People v. Edwards

• Decision Date: 24 May 2011
• Docket Number: No. E049845.,E049845.
• Citation: 125 Cal.Rptr.3d 321,2011 Daily Journal D.A.R. 7429,11 Cal. Daily Op. Serv. 6211,195 Cal.App.4th 1051
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jean Marie EDWARDS, Defendant and Appellant.

195 Cal.App.4th 1051

125 Cal.Rptr.3d 321

11 Cal. Daily Op. Serv. 6211

2011 Daily Journal D.A.R. 7429

The PEOPLE, Plaintiff and Respondent,

v.Jean Marie EDWARDS, Defendant and Appellant.

No. E049845.

Court of Appeal, Fourth District, Division 2, California.

May 24, 2011.

Certified for Partial Publication.^*

Patrick J. Hennessey, Jr., San Diego, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., Karl T. Terp, and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

McKINSTER, Acting P.J.

Defendant Jean Marie Edwards appeals the sentence imposed following her plea of no contest in two cases. She contends that the trial court erred in imposing sentence enhancements more than once. She also contends that an amendment to Penal Code section 4019, which would result in additional credit for time served before sentencing, should apply retroactively.

We conclude that the trial court erred with respect to the imposition of sentence enhancements pursuant to Health and Safety Code section 11370.2 and Penal Code section 667.5. We will remand both cases for resentencing, but will otherwise affirm the judgments.¹

PROCEDURAL HISTORY²

1.CASE NO. FWV900326

In a second amended information filed on September 1, 2009, defendant was charged with evading a police officer (Veh.Code, § 2800.2, subd. (a), count 1); transportation of methamphetamine (Health & Saf.Code, § 11379, subd. (a), count 2); possession for sale of methamphetamine (Health & Saf.Code, § 11378, count 3); transportation of heroin (Health & Saf.Code, § 11352, subd. (a), count 4); and transportation of cocaine (Health & Saf.Code, § 11352, subd. (a), count 5). The information also alleged that defendant had served three prior prison terms. (Pen.Code, § 667.5, subd. (b).) As to counts 2 and 3, it alleged that defendant had three prior drug convictions within the meaning of Health and Safety Code section 11370.2, subdivision (c). As to counts 4 and 5, it alleged that defendant had three prior drug convictions within the meaning of Health and Safety Code section 11370.2, subdivision (a).

On September 1, 2009, in an open plea agreement, defendant entered a plea of no contest to all counts and allegations. The court advised her that her maximum exposure was 47 years eight months to life.

On November 20, 2009, defendant was sentenced to a total prison term of 17 years eight months. The court selected count 4, transportation of heroin, as the principal count, and imposed the upper term of five years, plus nine years for the three prior drug conviction enhancements alleged with respect to count 4. The court imposed a consecutive term of eight months on count 1. On counts 2, 3, and 5, the court imposed concurrent terms plus nine years for the prior drug conviction enhancements on each count but stayed the entire term on each of those counts pursuant to Penal Code section 654. Finally, the court imposed three years for the three prior prison term enhancements.³

2.CASE NO. FWV901833

On July 17, 2009, defendant was charged by felony complaint with possession of methamphetamine in a jail facility. (Pen.Code, § 4573.6.) The complaint also alleged that defendant had served three prior prison terms. (Pen.Code, § 667.5, subd. (b).)

On July 23, 2009, defendant pleaded not guilty. On August 28, 2009, she waived her right to a preliminary hearing, and the case was set to trail case No. FWV900326.

On September 1, 2009, defendant changed her plea to no contest and was advised that her maximum exposure was seven years.

On November 20, 2009, defendant was sentenced to one year (one-third the midterm of three years) for the offense, to run consecutive to the sentence imposed in case No. FWV900326, and to a consecutive term of one year for each of the three prior prison term enhancements.

On December 7, 2009, defendant filed a notice of appeal in both cases, requesting a certificate of probable cause. The certificate of probable cause was issued on December 10, 2009.⁴

LEGAL ANALYSIS

1.SENTENCING ERRORS MANDATE REVERSAL AND REMAND FOR RESENTENCING

A.Introduction

In case No. FWV900326, the information alleged the same three drug-related prior convictions as enhancements to counts 2 and 3 pursuant to Health and Safety Code section 11370.2, subdivision (c) and as enhancements to counts 4 and 5 pursuant to Health and Safety Code section 11370.2, subdivision (a). ⁵ The court imposed three enhancements each as to counts 2, 3, 4 and 5, staying the enhancements on all but count 4, which was the principal count. Defendant contends that the section 11370.2 enhancements are “status” enhancements which can be imposed only once, on the aggregate sentence. Consequently, she contends, the court was required to strike the enhancements which were alleged in connection with counts 2, 3 and 5 rather than imposing and staying them.

The Attorney General initially agreed. However, noting that the parties did not discuss whether there was any significance to the fact that enhancements were pleaded pursuant to both subdivision (a) and subdivision (c) of section 11370.2, we asked the parties to brief the following question:

“[C]ounts 4 and 5 are subject to enhancement pursuant to Health and Safety Code section 11370.2, subdivision (a), while counts 2 and 3 are subject to enhancement pursuant to Health and Safety Code section 11370.2, subdivision (c). Both subdivisions provide for a mandatory consecutive three-year term upon conviction of a qualifying offense. Was the trial court therefore required to impose unstayed enhancements pursuant to both subdivisions?”

In her supplemental brief, defendant maintained that even though the particular charged offenses mandated alleging the prior drug conviction enhancements under both subdivisions (a) and (c) of Health and Safety Code section 11370.2, an enhancement for each prior conviction could be imposed only once. The Attorney General contended that the Health and Safety Code section 11370.2 enhancements are not pure status enhancements which apply only once to the aggregate term, but rather are a hybrid form of enhancement which, although based on the defendant's status as a recidivist, apply on a count-by-count basis. Consequently, he contends, the trial court was required to impose unstayed enhancements under both subdivisions (a) and (c). He did not, however, discuss whether the court had the authority pursuant to Penal Code section 654 to stay the enhancements imposed as to counts 2, 3 and 5, or whether the enhancements would run concurrently with the principal term, along with the base terms imposed on counts 2, 3 and 5.

As we discuss, we conclude that the section 11370.2 enhancements are status enhancements, which can be imposed only once, as part of the aggregate sentence. However, because of the structure of section 11370.2, we conclude that the Legislature intended that multiple enhancements can be imposed for the same prior convictions, if there are current multiple counts of conviction as to which different subdivisions of section 11370.2 apply.

B.Section 11370.2 Provides for Multiple Enhancements

Sentence enhancements are generally of two types: those which go to the nature or status of the offender, and those which go to the nature or circumstances of the offense. ( People v. Coronado (1995) 12 Cal.4th 145, 156, 48 Cal.Rptr.2d 77, 906 P.2d 1232.) An enhancement which is based on the defendant's conduct in committing the charged offense, such as the personal use of a weapon or the infliction of great bodily harm, is imposed on the count to which it applies. ( Id. at p. 157, 48 Cal.Rptr.2d 77, 906 P.2d 1232.) Enhancements based on prior convictions are status enhancements. Because they are related to the status of the offender, rather than the manner of commission of a crime, they are applied only once, in arriving at an aggregate sentence. ( Ibid.;People v. Williams (2004) 34 Cal.4th 397, 402, 19 Cal.Rptr.3d 619, 98 P.3d 876;Pen.Code, § 1170.1.⁶)The enhancements provided for in section 11370.2 are status enhancements, in that they pertain to defendant's status as a drug conviction recidivist. ( People v. Tillotson (2007) 157 Cal.App.4th 517, 542, 69 Cal.Rptr.3d 42.)Section 11370.2 provides, in pertinent part:

“(a) Any person convicted of a violation of, or of a conspiracy to violate, Section 11351, 11351.5, or 11352 shall receive, in addition to any other punishment authorized by law, including Section 667.5 of the Penal Code, a full, separate, and consecutive three-year term for each prior felony conviction of, or for each prior felony conviction of conspiracy to violate, Section 11351, 11351.5, 11352, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380, 11380.5, or 11383, whether or not the prior conviction resulted in a term of imprisonment.

“(b) Any person convicted of a violation of, or of a conspiracy to violate, Section 11378.5, 11379.5, 11379.6, 11380.5, or 11383 shall receive, in addition to any other punishment authorized by law, including Section 667.5 of the Penal Code, a full, separate, and consecutive three-year term for each prior felony conviction of, or for each prior felony conviction of conspiracy to violate, Section 11351, 11351.5, 11352, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380, 11380.5, or 11383, whether or not the prior conviction resulted in a term of imprisonment.

“(c) Any person convicted of a violation of, or of a conspiracy to violate, Section 11378 or 11379 with respect to any substance containing a controlled substance specified in paragraph (1) or (2) of subdivision (d) of Section 11055 shall receive, in addition to any other punishment authorized by law, including Section 667.5 of the Penal Code, a full, separate, and consecutive three-year term for each prior felony conviction of, or for each prior felony conviction of...