People v. Cabrera, C081532
| Decision Date | 19 March 2018 |
| Docket Number | C081532 |
| Citation | 21 Cal.App.5th 470,230 Cal.Rptr.3d 373 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Miguel Angel CABRERA, Defendant and Appellant. |
Michael Satris, 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, Michael A. Canzoneri, Eric L. Christoffersen, Deputy Attorney General, for Plaintiff and Respondent.
Duarte, J.Defendant Miguel Angel Cabrera is currently serving a three strikes sentence for assault with force likely to produce great bodily injury (GBI) and battery with serious bodily injury (SBI). He appeals from the trial court's denial of his Penal Code section 1170.126 petition for resentencing.1 Defendant contends the trial court erred in declining to vacate the original sentencing court's finding that his current convictions (for assault and battery) were serious felonies, which he argues would have paved the way to his eligibility for resentencing.
As we will explain, the serious felony findings (made in 2008 by the sentencing court) were not subject to review by the trial court assigned to hear the section 1170.126 petition in 2015. Further, the resulting classification, even if incorrect, would not constitute an unauthorized sentence. Accordingly, we shall affirm the trial court's order denying the petition.
BACKGROUND
Original Convictions
Because the facts of defendant's original convictions are not relevant to our resolution of his claims on appeal, we do not recite them here. It suffices to say that defendant was charged by indictment with assault by means of force likely to produce GBI (§ 245, subd. (a)(1)--count 1), battery with SBI (§ 243, subd. (d)--count 2), assault with a deadly weapon (former § 245, subd. (a)(2)-- count 3), and actively participating in a street gang (§ 186.22, subd. (a)-- count 4). The charges also included gang enhancements (§ 186.22, subd. (b)(1) ) as to counts 1 through 3, a special allegation of personally inflicting GBI (§ 12022.7, subd. (a) ) as to count 1, an allegation of personal infliction of GBI to classify count 2 as a serious felony (§§ 667, 1192.7), as well as four prior strikes (§ 1170.12) and four prior serious felony allegations (§ 667, subd. (a)(1) ).
The jury found defendant guilty on counts 1, 2, and 4, but found the gang allegations not true. It could not reach verdicts on count 3 and the GBI allegations as to counts 1 and 2, but sustained the strike and prior serious felony allegations. The trial court declared a mistrial as to count 3 and the GBI allegations.
At the sentencing hearing, the defense objected to serious felony findings on any of the counts of conviction, and the parties argued at length about the effect, if any, that the jury's failure to reach verdicts on the GBI allegations would have on the potential classification of counts 1 (assault) and 2 (battery with SBI) as serious felonies. The defense further argued defendant was entitled to a jury determination before the court could find GBI and thus classify counts 1 and 2 as serious felonies. The sentencing court found that counts 1, 2, and 4 were indeed serious felonies based on its determination that "there [was] great bodily injury" but did not elaborate further on the basis or rationale for that decision. The court sentenced defendant to 30 years to life in prison on count 1, consisting of 25 years to life in prison on count 1, plus a consecutive five years for the prior felony allegation, and identical concurrent terms on counts 2 and 4.
On appeal, we reversed the conviction on count 4 and ordered corrections to the abstract. (People v. Cabrera (Nov. 17, 2009, C058828) [nonpub. opn.].) The serious felony classifications at issue here were not challenged on appeal from the judgment of conviction.2
Section 1170.126 Petition
On September 4, 2014, defendant filed a section 1170.126 petition for resentencing. As relevant here, the People argued that the original sentencing court had already found defendant's crimes of conviction to be serious felonies and therefore defendant was not eligible for relief, because he was serving his current term for a serious felony. ( § 1170.126, subd. (e)(1).)
Defendant argued that the evidence did not support the sentencing court's serious felony findings (made in 2008), and the findings violated Apprendi v. New Jersey (2000) 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435. In support of his argument, he cited People v. Taylor (2004) 118 Cal.App.4th 11, 12 Cal.Rptr.3d 693 ( Taylor ), which held that an acquittal on a GBI allegation precluded finding that a battery with SBI conviction was a serious felony due to personal infliction of GBI. ( Id . at p. 29, 12 Cal.Rptr.3d 693.) He asked the trial court for "a ruling ... that the original sentencing court committed error." He characterized the proposed ruling as a "proper exercise of discretion" by the trial court.
At the final hearing on the petition, the trial court noted that at the original sentencing hearing the People had cited (to the sentencing court) cases holding sections 243 (SBI) and 12022.7 (GBI) were essentially equivalent. Citing Taylor , the court opined that the jury's failure to return a verdict on the GBI allegations prevented it from considering the section 243 conviction as the equivalent of a GBI finding. However, the court concluded that it could not find defendant eligible for relief because the sentencing court's finding that the current crimes were serious felonies was a final judgment. Defendant timely appealed from the trial court's denial of defendant's petition for resentencing.
DISCUSSION
I
Section 1170.126 and Defendant's Claim
Following the passage of Proposition 36, the Three Strikes Reform Act of 2012 (the Act), a defendant convicted of a felony with two or more prior strike allegations is subject to a 25-year-to-life sentence if the current conviction is a serious or violent felony but is subject only to a two strike sentence if the current felony is not serious or violent. (§§ 667, subds. (e)(2)(A), (C), 1170.12, subds. (c)(2)(A), (C); People v. Yearwood (2013) 213 Cal.App.4th 161, 170, 151 Cal.Rptr.3d 901.)
Section 1170.126 allows a person presently serving a three strikes sentence for a felony that is neither serious nor violent to petition the trial court for resentencing as a second strike offender subject to certain disqualifying exceptions. ( § 1170.126, subds. (a), (e).) If the prisoner is not subject to one of the disqualifying factors, then the trial court shall resentence him under the two strikes provision "unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety." (Id. , subd. (f).)
Under section 667, subdivision (a), a person convicted of a serious felony who has previously been convicted of a serious felony is subject to a five-year enhancement. In this case, the sentencing court's explicit finding that defendant's current offenses were serious felonies (and therefore subject to the section 667, subdivision (a) enhancement for his prior convictions, which the sentencing court imposed in 2008) renders defendant ineligible for resentencing under the Act. ( § 1170.126, subd. (e)(1).)
Thus, defendant was ineligible for relief unless the trial court had the authority to vacate the explicit findings made by the sentencing court when it rendered judgment in 2008.
Defendant advances the theory on appeal that the trial court had the authority to vacate the sentencing court's findings because they resulted in an unauthorized sentence. He contends the sentencing court erred in finding that the underlying crimes of conviction—assault and battery causing SBI—were serious felonies, and consequently imposing five-year enhancements for the prior serious felony allegations found true. It follows that, due to this error, the serious felony findings on his current offenses resulted in an unauthorized sentence that the trial court should have corrected and that this court is now obliged to correct. Defendant concludes that upon correction of the unauthorized sentence, he is entitled to resentencing based on the trial court's more favorable findings.
II
Analysis
"Subject to limited exceptions, well-established law provides that the trial court is divested of jurisdiction once execution of a sentence has begun." ( People v. Scarbrough (2015) 240 Cal.App.4th 916, 923, 193 Cal.Rptr.3d 125.) Section 1170.126 is one exception to this rule, vesting the trial court with the jurisdiction to resentence qualified defendants serving three strikes sentences. However, that jurisdiction is limited. Section 1170.126"merely provides a limited mechanism within which the trial court may consider a reduction of the sentence below the original term," and "the potential reduction of the sentence is narrowly circumscribed by the statute." ( People v. Bradford (2014) 227 Cal.App.4th 1322, 1336, 174 Cal.Rptr.3d 499.) ( People v. Clark (2017) 8 Cal.App.5th 863, 873, 214 Cal.Rptr.3d 157 ( Clark ).)
Clark illustrates the limits of section 1170.126 jurisdiction. Clark was convicted and received a three strikes sentence, and his conviction was affirmed on appeal. ( Clark, supra , 8 CalApp.5th at p. 867, 214 Cal.Rptr.3d 157.) He subsequently filed a habeas petition attacking one of the prior strikes, a 1974 conviction for lewd and lascivious conduct (§ 288, subd. (a) ) based on an alleged Boykin / Tahl violation ( Boykin v. Alabama (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 ; In re Tahl (1969) 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449 ) and a claim that he was not informed he would have to register as a sex offender as a result of the plea ( Clark , at pp. 867-868, 214 Cal.Rptr.3d 157 ). The petition was...
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