People v. Massey CA1/5

Filed 1/20/23 P. v. Massey CA1/5 Opinion following rehearing

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, A163744 v. GERALD MASSEY, (Contra Costa County Super. Ct. No. 51408889) Defendant and Appellant.

In November 2014, pursuant to a negotiated disposition, defendant and appellant Gerald Massey (appellant) pleaded guilty to gross vehicular manslaughter (Pen. Code, § 191.5, subd. (d))1 and driving under the influence (DUI) with two prior convictions (Veh. Code, §§ 23153, subd. (a), 23566, subd. (b)). Appellant also admitted a great bodily injury (GBI) enhancement (§ 12022.7, subd. (a)) associated with the DUI charge. Pursuant to the plea bargain, the trial court sentenced appellant to prison for a term of 15 years to life on the manslaughter charge. The trial court stayed a seven-year term on the DUI charge and the GBI enhancement under section 654.

All section references are to the Penal Code unless otherwise 1

indicated.

1

In November 2014, two abstracts of judgment were filed, one for the determinate sentence and one for the indeterminate sentence. The determinate sentence abstract on page one properly indicates that the seven- year term on the DUI charge and enhancement was stayed under section 654, but on page two the abstract erroneously states the stays were under “PC 664.” The indeterminate sentence abstract on the first page erroneously indicates with an “X” that the 15-years-to-life term is a consecutive term. In August 2020, appellant filed a petition for resentencing under section 1170.91, subdivision (b). Section 1170.91, subdivision (a) directs sentencing courts to consider as mitigating factors certain conditions suffered by defendants who are military veterans, and subdivision (b) authorizes the filing of resentencing petitions. The trial court denied the petition. In the present appeal, appellant initially conceded the trial court properly denied his petition on the ground that section 1170.91 does not apply to indeterminate sentences. (See People v. Estrada (2020) 58 Cal.App.5th 839, 842–843 (Estrada).) Nevertheless, he requested that this court direct the trial court to correct the November 2014 abstracts of judgment because the court below was under the misimpression that appellant had been sentenced to seven years on the DUI charge and GBI enhancement, plus a consecutive term of 15 years to life on the manslaughter charge. On December 9, 2022, this court filed a decision affirming denial of the petition for resentencing but directing the trial court to correct the abstracts of judgment. On December 21, 2022, appellant filed a petition for rehearing. He pointed out that the Legislature had enacted Senate Bill No. 1209 (2021-2022 Reg. Sess.) (SB 1209), which amended section 1170.91, effective January 1, 2023. As relevant here, the amendment eliminated a reference to