Opinion
B317264
02-28-2023
THE PEOPLE, Plaintiff and Respondent, v. DOCK DAVID SMITH, Defendant and Appellant.
Natalie Cohen, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Kenneth C. Byrne and Allison H. Chung, Deputy Attorneys General for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Los Angeles County, No. BA477602 Henry J. Hall, Judge. Affirmed.
Natalie Cohen, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Kenneth C. Byrne and Allison H. Chung, Deputy Attorneys General for Plaintiff and Respondent.
ROTHSCHILD, P. J.
Defendant and appellant David Dock Smith (Smith) appeals from the trial court's December 16, 2021 judgment sentencing him to four years in state prison. Smith's sole contention on appeal is that the enactment of Senate Bill No. 567 requires that he be resentenced. We conclude that Smith is not entitled to resentencing in light of his knowing and voluntary decision to accept a high term suspended sentence in exchange for the reinstatement of probation. We therefore affirm the judgment.
FACTUAL SUMMARY AND PROCEDURAL HISTORY
We summarize here only the facts and procedural history relevant to our resolution of this appeal.
On May 5, 2019, Los Angeles Police Department officers responded to a complaint that Smith was sleeping and loitering inside a Metro Red Line train. When the officers asked Smith to wake up and leave the train, he was unresponsive. Additional officers then arrived on the scene and detained Smith. During a search of Smith's duffle bag, officers discovered a disassembled AR-15 assault pistol and a sock containing phencyclidine (PCP). The officers arrested Smith, and, during the booking process, discovered a baggie on his person containing 8.20 grams of cocaine and 5.58 grams of methamphetamine.
On November 3, 2020, the Los Angeles District Attorney's Office charged Smith by information with one felony count of possession of a controlled substance while armed with a firearm, pursuant to Health and Safety Code section 11370.1, subdivision (a), and three misdemeanor counts of possession of a controlled substance. The information also alleged that Smith suffered a prior strike conviction.
Health and Safety Code section 11370.1 provides, in relevant part: "Notwithstanding [Health and Safety Code] [s]ection 11350 or 11377 or any other provision of law, every person who unlawfully possesses any amount of a substance containing cocaine base, a substance containing cocaine, a substance containing heroin, a substance containing methamphetamine, a crystalline substance containing phencyclidine, a liquid substance containing phencyclidine, plant material containing phencyclidine, or a hand-rolled cigarette treated with phencyclidine while armed with a loaded, operable firearm is guilty of a felony punishable by imprisonment in the state prison for two, three, or four years." (Health &Saf. Code, § 11370.1, subd. (a).)
At the November 13, 2020 pretrial conference, the court and parties engaged in the following discussion:
"The court: The record should reflect we've had a brief off-the-record conversation about this matter. I'm informed that Mr. Smith has been placed in a program on his other matter, TA152447. After reviewing the records in this case and discussing the matter with counsel over the People's objection I'm prepared to strike Mr. Smith's strike. And if he pleads open to the court I'll place him on formal probation for a period of three years in the same program he's going to in Compton. And with that in mind[,] how do you want to proceed, [defense counsel]?
"[Defense counsel]: [Smith] wishes to change his plea."
Smith then entered a nolo contendere plea to the four counts of the information. The trial court suspended imposition of sentence and placed Smith on formal felony probation for three years, under certain terms and conditions, including enrollment in and completion of a drug treatment program.
During the November 13, 2020 hearing, the prosecutor appears to reference a fifth count, "count two." No reference to "count two" appears in the minute order memorializing the proceedings at the November 13 hearing. Nor does the information charge a "count 2," although we note that the information alleges that "prior to the commission of that offense or offenses alleged in [c]ounts one and two, the defendant . . . ha[s] been convicted of the following serious and/or violent felony." (Capitalization omitted.) The counts in the information are numbered 1, 3, 4, and 5.
In November 2020, the probation department indicated that Smith had deserted probation. On December 3, 2020, the trial court revoked probation and issued a bench warrant for Smith's arrest. The trial court recalled and quashed the bench warrant on March 9, 2021, following Smith's arrest. On April 9, 2021, the probation department prepared a report indicating, inter alia, that Smith had failed to comply with the terms of his court-ordered drug treatment program.
On April 12, 2021, the parties appeared before the trial court to set a hearing on Smith's alleged probation violation. At the hearing, the court offered Smith another chance to continue probation, subject to various conditions, including the imposition of the high term sentence for the Health and Safety Code section 11370.1 conviction-four years in state prison-if he failed to complete another treatment program:
"The court: This matter's here for probation violation hearing setting. We did receive a supplemental probation report. After having reviewed that report I think we're better off setting it for a hearing.
"[Defense counsel]: . . . I know we talked about it briefly at the end of the last court date about perhaps giving Mr. Smith another chance.
"The court: I'll give Mr. Smith another chance, but he has to admit the violation and I'm going to impose an ESSsentence. If he walks away from another program he's going to go to prison and it's going to go the high term given his record and given the nature of this offense.
"ESS" refers to "execution of sentence suspended." (See, e.g., People v. Cruz-Lopez (2018) 27 Cal.App.5th 212, 214.)
"[Defense counsel]: I apologize. What's the offer on this case?
"The court: Four years.
"(Pause)
"[Defense counsel]: Thank you, Your Honor.
"The court: How are we going to proceed?
"[Defense counsel]: Your Honor, he'd like to admit. My understanding is it's two years probation?
"The court: It is, which is one of the things that may lean a little bit against reinstating probation. We'll see where we are."
After advisement and waiver of his rights to a revocation hearing, Smith admitted the probation violation. The trial court therefore revoked and then reinstated and modified probation to include a state prison sentence of four years, execution of which was suspended for a period of two years:
"The court: . . . I find the defendant in violation of probation. Probation is revoked and reinstated under the following terms and conditions....
"[¶] . . . [¶]
". . . As to count one, a violation of [Health and Safety] Code section 11370.1, the defendant is ordered to be imprisoned in the state prison for a period of four years. That's high term. That will be concurrent with all other time. I'm selecting the high term of four years based on his criminal history and the nature of the underlying offense in this case. Total aggregate term of imprisonment is four years. Execution of this sentence is suspended. The defendant is regranted formal felony probation for a period of two years under the following terms and conditions: [including completion of a residential drug treatment program]....
"[¶] . . . [¶]
"Okay, Mr. Smith. Good luck to you, sir. Like I said though, if you violate probation again there's no amount of sweet talking and smooth talking from [defense counsel] that's going to keep you from going to prison for four years.
"[Smith]: Okay.
"The court: So he's a smooth talker, but there are limits, okay?
"[Smith]: All right. Thank you, Your Honor.
"The court: Good luck to you, sir.
"[Smith]: All right."
Smith appears to have struggled to comply with the terms of his probation, and the trial court conducted a number of subsequent proceedings, which culminated in a contested probation violation hearing spanning November 30, 2021 and December 16, 2021. At the conclusion of the December 16, 2021 hearing, the trial court found Smith in violation of probation for failing to report to his probation officer and for failing to complete the court-ordered drug treatment program. The court then revoked and terminated probation and executed the previously imposed and suspended sentence, ordering Smith committed to state prison for four years. Smith filed a notice of appeal that same day.
DISCUSSION
Senate Bill No. 567 "amended [Penal Code] section 1170, subdivision (b), to require that when a statute specifies three potential terms of imprisonment, a court must presumptively impose the middle term." (People v. Ross (2022) 86 Cal.App.5th 1346, 1352 (Ross), petn. for rehg. denied Jan. 13, 2023, petn. for review filed Feb. 3, 2023, S278266, citing Pen. Code, § 1170, subd. (b)(1), as amended by Stats. 2021, ch. 731, § 1.3.)
"Moreover, a court may not impose the upper term unless aggravating circumstances 'justify the imposition of a term of imprisonment exceeding the middle term, and the facts underlying those circumstances have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.' [Citation.] Under [Penal Code] section 1170, subdivision (b)(3), however, 'the court may consider the defendant's prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury.'" (Ross, supra, 86 Cal.App.5th at p. 1352.)
Smith contends that he must be resentenced pursuant to Senate Bill No. 567 because "the two aggravating factors the court relied on in choosing the high term-Mr. Smith's criminal history and the nature of the underlying offense [in the case]- were not supported by certified records of conviction, 'stipulated to by the defendant,' or 'found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.' "
In response, the Attorney General "properly concede[s] that Senate Bill [No.] 567 is retroactive under In re Estrada (1965) 63 Cal.2d 740 . . ., and that it applies here to [Smith's] nonfinal judgment." (See Ross, supra, 86 Cal.App.5th at p. 1352, citing People v. Zabelle (2022) 80 Cal.App.5th 1098, 1109.) The Attorney General concedes further that "[t]he trial court did not rely on proper aggravating circumstances under [Senate Bill No.] 567." (Boldface omitted.)
The Attorney General nonetheless urges that resentencing is unnecessary here because "[Smith's] admission of the probation violation in exchange for the reinstatement and modification of probation to include an imposed and suspended execution of a four-year upper term prison sentence bears similarity to the situation in People v. Mitchell (2022) 83 Cal.App.5th 1051, [1059 (Mitchell),] review granted December 14, 2022, S277314." We agree.
In Mitchell, the appellate court held that amended Penal Code section 1170, subdivision (b) does not apply to sentences imposed pursuant to a stipulated plea agreement because "[i]n the case where there is a stipulated plea . . ., there is no occasion for the trial court to find any aggravating facts in order to justify the imposition of an upper term at sentencing." (Mitchell, supra, 83 Cal.App.5th at p. 1059.) The Mitchell court explained further: "Appellant agreed to a term of six years pursuant to a stipulated plea and the trial court simply sentenced appellant according to the terms of the plea agreement....Therefore, the concern . . . that a defendant's Sixth Amendment rights are violated when aggravating facts to support an upper term sentence are not found by a jury beyond a reasonable doubt does not exist here." (Mitchell, supra, at p. 1059.)
Similarly, here, Smith's knowing and voluntary decision to accept a high term suspended sentence in exchange for the reinstatement of probation does not implicate any Sixth Amendment concerns. Although we note the Sixth District's recent disagreement with Mitchell in People v. Todd (Feb. 15, 2023, H049129) __Cal.App.5th__ , our own district's decision in People v. Berdoll (2022) 85 Cal.App.5th 159 further supports our conclusion. (Id. at pp. 165, 161 ["Although here Berdoll's plea of guilty was not based on a stipulated plea agreement, his plea of guilty to the judge's indicated sentence bears similarity [to the facts in Mitchell]." "We conclude that here, where Berdoll agreed to an indicated sentence after the court considered the mitigating and aggravating factors in arriving at its sentence, a remand is not required."].) In addition, the Fifth District has adopted the Mitchell court's approach. (See People v. Sallee (Feb. 15, 2023, F083728)__ Cal.App.5th __ .)
In light of our conclusion, we need not address which of the various prejudice standards articulated by the Courts of Appeal should apply in the Senate Bill No. 567 sentencing error context, an "issue [that] is pending before our Supreme Court." (People v. Sherman (2022) 86 Cal.App.5th 402, 416, petn. for review filed Jan. 24, 2023, S278310, citing People v. Lynch (May 27, 2022, C094174) [nonpub. opn.], review granted Aug. 10, 2022, S274942.)
We are not persuaded by Smith's contention that the Attorney General's reliance on Mitchell and Berdoll is "misplaced." Smith urges that "[a]lthough . . . [he] admitted to the first probation violation and accepted the court's indicated suspended sentence, his initial failure to program was not itself an aggravating circumstance. The indicated sentence of four years did not increase based on the initial probation violation, as it was the same sentence previously imposed pursuant to the two aggravating circumstances cited by the court." Smith's argument, however, fails to address the basic premise underlying our decision-i.e., that Smith's voluntary acceptance of the high term sentence in exchange for a benefit (namely, the reinstatement of probation) does not run afoul of the Sixth Amendment.
Accordingly, we conclude that no remand for resentencing is warranted in this case, and we affirm the judgment.
DISPOSITION
The December 16, 2021 judgment is affirmed.
We concur: CHANEY, J. WEINGART, J.