Opinion
A166056
06-24-2024
THE PEOPLE, Plaintiff and Respondent, v. PARIS KURT RAGLAND, JR., Defendant and Appellant.
NOT TO BE PUBLISHED
(Marin County Super. Ct. No. SC194558A)
BROWN, P. J.
Paris Kurt Ragland, Jr. appeals from the sentence the trial court imposed following our remand in an earlier appeal. (People v. Ragland (Sept. 9, 2020, A153476) [nonpub. opn.] (Ragland II).) Ragland contends the trial court erred by imposing the upper term on a robbery count based on his use of a firearm while simultaneously imposing punishment for a firearm enhancement based on the same fact. We agree that the trial court erred but find the error harmless. The trial court found two other aggravating circumstances applied, and its sentencing decisions make clear that it would have imposed the upper term based on those circumstances alone. We will therefore affirm the judgment.
BACKGROUND
"Defendant was convicted on 12 counts based on two series of events in September 2015 in which he robbed people of their credit cards and then used the cards-or aided his girlfriend in using them-to buy goods in various stores. The first six counts involved the robbery and attempted robbery of two victims on September 2 (counts 1-2; [Pen. Code,] §§ 211, 664, 187) and the subsequent use of one victim's credit card at four convenience or grocery stores to buy items worth less than $950 (counts 3-6; § 530.5, subd. (a)). The final six counts involved a September 9 robbery and assault of a third victim (counts 7-9 and 12; § 211, § 245, subds. (a)(2) &(a)(4), § 243, subd. (d)) and aiding the use of that person's credit card at two stores to buy items worth less than $950 (counts 10-11; § 530.5, subd. (a)). The information alleged facts supporting several sentencing enhancements." (Ragland II, supra, A153476.)
Undesignated statutory citations are to the Penal Code.
"With regard to the robbery and assault charges, the enhancements included personal use of a firearm (§ 12022.53, subds. (b), (g); § 12022.5, subd. (a)) and, as to the third victim, personal infliction of great bodily injury (§ 12022.7, subd. (a)); as to all counts, defendant was charged with having served two prior prison terms ([former] § 667.5, subd. (b)[, as amended by Stats. 2019, ch.590, § 1])." (Ragland II, supra, A153476.) "After a jury found defendant guilty on all counts and found true the enhancement allegations, the court sentenced him to 30 years 4 months in prison." (Ibid.) The court also imposed various fines and fees. (Ibid.)
In our first opinion in Ragland's appeal from the judgment, we held that the identity theft convictions for violating section 530.5, subdivision (a) had to be reduced to misdemeanor shoplifting convictions under section 459.5, subdivision (b). (People v. Ragland (Nov. 26, 2019, A153476) [nonpub. opn.] (Ragland I).) We further held that the case had to be remanded for the trial court to exercise its newly granted discretion to strike the firearm enhancements, to strike or stay various fees and assessments, and to correct the abstract of judgment in certain respects. (Ibid.) The Supreme Court granted review and transferred the case back to us with directions to reconsider the cause in light of People v. Jimenez (2020) 9 Cal.5th 53, which held that a felony conviction for violating section 530.5, subdivision (a) could not be reduced to a misdemeanor shoplifting violation of section 459.5, subdivision (b). (Ragland II, supra, A153476.) After reconsideration, we issued a new opinion affirming the identity theft convictions for violating section 530.5 and remanded for the other reasons identified in Ragland I. (Ragland II, supra, A153476 .)
Following written briefing and a hearing, the trial court resentenced Ragland to 20 years in prison. The court declined to strike the firearm enhancements. The court found the offenses were "very, very serious," noting in particular the severe injury Ragland caused the third robbery victim. The court also cited Ragland's criminal history and record, which it said included "at least three prior stints in state prison." The court considered Ragland's representations about his exemplary behavior in prison before resentencing and noted that Ragland had not committed any new offenses in prison. The court recognized that Ragland was working in a trustee position in the kitchen and had been instrumental in stopping racial disharmony. The court found that it was nonetheless not in the interest of justice to strike the firearm enhancements, due to the nature of the crimes and Ragland's history. The court also stated that the imposition of the firearm enhancements was necessary for the sentence to accurately reflect Ragland's criminal conduct.
The trial court considered a legislative change to section 1385. Section 1385, subdivision (c)(1) instructs that a trial court "shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute." Subdivision (c)(2) requires a sentencing court to "consider and afford great weight to evidence offered by the defendant to prove" certain listed mitigating circumstances, proof of which "weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety." (§ 1385, subd. (c)(2).) One mitigating circumstance is when multiple enhancements are alleged, in which case "all enhancements beyond a single enhancement shall be dismissed." (§ 1385, subd. (c)(2)(B).) Another mitigating circumstance is when "application of an enhancement could result in a sentence of over 20 years. In this instance, the enhancement shall be dismissed." (§ 1385, subd. (c)(2)(C). Commenting, "I don't think I can make th[e] finding" that dismissal of enhancements would endanger public safety, the trial court believed this statute prohibited it from imposing multiple enhancements or an enhancement that would bring the sentence over 20 years.
At the time of the re-sentencing, the mitigating circumstances were located in section 1385, subdivision (c)(3). (Former § 1385, subd. (c)(3), as amended by Stats. 2021, ch. 721, § 1.) The Legislature subsequently made a non-substantive change to the statute to place the mitigating circumstances in section 1385, subdivision (c)(2). (§ 1385, as amended by Stats. 2022, ch. 58, § 15, at pp. 2962-2963; Legis. Counsel's Dig., Assem. Bill 200, 2 Stats. 2022 (2021-2022 Reg. Sess.), Summary Dig., p. 2939.).
The trial court found three aggravating circumstances: great bodily harm, use of a weapon, and Ragland's prior prison terms. (Cal. Rules of Court, rule 4.421(a)(1)-(2), (b)(3).) The Legislature amended section 1170, subdivision (b) (section 1170(b)) after Ragland's trial and before the resentencing to allow a trial court to impose the upper term on an offense only if the aggravating circumstances justifying the upper term are found true beyond a reasonable doubt by the trial factfinder. (See § 1170(b), as amended by Stats. 2021, ch. 731, §§ 1.3, 3, subd. (c).) Although Ragland's jury's verdict pre-dating this statute did not make any findings specifically about aggravating circumstances, the trial court found the jury's verdict nonetheless allowed the use of these aggravating circumstances under section 1170(b). The first two aggravating circumstances matched the enhancements for infliction of gross bodily injury under section 12022.7, subdivision (a) and personal use of a firearm under sections 12022.5, subdivision (a) and 12022.53, subdivision (b), all of which the jury found true. As to the third aggravating circumstance, the court noted that Ragland had stipulated to enhancements under former section 667.5, subdivision (b) for having served prior prison terms, although the court had ultimately struck those enhancements.
Based on these aggravating circumstances, the trial court imposed the upper term of five years on count 7, the robbery of the third victim. The court added 10 years for the firearm use enhancement under section 12022.53, subdivision (b). Based on section 1385, subdivision (c), the court dismissed the section 12022.7, subdivision (a) enhancement for infliction of great bodily injury. The trial court stayed under section 654 the firearm use enhancement under section 12022.5, subdivision (a).
The court imposed one consecutive year for count 1, the other robbery conviction, which was one-third the middle term. Based on section 1385, subdivision (c), the court dismissed the firearm use enhancements under sections 12022.5, subdivision (a) and 12022.53, subdivision (b).
On count 2, the attempted robbery conviction, the court sentenced Ragland to the upper term of three years. The court believed the term should have been consecutive. But the trial court made it concurrent to avoid taking the sentence over 20 years.
For counts 3 through 6, 10, and 11, the felony violations of section 530.5, subdivision (a), the trial court imposed consecutive sentences of eight months each, representing one third of the middle term. For the assault and battery convictions on counts 8, 9, and 12, the court imposed the upper terms of four years but stayed them pursuant to section 654 and dismissed the section 12022.7, subdivision (a) enhancements pursuant to section 1385, subdivision (c).
The court did not impose any fines, fees, or assessments and made the changes to the abstract of judgment that this court directed in the prior appeal, to the extent they remained relevant after resentencing.
DISCUSSION
I. Error
Ragland contends the trial court erred by using the same fact, use of a firearm, both to justify the upper term for count 7 (robbery of the third victim) and to impose the firearm use enhancement to that count under section 12022.53, subdivision (b). We review the trial court's sentencing decisions for abuse of discretion. (People v. Panozo (2021) 59 Cal.App.5th 825, 837.) We agree with Ragland that the trial court erred.
The Attorney General points out that Ragland's counsel did not object to his sentence on this basis below and argues Ragland has therefore forfeited this issue. We could find forfeiture, but we choose to address the issue in the interests of judicial economy, to avoid the need for separate habeas corpus proceedings concerning whether Ragland's counsel was ineffective in failing to object on this basis. (People v. Butler (2003) 31 Cal.4th 1119, 1128.).
As the Attorney General concedes, a trial court "may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law." (§ 1170(b)(5); People v. Scott (1994) 9 Cal.4th 331, 350; ["the court generally cannot use a single fact both to aggravate the base term and to impose an enhancement"]; see also Cal. Rules of Court, rule 4.420(g) ["To comply with section 1170(b)(5), a fact charged and found as an enhancement may be used as a reason for imposing a particular term only if the court has discretion to strike the punishment for the enhancement and does so"].) Here, the trial court cited three aggravating factors to support imposition of the upper term on count 7: great bodily harm, use of a weapon, and Ragland's service of prior prison terms. (Cal. Rules of Court, rule 4.421(a)(1)-(2), (b)(3).) To satisfy section 1170(b)'s requirement that the use of a firearm aggravating circumstance be supported by a jury finding beyond a reasonable doubt or a stipulation from Ragland, the trial court relied on the jury's true findings on the enhancements for personal use of a firearm under sections 12022.5, subdivision (a) and 12022.53, subdivision (b). The court also imposed a 10-year enhancement under section 12022.53, subdivision (b). It was error for the trial court to use Ragland's personal use of a firearm both to justify the upper term on count 7 and to impose the 10-year term for the section 12022.53, subdivision (b) enhancement.
II. Prejudice
Ragland contends the trial court's error is prejudicial and the matter must be remanded to the trial court for another resentencing. He cites People v. Price (1991) 1 Cal.4th 324, 492, superseded by statute on other grounds as stated in People v. Hinks (2024) 58 Cal.App.4th 1157, 1162-1163, which established that "[w]hen a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper." Ragland does not dispute that, even setting aside the use of a weapon circumstance, the trial court properly found great bodily injury and prior prison terms as aggravating circumstances. Nor does Ragland contend that these remaining factors are legally insufficient on their own to support the upper term on count 7. Instead, he argues the evidence of his behavior in prison and jail and the fact that the trial court struck some enhancements and reduced the total length of his sentence to 20 years demonstrates a reasonable probability that the trial court would have imposed a lesser sentence had it known it could not rely on his use of a firearm as an aggravating circumstance on count 7.
The Attorney General notes that in People v. Lynch (May 27, 2022, C094174) [nonpub. opn.], review granted Aug. 10, 2022, S274942, our Supreme Court will decide what standard of prejudice applies when a trial court imposes an upper term based on some aggravating circumstances that comply with the jury finding or stipulation requirement in section 1170(b)(2) and others that do not. (See People v. Falcon (2023) 92 Cal.App.5th 911, 933-937, review granted Sept. 13, 2023, S281242 [summarizing split of authority].) That issue is irrelevant here. Ragland does not contend that the trial court findings on any of the aggravating circumstances violated section 1170(b)(2).
We disagree. The trial court's sentencing choices and rationale make clear that it would have imposed the upper term based solely on the great bodily injury and prior prison term circumstances. When explaining why it declined to strike the firearm enhancements, the trial court noted that Ragland's crimes were egregious, particularly the severe injury he caused the victim of the count 7 robbery, and that he had served three terms in prison. The trial court accepted Ragland's uncontradicted assertions that he had shown exemplary behavior in prison and jail. But given the circumstances of the crimes, the court nonetheless concluded that imposing the firearm enhancement was necessary for the total sentence to accurately reflect Ragland's criminal conduct. The trial court then carefully crafted the sentence to reach exactly 20 years, dismissing various enhancements under section 1385, subdivision (c) and having the term for count 2 run concurrently to reach that result. The trial court also imposed upper terms even when its choice of term had no practical effect, such as for count 2's concurrent term and the terms for counts 8, 9, and 12 that the trial court stayed under section 654.
The trial court was, by its own admission and as revealed in these sentencing choices, intent on reaching 20 years, the longest sentence it believed it could impose under section 1385, subdivision (c)(2)(C). That statute, not a sense of leniency or mitigating factors like Ragland's behavior in prison, drove the court to impose a shorter sentence than it had initially. The court also stated that it believed the length of sentence it imposed was necessary to accurately reflect Ragland's conduct. The trial court's choice to impose upper terms even when doing so had no practical effect further reveals the trial court's assessment of Ragland's behavior. Considering the trial court's comments and its sentencing decisions as a whole, we conclude the court would have imposed the same sentence even had it known that its reliance on one of the three aggravating circumstances was improper.
DISPOSITION
The judgment is affirmed.
WE CONCUR: GOLDMAN, J., HITE, J. [*]
[*] Judge of the Superior Court of California, County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.