Filed 5/24/21 P. v. Marshall CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B305530
(Super. Ct. No. 1026041)
Plaintiff and Respondent, (Santa Barbara County)
v.
DAVID MARSHALL,
Defendant and Appellant.
The trial court granted David Marshall’s petition for
resentencing under Penal Code section 1170.1261, and reduced
the sentence imposed for his 2001 conviction of assault by means
likely to produce great bodily injury (count 3, § 245, subd. (a)(1)),
from 25 years to life to 8 years. In the same 2001 judgment,
appellant was convicted of attempted mayhem (count 1, §§
203/664), and assault with intent to commit mayhem. (Count 2, §
220.) He was a third-strike offender and the sentence imposed on
All further statutory references are to the Penal Code
1
unless otherwise stated.
count 2 included four consecutive five-year enhancement terms
based on appellant’s prior serious felony convictions. (§ 667,
subd. (a).) When it resentenced appellant on count 3, the trial
court did not consider modifying any aspect of the sentence
imposed on counts 1 and 2. Appellant contends this was error
because the trial court had discretion under the full resentencing
rule to consider dismissing his prior strikes and the five-year
prior serious felony conviction enhancements. We affirm.
Procedural History
In 2001, David Marshall was convicted, by jury, on
count 1 of attempted mayhem (§§ 203/664), on count 2 of assault
with intent to commit mayhem (§ 220), and on count 3 of assault
by means likely to produce great bodily injury. (§ 245, subd.
(a)(1).) He was sentenced as a third-strike offender on count 2 to
an indeterminate term of 25 years to life, plus four consecutive
five-year enhancement terms for his prior serious felony
convictions (§ 667, subd. (a)), plus a one-year prior prison term
enhancement. (§ 667.5, subd. (b).) On count 1, the trial court
imposed and stayed an indeterminate life term. (§ 664.) On
count 3, it imposed a concurrent term of 25 years to life. We
modified the judgment to grant an additional custody credit and
affirmed. (People v. Marshall (Jan. 15, 2003, B154776) [nonpub.
opn.].)
In 2018, appellant petitioned for resentencing under
§ 1170.126 in People v. Marshall (Dec. 19, 2018, B292080)
[nonpub. opn.] (B292080). The trial court denied the petition
because appellant’s life sentence was imposed for a serious or
violent felony. We concluded, “Although appellant is serving a
life sentence for assault with intent to commit mayhem (a serious
felony; § 1192.7, subd. (c)(29)), appellant may petition for
2
resentencing on the life term for assault with intent to produce
great bodily injury (a non-serious felony). (§ 1170.126, subd.
(e)(1).)” (B292080, pp. 3-4.) We reversed with directions to
determine appellant’s eligibility for resentencing, whether he
poses an unreasonable risk of danger to public safety, and
whether there was good cause for the late filing of the petition.
(Ibid.; § 1170.126, subd. (b), (f).) In 2020, the trial court did just
that. After concluding appellant was otherwise eligible for
resentencing, the trial court recalled his sentence on count 3 and
resentenced him to a term of 8 years on that count.
Discussion
Appellant contends the trial court misunderstood its
discretion under section 1385 to dismiss strikes and sentence
enhancements imposed on counts 1 and 2 in furtherance of
justice. We conclude appellant forfeited this contention because
he did not raise it in the trial court. (People v. Carmony (2004) 33
Cal.4th 367, 375-376 [“any failure on the part of a defendant to
invite the court to dismiss under section 1385 . . . waives or
forfeits his or her right to raise the issue on appeal”].)
Appellant contends he did not forfeit review of this
issue because raising it in the trial court would have been
futile. He notes that our prior opinion stated, “The conviction for
assault with intent to commit mayhem is a serious felony, which
renders appellant ineligible for resentencing on that count.”
(B292080, p. 3.) But our prior opinion said nothing about the full
resentencing rule on which appellant relies. We did not foreclose
the trial court from considering the claim that the full
resentencing rule authorized the trial court to consider
resentencing appellant on the other counts included in the same
judgment. At least one published opinion considered the rule’s
3
application in this context nearly four years before the hearing on
appellant’s petition for resentencing. (People v. Garner (2016)
244 Cal.App.4th 1113 (Garner).)
Even if the contention had not been forfeited, we
would reject it. Under the circumstances presented here, the full
resentencing rule did not authorize the trial court to reconsider
discretionary sentencing choices on counts that are not eligible
for resentencing under § 1170.126.2
Section 1170.126, “requires an inmate’s eligibility for
resentencing to be evaluated on a count-by-count basis. So
interpreted, an inmate may obtain resentencing with respect to a
Three Strikes sentence imposed for a felony that is neither
serious nor violent, despite the fact that the inmate remains
subject to a third strike sentence of 25 years to life.” (People v.
Johnson (2015) 61 Cal.4th 674, 688 (Johnson).)
Appellant benefits from Johnson’s count-by-count
approach because it means he is eligible for resentencing on one
of his current offenses, but not on the other two. The strikes and
sentence enhancements at issue here were attached to the two
2 Our Supreme Court has granted review in two cases
raising related issues. In People v. Padilla (2020) 50 Cal.App.5th
244, review granted Aug. 26, 2020, S263375, the court granted
review question whether, “When a judgment becomes final, but is
later vacated, altered, or amended and a new sentence imposed,
is the case no longer final for the purpose of applying an
intervening ameliorative change in the law?” People v. Federico
(2020) 50 Cal.App.5th 318, review granted Aug. 26, 2020,
S263082, concerns whether a defendant’s resentencing pursuant
to § 1170, subdivision (d)(1) “‘reopens’” the finality of his
sentence, “such that he was entitled to the retroactive application
of Proposition 57 and Senate Bill No. 1391 on an otherwise long-
final conviction[.]”
4
counts that are not eligible for resentencing. None of those
strikes or enhancements was premised on appellant’s conviction
of, or sentencing on the count 3, the section 1170.126-eligible
count.
In Garner, the defendant originally pleaded no
contest to a charge of receiving stolen property (§ 496, subd. (a)),
and admitted three prior prison terms and four prior strike
convictions. (Garner, supra, 244 Cal.App.4th at p. 1115.) At his
original sentencing, the trial court struck one of the strikes,
imposed a third-strike sentence of 25 years to life on the receiving
stolen property offense, and struck all three of the prior prison
term enhancements. (Id. at pp. 1115-1116.) After determining
the defendant was eligible for resentencing under section
1170.126, the trial court imposed the upper base term of three
years for the substantive offense, doubled it to six years under
the three strikes law, and then added consecutive one-year terms
for each of the defendant’s prior prison terms. (Garner, supra, at
pp. 1116-1117.)
The court of appeal affirmed, reasoning “‘When a case
is remanded for resentencing by an appellate court, the trial
court is entitled to consider the entire sentencing scheme. Not
limited to merely striking illegal portions, the trial court may
reconsider all sentencing choices. [Citations.] This rule is
justified because an aggregate prison term is not a series of
separate independent terms, but one term made up of
interdependent components. The invalidity of one component
infects the entire scheme.’” (Garner, supra, 244 Cal.App.4th at p.
1118, quoting People v. Hill (1986) 185 Cal.App.3d 831, 834.)
Because the defendant’s sentence had been recalled under section
1170.126, the trial court had authority to change both the term
5
imposed for the base term offense and the terms imposed for
sentence enhancements attached to that same offense.
Our Supreme Court cited Garner with approval in
People v. Buycks (2018) 5 Cal.5th 857, 894 (Buycks), as it
explained the full resentencing rule. “[W]hen part of a sentence
is stricken on review, on remand for resentencing ‘a full
resentencing as to all counts is appropriate, so the trial court can
exercise its sentencing discretion in light of the changed
circumstances.’” (Id. at p. 893.)
In Buycks, the court considered the application of this
rule to cases arising under Proposition 47, which reclassified
certain felonies as misdemeanors and permitted “those currently
serving sentences for Proposition 47 eligible felony convictions to
petition to have their sentences recalled and be ‘resentenced to a
misdemeanor.’ [Citation.]” (Buycks, supra, 5 Cal.5th at p. 871.)
Our Supreme Court concluded that, when a defendant is
resentenced for a Proposition 47 eligible felony conviction, the
trial court “must reevaluate the applicability of any enhancement
within the same judgment at that time, so long as that
enhancement was predicated on a felony conviction now reduced
to a misdemeanor.” (Id. at p. 894.) A felony conviction reduced to
a misdemeanor cannot serve as the predicate for a prior felony
conviction enhancement because it is no longer a felony.
(§ 1170.18, subd. (k).) “Under these limited circumstances, a
defendant may also challenge any prison prior enhancement in
that judgment if the underlying felony has been reduced to a
misdemeanor under Proposition 47, notwithstanding the finality
of that judgment.” (Buycks, supra, at p. 895.)
People v. Hubbard (2018) 27 Cal.App.5th 9
(Hubbard), cited Buycks and applied the full resentencing rule in
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a case under section 1170.126. There, the defendant was eligible
for resentencing on one of his current convictions, but not the
other. His original sentence included enhancements for five prior
strikes (§ 667, subd. (b)-(i)) and two prior prison terms. (§ 667.5,
subd. (b).) After the trial court resentenced him on the eligible
count, leaving all of the sentence enhancements intact, the
defendant appealed. He contended, “the trial court should have
considered ‘all aspects’ of his sentence during the resentencing
hearing,” including whether to exercise its discretion under
section 1385, whether concurrent sentences were appropriate and
whether section 654 applied. (Hubbard, supra, at p. 12.) The
court of appeal agreed. “Even though defendant’s eligibility for
resentencing was based solely on the reckless evasion
conviction, . . . the trial court was ‘entitled to consider the entire
sentencing scheme.’” (Id. at p. 13.)
Appellant relies on Hubbard in contending the trial
court should have considered dismissing the enhancements
imposed on counts 1 and 2, even though those counts are not
eligible for resentencing under section 1170.126. We are not
convinced.
In construing section 1170.126, we apply well-
established principles of statutory construction. “‘“The
fundamental purpose of statutory construction is to ascertain the
intent of the lawmakers so as to effectuate the purpose of the
law.”’ [Citation.] We begin with the language of the statute, to
which we give its ordinary meaning and construe in the context
of the statutory scheme.” (Johnson, supra, 61 Cal.4th at p. 682.)
“To that end, we generally must ‘accord[] significance, if possible,
to every word, phrase and sentence in pursuance of the
legislative purpose,’ and have warned that ‘[a] construction
7
making some words surplusage is to be avoided.’ [Citation.]”
(People v. Valencia (2017) 3 Cal.5th 347, 357.)
Section 1170.126, subdivision (e)(1) provides an
inmate is eligible for resentencing if “[t]he inmate is serving an
indeterminate term of life imprisonment imposed pursuant to
[the Three Strikes law] for a conviction of a felony or felonies that
are not defined as serious and/or violent . . . .” An inmate is
excluded from resentencing if the inmate’s current offenses
include specified drug offenses or sex offenses, the use of a
firearm, or an intent to cause great bodily injury. (§1170.126,
subd. (e)(2).) An inmate is also excluded from resentencing if the
inmate’s prior convictions include certain sex offenses, any
homicide or attempted homicide offense and other enumerated
violent felonies. (§ 1170.126, subd. (e)(3).)
Section 1170.126 expresses the intent of the drafters
of the legislation and voters who enacted Proposition 36 to limit
resentencing to persons whose current conviction is for an offense
that falls within the scope of subdivision (e)(1) and is not
excluded under subdivision (e)(2). Because eligibility for
resentencing is determined on a count-by-count basis (Johnson,
supra, 61 Cal.4th at pp. 687-688), there will be persons like
appellant, who are eligible for resentencing on one current
conviction but not another. Nothing in section 1170.126 indicates
the lawmakers intended for this circumstance to trigger
resentencing on ineligible or excluded current convictions.
Applying the full resentencing rule as appellant suggests would
render subdivisions (e)(1) and (e)(2) of section 1170.126
surplusage because it would permit resentencing on convictions
the statute declares ineligible or excluded.
8
Buycks is not to the contrary. There, the Supreme
Court held that, when the status of a conviction changes from
felony to misdemeanor, that conviction can no longer serve as the
predicate for a sentence enhancement based on its status as a
felony. If there are enhancement terms imposed on other counts
included in the same judgment that rely on the felony status of
the newly-reclassified offense, the trial court must reevaluate
those enhancement terms. (Buycks, supra, 5 Cal.5th at pp. 894-
895.)
Here, recalling the sentence on appellant’s
Proposition 36-eligible conviction did not alter its status as a
felony. The eligible felony conviction also did not serve as the
basis for any of the strikes or prior prison term enhancements
imposed on appellant’s ineligible convictions at his original
sentencing. Buycks does not require the trial court to revisit the
sentences imposed on appellant’s ineligible felonies.
“[T]he full resentencing rule allows a court to revisit
all prior sentencing decisions when resentencing a defendant.”
(People v. Valenzuela (2019) 7 Cal.5th 415, 424-425.) Before its
amendment in 2019, section 667, subdivision (a) imposed a
mandatory five-year sentence enhancement for each qualifying
prior serious felony conviction suffered by a defendant. Trial
courts had no authority under section 1385 to strike these
enhancements in furtherance of justice. (See, e.g., People v
Fuentes (2016) 1 Cal.5th 218, 230-231; People v. Wilson (2002) 95
Cal.App.4th 198, 201.) Thus, at appellant’s original sentencing,
the trial court lacked discretion to strike the five-year prior
conviction enhancements. Recalling his sentence on one count
under section 1170.126 did not expand the trial court’s discretion
9
to strike mandatory enhancements imposed on other, ineligible
counts.
Hubbard and Garner are distinguishable for this
reason. In both of those cases, the trial courts recalled a sentence
and then exercised discretionary sentencing choices that would
have been available at the original sentencing hearing.
(Hubbard, supra, 27 Cal.App.5th at p. 11; Garner, supra, 244
Cal.App.4th at pp. 1115-1116.) Here, by contrast, the trial court
lacked discretion at appellant’s original sentencing to strike the
five-year prior conviction enhancements. Hubbard and Garner
do not support the exercise of sentencing authority that was
unavailable to the trial court at the time of the original sentence.
Appellant was eligible for resentencing under section
1170.126 on one of his three current convictions. The trial court
had discretion to revisit all sentencing choices made with respect
to the eligible conviction. Resentencing on that conviction did not
alter sentence enhancements imposed on appellant’s other,
ineligible convictions. Under these circumstances, the full
resentencing rule did not authorize the trial court to reconsider
sentences imposed on the ineligible convictions.
Conclusion
The judgment is affirmed.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
PERREN, J.
10
Timothy J. Staffel, Judge
Superior Court County of Santa Barbara
______________________________
Wayne C. Tobin, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Scott A. Taryle, Supervising Deputy
Attorney General, Chung L. Mar, Deputy Attorney General, for
Plaintiff and Respondent.