Filed 11/16/22 P. v. Davis CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F083448
Plaintiff and Respondent,
(Super. Ct. No. F15903774)
v.
ROBERT LEE DAVIS III, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Arlan L.
Harrell, Judge.
Elisa A. Brandes, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez, Kari
Mueller, and Louis M Vasquez, Deputy Attorneys General, Plaintiff and Respondent.
-ooOoo-
*Before Franson, Acting P. J., Peña, J. and De Santos, J.
A jury found Robert Lee Davis III (defendant) guilty on charges arising from a
series of commercial robberies. In 2019, this court upheld the verdicts but remanded the
case for a new sentencing hearing. Defendant now argues, and the People concede,
further sentencing relief is warranted in light of Senate Bill No. 136 (2019–2020 Reg.
Sess.) (Senate Bill 136) and Senate Bill No. 567 (2021–2022 Reg. Sess.) (Senate Bill
567). We agree with the parties.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was prosecuted for his role in several robberies committed in June
2015. The underlying facts are not relevant to this appeal, but a detailed summary can be
found in People v. Islas (July 19, 2019, F075575) [nonpub. opn.]. The case was tried
before a jury in October 2016.
Defendant was convicted on eight counts of second degree robbery (Pen. Code,
§ 211; counts 1, 2, 3, 4, 7, 10, 11 & 12); two counts of attempted second degree robbery
(§§ 211, 664; counts 5 & 6); two counts of assault with a firearm (§ 245, subd. (a)(2);
counts 8 & 9); and one count of unlawful firearm possession (§ 29800, subd. (a)(1); count
14). (All undesignated statutory references are to the Penal Code.) True findings were
made on firearm enhancement allegations pursuant to section 12022, subdivision (a)(1)
(counts 1, 2, 3, 5, 6, 10, 11 & 12) and section 12022.53, subdivision (b) (counts 4 & 7).
Defendant admitted to having served a prior prison term within the meaning of section
667.5, former subdivision (b). He also pled no contest in a related matter (Super. Ct.,
Fresno County, 2016, No. F16906002) to a violation of section 136.1, subdivision (c)(1).
On March 6, 2017, defendant was sentenced to an aggregate prison term of 28
years 4 months. The sentence included the upper terms for multiple counts and a one-
year prior prison term enhancement. The trial court found as follows with regard to
aggravating circumstances:
“First, that the defendant engaged in violent conduct which indicates a
serious danger to society; second, that the defendant had served a prior
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prison term; third, that he was on [post release community supervision] at
the time that the offenses were committed …; and that his prior convictions
are numerous and certainly of increasing seriousness.”
In a prior opinion (People v. Davis (July 19, 2019, F075303) [nonpub. opn.]
(Davis I), we affirmed the judgment but “remand[ed] the matter to the trial court to
permit it to exercise its discretion regarding whether to strike the firearm enhancements
in light of [Senate Bill No. 620 (2017–2018 Reg. Sess.)].” The People’s unopposed
request for judicial notice of the records in Davis I is hereby granted. (Evid. Code,
§§ 452, subd. (d), 459, subd. (a).)
On February 28, 2020, further proceedings were conducted pursuant to the
disposition in Davis I. The trial court declined to alter its original sentence. Defendant
did not attempt to file a notice of appeal until nearly one year later. However, by order of
this court in In re Robert Lee Davis III (Aug. 12, 2021, F082439) [nonpub. opn.], the
appeal was deemed timely.
DISCUSSION
I. Prior Prison Term Enhancement
Effective January 1, 2020, the one-year enhancement provided for in section
667.5, subdivision (b) is inapplicable to all prior prison terms except those served for a
sexually violent offense within the meaning of Welfare and Institutions Code section
6600, subdivision (b). (Stats. 2019, ch. 590, § 1.) This amendment, which resulted from
the enactment of Senate Bill 136, has been held to apply retroactively to nonfinal
judgments. (People v. Morelos (2022) 13 Cal.5th 722, 769–770.) The recent enactment
of section 1171.1 confirms the Legislature’s intent for retroactive relief. Section 1171.1
provides, in relevant part: “Any sentence enhancement that was imposed prior to
January 1, 2020, pursuant to subdivision (b) of Section 667.5, except for any
enhancement imposed for a prior conviction for a sexually violent offense as defined in
subdivision (b) of Section 6600 of the Welfare and Institutions Code is legally invalid.”
(§ 1171.1, subd. (a).)
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Although Senate Bill 136 had gone into effect prior to the February 2020
proceedings on remand, it appears the issue of defendant’s section 667.5 enhancement
was overlooked by the parties and the trial court. Nevertheless, the record clearly shows
the enhancement was not based on a conviction for a sexually violent offense. Therefore,
as the People appropriately concede, the prior prison term enhancement must be stricken
from the judgment.
II. Senate Bill 567
At the time of the original pronouncement of judgment and when proceedings
were conducted on remand, “former section 1170, subdivision (b) provided the trial court
with broad sentencing discretion to determine whether the imposition of the lower,
middle, or upper term ‘best serve[d] the interests of justice.’ Prior to 2007, an older
version of section 1170, subdivision (b) provided that the middle term was the
presumptive term but authorized the trial court to impose the upper term if it found any
aggravating circumstances. In 2007, the United States Supreme Court found this
sentencing scheme unconstitutional and stated, ‘under the Sixth Amendment, any fact
that exposes a defendant to a greater potential sentence must be found by a jury, not a
judge, and established beyond a reasonable doubt, not merely by a preponderance of the
evidence.’ (Cunningham v. California (2007) 549 U.S. 270, 281.)” (People v. Mitchell
(2022) 83 Cal.App.5th 1051, 1056.)
“In 2007, in response to Cunningham, the California Legislature amended section
1170 to provide the ‘trial judges broad discretion in selecting a term within a statutory
range, thereby eliminating the requirement of a judge-found factual finding to impose an
upper term.’” (People v. Mitchell, supra, 83 Cal.App.5th at p. 1056.) “Most recently,
Senate Bill 567 further amended section 1170, subdivision (b) ‘to make the middle term
the presumptive sentence for a term of imprisonment; a court now must impose the
middle term for any offense that provides for a sentencing triad unless “there are
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circumstances in aggravation of the crime that justify the imposition of a term of
imprisonment exceeding the middle term, and the facts underlying those circumstances
have been stipulated to by the defendant, or have been found true beyond a reasonable
doubt at trial by the jury or by the judge in a court trial.” (§ 1170, subd. (b)(1) & (2).)’”
(Mitchell, at p. 1057, italics added.) There is an exception to the italicized requirement:
a sentencing court may rely on prior convictions as evidenced by certified records of
conviction. (§ 1170, subd. (b)(3).)
We agree with the parties on the issue of retroactivity. “When new legislation
reduces the punishment for an offense, we presume that the legislation applies to all cases
not yet final as of the legislation’s effective date.” (People v. Esquivel (2021) 11 Cal.5th
671, 673.) This principle extends “to statutes that merely [make] a reduced punishment
possible.” (People v. Frahs (2020) 9 Cal.5th 618, 629.) To rebut the inference of
retroactivity, “the Legislature must ‘demonstrate its intention with sufficient clarity that a
reviewing court can discern and effectuate it.’” (Id. at p. 634.) Senate Bill 567 took
effect during the pendency of this appeal, and there is no clear indication of a legislative
intent for prospective-only application.
The parties both argue the necessity of another remand. Although defendant
admitted to having served a prior prison term, which established one aggravating
circumstance (Cal. Rules of Court, rule 4.421(b)(3)), the trial court relied on several
additional factors that were neither admitted nor found true by a jury. The trial court
based most of those findings on a probation report, not certified records of conviction as
now required by section 1170, subdivision (b)(3).
The People quote a statement in People v. Zabelle (2022) 80 Cal.App.5th 1098:
“If the record is insufficient to support a trial court’s findings about a defendant’s
criminal history, we will not presume the existence of extrarecord materials, however
likely they are to exist, to address this insufficiency.” (Id. at p. 1115, fn. 6.) We accept
the People’s concession that “[u]nder the particular circumstances of this case,” the
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matter “should be remanded for resentencing in compliance with section 1170,
subdivision (b).”
DISPOSITION
The enhancement imposed pursuant to section 667.5 is stricken. The remainder of
the sentence is vacated, and the matter is remanded for resentencing in accordance with
section 1170. In all other respects, the judgment is affirmed.
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