Opinion
F072148
07-13-2017
THE PEOPLE, Plaintiff and Respondent, v. JESSE RAY CARVER NEWTON, JR., Defendant and Appellant.
Anne V. Moore, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Gregory B. Wagner, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CRF43997)
OPINION
APPEAL from a judgment of the Superior Court of Tuolumne County. Donald I. Segerstrom, Jr., Judge. Anne V. Moore, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Gregory B. Wagner, Deputy Attorneys General, for Plaintiff and Respondent.
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Jesse Ray Carver Newton, Jr., filed in the trial court a petition for relief pursuant to Proposition 47. The trial court reduced one of his felony convictions to a misdemeanor and resentenced him to a lower aggregate sentence by eliminating the eight-month term it had previously imposed for the Proposition 47 count. The court also structured the new aggregate term as a split sentence; Newton's original sentence was also a split sentence. In the end, the eight-month reduction in the aggregate term amounted to a two-month reduction in the local custody term and a six-month reduction in the mandatory supervision term that together constituted the original split sentence.
"A split sentence is a hybrid sentence in which a trial court suspends execution of a portion of the term and releases the defendant into the community under the mandatory supervision of the county probation department. Such sentences are imposed pursuant to Penal Code section 1170, subdivision (h)(5)(B)(i), a provision originally adopted as part of the '2011 Realignment Legislation addressing public safety.' (Criminal Justice Realignment Act of 2011 (Realignment Act), operative Oct. 1, 2011, as added by Stats. 2011, 1st Ex. Sess. 2011-2012, ch. 12, § 1.)" (People v. Camp (2015) 233 Cal.App.4th 461, 464, fn. 1.)
Newton argues the sentence imposed by the trial court on resentencing constitutes an abuse of discretion. Specifically, he claims the court was required to structure the new split sentence differently, in that the court should have reduced his original local custody term by the full eight-month term relating to the Proposition 47 count, which the court eliminated at resentencing. We reject this contention, which is premised on a flawed understanding of how a Proposition 47 resentencing hearing works. A Proposition 47 resentencing hearing is akin to a plenary sentencing hearing, at which the court sentences the defendant on all counts anew, with the Proposition 47 count now a misdemeanor. The trial court may thus reconsider any component of the aggregate term as well as the structure of any split sentence imposed. Here, the court fully understood its sentencing discretion and properly exercised it. Accordingly, we will affirm the judgment.
FACTS AND PROCEDURAL HISTORY
The instant matter was a Proposition 47 proceeding; the record is accordingly limited to the reporter's and clerk's transcripts of that proceeding. The clerk's transcript includes the probation report prepared at disposition of the underlying cases. The factual and procedural details of the underlying cases are drawn from this probation report.
On May 5, 2014, Newton unlawfully entered a business through an unlocked window. The owner of the business found Newton seated in a chair, apparently asleep, holding a piece of paper with banking information written on it. On a nearby table was a piece of wax paper with a black substance on it. The black substance was later determined to contain heroin. Newton was arrested and taken to jail, where a booking search uncovered a set of keys in his shoe.
Newton was released on his own recognizance on May 7, 2014, and directed to appear in court on May 30, 2014. He failed to appear as directed and a warrant for his arrest was issued.
On May 31, 2014, a deputy on routine patrol encountered Newton. The deputy was aware that Newton had recently missed a court hearing and suspected an arrest warrant had been issued. The deputy attempted to handcuff and detain Newton, so as to confirm the existence of a warrant. Newton struggled with the deputy, managed to break free, and ran away. Newton was eventually arrested on June 27, 2014.
Three cases were filed against Newton. In case No. CRF43997, Newton was charged with second degree commercial burglary (Pen. Code, § 1203, subd. (e)(4), count 1), receiving stolen property (§ 496, subd. (a); count 2), and possession of heroin (Health and Saf. Code, § 11350, subd. (a); count 3); he was also alleged to have served a prior prison term (§ 667.5, subd. (b)). In case No. CRF44430, Newton was charged with failure to appear on his own recognizance. (§ 1320, subd. (b).) Finally, in case No. CRF44429, he was charged with resisting, obstructing, or delaying a public officer, along with certain enhancement allegations. (§ 148, subd. (a)(1).)
Subsequent statutory references are to the Penal Code unless otherwise specified.
The parties resolved all three cases by means of a global plea agreement. In case No. CRF43997, Newton pled guilty to commercial burglary and receiving stolen property, and admitted the prior prison term enhancement allegation. In case No. CRF44430, Newton pled guilty to failure to appear. In case No. CRF44429, Newton pled guilty to a misdemeanor offense of resisting an officer. The remaining charge (heroin possession) and enhancements were dismissed. The parties agreed that Newton would receive a stipulated sentence of five years four months for all the convictions. The parties further agreed that the sentence would be split between four years in local custody and one year four months on mandatory supervision. Newton was sentenced in accordance with the plea agreement.
On February 26, 2015, Newton filed a petition under Proposition 47 to reduce his eligible felony convictions to misdemeanors. The trial court reduced his conviction for receiving stolen property to a misdemeanor and resentenced him to an aggregate sentence of four years eight months. The court again imposed a split sentence: a local custody term of three years 10 months and 10 months of mandatory supervision.
Newton filed a motion to recall the sentence, which the trial court denied.
DISCUSSION
Newton challenges the sentence imposed by the trial court after reducing his conviction for receiving stolen property in case No. CRF43997 to a misdemeanor, pursuant to Proposition 47. In resentencing Newton after granting this relief, the court eliminated the subordinate eight-month term it had previously imposed for this count but did not change Newton's sentences on the other, unaffected counts. The court thus reduced Newton's aggregate sentence by eight months. It then split this lower aggregate sentence as required by section 1170, subdivision (h)(5)(A). In the end, Newton was sentenced to an aggregate term of four years eight months, including three years 10 months of local custody and 10 months of mandatory supervision. Newton's original split sentence—five years four months in total—had consisted of four years of local custody and one year four months of supervised release. The new sentence was eight months shorter overall, with a local custody term that was two months shorter, and a mandatory supervision term that was six months shorter, than the equivalent terms in the original sentence.
Newton argues that the new sentence constitutes an abuse of discretion because the court was required to reduce his original local custody term by the full eight-month term relating to the Proposition 47 count, which the court eliminated on resentencing. Newton contends the "court abused its discretion in three ways: first, the court ignored the voters' intent in passing Proposition 47; second, the court's sentence split was arbitrary and irrational as based on a probation officer's original recommendation that was founded upon a critical factual error; and, third, the court gave unwarranted weight to the original plea agreement." We reject each contention. I. Court's Discretion to Restructure Split Sentence on Resentencing
Here the court eliminated the eight-month subordinate term it had previously imposed on the Proposition 47 count. Newton contends the trial court was required to apply the full eight-month reduction to the custodial portion of his original aggregate sentence, resulting in a sentence of three years in local custody and one year four months of mandatory supervision. He contends this outcome was mandated because, in passing Proposition 47, the voters intended to reduce custodial time for eligible defendants. He contends that, therefore, the sentencing choice of three years 10 months in local custody and 10 months on supervised release constitutes an abuse of discretion. We reject this contention.
Newton's argument is foreclosed by many cases, discussed below, that address the application of Proposition 47 and clarify that Proposition 47 does not limit a court's sentencing discretion in the manner Newton contends. On the contrary, a resentencing hearing after a court grants Proposition 47 relief is akin to a plenary sentencing hearing at which the court is required to reconsider the entirety of the aggregate sentence. Thus, the trial court has broad discretion in resentencing a defendant after granting Proposition 47 relief, subject to the generally applicable sentencing procedures set forth in section 1170, et seq. Accordingly, we reject Newton's contention that the voters intended Proposition 47 to restrict the trial court's resentencing discretion in the manner he proposes here. We conclude, in turn, that the trial court's sentencing decision was not an abuse of discretion. (See People v. Giminez (1975) 14 Cal.3d 68, 71-72 [trial court's sentencing decision is reviewed for abuse of discretion]; People v. Trausch (1995) 36 Cal.App.4th 1239, 1247 [trial court abuses its discretion when its sentencing choice exceeds the bounds of reason].)
A. Trial Court Reconsiders Entire Aggregate Sentence on Resentencing
When a trial court grants Proposition 47 relief on an eligible felony offense, it resentences the defendant to a misdemeanor. (§ 1170.18, subd. (b).) However, "Proposition 47 does not limit the court to rigid sentencing options." (People v. Mendoza (2016) 5 Cal.App.5th 535, 538 (Mendoza).) Indeed, "'[t]he purpose of section 1170.18 is to take the defendant back to the time of the original sentence and resentence him with the Proposition 47 count now a misdemeanor.'" (People v. Rouse (2016) 245 Cal.App.4th 292, 300 (Rouse) [a resentencing hearing pursuant to Proposition 47 "is akin to a plenary sentencing hearing"].)
Thus, after granting Proposition 47 relief, a trial court resentences the defendant "under the generally applicable sentencing procedures found in section 1170 et seq." (People v. McDowell (2016) 2 Cal.App.5th 978, 981.) "Under these provisions, the judgment, or aggregate determinate term, is viewed as intertwined pieces consisting of a principal term and one or more subordinate terms." (Id. at p. 982.) Given the intertwined structure of aggregate sentences, "[w]hen Proposition 47 applies to any count or related case, the trial court must reconsider the entirety of the aggregate sentence." (Mendoza, supra, 5 Cal.App.5th at p. 538.) More specifically, where, as here, the court resentences a defendant after granting Proposition 47 relief for a subordinate term, "the court may resentence the defendant on any component of the aggregate term." (Mendoza, supra, at p. 537.) The only restriction on the court's resentencing discretion arises from section 1170.18, subdivision (e), which provides: "Under no circumstances may resentencing under this section result in the imposition of a term longer than the original sentence." (See People v. Roach (2016) 247 Cal.App.4th 178, 184-187 [under Proposition 47, the new aggregate sentence may not exceed, but may equal, the original aggregate sentence]; People v. Sellner (2015) 240 Cal.App.4th 699, 702.)
In Mendoza, the trial court had originally sentenced the defendant to an aggregate sentence of nine years in two cases. Mendoza held that, upon granting Proposition 47 relief as to one felony count, the trial court was entitled to impose the same "global disposition of nine years" it had previously imposed. (Mendoza, supra, 5 Cal.App.5th at p. 539.) The court could properly do so by running the subordinate term on another felony count consecutively (in relation to the principal term), rather than concurrently (as it originally had done). Other cases similarly clarify that the trial court enjoys broad discretion in resentencing a defendant under Proposition 47. (See People v. Cortez (2016) 3 Cal.App.5th 308, 316-317 [trial court may revisit and impose harsher punishment on non-Proposition 47 misdemeanor counts after granting Proposition 47 relief on another count]; People v. Acosta (2016) 247 Cal.App.4th 1072, 1076-1077 [in resentencing the defendant under Proposition 47, trial court could properly reinstate six previously dismissed prior prison term enhancements], review granted Aug. 17, 2016, S235773.)
It is also clear that the trial court enjoys wide latitude in splitting an aggregate sentence pursuant to section 1170, subdivision (h)(5)(A). Section 1170, subdivision (h)(5)(A) provides: "Unless the court finds that, in the interests of justice, it is not appropriate in a particular case, the court, when imposing a sentence pursuant to [this subdivision] shall suspend execution of a concluding portion of the term for a period selected at the court's discretion." (§ 1170, subd. (h)(5)(A), italics added.) Under section 1170, subdivision (h)(5)(A), the court may split a defendant's sentence as it deems appropriate. (See People v. Catalan (2014) 228 Cal.App.4th 173, 178; Cal. Rules of Court, rule 4.415(c).) Nothing in Proposition 47 restricts this discretion, as in resentencing a defendant pursuant to Proposition 47, the court reconsiders the entirety of the sentence, subject to generally applicable sentencing procedures. (Rouse, supra, 245 Cal.App.4th at p. 300.)
The suspended portion of the sentence is known as mandatory supervision or mandatory supervised release. (See § 1170, subd. (h)(5)(b).) --------
B. Trial Court Acted Within the Scope of its Discretion
Here the trial court originally sentenced defendant to an aggregate term of five years four months: three years for commercial burglary, eight months for receipt of stolen property, eight months for felony failure to appear, and one year for the prison prior. Pursuant to section 1170, subdivision (h)(5)(A), the court imposed a split sentence, ordering Newton to serve four years in local custody and one year four months on mandatory supervision. In the subsequent Proposition 47 proceeding, the court resentenced Newton to a lower aggregate term of four years eight months: three years for commercial burglary, eight months for the felony failure to appear, and one year for the prison prior. The court again imposed a split sentence pursuant to section 1170, subdivision (h)(5)(A), ordering Newton to serve three years 10 months in local custody and 10 months on supervised release.
Since the new sentence did not exceed the original sentence, the court's sentencing decision comports with section 1170.18, subdivision (e). The new sentence also comports with section 1170, subdivision (h)(5)(A), which authorizes the court to select a period of mandatory supervision "at the court's discretion." We are not persuaded by Newton's argument that, based on voter intent, Proposition 47 required the court to reduce the mandatory supervision term in his original sentence by eight months (the length of the term originally imposed for the Proposition 47 count). Indeed, the premise of Newton's argument is flawed, because, as explained above, at resentencing, the court sentences the defendant anew, with the Proposition 47 count now a misdemeanor. Hence, in resentencing Newton, the court properly could split his sentence as it saw fit, as permitted by section 1170, subdivision (h)(5)(A). We conclude the court's sentencing choice was well within the scope of its discretion. II. Probation Recommendation
Newton further argues that the trial court abused its discretion because it took into consideration a flawed probation report. This claim lacks merit. Although the initial report and recommendation submitted by the probation department was based on an incorrect projected release date for Newton, the court recognized the error and asked for an updated recommendation, based on accurate facts, from the probation department. In a letter supplementing its initial report, the probation department acknowledged that Newton had a longer outstanding custodial term than initially calculated, but did not change its sentencing recommendation. The court considered the corrected supplement to the probation report, noting that the sentencing recommendation was unchanged. Newton's argument that the court abused its discretion by considering a flawed probation report thus has no merit. III. Relation of New Sentence to Original Sentence and Plea Agreement
Newton also argues the trial court improperly considered the original sentence and plea agreement in structuring the new split sentence. Specifically, he contends the court abused its discretion in basing the proportion of local custody time to supervised release time in his new sentence on the corresponding proportion reflected in his original sentence, and, in turn, the plea agreement. Newton's argument fails on its own terms because, on resentencing, the court did not split Newton's sentence in the same proportion as embodied in the original sentence and plea agreement. Newton's original sentence consisted of a local custody term of four years and a mandatory supervision term of one year four months, each term comprising 75 percent and 25 percent, respectively, of his overall sentence. Upon resentencing, Newton's sentence consisted of a local custody term of three years 10 months and a mandatory supervision term of 10 months, each term comprising 82 percent and 18 percent, respectively, of his overall sentence.
After the People pointed out this discrepancy in their opposing brief, Newton argued, in his reply brief, that the court was unaware of the discrepancy, which, in turn, constituted an abuse of discretion. We reject this claim too. The court was well aware that the split sentence imposed on resentencing did not duplicate the original split sentence in terms of the proportion of local custody time to supervised release time. The court explained that the original sentence reflected a "75/25" split but the new sentence encompassed, in comparison, a disproportionately longer local custody term because, in reducing Newton's aggregate term by a total of eight months, the court had reduced Newton's local custody term by two months (25 percent of the total reduction) and his supervised release term by six months (75 percent of the total reduction). Although, the prosecutor subsequently confused matters by incorrectly stating that Newton was getting the "same 75/25 proportion" contained in the original sentence, the court's own accurate analysis indicated it was aware that the new sentence was not necessarily split in the same proportion as the original sentence.
In any event, under section 1170, subdivision (h)(5)(A), the court ultimately had the discretion to fashion a new split sentence as it saw fit and, in doing so, could properly consider the sentence previously imposed. (See Mendoza, supra, 5 Cal.App.5th at p. 539 [trial court properly resentenced the defendant, under Proposition 47, with reference to the "global disposition" that was previously imposed].) Here, the court observed: "[W]hen I resentence [Newton], as long as I don't resentence him to a term longer than the original sentence, then the Court has the discretion to sentence him in any manner the Court thinks is appropriate." The court continued: "The defendant doesn't have any particular right to ... any particular division of the custody versus non-custody time." We conclude the trial court properly understood its sentencing discretion and detect no abuse of discretion in its sentencing choice.
DISPOSITION
The judgment is affirmed.
/s/_________
SMITH, J WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
PEÑA, J.