Opinion
A156358
05-06-2020
THE PEOPLE, Plaintiff and Respondent, v. KRISTON JAMES SPECK, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. SC076554)
Defendant Kriston James Speck was charged in a one-count information with assault with means of force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(4)), which information also alleged various enhancements. Defendant pled no contest to the one count alleged and also admitted various enhancements, including one 10-year enhancement (for a crime benefiting a street gang), one for three years (for personal infliction of great bodily injury), and one year for a prior prison term.
All further unspecified statutory references are to the Penal Code.
Years later, the Department of Corrections sent a letter to the superior court notifying it that the sentence may have been inappropriate, citing among other things to section 1170.1, subdivision (g), which provides in pertinent part as follows: "When two or more enhancements may be imposed for the infliction of great bodily injury on the same victim in the commission of a single offense, only the greatest of those enhancements shall be imposed for that offense." On resentencing, the trial court concluded it could not have imposed both the 10-year and three-year enhancements, and stayed the three-year enhancement.
Defendant appeals, contending that the stay was error, that the three-year enhancement had to be stricken. And in a supplemental brief defendant contends that a recent amendment to section 667.5 makes the three-year enhancement improper. We conclude that the trial court acted properly, but that the defendant is correct as to the section 667.5 argument, and we thus remand for sentencing.
BACKGROUND
The Facts
The facts of the crime are not pertinent to the issues before us, and will not be set forth in detail. Suffice to say that on June 5, 2012, defendant struck 16-year old Eric M. near his temple, causing him to fall from his bicycle, and defendant then continued to attack Eric, causing serious injuries. The attack caught the attention of bystanders, one of whom called out to defendant. Defendant stopped, yelled "X.I.V." while making a sign with his hands, and then walked away, to be later apprehended. "X.I.V." is a symbol associated with the Norteño criminal street gang.
The Proceedings Below
An amended information filed on November 18, 2013, charged defendant with one count of assault with force likely to cause great bodily injury. (§ 245, subd. (a)(4)). The information also alleged several enhancements, that defendant: (1) committed a serious or violent felony for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)(C)); (2) personally inflicted great bodily injury in the commission of the offense (§ 12022.7, subd. (a)); (3) had served a separate prior prison term or jail term pursuant to section 1170 for a felony offense (§ 667.5, subd. (b)); and (4) committed a new serious felony after having been previously convicted of a serious felony (§ 667, subd. (a)). The information also alleged that defendant had two prior convictions for serious felonies within the meaning of section 1170.12, subdivision (c)(1).
According to the clerk's transcript, on November 18, defendant filed a change of plea form that included two recitations by defendant. The first was that he was "charged" with "having violated" what was set out in the "attached memorandum," which memorandum read as follows: "I am charged in the Information in this action with having violated Count 1, § 245, subdivision (a)(4), with special allegations per § 186.22, subdivision (b)(1), § 1192.7, subdivision (c)(28), and §1203, subdivision (k), and § 12022.7, subdivision (a); Prior 1, § 1203, subdivision (e)(4), Prior 2, § 1170.12, subdivision (c)(1), Prior 3, § 1170.12, subdivision (c)(1), Prior 4, § 667.5, subdivision (b), Prior 5, § 667, subdivision (a), and Prior 6, § 667, subdivision (a)."
The second recitation was that defendant desired to change his plea as in the "attached addendum," which read as follows: "I desire to change my pleas to no contest to Count 1, § 245, subdivision (a)(4); admit the special allegations per § 186.22, subdivision (b)(1), § 1192.7, subdivision (c)(28), § 12022.7; admit Prior 4, § 667.5, subdivision (b).
"Count 1: section 245, subdivision (a)(4) 4 years doubled to 8 years CDC;
"section 12022.7, subdivision (a) +3 years;
"section 1192.7, subdivision (c)(28)
"section 1170.12, subdivision (c)(1) (admitting the 1994 section 460, subdivision (a) prior from Santa Clara County)
"section 186.22, subdivision (b)(1)(C) +10 years
"section 667.5, subdivision (b) +1 year (admitting the section 10851, subdivision (a) VC prior from Alameda County."
Defendant waived preparation of a probation report, and the trial court imposed sentence immediately after the plea and admissions, sentencing defendant to a total of 22 years in prison, computed as follows: the upper term of four years on the charged count, doubled to eight years based on defendant's admission of a prior serious felony conviction, enhanced for 14 more years—10 years for committing a serious or violent felony for the benefit or, at the direction of, or in association with a criminal street gang, three years for personal infliction of great bodily injury, and one year for the prior prison term.
In September 2018, pursuant to section 1170, subdivision (d), the Secretary of the Department of Corrections sent a letter to the superior court noting that the court should consider whether, under People v. Gonzalez (2009) 178 Cal.App.4th 1325 (Gonzalez), the court erred in imposing both the gang (§ 186.22, subd. (b)(1)(C)) and the great bodily injury (§ 12022.7, subd. (a)) enhancements.
Section 1170, subdivision (d) provides in relevant part: "When a defendant . . . has been sentenced to be imprisoned in the state prison . . . , the court may . . . at any time upon the recommendation of the secretary or the Board of Parole Hearings in the case of state prison inmates . . . recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if he or she had not previously been sentenced, provided the new sentence, if any, is no greater than the initial sentence."
On November 16, the trial court held a hearing on the matter, where the court first described what led to the hearing:
"This case was brought to my attention after receiving a letter from Ralph Diaz—he is with [the] CDC. He's the secretary—indicating that pursuant to a case, People [v.] Gonzalez . . . at 178 Cal.App.4th 1325, that it is an inappropriate sentence. I think it was Judge Mallach . . . [¶] . . . sentenced the defendant to a stipulated term of 8-years pursuant to the 245 (a)(4) doubled because of the strike, an additional 10 years under 186.22 (b)(1)(C), an additional 3 years under the 12022.7, and an additional 1-year under the 667[.5] (b) prior for a total of 22 years.
"The Gonzalez case seems to indicate that unless the 245 (a)(4) is a violent felony the court can only select one of the two special allegations, and it would be the greater of the two. In other words, the court must select either the 186.22 (b)(1)(C) for 10 years or the 12022.7 for 3 years to run consecutive. The other would have to be stayed under Gonzalez.
"Now reading the Gonzalez case and talking to both sides it appears that . . . what Mr. Speck pled to was an illegal sentence. It was a stipulated sentence, but it was illegal. So the question then becomes for this court [is] whether someone can stipulate to an illegal sentence. If they can, then the 22 years will remain. If they cannot, then the court would be compelled to stay the 12022.7 3-year sentence as the lesser of the two special allegations giving the defendant a 19-year term."
The trial court then asked the prosecutor whether he had authority that would permit the court to impose an illegal stipulated sentence. The prosecutor responded: "I'll state simply for the record that my position is that it was a stipulated sentence, so I would be asking the court for 22 years. However, based on the Gonzalez case it's very fact specific and it's on point with regard to the issues we have in this case. So based on that I will stipulate I agree the court should stay the 3 years of enhancement on the 12022.7 (a)."
Defense counsel then said he agreed with the prosecutor, that the court should stay the sentence on the section 12022.7, subdivision (a) enhancement.
The trial court then ruled: "[B]ased on comments of counsel and the law the court, then, will simply stay the 12022.7 3-year consecutive term. That sentence now, the punishment is stayed leaving a sentence of 22 years pursuant to the articulated sentence I've already put forth. In other words, it's . . . [¶] . . . 19 years based on that. The 245 (a)(4), 4 years doubled is 8, plus the 186.22 (b)(1)(C) for 10 years, plus the 667.5 (b) for 1 year for a total of 19 years."
DISCUSSION
Introduction
As noted, defendant contends the court erred in staying rather than striking the section 12022.7, subdivision (a) three-year enhancement. Specifically, defendant argues that while the court correctly recognized that Gonzalez, supra, 178 Cal.App.4th 1325 prohibited application of both the section 186.22, subdivision (b)(1)(C) and section 12022.7, subdivision (a) enhancements, section 1170.1, subdivision (g) not only prohibits the imposition and execution of more than one enhancement for the infliction of great bodily injury, but prohibits imposing and staying any additional great bodily injury enhancements.
We note at the outset defense counsel's express statement agreeing that the staying of the enhancement was proper. Despite that, we consider the issue as cognizable here, as we treat defendant's claim as asserting the sentence is unauthorized, an issue that may be raised for the first time on appeal. (People v. Scott (1994) 9 Cal.4th 331, 352; see People v. Bradley (1998) 64 Cal.App.4th 386, 391 ["The failure to impose or strike an enhancement is a legally unauthorized sentence subject to correction for the first time on appeal"].)
We thus turn to the issue raised in defendant's appeal—and conclude it has no merit.
The Trial Court Was Correct
People v. Vega (2013) 214 Cal.App.4th 1387 (Vega) is on point. The crime there was attempted voluntary manslaughter, and the jury found that one of the two defendants personally inflicted great bodily injury in the commission of the crime, and also that it was committed on behalf of a criminal street gang. (Id. at p. 1389.) Based on these findings, the trial court imposed a 10-year enhancement under section 186.22, subdivision (b)(1)(C), and stayed the section 12022.7, subdivision (a) enhancement. (Vega, at p. 1395.) The Court of Appeal said this: "The trial court orally proceeded to stay the section 12022.7, subdivision (a) great bodily injury enhancement without initially imposing it. But, under California Rules of Court, rule 4.447 the trial court should have imposed and then stayed that enhancement. Rule 4.447 expressly requires the sentencing court to impose the aggregate term and then stay the execution of the prohibited sentence on an enhancement." (Vega, supra, at pp. 1395-1396; see also People v. Lopez (2004) 119 Cal.App.4th 355, 365.)
As noted, the Vega court held that California Rules of Court, rule 4.447 (rule 4.447) required the sentencing court to have imposed and then stayed the enhancement, as indeed the rule requires, providing as follows:
"(a) Enhancements resulting in unlawful sentences. A court may not strike or dismiss an enhancement solely because imposition of the term is prohibited by law or exceeds limitations on the imposition of multiple enhancements. Instead, the court must:
"(1) Impose a sentence for the aggregate term of imprisonment computed without reference to those prohibitions or limitations; and
"(2) Stay execution of the part of the term that is prohibited or exceeds the applicable limitation. The stay will become permanent once the defendant finishes serving the part of the sentence that has not been stayed."
Defendant acknowledges Vega and its reliance on rule 4.447, but argues that Vega is "incorrectly decided" because application of rule 4.447 to section 1170.1, subdivision (g), is not only contrary to the plain language of the statute, but a violation of the doctrine of separation of powers. By no means.
To begin with, defendant has cited no case, or any other authority, in any way critical of Vega. To the contrary, Vega has been cited in at least 30 cases, including by two divisions in this District: People v. Nevels (Mar. 13, 2015, A141281) [nonpub. opn.]) 2015 WL 1223411, and People v. Nero (Dec. 15, 2017, A145664) [nonpub. opn.]) 2017 WL 6397807.
Moreover, citing Vega, the leading California treatise on sentencing puts it in these point-blank terms: "If a defendant is convicted of a violent offense with allegations of gun use and infliction of great bodily injury, section 1170.1, subdivision (f) does not apply. A defendant found to promote gang activity must receive a sentence enhancement for both firearm use and inflicting great bodily injury in the shooting of a rival gang member, as the defendant was convicted of violent offenses (§ 667.5, subd. (c)(8).) (People v. Vega[, supra] 214 Cal.App.4th [at pp.] 1393-1397 [attempted voluntary manslaughter was not properly enhanced under § 186.22, subd. (b)(1)(C) for promoting gang activity, the firearm use under § 12022.5, subd. (a), and the great bodily injury allegation under § 12022.7, subd. (a)].)" (Couzens, Bigelow & Prickett, Sentencing California Crimes (The Rutter Group 2019) ¶ 13:6, p. 13-16.)
In sum, we have found nothing—and defendant's brief provides nothing—in any way criticizing Vega, let alone supporting that it was "wrongfully decided."
Were all that not enough, the reasoning of Vega is supported by the Supreme Court's opinion in People v. Gonzalez (2008) 43 Cal.4th 1118. The case involved application of section 12022.53, subdivision (f), which provides that when "more than one enhancement per person is found true under this section, the court shall impose on that person the enhancement that provides the longest term of imprisonment" (italics added), and the issue was whether that section required that the enhancements providing shorter terms of imprisonment be stayed or stricken. The Supreme Court concluded that "the remaining section 12022.53 firearm enhancements and any section 12022.5 firearm enhancements that were found true for the same crime must be imposed and then stayed." (People v. Gonzalez, supra, 43 Cal.4th at pp. 1123-1125.) As Justice Chin put it for a unanimous court: "In order to understand our statutory construction of sections 12022.53 and 12022.5, as well as the interplay between the statutes in question and the procedures the Judicial Council adopted in order to address prohibited enhancements, it is important to understand that the word 'impose' applies to enhancements that are 'imposed and then executed as well as those that are 'imposed and then stayed. However, as a practical matter, the word "impose" is often employed as shorthand to refer to the first situation, while the word "stay" often refers to the latter.' [Citation.]" (Id. at p. 1125.)
In short, the Supreme Court arrived at its conclusion by construing the term "impose" as used in section 12022.53, subdivision (f), as shorthand for "impose and then execute," and "directs that only one enhancement may be imposed and then executed per person for each crime, and allows a trial court to impose and then stay all other prohibited enhancements." (People v. Gonzalez, supra, 43 Cal.4th at p. 1127.) And though the Supreme Court did not rely on rule 4.447 in its analysis, the Court noted that the rationale underlying that rule and section 654—preservation of the possibility that a stayed portion of a sentence could be imposed if the unstayed portion is reversed on appeal—was also served by its construction of section 12022.53, subdivision (f).
As noted, defendant cites no case that supports his position. What he does say is this: "Nor is there any implied judicial power to stay an enhancement where the legislature has provided none. In People v. Santana (1986) 182 Cal.App.3d 185, the court held that trial courts may not impose and then stay execution of an enhancement under Penal Code section 667, subdivision (a) where the statute contained the mandatory language stating that '[a]ny person convicted of a serious felony . . . shall receive . . . a five-year enhancement.' (Id. at p. 192; see also People v. Cattaneo (1990) 217 Cal.App.3d 1577, 1588 [error to impose then stay enhancement where statute did not expressly provide such authority]; People v. Calhoun (1983) 141 Cal.App.3d 117, 125 [Penal Code section 1385 has no implicit provision for imposing and staying execution].) The common principle expressed in these cases is that the courts have no authority to impose and stay execution where a relevant statute does not permit it. By the same reasoning, there is no implicit authority that would permit the judiciary to create a rule permitting trial courts to impose and stay execution of enhancements, where the relevant act of legislature expressly does not allow those enhancements to be imposed at all."
Not only do these cases have nothing to do with the issue here, all three cases held against the defendant.
The Section 667.5 Enhancement Must Be Stricken
As noted, one of the enhancements imposed was a one-year enhancement for a prior prison term under section 667.5, subdivision (b), specifically, a conviction under Vehicle Code section 10851. On October 8, 2019, the Governor signed into law Senate Bill No. 136 (Sen. Bill No. 136 (2019-2020 Reg. Sess.) § 1), which amended section 667, subdivision (b). We granted defendant's request to file a supplemental brief on the issue whether defendant "should receive relief based on the recently-enacted change to section 667.5, subdivision (b)." And conclude he should.
Prior to the amendment, for non-violent felonies section 667.5, subdivision (b) imposed an additional one-year term for each prior separate prison term or county jail felony term. However, effective January 1, 2020, amended section 667.5, subdivision (b) imposes that additional one-year term only for a prior prison term served for a sexually violent offense. (§ 667.5, subd. (b), as amended by Sen. Bill No. 136).
Following the amendment, section 667.5, subdivision (b) provides as follows: "Except where subdivision (a) applies, where the new offense is any felony for which a prison sentence or a sentence of imprisonment in a county jail under subdivision (h) of Section 1170 is imposed or is not suspended, in addition and consecutive to any other sentence therefor, the court shall impose a one-year term for each prior separate prison term for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code . . . ."
Defendant's supplemental brief is simple and straightforward with nine pages of argument asserting that Senate Bill No. 136 applies retroactively as defendant's case is not yet final, which application "requires" that the one-year enhancement "be stricken," as the prior conviction was not a sexually violent offense. By contrast, the People's supplemental brief is 35 pages long, all in support of one argument: that defendant's failure to secure a certificate of probable cause "compels rejection of his request for Senate Bill No. 136 relief on direct appeal."
The People concede that Senate Bill No. 136 applies to defendant, but argue as follows: "Here, [defendant] agreed to a 22-year prison term, including a one-year enhancement imposed under section 667.5, subdivision (b). By requesting relief under Senate Bill [No.] 136 and asking this Court or the trial court to strike or dismiss the enhancement [defendant] is attacking the validity of his plea. Because 'a challenge to a negotiated sentence imposed as part of a plea bargain is properly viewed as a challenge to the validity of the plea itself,' it was 'incumbent upon [defendant] to seek and obtain a probable cause certificate in order to attack the sentence on appeal. (§ 1237.5.)' ([People v.] Panizzon [(1996)] 13 Cal.4th [68,] 79; see also In re Chavez (2003) 30 Cal.4th 643, 651, fn. 3 [reiterating Panizzon].) His failure to do so precludes relief. ([People v.] Mendez [(1999)] 19 Cal.4th [1084,] 1096, 1099 . . . ."
On the very next page the People "recognize[] that Courts of Appeal have rejected our position. For example, although it acknowledged that a challenge to a stipulated sentence 'ordinarily' requires a certificate of probable cause, the appellate court in People v. Stamps (2019) 34 Cal.App.5th 117, 121, (review granted June 12, 2019, S255843), agreed with the conclusion of the appellate court in People v. Hurlic (2018) 25 Cal.App.5th 50, that 'the ordinary rule does not apply when the challenge is based on a retroactive change in the law.' (Stamps, supra, 34 Cal.App.5th at p. 121.)"
Then, after discussion of Hurlic, supra, 25 Cal.App.5th 50, the People go on to note a split of authority on the issue: "In contrast to Hurlic and [People v.] Baldivia [(2018) 28 Cal.App.5th 1071], a number of decisions by the Courts of Appeal have applied the certificate requirement, dismissing appeals in which the defendant sought a remand for the trial court to exercise its new sentencing discretion with respect to an agreed sentence. (See People v. Kelly (2019) 32 Cal.App.5th 1013, review granted June 12, 2019, S255145; People v. Fox (2019) 34 Cal.App.5th 1124, review granted and further action deferred July 31, 2019, S256298; People v. Galindo (2019) 35 Cal.App.5th 658, review granted and further action deferred Aug. 28, 2019, S256568; People v. Williams (2019) 37 Cal.App.5th 602, review granted and further action deferred Sept. 25, 2019, S257538.)"
We need not weigh in on the issue, as the split of authority does not pertain here—this was not a true plea bargain situation. And the rule is that a plea in which the defendant agrees to a maximum sentence does not require a certificate of probable cause unless the defendant challenges the legal validity of the maximum sentence itself. (People v. Buttram (2003) 30 Cal.4th 773, 790-791; Hurlic, supra, 25 Cal.App.5th at pp. 55-56.) Or, to put it in the context of the People's argument, nothing in the record indicates that defendant was agreeing to a "22-year term." Rather, 22 years is what he got, based on all—and we mean all—he admitted.
DISPOSITION
The sentence is vacated, and the trial court is ordered to strike the enhancement under section 667.5, subdivision (b) and resentence defendant accordingly. Following resentencing the court shall amend the abstract of judgment and forward the amended abstract to the Department of Corrections and Rehabilitation. In all other respects the judgment is affirmed.
/s/_________
Richman, J. We concur: /s/_________
Kline, P.J. /s/_________
Miller, J.