People v. Pasley
| Decision Date | 24 January 2022 |
| Docket Number | C089074,C089229 |
| Parties | THE PEOPLE, Plaintiff and Appellant, v. PARKER THOMAS PASLEY, Defendant and Respondent. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
Defendant Parker Thomas Pasley sustained numerous convictions in several successive cases involving drug trafficking offenses. Among the more recent cases, in Yolo County Superior Court case No. CRF 18-3633, a jury found defendant guilty of possession for sale of methamphetamine and possession of heroin, and the trial court found two prior prison term enhancement allegations to be true. Subsequently, in Yolo County Superior Court case No. CRF 18-5025, defendant pleaded no contest to conspiracy to commit a felony, transporting a controlled substance, and possession for sale of a controlled substance. On February 15, 2019, the trial court sentenced defendant on these cases, and resentenced him on a number of prior cases. The court imposed an aggregate term of nine years in local prison, with 325 days of mandatory supervision.
This matter involves two appeals, one by the Attorney General and the other by defendant. On our own motion, we consolidated these appeals for oral argument and disposition.
In case No. C089074, the Attorney General appeals from the trial court's order granting defendant's motion pursuant to Senate Bill No. 180 (2017-2018 Reg. Sess.) (S.B. 180) to strike four prior drug trafficking conviction enhancements in cases where split sentences had been ordered. The Attorney General contends those convictions were final before S.B. 180 was enacted. With the enactment of Senate Bill No. 483 (2021-2022 Reg. Sess.) (S.B. 483), the issue raised by the Attorney General's appeal is moot. Accordingly, we dismiss the appeal for that reason.
In the second appeal, case No. C089229, defendant asserts (1) the trial court erred in denying his motion based on Penal Code[1] section 654 and Kellett v. Superior Court (1966) 63 Cal.2d 822 (Kellett) to dismiss case No. CRF 18-5025 as an impermissible prosecution for the same act or course of conduct as prosecuted in case No. CRF 18-3633, (2) the trial court violated his due process rights under People v Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), by imposing fines, fees, and penalty assessments without determining that he had the ability to pay, (3) his prior prison term enhancements must be stricken following the enactment of Senate Bill No. 136 (2019-2020 Reg. Sess.) (S.B. 136), and (4) the narcotics registration requirement pursuant to former Health and Safety Code section 11590 must be stricken because that provision has been repealed. We agree the narcotics registration requirement must be stricken. We will remand for the trial court to confirm that defendant's relevant underlying convictions no longer qualify as prior prison term enhancements under S.B. 136 and for resentencing. Otherwise, we affirm.
The Prior Drug Trafficking Convictions
Case No. 13-1796 [2]
In 2013, defendant pleaded no contest to transportation of a controlled substance (Health & Saf. Code, § 11379, subd. (a)), and admitted to two prior drug trafficking enhancement allegations (Health & Saf. Code, § 11370.2, subd. (c)). The remainder of the charges were dismissed. The trial court sentenced defendant to the upper term of four years on count one, plus three years for each of the two prior drug conviction enhancements, for a total term of 10 years to be served in county jail. The trial court ordered a split sentence, with defendant to serve 1, 825 days in county jail and 1, 825 days under mandatory supervision.[3]
In 2015, defendant pleaded no contest to possession for sale of a controlled substance and admitted to two prior drug conviction enhancement allegations. The trial court sentenced defendant to an aggregate term of six years eight months consisting of eight months (one-third the midterm) on the conviction offense plus three years for each of the two prior drug conviction enhancements. This sentence was to be subordinate to the sentence imposed in case No. 13-1796, which the court reimposed.[4] Again, the trial court ordered a split sentence, this time with defendant to serve 1, 216 days in county jail and 1, 217 days on mandatory supervision. Defendant's total aggregate term for all cases was 17 years four months.
The Current Cases[5]
On September 7, 2018, a jury found defendant guilty of possession for sale of methamphetamine (Health & Saf. Code, § 11378; count 1), and possession of heroin (Health & Saf. Code, § 11350; count 2). Defendant waived jury trial on two prior prison term enhancement allegations (§ 667.5, subd. (b)), and the court found them true.
An information filed October 23, 2018, charged defendant with conspiracy to commit a felony (§ 182, subd. (a)(1); count 1), transporting a controlled substance (Health & Saf. Code, § 11379, subd. (a); count 2), and possession for sale of a controlled substance (Health & Saf. Code, § 11378; count 3).
Defendant filed a motion to dismiss asserting that, based on section 654 and Kellett, he was impermissibly subjected to multiple prosecutions. The trial court denied the motion.
In December 2018, defendant pleaded no contest to all three counts. Over the prosecutor's objection, the court indicated it would sentence defendant to two years in county prison to run concurrent with all other matters.
Before sentencing, defendant filed a motion to strike his prior drug enhancements in case Nos. 13-1796 and 15-5084 because, under S.B. 180 (Stats. 2017, ch. 677, § 1), his prior convictions were no longer qualifying convictions under Health and Safety Code section 11370.2, subdivision (c), as amended.
The prosecution opposed defendant's motion, asserting judgment in those cases was final before January 1, 2018, the effective date of the statutory amendment. Relying on a since-depublished case, the prosecution asserted that an unappealed split sentence such as defendant's is final 60 days after it is imposed. According to the prosecution, defendant's most recent split sentence was imposed on October 8, 2015, and he did not file an appeal in any of the three cases on which he had been sentenced. Thus, according to the prosecution, defendant's judgment became final 60 days after the split sentences were imposed, which was well before S.B. 180 became effective on January 1, 2018.
The court concluded that the judgments in case Nos. 15-5084 and 13-1796 were not final, and that S.B. 180 applied retroactively. Accordingly, the court granted defendant's motion, striking his four Health and Safety Code section 11370.2, subdivision (c) prior drug conviction enhancements.
The court elected to adopt the probation department's proposed sentencing recommendation, which would strike the four Health and Safety Code section 11370.2, subdivision (c) enhancements and impose a term of nine years with options for mandatory supervision. The trial court sentenced defendant on February 15, 2019, to an aggregate term of nine years, calculated as follows:
• In case No. 13-1796, four years on count 1, transportation of a controlled substance. (Health & Saf. Code, § 11379, subd. (a).)
• In a matter not related to this appeal, case No. 14-0468, eight months consecutive (one-third the midterm) on count 2, possession of a controlled substance for sale. (Health & Saf. Code, § 11378.)
• In case No. 15-5084, eight months consecutive (one-third the midterm) on count 1, possession of a controlled substance for sale. (Health & Saf. Code, § 11378.)
• In case No. 18-3633, eight months consecutive (one-third the midterm) on count 1, possession of a controlled substance for sale (Health & Saf. Code, § 11378); 180 days concurrent on count 2, possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)); and one year for each of the two prior prison term enhancements (§ 667.5, subd. (b)). The court ordered that 325 days of this sentence be served on mandatory supervision.
• In case No. 18-5025, one year consecutive (one-third the midterm) on count 1, conspiracy to commit a crime (§ 182, subd. (a)(1))[6]; four years on count 2, transportation of a controlled substance (Health & Saf. Code, § 11379, subd. (a)), and three years on count 3, possession of a controlled substance for sale (Health & Saf. Code, § 11378), with the sentences on counts 2 and 3 stayed pursuant to section 654.
THE PEOPLE'S APPEAL
At the time of defendant's sentencing in 2013 and 2015, Health and Safety Code section 11370.2, former subdivision (c) authorized a three-year enhancement for defendants convicted of possession or possession for sale of certain controlled substances "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." (Health & Saf. Code, § 11370.2, former subd. (c).)
In October 2017, the Governor signed S.B. 180, which amended Health and Safety Code section 11370.2 by eliminating most of the qualifying drug offenses that would support the three-year enhancement. (Stats. 2017, ch. 677, § 1.)[7] Defendant does not have a qualifying prior conviction.
The Attorney General asserts the trial court erred in granting defendant's motion to strike his four Health and Safety Code section 11370.2, subdivision (c) prior drug conviction enhancements pursuant to S.B. 180. The Attorney General asserts that S.B. 180 cannot apply to defendant's benefit because...
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