People v. Roach

Citation202 Cal.Rptr.3d 1,247 Cal.App.4th 178
Decision Date04 May 2016
Docket NumberA144822
CourtCalifornia Court of Appeals
PartiesThe PEOPLE, Plaintiff and Respondent, v. Jesse Aloisius ROACH, Defendant and Appellant.

Certified for Partial Publication.*

Donn Ginoza, San Francisco, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Eric D. Share Alisha M. Carlile, Deputy Attorneys General, for Plaintiff and Respondent.

SIMONS

, J.

Jesse Aloisius Roach appeals an order resentencing him under Penal Code section 1170.18

,1 enacted by Proposition 47, the Safe Neighborhoods and Schools Act (Proposition 47). Appellant had been convicted and sentenced for multiple offenses in three separate cases. After having served a portion of his sentence, he petitioned for recall of his sentence and resentencing under Proposition 47. The trial court reduced two of appellant's convictions to misdemeanors and imposed the same aggregate term originally imposed. Appellant argues the court violated section 1170.18 by sentencing him to this term; he contends that, under this statute, when one or more of the components of a consolidated sentence are offenses qualifying for sentencing relief, the offender is entitled to receive an overall shorter sentence. In the published portion of this opinion, we reject this contention. In the unpublished portion we reject appellant's other arguments.

BACKGROUND

In November 2010, in case number SC172146A, the Marin County District Attorney filed a complaint charging appellant with possession of a firearm by a felon (§ 12021, subd. (a)(1); count 1), unlawful possession of ammunition (§ 12316, subd. (b)(1); count 2), receiving stolen property (§ 496, subd. (a); count 3), being under the influence of a controlled substance (Health & Saf.Code, § 11550, subd. (a)

; count 4), and battery (§ 242; count 5). The charges were based on an episode during which appellant was acting erratically and under the influence of drugs and/or alcohol in a Novato liquor store and bar. Witnesses saw a handgun hidden in his waistband; he had bullets in his possession when he was arrested and the police found a handgun behind the liquor store. Appellant also had a fur coat and jewelry in his possession that appeared to be stolen. Appellant pleaded guilty to count 1 and count 3 (both felonies at the time), and the remaining charges were dismissed. In January 2011, the trial court placed appellant on probation for three years.

In May 2012, in case number SC180627A, the Marin County District Attorney filed a complaint charging appellant with possession of methamphetamine (Health & Saf.Code, § 11377, subd. (a)

; count 1), being under the influence of a controlled substance (Health & Saf.Code, § 11550, subd. (a) ; count 2), and three counts of prowling (§ 647, subd. (h); counts 3–5). The charges were based on an episode during which appellant, wearing only a windbreaker tied around his waist, knocked on rear sliding doors of two different houses, requesting water and a pair of shorts. Appellant refused to obey the responding police officers; he appeared to be under the influence of a stimulant and he had methamphetamine in his possession. In June, appellant pleaded guilty to count 1 (a felony at the time) and count 2 (a misdemeanor) and the remaining counts were dismissed. The trial court placed appellant on probation for three years.

In July 2014, in case number SC189579A, the Marin County District Attorney filed a complaint charging appellant with reckless driving while evading a peace officer (Veh.Code, § 2800.2, subd. (a)

; count 1), resisting an officer (§ 69; count 2), driving under the combined influence of drugs and alcohol (Veh.Code, § 23152, subd. (f) ; count 3), driving under the influence of alcohol (Veh.Code, § 23152, subd. (b) ; count 4), and failing to stop after an accident (Veh.Code, § 20002, subd. (a) ; count 5). In connection with counts 1 and 2, the complaint alleged appellant had suffered five prior felony convictions. In connection with counts 3 and 4, the complaint alleged appellant had a blood alcohol level nearly twice the legal limit, refused to submit to an alcohol test, and had suffered a prior conviction for driving under the influence. The charges were based on an episode during which appellant, while driving his car, fled from a police officer who was investigating appellant's involvement in an earlier crash. The officer observed appellant drive at high speeds, pass a car in a no-passing zone, drive on sidewalks, and run a stop sign. When arrested, appellant appeared to be under the influence of alcohol and a stimulant. Appellant pleaded guilty to count 1 (a felony) and count 4 (a misdemeanor), and the remaining charges were dismissed.

In September 2014, the trial court sentenced appellant on all three of the cases, imposing an aggregate term of four years four months in state prison. The court selected count 1 in case number SC180627A (possession of methamphetamine) as the principal term and imposed the upper term of three years.2 The court then imposed consecutive subordinate terms of eight months each on counts 1 and 3 in case number SC172146A (unlawful possession of a firearm and receiving stolen property). Finally, in case number SC189579A, the court imposed a concurrent three year term on count 1 (reckless driving).3

In December 2014, appellant filed petitions seeking to have count 1 in case number SC180627A (possession of methamphetamine) and count 3 in case number SC172146A (receiving stolen property) resentenced as misdemeanors pursuant to section 1170.18

. Respondent conceded appellant was entitled to resentencing. In March 2015, the trial court granted both petitions. The court indicated its intention was “to fashion a sentence that would be equal to the one he is now serving, no more, which would be precluded, but also no less, which I don't think would be appropriate.” The court explained that, although two of appellant's convictions were eligible for reduction to misdemeanors, the overall “course of conduct” underlying the aggregate sentence included crimes outside the scope of Proposition 47, specifically a firearm charge, reckless driving while evading a peace officer, and driving under the influence with a prior conviction of the same.

Because the original principal term for possession of methamphetamine in case number SC180627A had been reduced to a misdemeanor, the trial court selected count 1 in case number SC189579A (reckless driving) as the new principal term and imposed the upper term of three years. In case number SC172146A, the court re-imposed the 8 month consecutive sentence on count 1. The court reduced count 3 to a misdemeanor and imposed a consecutive sentence of 100 days in the sheriff's custody, with 100 days of credit for time served. In case number SC180627A, the court reduced count 1 to a misdemeanor and imposed a consecutive sentence of 140 days in the sheriff's custody, with 140 days of credit for time served. The aggregate sentence was four years and four months, which was the same aggregate sentence the trial court had originally imposed. That included 3 years and 8 months for the two remaining felonies, and 240 days (or 8 months) for two misdemeanors.

This appeal followed.

DISCUSSION

I. Section 1170.18

Does Not Prohibit Imposition of the Same Aggregate Term

The voters enacted Proposition 47 on November 4, 2014. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089, 183 Cal.Rptr.3d 362

.) Proposition 47 made “certain drug- and theft-related offenses misdemeanors, unless the offenses were committed by certain ineligible defendants.” (Id. at p. 1091, 183 Cal.Rptr.3d 362.) As relevant in the present case, Proposition 47 enacted a resentencing provision, codified at section 1170.18, which provides that “a person ‘currently serving’ a felony sentence for an offense that is now a misdemeanor under Proposition 47, may petition for a recall of that sentence and request resentencing in accordance with the statutes that were added or amended by Proposition 47.” (Rivera, at p. 1092, 183 Cal.Rptr.3d 362.)4 Appellant contends the trial court erred in resentencing him to the same aggregate sentence originally imposed on his convictions in three cases. He states, [t]he question presented is whether a defendant putatively eligible for resentencing is entitled to receive an overall shorter sentence when one or more of the components of a consolidated sentence are offenses qualifying for sentencing relief.”

“In interpreting a voter initiative ... we apply the same principles governing statutory construction. We first consider the initiative's language, giving the words their ordinary meaning and construing this language in the context of the statute and initiative as a whole. If the language is not ambiguous, we presume the voters intended the meaning apparent from that language, and we may not add to the statute or rewrite it to conform to some assumed intent not apparent from that language. If the language is ambiguous, courts may consider ballot summaries and arguments in determining the voters' intent and understanding of a ballot measure. [Citation.] [Citations.] Our job is to ascertain and declare what is in terms or in substance contained in the provision, not to insert what has been omitted or omit what has been inserted. (Code Civ. Proc., § 1858

.)” (Santos v. Brown (2015) 238 Cal.App.4th 398, 409, 189 Cal.Rptr.3d 234 (Santos ).)

Appellant admits section 1170.18

“provides scant textual guidance” and “no guidance on how the new sentence should be constructed.” The only provisions that address the length of the term on resentencing are section 1170.18, subdivision (d)

, which provides that the applicant “shall be given credit for time served,” and section 1170.18, subdivision (e), which provides that [u]nder no circumstances may...

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