California Court of Appeal Aug 29, 2016 No. E064750Unpublished
Filed 8/29/16 P. v. Driver CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E064750
v. (Super.Ct.No. FSB1201484)
TOMMY JUNIOR DRIVER II, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Kyle S. Brodie,
Judge. Affirmed as modified.
Jason L. Jones, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, and Scott C. Taylor and Daniel J.
Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted defendant and appellant Tommy Junior Driver II of possessing
cocaine base for sale (Health & Saf. Code, § 11351.5) (Section 11351.5) and found that
the offense had been committed for the benefit of a criminal street gang (Pen. Code,
§ 186.22, subd. (b)(1)). The trial court subsequently found true a prior strike conviction
challenging the sufficiency of the evidence supporting his gang enhancement and his
prior serious or violent felony conviction. (Ibid.) While his appeal was pending, the
sentencing range for his possessing cocaine for sale offense was amended to reduce the
low term to two years. The trial court, realizing its original sentence was improper under
the old law, and apparently unaware that the sentencing range in the statute had been
amended, resentenced defendant to a low term of three years.
On appeal, defendant contends his resentencing was done in error because he is
entitled to the benefit of the amended statute, which lowered punishment for possessing
cocaine for sale from three years to two years. (In re Estrada (1965) 63 Cal.2d 740, 748
(Estrada).) The People agree and so do we.
1 We have taken judicial notice of our opinion in defendant’s first appeal, People v. Driver, supra, E059681.)
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I. FACTS
Because the facts are not germane to the issue raised on appeal, we omit a factual
summary of the case. However, this court’s opinion in the underlying case contains a
detailed statement of facts. (People v. Driver, supra, E059681).)
II. DISCUSSION
Defendant contends that he is entitled to retroactive application of the amended
version of Section 11351.5, which would reduce his low term sentence for possessing
cocaine for sale from three years to two years.
A. Background.
On January 10, 2013, defendant was sentenced to a total term of 13 years in state
prison. On the principal count of possession of cocaine for sale, the court imposed the
low term of two years, doubled because of defendant’s strike prior. After this sentence
was imposed, the Department of Corrections and Rehabilitation informed the court that
the minimum sentence for a violation of Section 11351.5 was three years.
On October 2, 2015, after determining that the Department of Corrections and
Rehabilitation was correct, and that the court had erred in sentencing defendant to a
principal term of two years, the court resentenced defendant. The court increased
defendant’s sentence on the principal count from two years to three years, doubled
because of defendant’s strike prior. However, the court stated, “I’m still going to impose
the low term for the reasons that I imposed the low term originally.” The remainder of
the sentence was identical, and thus defendant’s total sentence increased from 13 years to
15 years.
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B. Applicable Law.
Prior to 2015, Section 11351.5 punished possession of cocaine for sale for a period
of three, four, or five years. (People v. Keith (2015) 235 Cal.App.4th 983, 985 (Keith).)
On January 1, 2015, the California Fair Sentencing Act became effective. This Act
amended Section 11351.5 to reduce punishment for possessing cocaine for sale to a
period of two, three, and four years. (Stats. 2014, ch. 749, § 3.) The amended version of
the statute applies retroactively, under the Estrada doctrine, to defendants whose
judgments were not yet final on January 1, 2015. (Keith, supra, at p. 985.)
C. Analysis.
Defendant contends, and the People agree, that he is entitled to the benefit of the
amended version of Section 11351.5, because the amendment became effective prior to
his judgment becoming final, the amendment reduced punishment, and the amendment
contained no savings clause.
In Estrada, the California Supreme Court held that, absent evidence to the
contrary, lawmakers are presumed to intend statutes that reduce punishment to apply not
just prospectively to future defendants, but also to all defendants whose judgments are
not yet final on the statute’s operative date. (Estrada, supra, 63 Cal.2d at p. 748.) In
Keith, the appellate court held that the Legislature’s amendment to Section 11351.1
should be applied retroactively to defendants whose judgments were not yet final at the
time the amendment became effective. (Keith, supra, 235 Cal.App.4th at p. 985.)
Pursuant to Estrada and Keith, defendant is entitled to receive the benefit of
amended Section 11351.1. The trial court imposed a sentence of three years, doubled
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because of defendant’s strike prior. However, the correct sentence is two years, doubled
because of defendant’s strike prior. Typically, when a sentence is reduced by a
significant amount we would remand the matter back to the trial court for resentencing, in
order to protect the People’s interest in having the appropriate sentence pronounced.
(People v. Burns (1984) 158 Cal.App.3d 1178, 1183.) However, when a trial court
clearly indicates how it intends to exercise its sentencing discretion, but misapplies the
law, remand is unnecessary as the appellate court may simply modify the judgment to
correct the trial court’s error. (People v. Fuhrman (1997) 16 Cal.4th 930, 944
[recognizing that where a sentencing court misunderstands the scope of its sentencing
discretion but nonetheless affirmatively indicates on the record that is how it would have
exercised such discretion, remand is unnecessary]; People v. Gutierrez (1996) 48
Cal.App.4th 1894, 1896 [remand unnecessary where record clearly indicated how
sentencing court would have exercised its discretion].) Here, the trial court indicated its
intention of sentencing defendant to the lowest principal term which is two years.
Therefore, we will modify defendant’s sentence in our disposition.
III. DISPOSITION
The judgment is modified to reflect defendant’s sentence on possession of cocaine
for sale (Section 11351.5) is two years, doubled to four because of defendant’s strike
prior. The trial court is directed to issue an amended abstract of judgment reflecting the
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modified sentence and forward it to the Department of Corrections and Rehabilitation. In
all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST Acting P. J. We concur:
MCKINSTER J.
MILLER J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the defendant is entitled to the retroactive application of the amended Health and Safety Code section 11351.5, which reduced the low term for possession of cocaine for sale from three years to two years.
Issues
Whether the defendant is entitled to the retroactive application of the amended sentencing range for possession of cocaine for sale under the Estrada doctrine.
Disposition. Affirmed as modified.
Quotations verified verbatim against the opinion
“The amended version of the statute applies retroactively, under the Estrada doctrine, to defendants whose judgments were not yet final on January 1, 2015.”
“The judgment is modified to reflect defendant’s sentence on possession of cocaine for sale (Section 11351.5) is two years, doubled to four because of defendant’s strike prior.”