Filed 11/20/18 P. v. Bacot CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Kern County. Charles R. Brehmer, Judge.

William G. Holzer, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Sally Espinoza, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

A jury convicted appellant Jason Alan Bacot of possession for sale of a controlled substance (Health & Saf. Code, § 11378; count 1).[1] In separate proceedings, Bacot pled no contest to being a felon in possession of ammunition (Pen. Code, § 30305, subd. (a)(1); count 2) and the court found true three prior conviction enhancements (§ 11370.2, subd. (c)).

On appeal, Bacot contends: (1) his prior conviction enhancements must be dismissed because of a recent change in the law; and (2) the trial court erred when it imposed a split sentence and probation in the same case. We agree with both contentions, modify the judgment accordingly, and remand for resentencing.

FACTS

On November 17, 2015, while at Bacot’s residence to arrest Jennifer Cavish on a misdemeanor arrest warrant, Bakersfield police officers noticed several code violations. After taking Cavish into custody and calling a code enforcement officer, Bacot gave the officers permission to conduct a protective sweep. In the master bedroom, the officers saw clear plastic baggies containing a substance that resembled methamphetamine. The officer arrested Bacot, searched him and found a digital scale in his back pocket. They also obtained a warrant, searched the house more thoroughly, and found 10 individually packaged baggies of methamphetamine with a combined weight of approximately 40 grams, $1,200 in cash, a digital scale, and nine rounds of nine-millimeter ammunition.

On February 1, 2016, the Kern County District Attorney filed an information charging Bacot with the two counts he was convicted of and the enhancements that were found true.

On June 19, 2017, the jury convicted Bacot on count 1 and the court declared a mistrial as to count 2. Afterwards, the court found the prior conviction enhancements true.

On July 18, 2017, the court found Bacot unsuitable for probation and sentenced him to an aggregate, split sentence of 11 years, the middle term of two years on count 1 and three three-year prior conviction enhancements. It also ordered Bacot to serve the first five years in custody and the remainder of the term on mandatory supervision.

On August 2, 2017, Bacot entered his no contest plea to count 2 in exchange for a grant of probation conditioned on Bacot serving a one-year local term that would run concurrent to the aggregate 11-year term he received on count 1. On August 31, 2017, the court suspended imposition of sentence and placed Bacot on probation for three years in count 2 as per his negotiated plea on that count.[2]

DISCUSSION

The Three Prior Conviction Enhancements

Former section 11370.2 provided for a three-year enhancement for defendants convicted of violating certain sections, including section 11378 who had prior convictions for violating certain sections including section 11378. (Stats. 2017, ch. 677, § 1, p. 5031.) Bacot’s prior conviction enhancements were based on his 1994, 2000, and 2004 convictions for violating section 11378. Bacot contends he is entitled to retroactive application of a change in the law that eliminated prior conviction enhancements for prior convictions for violating that section. Respondent concedes.

Senate Bill No. 180 amended section 11370.2, effective January 1, 2018, to limit the scope of the enhancement to apply only to prior convictions for a violation of section 11380.[3] (Stats. 2017, ch. 677, § 1, p. 5031.) As amended, the enhancement no longer applies to Bacot’s prior convictions for violation of section 11378.

Absent evidence to the contrary, it is presumed the Legislature intended an amended statute reducing the punishment for a criminal offense to apply retroactively to defendants whose judgments are not yet final on the statute’s operative date. (People v. Brown (2012) 54 Cal.4th 314, 323, fn. omitted; In re Estrada (1965) 63 Cal.2d 740, 745.) Because there is no indication that the recent amendments to section 11370.2 were intended to operate prospectively only, Bacot’s enhancements imposed under section 11370.2 must be stricken.

Moreover, given that the trial court exercised some discretion in imposing the original sentence, we will remand for resentencing to permit the trial court to reconsider its sentencing choices in light of the changed circumstances. (People v. Calderon (1993) 20 Cal.App.4th 82, 88 [“[i]t is perfectly proper for [the appellate] court to remand for a complete resentencing after finding an error with respect to part of a sentence”].) However, the aggregate term may not exceed the original sentence. (People v. Burbine (2003) 106 Cal.App.4th 1250, 1256 [“trial judge’s original sentencing choices did not constrain him or her from imposing any sentence permitted under the applicable statutes and rules on remand, subject only to the limitation that the aggregate prison term could not be increased”].)

The Probationary Term

Bacot cites In re Application of Nichols (1927) 82 Cal.App. 73 (Nichols) to contend the court erred in imposing a split sentence and granting him probation in the same case. Respondent concedes.

In Nichols, the defendant was convicted of conspiracy to commit extortion and conspiracy to falsely maintain a suit. (Nichols, supra, 82 Cal.App. at p. 74.) The trial court granted probation on one count and imposed a prison term on the other count. (Ibid.) The Nichols court found that the basis for the two counts in the information “was a single transaction and involved but one conspiracy.” (Id. at p. 79.) Nevertheless, in holding that the sentence was invalid because the court could not grant the defendant probation and sentence her to a state prison term, the Nichols court stated:

“[I]t is manifest that on a conviction on what we have held was a single charge of conspiracy, the trial court had no authority to grant probation to the defendant and at the same time to sentence her to a term of imprisonment in the state prison. The court might have done either the one thing or the other, but clearly not both of them. Like the judgment in [People v. Mendosa (1918) 178 Cal. 509,] the defendant could not be under a sentence to the state prison and at the same time be either released on probation or remanded to the custody of the sheriff to be confined in the county jail. The two respective conditions of the judgment are so opposed one to the other that neither is capable of enforcement without doing extreme violence to, if not destroying, the other. The result is as though no judgment had been rendered.” (Nichols, supra, 82 Cal.App. at pp. 81-82, italics added.)

Although the instant case involves a split sentence, we find Nichols’s reasoning is applicable here particularly because we are not aware of any authority that allows a court to impose a split sentence in one count and grant probation on another count in the same case. Further, statutory language supports the conclusion that a trial court lacks the authority to impose a split sentence on some counts and issue an order granting probation on others in the same case. For example, Penal Code section 1203, subdivision (b)(3) provides that a trial court shall determine “the suitability of probation in the particular case” (italics added), and makes no reference to a court determining the suitability of a defendant with respect to individual counts in a case. Additionally, Penal Code section 1203, subdivision (b)(3) refers to a binary choice—a trial court shall either “place the person on probation” or determine that “probation is [to be] denied.” (See, e.g., Pen. Code, § 1203, subd. (b)(3) [“If the court determines that there are circumstances in mitigation of the punishment prescribed by law or that the ends of justice would be served by granting probation to the person, it may place the person on probation. If probation is denied, the clerk of the court shall immediately send a copy of the report to the Department of Corrections and Rehabilitation at the prison or other institution to which the person is delivered.”].) The text of Penal Code section 1203, subdivision (b)(3) thus supports the conclusion that the Legislature intended for probation eligibility to be determined with respect to a “particular case” rather than on a count‑by‑count basis. Thus, we conclude that the court imposed an unauthorized sentence when it sentenced Bacot to a split sentence on one count and placed him on probation in the other count. Further, since Bacot did not receive the benefit of his negotiated plea, on remand he shall be given the opportunity to withdraw his plea to count 2.

DISPOSITION

Bacot’s three prior conviction enhancements that were imposed pursuant to Health and Safety Code section 11370.2 are stricken and the matter is remanded to the trial court to allow Bacot to withdraw his plea on count 2, if he desires, and for the imposition of an authorized sentence. In all other respects, we affirm.