Filed 10/17/18 P. v. Phariss 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 Fresno County. Dennis A. Peterson, Judge.

Jonathan D. Roberts, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Peter W. Thompson, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

On November 19, 2013, appellant Jeffery Randall Phariss was sentenced to a split term that included mandatory supervision. While on mandatory supervision, Phariss committed a new offense for which he was sentenced on March 9, 2016. That same day, a hearing on violation of mandatory supervision was conducted. Phariss contends the trial court was required to impose an aggregate sentence for the offense for which he was on mandatory supervision and the new offense. Consequently, he contends the trial court erred in imposing a Penal Code[1] section 667.5, subdivision (b) enhancement on the new offense, when it had been imposed in the case for which he was on mandatory supervision. He also contends that a prior felony conviction subsequently reduced to a misdemeanor on May 6, 2015 can no longer support a section 667.5, subdivision (b) enhancement appended to the offense for which he was convicted in 2013.

For the reasons set forth below, we affirm.

FACTUAL AND PROCEDURAL SUMMARY

The facts underlying Phariss’s convictions are not relevant to any issue on appeal and therefore are not recounted.

Case No. F12904314

On October 8, 2013, pursuant to a plea agreement in Fresno County Superior Court case No. F12904314 (case 314), Phariss pled no contest to count 1, unlawful driving or taking of a vehicle in violation of Vehicle Code section 10851, subdivision (a), and count 16, identity theft in violation of section 530.5, subdivision (a), admitted a section 666.5 enhancement, and admitted to four section 667.5, subdivision (b) enhancements, including one for a violation of Health and Safety Code section 11377, subdivision (a), in Santa Clara County. In exchange for his plea, other counts and enhancements were dismissed and Phariss was to receive an agreed upon eight-year sentence.

At the November 19, 2013 sentencing hearing in case 314, the trial court imposed the aggravated term of four years in custody for the count 1 offense, plus one year for each of the four section 667.5, subdivision (b) enhancements, for a total aggregate term of eight years. On count 16, the trial court imposed the midterm of two years, to be served concurrently with the count 1 term. Total credits of 437 days were awarded.

The trial court stated time in custody would be served locally pursuant to section 1170, subdivision (h). The trial court also exercised its discretion and imposed a “split sentence.” The first four years of the sentence, minus the credit of 437 days, would be served in local custody and the balance of the sentence would be served on mandatory supervised release. The abstract of judgment in case 314 was filed November 25, 2013, and accurately reflects the oral pronouncement of judgment at sentencing.

Case No. F15907347

On January 27, 2016,[2] pursuant to a plea agreement in Fresno County Superior Court case No. F15907347 (case 347), Phariss pled no contest to one count of violating Vehicle Code section 10851, subdivision (a), admitted two prior convictions for the same offense, and admitted to one section 667.5, subdivision (b) enhancement. In exchange for his plea, there was to be a five-year “lid” on sentencing and the remaining charge and enhancements were dismissed.

A sentencing hearing in case 347 was conducted on March 9. In case 347, the trial court found Phariss to be an unsuitable candidate for probation and imposed the aggravated term of four years for the substantive offense, plus one year for the section 667.5, subdivision (b) enhancement. Credits of 106 days actual and 106 days conduct, for a total of 212 days, were awarded.

The trial court stated that Phariss was committed to the county jail pursuant to section 1170, subdivision (h) for a period of two years and six months in case 374. The balance of the sentence was to be served on mandatory supervised release.

The abstract of judgment filed March 14 in case 347 reflects only the conviction and enhancement in case 347 and accurately reflects the oral pronouncement of judgment.

Violation of Mandatory Supervision Hearing

Immediately after the sentencing in case 347 on March 9, the trial court addressed the violation of mandatory supervision in case 314. The trial court took judicial notice of the conviction in case 347, found Phariss to be in violation of the terms of mandatory supervision, revoked mandatory supervision, and ordered that Phariss serve the balance of the term in case 314 in custody.

The parties engaged in an exchange about whether Phariss would earn conduct and custody credit for the additional time to be served in custody in case 314, and whether the custodial time in case 314 would run concurrent to the term imposed in case 347. The trial court stated, “the general rule is that all cases are usually ordered to run concurrent unless the Court makes some other order. So that’s the order of the Court.”

Appeal

On April 18, Phariss filed a petition for writ of habeas corpus in case 314.

On August 18, appellate counsel filed a motion to deem the petition for habeas corpus to be a notice of appeal in cases 314 and 347, and to augment the record on appeal with documents from case 347. On September 6, the Attorney General filed a notice of non-opposition to the motion. On September 8, this court issued its order granting the motion.

On November 28, Phariss filed a request for judicial notice in this appeal, asking this court to judicially notice the fact that his Santa Clara County prior felony conviction for violating Health and Safety Code section 11377 was reduced to a misdemeanor on May 6, 2015. A certified copy of the order granting Phariss’s section 1170.18 petition was attached to the request for judicial notice. On February 8, 2017, this court issued its order granting the request for judicial notice.

DISCUSSION

Phariss contends that at the March 9 hearing, the trial court should have imposed an aggregate sentence in cases 314 and 347, and therefore should not have imposed the section 667.5, subdivision (b) enhancement in case 347 because it had been imposed in case 314. He also contends that because the judgment in case 314 is not final, the section 667.5, subdivision (b) enhancement based upon the Santa Clara conviction must be stricken.

We note that Phariss did not raise any objection to the sentence in case 347 at the March 9 sentencing hearing, nor did he object when the trial court did not aggregate the sentence in case 347 with the sentence in case 314. To the extent Phariss was required to object to any claims of sentencing error, the objection has been forfeited. (People v. Scott (1994) 9 Cal.4th 331, 352.)

1. No Aggregate Sentence

Phariss contends the trial court was required to impose a single, aggregate sentence in cases 314 and 347 when it imposed sentence at the March 9 hearing. Phariss’s argument necessarily rests on the characterization of the March 9 hearing in case 314 as a sentencing or resentencing. It was not.

In case 314, Phariss was sentenced on November 19, 2013, pursuant to section 1170, subdivision (h), which provides in part that when imposing a sentence, a trial court “shall suspend execution of a concluding portion of the term for a period selected at the trial court’s discretion.” (§ 1170, subd. (h)(5)(A).) The trial court here selected four years as the portion of the term to be served on mandatory supervision. The suspended concluding portion of a sentence is known as mandatory supervision. (People v. Borynack (2015) 238 Cal.App.4th 958, 963.)

In criminal cases, “judgment is synonymous with the imposition of sentence.” (People v. Perez (1979) 23 Cal.3d 545, 549, fn. 2.) The trial court orally pronounced and imposed sentence in case 314 on November 19, 2013. Judgment in case 314 was rendered on November 19, 2013. (People v. Karaman (1992) 4 Cal.4th 335, 344, fn. 9 [judgment is rendered when the trial court orally pronounces sentence].)

The sentence imposed on November 19, 2013, was appealable. (§ 1237, subd. (a).) In general, an appealable order that is not appealed from becomes final and binding. (People v. Kelly (2013) 215 Cal.App.4th 297, 307 (Kelly); People v. Ramirez (2008) 159 Cal.App.4th 1412, 1421 (Ramirez).) “This is so regardless of the fact the defendant will not serve the sentence unless the court revokes and terminates probation before the probationary period expires.” (Ramirez, supra, 159 Cal.App.4th at p. 1421.) A trial court is without jurisdiction to modify or change a final judgment and is required to order into execution that judgment after revocation of probation. (People v. Howard (1997) 16 Cal.4th 1081, 1084.)

This conclusion is not altered by the fact the trial court suspended execution of the mandatory supervision portion of the sentence under section 1170, subdivision (h). The case of People v. Mora (2013) 214 Cal.App.4th 1477, dealt with when a defendant is “sentenced” for purposes of section 1170, subdivision (h). The appellate court in Mora held:

“The imposition of the sentence is equated with entry of a final judgment. [Citations.] Once a sentence is imposed, the trial court does not have jurisdiction to modify or change the final judgment and is required to order that judgment into execution.” (Id. at p. 1482.)

The California Supreme Court in People v. Scott (2014) 58 Cal.4th 1415 (Scott) addressed section 1170, and the language of former subdivision (h)(6), now renumbered as subdivision (h)(7), which states, “this subdivision shall be applied prospectively to any person sentenced on or after October 1, 2011.” (Scott, supra, 58 Cal.4th at p. 1421.) The Scott court held the term “sentenced” as used in this subdivision to be “when the trial court originally pronounces judgment.” (Id. at p. 1425.) California Rules of Court,[3] rule 4.435(b)(2) is consistent with this holding. (Scott, supra, 58 Cal.4th at p. 1424.) Rule 4.435(b)(2) provides that if “execution of sentence was previously suspended, the judge must order that the judgment previously pronounced be in full force and effect[.]” It follows, therefore, that Phariss was sentenced in case 314 on November 19, 2013, that judgment became final, and the trial court lacked any discretion to modify or change the judgment, thus no resentencing could occur on March 9. As the record reflects, the trial court found Phariss in violation of the terms of mandatory supervision, revoked mandatory supervision, and ordered the previously suspended portion of the sentence executed.

The only sentence imposed on March 9 was in case 347. Therefore, there was no aggregated sentencing hearing.

Furthermore, section 1170.1 does not mandate an aggregate sentence under these facts. Section 1170.1, subdivision (a) requires a trial court to impose an aggregate sentence when the defendant is convicted of two or more felonies in the same or different proceedings, and “a consecutive term of imprisonment is imposed under sections 669 and 1170 .…” [Italics added.] Rule 4.452, implements the provisions of section 1170.1. Here, however, no consecutive term of imprisonment was imposed for the felonies.

The case of People v. Neely (2009) 176 Cal.App.4th 787 (Neely), cited by Phariss, does not stand for the proposition that section 1170.1 applies to separate cases that are sentenced separately, but ordered to run concurrently. For section 1170.1 to apply, Neely recognizes that at least one felony term must run consecutive to some other felony term. (Neely, supra, 176 Cal.App.4th at pp. 797-799.)

Section 669, subdivision (a) also does not mandate an aggregate sentence. Section 669, subdivision (a) provides in relevant part:

“When a person is convicted of two or more crimes, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same judge or by different judges, the second or other subsequent judgment upon which sentence is ordered to be executed shall direct whether the terms of imprisonment of any of them to which he or she is sentenced shall run concurrently or consecutively.”

There is nothing in this language that mandates an aggregate sentence. The language directs the trial court to determine whether the subsequent judgment will run concurrently or consecutively.

The trial court was not required under section 1170.1 or 669 to impose an aggregate sentence in cases 314 and 347.

2. Section 667.5 Enhancement

Phariss contends that because the sentences imposed in cases 314 and 347 should have been aggregated, the trial court erred in imposing a section 667.5, subdivision (b) enhancement in case 347 because it had been imposed in case 314.

Phariss’s prior conviction in Fresno County case No. F01903565 was used as an enhancement in case 314. It was used again as an enhancement in case 347. Section 667.5, subdivision (b) enhancements are enhancements that go to the nature of the offender and are to be applied only once as a component of an aggregate term. (People v. Tassell (1984) 36 Cal.3d 77, 89-91, overruled on other grounds by People v. Ewoldt (1994) 7 Cal.4th 380, 399-400; People v. Coronado (1995) 12 Cal.4th 145, 157.) As discussed in Part I, however, the trial court did not, and was not required to, impose an aggregate sentence in cases 314 and 347.

There is no prohibition, however, on applying section 667.5, subdivision (b) enhancements in separate cases and separate sentencing hearings. By its language, section 667.5 applies to “new offenses” and subdivision (b) enhancements are required to be imposed unless stricken. (People v. Garcia (2008) 167 Cal.App.4th 1550, 1561.) Consequently, the trial court did not err in imposing the section 667.5, subdivision (b) enhancement to the new offense in case 347.

3. Proposition 47 and Section 667.5, subdivision (b)

Phariss’s Santa Clara County felony conviction was used to support a section 667.5, subdivision (b) enhancement in case 314 at the November 19, 2013 sentencing. Subsequently, the Santa Clara County conviction was reduced to a misdemeanor pursuant to Proposition 47, as set forth in section 1170.18. Phariss contends the section 667.5, subdivision (b) enhancement appended to his conviction in case 314 must be stricken because it is no longer a felony.

The California Supreme Court in People v. Buycks (2018) 5 Cal.5th 857, 888 (Buycks) recently addressed this issue. As to “nonfinal judgments containing a section 667.5, subdivision (b) one-year enhancement, we conclude that Proposition 47 and the Estrada rule[4] authorize striking that enhancement if the underlying felony conviction attached to the enhancement has been reduced to a misdemeanor under the measure.” The court in Buycks also held that “a successful Proposition 47 petitioner may subsequently challenge, under subdivision (k) of section 1170.18, any felony-based enhancement that is based on that previously designated felony, now reduced to a misdemeanor, so long as the judgment containing the enhancement was not final when Proposition 47 took effect.” [Italics added.] (Buycks, supra, 5 Cal.5th at p. 879.)

Judgment in case 314 was rendered on November 19, 2013. The sentence imposed on November 19, 2013 was appealable. (§ 1237, subd. (a).) Phariss had 60 days from the judgment in which to file an appeal. (Rule 8.308(a).) There is no record of Phariss having filed an appeal of the judgment in case 314. In general, an appealable order that is not appealed from becomes final and binding. (Kelly, supra, 215 Cal.App.4th at p. 307; Ramirez, supra, 159 Cal.App.4th at p. 1421.)

The judgment in case 314 became final January 22, 2014. Proposition 47 took effect on November 5, 2014. (People v. Valencia (2017) 3 Cal.5th 347, 368.) Under the holding of Buycks, Phariss may not challenge the enhancement in case 314 that is based upon the felony reduced to a misdemeanor after the judgment was final. (Buycks, supra, 5 Cal.5th at p. 879.)

DISPOSITION

The judgment is affirmed.