Filed 2/15/22 P. v. Alaniz CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Kings County. Donna L. Tarter, Judge.

Matthew J. Watts, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Defendant Daniel Dominguez Alaniz, Jr. was convicted by a jury of resisting an executive officer by force, battery with injury to a peace officer, resisting arrest, and possession of drug paraphernalia, and admitted a prior prison term enhancement, and three prior strike convictions within the meaning of the “Three Strikes” law (Pen. Code, §§ 667, subds. (c)–(j), 1170.12, subds. (a)–(e)[1]). Defendant previously appealed in this case (F076254). In her[2] first appeal, she successfully contended that (1) the sentence on the battery conviction was required to be stayed pursuant to section 654, (2) the resisting arrest conviction was required to be reversed because it was a lesser included offense, and (3) the matter had to be remanded for recalculation of presentence custody credits.

Defendant now appeals from the trial court’s decision on remittitur. She argues that (1) the one-year prior prison term enhancement should be stricken pursuant to section 667.5, subdivision (b), as amended by Senate Bill No. 136 (2019–2020 Reg. Sess.) (Senate Bill 136); (2) the trial court’s imposition of a sentence on remittitur that exceeded the sentence originally imposed violated the California Constitution’s prohibition on double jeopardy and People v. Henderson (1963) 60 Cal.2d 482; and (3) the matter must be remanded with directions that the trial court implement this court’s prior orders. The People agree with defendant’s first and third arguments. However, they contend that any error in imposing a sentence in excess of the original sentence is moot because we must strike the one-year prior prison term enhancement and remand for correction of other errors. We vacate defendant’s sentence, strike the prior prison term enhancement, reinstate the conviction on count 1, reverse the conviction on count 3, and remand the matter for a full resentencing.

PROCEDURAL SUMMARY

“A jury convicted appellant Daniel Dominguez Alaniz, Jr., of resisting an executive officer by force ([]§ 69[;] count 1), battery with injury on a peace officer (§ 243, subd. (c)(2)[][;] count 2), resisting arrest (§ 148, subd. (a)(1)[][;] count 3)[,] and possession of drug paraphernalia (Health & Saf. Code, § 11364, subd. (a)[;] count 4), a misdemeanor. In a separate proceeding, [defendant] admitted a prison term enhancement (§ 667.5, subd. (b)) and allegations that [s]he had three prior convictions within the meaning of the ‘Three Strikes’ law (§ 667, subd. (a)).

“On July 14, 2017, the [trial] court sentenced [defendant] to an aggregate term of six years four months: a doubled middle term of four years on [count 1], a consecutive, doubled 16-month term on [count 2], concurrent terms of 364 days on [counts 3 and 4], and a one-year prior prison term enhancement.”

On June 12, 2019, this court reversed defendant’s conviction on count 3 and stayed the sentence on count 2, vacated the sentence, and remanded the matter to the trial court for resentencing and recalculation of custody credits. In all other respects, we affirmed the judgment.

On November 20, 2019, the trial court held a hearing on the remittitur. At that hearing it reversed the conviction on count 1 and stayed the sentence on count 2. It then resentenced defendant to seven years in prison as follows: on count 2, six years (the upper term), plus a one-year prior prison term; on counts 3 and 4, one year, stayed. The court then awarded defendant 1,288 days custody credit (1,074 actual; 214 conduct).

On January 13, 2020, defendant filed a notice of appeal.

FACTUAL SUMMARY

On December 12, 2016, at 1:25 p.m., Hanford Police Officer Jonathan Farr was dispatched to a call reporting a person swinging a pole and causing a disturbance. Upon arrival, Farr saw defendant and activated the overhead emergency lights on his patrol car. He exited his patrol car and ordered defendant to stop. Defendant ran. Farr caught defendant and stopped her by grabbing her arm and turning her around. Defendant held a pole and took an aggressive stance. Farr tackled defendant to the ground and tried to control defendant. Defendant struggled to her feet, but Farr again brought her down to the ground. Defendant rolled from side to side, eventually trapping Farr’s hand under her bodyweight and near her face. Farr testified that he believed defendant was going to bite his hand so he pulled his hand free and punched defendant in the face three to four times.

Another officer arrived soon after and helped Farr place defendant in a patrol car. Defendant continued to resist but officers were able to place her in a patrol car.

Farr noticed a pain in his right hand and his hand appeared to be red, swollen, and had a bump on it. Although the hand was not broken, for about three months, Farr experienced “a substantial amount of pain” and had difficulty making a fist.

After defendant was arrested, officers discovered a syringe and a glass tube containing methamphetamine residue in defendant’s property.

DISCUSSION

I. Senate Bill 136 and Senate Bill No. 438

Defendant argues her prior prison term enhancement must be stricken based on the retroactive application of Senate Bill 136. The People agree, as do we.

Effective January 1, 2020, Senate Bill 136 amended section 667.5, subdivision (b) to limit application of prior prison term enhancements to only prior prison terms that were served for sexually violent offenses as defined by Welfare and Institutions Code section 6600, subdivision (b). (§ 667.5, subd. (b).) (Stats. 2019, ch. 590, § 1.) That amendment was applied retroactively, pursuant to In re Estrada, to all cases not yet final on Senate Bill 136’s effective date. (People v. Lopez (2019) 42 Cal.App.5th 337, 341–342, citing In re Estrada (1965) 63 Cal.2d 740, 742.) Effective January 1, 2022, Senate Bill No. 483 (2021–2022 Reg. Sess.) (Senate Bill 483) added section 1171.1, which extended the modifications brought about by Senate Bill 136 to judgments already final on appeal. (Stats. 2021, ch. 728, § 3.)

Here, the trial court imposed a one-year section 667.5, subdivision (b) prior prison term enhancement based on one of defendant’s alleged prior prison terms for convictions of first degree burglary (§ 459), auto theft with great bodily injury (Veh. Code, §§ 10851, 12022, subd. (b)), and active participation in a criminal street gang (§ 186.22),[3] none of which is a sexually violent offense as defined in Welfare and Institutions Code section 6600, subdivision (b). On January 1, 2020, defendant’s case was not yet final. Therefore, as the parties agree, defendant is entitled to the ameliorative benefit of Senate Bill 136’s amendment to section 667.5, subdivision (b). Section 1171.1, subdivision (a) also requires that defendant’s prior prison term enhancement be stricken.

Generally, where an appellate court strikes a portion of a sentence, remand for “ ‘a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.’ ” (People v. Buycks (2018) 5 Cal.5th 857, 893.) That rule applies equally to resentencing after reversal of a count of conviction or striking of an enhancement. (See ibid., citing with approval People v. Sanchez (1991) 230 Cal.App.3d 768, 771–772 [consideration of all sentencing choices on remand is appropriate after reversal for erroneous application of a section 12022.1 bail enhancement].)

We remand the matter for the trial court to strike defendant’s prior prison term enhancement and conduct a full resentencing in light of the changed circumstances.

II. Imposition of Greater Sentence on Remand from Successful Appeal of an Unauthorized Sentence

Defendant was originally sentenced to a total term of six years four months in prison. After her successful appeal, defendant was sentenced to a total term of seven years in prison. Defendant contends that the second sentence violates the California Constitution’s prohibition on double jeopardy and People v. Henderson, supra, 60 Cal.2d 482. We need not resolve that issue because defendant’s prior prison term enhancement must be stricken, bringing the remaining sentence below six years four months.

Nevertheless, because we remand the matter for resentencing, we note that the prohibition against double jeopardy “ ‘generally prohibits the court from imposing a greater sentence on remand following an appeal.’ ” (People v. Torres (2008) 163 Cal.App.4th 1420, 1432; see People v. Craig (1998) 66 Cal.App.4th 1444, 1448 [“after successful appeal of a conviction a defendant may not upon reconviction be subject to an aggregate sentence greater than imposed at the first trial”].) A greater sentence can only be imposed on remand if the sentence originally imposed was unauthorized or illegal. When an illegal or unauthorized “sentence is set aside on appeal a correct, even if more severe, sentence may be imposed upon retrial without offending the principles of double jeopardy.” (Craig, supra, at p. 1449.)

A sentence is “ ‘unauthorized’ where it could not lawfully be imposed under any circumstance in the particular case.” (People v. Scott (1994) 9 Cal.4th 331, 354.) As our Supreme Court has noted, “t is well settled … that the court acts in ‘excess of its jurisdiction’ and imposes an ‘unauthorized’ sentence when it erroneously stays or fails to stay execution of a sentence under section 654.” ([i]Id. at p. 354, fn. 17.)

In this case, defendant’s sentence was vacated because the trial court failed to stay the sentence on count 2 pursuant to section 654. As such, the original sentence was unauthorized and the trial court was (and is) permitted on remand to impose a sentence in excess of six years four months.[4]

III. Inconsistency with Prior Remittitur

On June 12, 2019, we reversed defendant’s “conviction for resisting arrest,” stayed “the 16-month term … in count 2,” vacated the sentence, and remanded the matter to the trial court for resentencing and recalculation of custody credits. The trial court appears to have misunderstood our reversal of defendant’s “conviction for resisting arrest” to have referred to count 1—resisting an executive officer by force in violation of section 69—rather than count 3—resisting arrest in violation of section 148. The trial court also resentenced defendant on count 2, despite our having stayed sentence on that count pursuant to section 654. The parties agree, as do we, that the discrepancies must be corrected.

On remittitur, “ ‘the trial court is revested with jurisdiction of the case, but only to carry out the judgment as ordered by the appellate court.’ ” (People v. Picklesimer (2010) 48 Cal.4th 330, 337.) The trial court did not carry out the judgment as we previously ordered. The matter must therefore be remanded to correct the judgment and resentence defendant.

Since the time of our original remittitur, section 654 has been modified. On the date of our prior opinion, section 654 required that an act or omission that was punishable under two or more provisions of law “be punished under the provision that provid[ed] for the longest potential term of imprisonment.” (former § 654, subd. (a).) Effective January 1, 2022, Assembly Bill No. 518 (2021–2022 Reg. Sess.) (Assembly Bill 518) modified section 654, subdivision (a), to permit an act or omission punishable under two or more provisions of law to “be punished under either of such provisions.” (Stats. 2021, ch. 441, § 1.)

Under In re Estrada, supra, 63 Cal.2d 740, “[w]hen the Legislature has amended a statute to reduce the punishment for a particular criminal offense, we will assume, absent evidence to the contrary, that the Legislature intended the amended statute to apply to all defendants whose judgments are not yet final on the statute’s operative date.” (People v. Brown (2012) 54 Cal.4th 314, 323, fn. omitted.) This presumption has been extended to amendments providing trial courts discretion to impose lesser punishment at sentencing. (See, e.g., People v. Garcia (2018) 28 Cal.App.5th 961, 971–972 [Senate Bill No. 1393 (2017–2018 Reg. Sess.) (Stats. 2018, ch. 1013, §§ 1–2)]; People v. Valenzuela (2018) 23 Cal.App.5th 82, 87–88 [Senate Bill No. 620 (2017–2018 Reg. Sess.) (Stats. 2017, ch. 682, §§ 1–2)].) Nothing in Assembly Bill 518 suggests legislative intent that the amendments apply prospectively only, and as previously noted, defendant’s case has not become final before January 1, 2022.

While our prior opinion was correct to stay count 2, the modification to section 654, subdivision (a), now permits the trial court the discretion to stay the sentence on count 1 (which provides for the longest term of imprisonment) or count 2 (which provides for a lesser term of imprisonment). Because that provision is retroactive, because defendant’s case has not become final before January 1, 2022, and because we remand for resentencing, the trial court must apply the present version of section 654, subdivision (a). Therefore, on remand, the trial court must stay the term of imprisonment on count 1 or count 2, but it has the discretion to determine which of those two terms of imprisonment to stay.[5]

DISPOSITION

Defendant’s sentence is vacated. Defendant’s prior prison term enhancement (former § 667.5, subd. (b)) is stricken. Defendant’s conviction on count 1 is reinstated. Defendant’s conviction on count 3 is reversed. The matter is remanded for the trial court to conduct a full resentencing with the following direction: the court shall stay the sentence imposed on count 1 or count 2 pursuant to section 654; the court shall not impose an aggregate sentence in excess of seven years; the court shall impose a lesser sentence than seven years, unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety (§ 1171.1, subd. (d)(1)); the court shall not impose any prior prison term enhancement; and the court shall impose the middle term of imprisonment on counts 1 and 2 unless circumstances in aggravation justify imposition of a greater sentence (§ 1170, subd. (b)(1), (2)).

* Before Detjen, Acting P. J., Franson, J. and Meehan, J.

[1] All further statutory references are to the Penal Code unless otherwise stated.

[2] Defendant has identified herself using the pronouns “she/her”. We respect defendant’s choice of pronoun and refer to her as she has requested.

[3] The trial court did not identify the offense underlying the prior prison term enhancement that was imposed.

[4] We note that section 1171.1, subdivision (d)(1) limits the trial court’s sentencing discretion after a prior prison term enhancement is stricken, as we order in this case, as follows:

“Resentencing pursuant to this section shall result in a lesser sentence than the one originally imposed as a result of the elimination of the repealed enhancement, unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety. Resentencing pursuant to this section shall not result in a longer sentence than the one originally imposed.”

We further note that Senate Bill No. 567 (2021–2022 Reg. Sess.) (Senate Bill 567) amended the determinate sentencing law. Among other things, it modified section 1170, subdivision (b), to require imposition of the middle term of imprisonment unless circumstances in aggravation justify imposition of a greater sentence. (Stats. 2021, ch. 731, § 1.3, adding § 1170, subd. (b)(1), (2).) A trial court must set forth on the record the facts and reasons for choosing the sentence imposed. (§ 1170, subd. (b)(5).)

[5] The parties agree, as do we, that because we order a full resentencing in light of the changed circumstances, the trial court is permitted to reduce the sentence imposed on count 1 or impose a lesser restitution fine. We take no position on what sentence the trial court should impose except as noted elsewhere in this opinion.