indivisible Course of Conduct
Alternatively, even if we assume for the sake of argument that defendant's crimes involved a course of conduct rather than a single physical act, section 654 still applies because the only reasonable inference supported by the record is that defendant committed both offenses pursuant to a single intent and objective. Generally, "'"[w]hether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one."'" (People v. Capistrano, supra, 59 Cal.4th at p. 885, quoting People v. Rodriguez (2009) 47 Cal.4th 501, 507, italics omitted.) "'If [the defendant] entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.'" (People v. Porter (1987) 194 Cal.App.3d 34, 38, quoting People v. Beamon, supra, 8 Cal.3d at p. 639; accord, People v. Harrison, supra, 48 Cal.3d at p. 335; People v. Tom (2018) 22 Cal.App.5th 250, 260.) "Whether the defendant maintained multiple criminal objectives is determined from all the circumstances and is primarily a question of fact for the trial court, whose finding will be upheld on appeal if there is any substantial evidence to support it." (People v. Porter, supra, at p. 38, citing People v. Goodall (1982) 131 Cal.App.3d 129, 148; accord, People v. Tom, supra, at p. 260.)
In this case, defendant's intent is clearly evidenced by his threats to physically harm the victim if the victim did not comply with his demand for the keys, and there is no evidence in the record of any objective other than completion of the carjacking. The People cite People v. Nguyen (1988) 204 Cal.App.3d 181, 190-191, for the proposition that "gratuitous violence against a helpless and unresisting victim ... has traditionally been viewed as not 'incidental' to robbery for purposes of ... section 654." We find the decision inapt, however.
In People v. Nguyen, the Court of Appeal concluded that section 654 did not apply to convictions for robbery and attempted murder where the defendant emptied the cash register in the front of the business while an accomplice took the clerk to the restroom in the back of the business, took his valuables, forced him to lie face down on the floor, and then kicked him and shot him in the back. (People v. Nguyen, supra, 204 Cal.App.3d at p. 185.) The court reasoned that "at some point the means to achieve an objective may become so extreme they can no longer be termed 'incidental' and must be considered to express a different and a more sinister goal than mere successful commission of the original crime." (Id. at p. 191.)
Here, while defendant's threatening conduct escalated from pointing a knife at the victim to threatening to shoot the victim if he did not comply, it did not constitute "gratuitous violence" beyond that incidental to the carjacking. (People v. Nguyen, supra, 24 Cal.App.3d at p. 190.) Defendant's threat directly furthered his objective to complete the carjacking. In the absence of substantial evidence that defendant harbored multiple criminal objectives in making criminal threats and committing the carjacking, his sentence for making criminal threats must be stayed under section 654. (People v. Capistrano, supra, 59 Cal.4th at p. 885; People v. Brents, supra, 53 Cal.4th at p. 618.)
III. Senate Bill No. 136
Pursuant to section 667.5, subdivision (a), and subject to an exception not relevant here, trial courts are required to impose a three-year sentence for each prior, separate prison term served by the defendant for a violent felony where the current offense is also a violent felony, as defined in subdivision (c) of the statute. For other felonies, pursuant to former subdivision (b), and subject to exceptions not relevant here, trial courts are required to impose an additional one-year term for each prior, separate prison term or county jail felony term. As amended by Senate Bill No. 136, subdivision (b) of section 667.5 limits imposition of the additional one-year term to each prior, separate prison term served for a conviction of a sexually violent offense as defined in Welfare and Institutions Code section 6600, subdivision (b).
In accordance with the California Supreme Court's decision in Estrada, supra, 63 Cal.2d at page 744, "'"[a]n amendatory statute lessening punishment is presumed to apply in all cases not yet reduced to final judgment as of the amendatory statute's effective date" [citation], unless the enacting body "clearly signals its intent to make the amendment prospective, by the inclusion of either an express saving clause or its equivalent" [citations].'" (People v. Lara (2019) 6 Cal.5th 1128, 1134, quoting People v. DeHoyos (2018) 4 Cal.5th 594, 600; accord, Frahs, supra, 9 Cal.5th at p. 635.) We agree with the parties that Senate Bill No. 136 is retroactive under the Estrada rule and, therefore, the amendment to section 667.5, subdivision (b), applies here.
In this case, the trial court found two prior prison term enhancement allegations true and imposed a one-year prior prison term enhancement. (§ 667.5, former subd. (b).) We agree with the parties that neither defendant's 1999 conviction for first degree burglary nor his 2005 conviction for attempted second degree burglary is a qualifying offense under section 667.5, subdivision (b), as amended. Therefore, we order the trial court's two prior prison term enhancement findings and the one-year sentence enhancement imposed stricken.
IV. Senate Bill No. 1393
Finally, effective January 1, 2019, Senate Bill No. 1393 amended sections 667, former subdivision (a)(1), and 1385, former subdivision (b), and granted trial courts the discretion to strike the previously mandatory five-year prior serious felony conviction enhancement under section 667, subdivision (a)(1). The parties agree that Senate Bill No. 1393 applies retroactively to this case, but they disagree whether remand is required. The People take the position that remand would be futile because the trial court's comments and sentencing choices clearly indicate it would not have dismissed the prior serious felony conviction enhancement even if it had the discretion to do so at the time of sentencing.
Courts considering Senate Bill No. 1393 and, in an analogous context, Senate Bill No. 620 (Stats. 2017, ch. 682, §§ 1, 2, pp. 1-4 (Sen. Bill No. 620)), have uniformly held that the changes apply retroactively to judgments not yet final on appeal. (E.g., People v. Flores (2020) 9 Cal.5th 371, 431 [Sen. Bill No. 620]; People v. Zamora (2019) 35 Cal.App.5th 200, 207-208 [Sen. Bills Nos. 620 and 1393]; People v. Garcia (2018) 28 Cal.App.5th 961, 972-973 [Sen. Bill No. 1393].) As Senate Bill No. 1393 does not contain a saving clause and there is no indication that the Legislature intended any limitation on its retroactive application, we agree with the parties that it applies to this case. (Frahs, supra, 9 Cal.5th at p. 635; People v. Lara, supra, 6 Cal.5th at p. 1134.)
Regarding entitlement to remand, "'"[d]efendants are entitled to sentencing decisions made in the exercise of the 'informed discretion' of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that 'informed discretion' than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record." [Citation.] In such circumstances, we have held that the appropriate remedy is to remand for resentencing 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."'" (People v. Flores, supra, 9 Cal.5th at pp. 431-432, quoting People v. Gutierrez (2014) 58 Cal.4th 1354, 1391; accord, People v. Johnson (2019) 32 Cal.App.5th 26, 69; People v. Almanza (2018) 24 Cal.App.5th 1104, 1110-1111.) However, remand is not required when it would be an idle act. (People v. Flores, supra, at p. 432, citing People v. McDaniels (2018) 22 Cal.App.5th 420, 425; accord, People v. Jefferson (2019) 38 Cal.App.5th 399, 409; People v. Allison (2019) 39 Cal.App.5th 688, 705-706.)
We conclude it is unnecessary to resolve the parties' dispute regarding whether remand would be futile on the sentencing record in this case, because the conditional reversal in accordance with Frahs renders the issue moot for all practical purposes. If the trial court declines to grant pretrial diversion or if defendant fails to successfully complete diversion and his convictions are reinstated, he may then request relief under Senate Bill No. 1393.
DISPOSITION
The judgment is conditionally reversed and remanded for an eligibility determination under section 1001.36. In accordance with Frahs, supra, 9 Cal.5th at page 641, "'[i]f the trial court finds that [the defendant] suffers from a mental disorder, does not pose an unreasonable risk of danger to public safety, and otherwise meets the six statutory criteria (as nearly as possible given the postconviction procedural posture of this case), then the court may grant diversion. If [the defendant] successfully completes diversion, then the court shall dismiss the charges. However, if the court determines that [the defendant] does not meet the criteria under section 1001.36, or if [the defendant] does not successfully complete diversion, then his convictions and sentence shall be reinstated.'"
If the trial court reinstates defendant's convictions and sentence, the judgment is modified to reflect that the two prior prison term enhancement findings and the one-year prior prison term enhancement imposed under section 667.5, former subdivision (b), are stricken pursuant to Senate Bill No. 136, and the sentence imposed on count 2 (criminal threats) is stayed pursuant to section 654. The trial court shall prepare an amended abstract of judgment reflecting these modifications, and any modification to the prior serious felony conviction enhancement pursuant to Senate Bill No. 1393, and to forward a certified copy to the appropriate authorities. The judgment is otherwise affirmed.
MEEHAN, J. WE CONCUR: DETJEN, Acting P.J. SMITH, J.