Opinion
B305961
04-28-2021
THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY LEONARDO WILSON, Defendant and Appellant.
Jennifer Hansen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Matthew Rodriguez, Acting Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Michael R. Johnsen, Zee Rodriguez and Douglas L. Wilson, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. YA089874) APPEAL from an order of the Superior Court of Los Angeles County, Thomas Sokolov, Judge. Affirmed. Jennifer Hansen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Matthew Rodriguez, Acting Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Michael R. Johnsen, Zee Rodriguez and Douglas L. Wilson, Deputy Attorneys General, for Plaintiff and Respondent.
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Timothy Leonardo Wilson challenges the trial court's denial of a recommendation by the California Department of Corrections and Rehabilitation (CDCR) that the court recall his sentence in light of Senate Bill No. 1393. We conclude that Senate Bill No. 1393 does not apply retroactively to final judgments such as Wilson's, and therefore we affirm.
FACTUAL AND PROCEDURAL SUMMARY
A. Wilson's Underlying Conviction
On March 26, 2014, Martin Robles was operating a trash truck in Manhattan Beach. Robles saw Wilson enter an open garage and leave with a bicycle. Robles contacted the homeowner and told her what he had witnessed. She reported the incident.
Wilson pleaded no contest prior to a preliminary hearing. Therefore, we draw this factual summary from the probation officer's report filed on October 14, 2014.
Approximately 15 minutes later, a police officer observed Wilson riding the bicycle. The officer instructed Wilson to stop pedaling. Wilson stumbled off the bicycle and fled on foot. The officer caught up to Wilson and detained him.
On March 28, 2014, the People charged Wilson with first degree burglary while a person was present in the residence (Pen. Code, §§ 459, 667.5, subd. (c); count 1), and resisting a police officer (§ 148, subd. (a)(1); count 2). As relevant here, the complaint further alleged that Wilson suffered two prior serious or violent felonies within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12), and that the prior convictions were serious felonies pursuant to section 667, subdivision (a)(1).
Subsequent statutory references are to the Penal Code.
On October 14, 2014, Wilson pleaded no contest to count 1 and admitted one of the prior serious felonies. Pursuant to the terms of the plea agreement, the trial court sentenced Wilson to state prison for an aggregate term of nine years, calculated as follows: the low term of two years doubled pursuant to the Three Strikes law, plus five years for the prior serious felony conviction enhancement.
B. CDCR's Request to Recall the Sentence
On October 22, 2019, CDCR recommended that the trial court recall Wilson's sentence pursuant to section 1170, subdivision (d), and resentence him in light of Senate Bill No. 1393, which amended section 1385, subdivision (b), and granted trial courts the discretion to strike prior serious felony conviction enhancements. The request enclosed documents detailing Wilson's programming history, assignment history, and records of two rules violation reports.
In response to CDCR's request, the prosecutor filed a sentencing memorandum and attached four probation reports for Wilson's most recent convictions. The memorandum argued that Wilson should be resentenced to a total of nine years based on his "uninterrupted pattern of property crimes spanning a period of over 25 years," and noted that "three of the last four criminal convictions involved property taken from residences."
The probation reports attached to the prosecution's memorandum indicated that Wilson had been convicted of one strike prior for burglary in 1992 (§ 459), and one strike prior for robbery in 1984 (§ 211). He had convictions for numerous theft related crimes dating back to 1978, and had served multiple terms in state prison.
On February 18, 2020, the trial court held a hearing on CDCR's request, in which Wilson was present and represented by counsel. Defense counsel advocated for a reduced sentence on the basis of Wilson's educational and work experience in prison and his negligible disciplinary record. He noted that Wilson had participated in 29 programs in prison. He reminded the court that Wilson's prior strike convictions were from 1984 and 1992.
The trial court observed that prior to entry of his plea, Wilson had been facing a sentence of 35 years to life due to the two prior strike convictions, but he received a sentence of nine years pursuant to the plea agreement. The court concluded that Wilson's present offense was "not only a residential burglary," but it included an allegation that a person was present at the time of the offense. It denied the request to resentence Wilson.
Wilson timely appealed.
DISCUSSION
Wilson argues the trial court abused its sentencing discretion by failing to consider the underlying facts of his crime, his age, the low risk of violence to the community if he were to be released, and the weight of his admirable post-conviction conduct while in prison.
Wilson was 60 years old at the time of the hearing.
In response, respondent contends the trial court did not err in denying Wilson's request because Senate Bill No. 1393's amendment of section 1385 does not apply retroactively to Wilson's 2014 conviction, which was a final judgment when the bill took effect on January 1, 2019. For the reasons that follow, we agree with this argument. We note that the People did not raise this issue at the time of the underlying hearing, but instead proceeded on the assumption the trial court had the discretion to resentence Wilson. Thus, the trial court did not have occasion to consider the retroactivity issue. Nonetheless, "on appeal we are concerned with the correctness of the superior court's determination, not the correctness of its reasoning. [Citation.] ' "[W]e may affirm a trial court judgment on any [correct] basis presented by the record whether or not relied upon by the trial court. [Citation.]" [Citation.]' [Citation.]." (People v. Perkins (2016) 244 Cal.App.4th 129, 139; see also People v. Zamudio (2008) 43 Cal.4th 327, 351, fn. 11 [" 'we review the ruling, not the court's reasoning and, if the ruling was correct on any ground, we affirm' "].) Given that we conclude Senate Bill No. 1393 does not apply to final judgments, the trial court's order was not erroneous.
A. Senate Bill No. 1393
Prior to enactment of Senate Bill No. 1393, trial courts had no authority to strike enhancements under section 667, subdivision (a)(1). (People v. Alexander (2020) 45 Cal.App.5th 341, 344 (Alexander).) Senate Bill No. 1393, which became effective January 1, 2019, removed the prohibition on striking such enhancements by deleting the following provision of former section 1385, subdivision (b), which stated: "This section does not authorize a judge to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667." (Sen. Bill No. 1393 (2017-2018 Reg. Sess.) ch. 1013, § 2.) Section 1385, subdivision (b)(1), now provides that "[i]f the court has the authority . . . to strike or dismiss an enhancement, the court may instead strike the additional punishment for that enhancement in the furtherance of justice . . . ."
Whether Senate Bill No. 1393's amendment of section 1385 is to be applied retroactively to cases that are final is a question of law that we review de novo. (People v. Failla (2006) 140 Cal.App.4th 1514, 1520.)
B. CDCR's Recommendation to Recall Wilson's Sentence
Section 1170, subdivision (d)(1), authorizes a court to "recall the sentence and commitment previously ordered," and resentence a defendant "at any time upon the recommendation of" the Secretary of CDCR. Of relevance here, the secretary may recommend that a sentence be recalled when there is a change in sentencing law "due to new statutory or case law authority with statewide application." (Cal. Code Regs., tit. 15, § 3076.1, subds. (a)(3) & (d)(1).)
CDCR's recommendation that the trial court recall and resentence Wilson in light of Senate Bill No. 1393 raises the preliminary question whether its amendment of section 1385 should be applied to Wilson's sentence.
Respondent contends the trial court is not obliged to accept CDCR's recommendation. Rather, the court first should consider whether there is a legal basis to recall the sentence. We agree. By virtue of its permissive language, authorizing CDCR to make a "recommendation," and specifying the court "may" recall the sentence, section 1170, subdivision (d)(1), affords the trial court the opportunity first to determine whether to recall the sentence, and then to conduct a resentencing hearing in the event it does recall the sentence. (See Dix v. Superior Court (1991) 53 Cal.3d 442, 459 & fn. 13 [the trial court is not required to accept CDCR's recommendation to recall a sentence]; People v. Frazier (2020) 55 Cal.App.5th 858, 866 [a recommendation by CDCR does not trigger "any right to the recommended relief"]; see also People v. McCallum (2020) 55 Cal.App.5th 202, 214 [concluding that upon receiving a recommendation from CDCR under § 1170, subd. (d)(1), the trial court should have considered the briefing submitted by the parties before deciding whether to recall the sentence].)
Therefore, we first examine the basis for CDCR's recommendation to determine whether the trial court had the authority to apply amended section 1385 to Wilson's sentence.
C. Senate Bill No. 1393 Does Not Apply Retroactively to Final Judgments
Wilson entered his plea, and was convicted and sentenced in October 2014. Because he did not appeal from the judgment, his conviction became final in December 2014. (Alexander, supra, 45 Cal.App.5th at pp. 344-345, citing In re Spencer (1965) 63 Cal.2d 400, 405 [a conviction becomes final when "courts can no longer provide a remedy to a defendant on direct review"] and Cal. Rules of Court, rule 8.308(a) [a defendant has 60 days to appeal].)
The California Supreme Court has concluded that Senate Bill No. 1393 is an ameliorative change in sentencing law that applies retroactively to defendants whose judgments were not final as of January 1, 2019. (People v. Stamps (2020) 9 Cal.5th 685, 699; People v. Bell (2020) 47 Cal.App.5th 153, 198; Alexander, supra, 45 Cal.App.5th at pp. 345-346.) In Alexander, our colleagues in Division Six determined that Senate Bill No. 1393 does not apply to final judgments. (Alexander, supra, at p. 344.) Its decision is based upon the settled rule that " ' "in the absence of an express retroactivity provision[,] . . . [or] unless it is very clear from extrinsic sources that the Legislature . . . must have intended a retroactive application," ameliorative legislation does not affect convictions that have become final. [Citation.]' " (Id. at p. 345, quoting People v. Martinez (2018) 4 Cal.5th 647, 655; see also People v. McKenzie (2020) 9 Cal.5th 40, 46 ["the cutoff point for application of ameliorative amendments [is] the date when the 'case[ ]' [citation] or 'prosecution[ ]' is 'reduced to final judgment' "], quoting In re Estrada (1965) 63 Cal.2d 740, 746, 747 (Estrada).)
We agree with Alexander that there is "nothing in Senate Bill [No.] 1393's legislative history indicating that the law applies to final convictions." (Alexander, supra, 45 Cal.App.5th at p. 345.)
To the contrary, a comparison of Senate Bill No. 1393's amendment of section 1385 with other statutes or voter initiatives in which courts have applied an ameliorative reform retroactively to final judgments reveals why we must apply the presumption that "ameliorative legislation does not affect convictions that have become final." (People v. Martinez, supra, 4 Cal.5th at p. 655.)
For instance, our Supreme Court held that the Three Strikes Reform Act, passed by the voters in Proposition 36 in 2012 to reduce the punishment prescribed for certain third strike defendants, retroactively applied to final judgments because the sentence recall provision, found at section 1170.126 "creates a special mechanism that entitles all persons 'presently serving' indeterminate life terms imposed under the prior law to seek resentencing under the new law." (People v. Conley (2016) 63 Cal.4th 646, 657 (Conley).) The court concluded Proposition 36 applied to final judgments because: "In enacting the recall provision, the voters . . . took the extraordinary step of extending the retroactive benefits of the [Three Strikes Reform] Act beyond the bounds contemplated by Estrada—including even prisoners serving final sentences within the [Three Strikes Reform] Act's ameliorative reach—but subject to a special procedural mechanism for the recall of sentences already imposed. In prescribing the scope and manner of the [Three Strikes Reform] Act's retroactive application, the voters did not distinguish between final and nonfinal sentences, as Estrada would presume, but instead drew the relevant line between prisoners 'presently serving' indeterminate life terms—whether final or not—and defendants yet to be sentenced." (Conley, supra, at pp. 657-658.)
Similarly, our Supreme Court held Proposition 47, passed by the voters in 2014 to reduce common theft- and drug-related felonies to misdemeanors, applied to final judgments because, "[l]ike the [Three Strikes] Reform Act, Proposition 47 is an ameliorative criminal law measure that is 'not silent on the question of retroactivity,' but instead contains a detailed set of provisions designed to extend the statute's benefits retroactively." (People v. DeHoyos (2018) 4 Cal.5th 594, 603, quoting Conley, supra, 63 Cal.4th at p. 657.) Proposition 47's recall provisions "include . . . a recall and resentencing mechanism for individuals who were 'serving a sentence' for a covered offense as of Proposition 47's effective date. (§ 1170.18, subd. (a).)" (DeHoyos, supra, at p. 603.) Finally, the court observed that like the Three Strikes Reform Act, Proposition 47's recall provision "expressly makes resentencing dependent on a court's assessment of the likelihood that a defendant's early release will pose a risk to public safety, undermining the idea that voters 'categorically determined that "imposition of a lesser punishment" [§ 1170.18] will in all cases "sufficiently serve the public interest." ' " (DeHoyos, supra, at p. 603, quoting Conley, supra, at p. 658.)
Finally, we held Proposition 64, passed by the voters in 2016 to reduce several felony cannabis offenses to misdemeanors, applied to final judgments because "Proposition 64, like Proposition 36, 'is not silent on the question of retroactivity[,]' . . . [because i]t provides for a procedure analogous to Proposition 36's procedure 'for application of the new lesser punishment to persons who have previously been sentenced.' " (People v. Rascon (2017) 10 Cal.App.5th 388, 394, citation omitted, quoting Conley, supra, 63 Cal.4th at pp. 657 & 658.) "Proposition 64, like Proposition 36, expressly restricts the availability of the reduced criminal penalties to those inmates who do not pose an unreasonable risk of danger to public safety (Health & Saf. Code, § 11361.8, subd. (b)), thereby making 'retroactive application of the lesser punishment contingent on a court's evaluation of the defendant's dangerousness.' " (Rascon, supra, at p. 394, quoting Conley, supra, at p. 658.) We therefore concluded: "In light of the similarities between the two propositions as to resentencing, we infer a similar intent on the part of the electorate—to create access to resentencing for prisoners previously sentenced for specified marijuana-related crimes . . . ." (Rascon, supra, at p. 394.)
Unlike the amendments to the Penal Code made by Propositions 36, 47, and 64, the amendment made by Senate Bill No. 1393 was to remove a prohibition on a trial court's sentencing authority by authorizing it to strike additional punishment for prior serious felony convictions. Unlike those Propositions, Senate Bill No. 1393 created no recall mechanism applicable to persons currently serving sentences. And, unlike those Propositions, Wilson has not identified any legislative history suggesting the Legislature intended to take "the extraordinary step of extending the retroactive benefits of [Senate Bill No. 1393] beyond the bounds contemplated by Estrada—[to include] even prisoners serving final sentences within [Senate Bill No. 1393]'s ameliorative reach . . . ." (Conley, supra, 63 Cal.4th at pp. 657-658.)
Wilson does not cite any legal authority that requires a trial court to recall a lawfully imposed sentence based on CDCR's recommendation for the purpose of applying a change in sentencing law enacted after the judgment of conviction is final, absent any indication that the Legislature intended the amended law to apply retroactively to final judgments. We have not located any authority to support this proposition. Because there is no basis for the trial court to retroactively apply Senate Bill No. 1393's amendment of section 1385 to Wilson's sentence, the trial court did not err in declining to resentence him.
D. Recent Cases Addressing the Scope of a Court's Resentencing Authority are Inapposite
Wilson argues that if his sentence from 2014 were to be recalled pursuant to section 1170, subdivision (d)(1), "there would no longer be a final judgment." He cites recent cases for the proposition that when a sentence is recalled, the original sentence is no longer operative, freeing the trial court to apply ameliorative laws because the judgment is no longer final. (See People v. Hwang (2021) 60 Cal.App.5th 358, review granted Apr. 14, 2021, S267274 (Hwang); People v. Lopez (2020) 56 Cal.App.5th 835, review granted Jan. 27, 2021, S265936 (Lopez); contra, People v Federico (2020) 50 Cal.App.5th 318, 321 , review granted Aug. 26, 2020, S263082 (Federico).) This argument rests on a false premise. As we have explained, CDCR's recommendation did not operate to recall Wilson's sentence, and Senate Bill No. 1393 did not apply retroactively to give the trial court a basis for recalling his sentence. As such, his judgment is final and his sentence stands as originally imposed.
The cases Wilson relies upon involved resentencing hearings held to consider clarifications in sentencing laws as determined by subsequent court decisions, which called into question the legality of the sentence imposed. In Hwang, CDCR initiated proceedings under section 1170, subdivision (d)(1), by recommending the defendant's sentence be recalled because the sentence might have been unlawful under People v. Rodriguez (2009) 47 Cal.4th 501 (Rodriguez). (Hwang, supra, 60 Cal.App.5th at p. 362.) Rodriguez held the trial court erred in imposing punishment for both a firearm enhancement and a gang enhancement, which had potential application to the sentence imposed in Hwang. (Rodriguez, supra, at p. 504; Hwang, supra, at p. 362.) Thus, the referral by CDCR in Hwang rested on the possibility that the trial court had imposed an unlawful sentence. (Hwang, supra, at p. 362.)
Similarly, in Lopez, CDCR recommended recall of a sentence pursuant to People v. Le (2015) 61 Cal.4th 416, which applied Rodriguez to another pair of sentencing enhancements, and called into question the propriety of the sentence imposed on the defendant. (Lopez, supra, 56 Cal.App.5th at p. 839; see Le, supra, at p. 419.) The Hwang court agreed with Lopez that the recall of the sentence in turn "reopened the finality of [the] judgment," at the time of resentencing, which allowed the trial court to consider the application of ameliorative statutes enacted after the initial judgment had become final. (Hwang, supra, 60 Cal.App.5th at p. 366; Lopez, supra, at p. 845; contra, Federico, supra, 50 Cal.App.5th at pp. 324-326.)
Two additional cases pending review in the Supreme Court also concern the scope of the trial court's resentencing authority when reconsidering potentially unlawful sentences. In Federico, CDCR recommended recall of a sentence pursuant to People v. Gonzalez (2009) 178 Cal.App.4th 1325, which barred imposition of both an enhancement for great bodily injury and a gang enhancement. (Federico, supra, 50 Cal.App.5th at p. 321.) People v. Padilla (2020) 50 Cal.App.5th 244, review granted August 26, 2020, S263375, involves a resentencing hearing following a successful challenge to a sentence in light of intervening decisions concerning the sentencing of juveniles to life without parole. (Id. at p. 247.)
In Wilson's case, CDCR's referral for resentencing is not premised on the possibility that Wilson's sentence is unlawful. Because we conclude there was no basis for recall of Wilson's sentence, the cases concerning the breadth of the trial court's sentencing authority once a sentence is recalled are inapposite.
DISPOSITION
The trial court's order is affirmed.
NOT TO BE PUBLISHED
Judge of the San Luis Obispo County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
ROTHSCHILD, P. J.
BENDIX, J.