Filed 1/25/ 24 P. v. Powell CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a ). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

ERNEST LEE POWELL

, Defendant and Appellant. B 3 2 7804

Los Angeles County Super. Ct. No. A079362

APPEAL from an order of the Superior Court of Los Angeles County, Kathryn A. Sol o rzano , Judge

. Reversed and
remanded with instructions

. Edward H. Schulman , under appoint ment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta , Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Wyatt E. Bloomfield and Stefanie
Yee

, Deputy Attorney s Gene ral, for Plaintiff and Respondent.2 INTRODUCTION

D efendant and appellant Ernest Lee Powell petitioned the
trial court under former Penal Code section 1170.95 to have his 1981 second degree murder conviction vacated. 1 The trial court granted the petition an d vacated Powell’s murder conviction. The
court resentenced Powell to a five

- year upper term for robbery, a

one

- year firearm enhancement, and a concurrent three

- year

upper term for burglary. On appeal, Powell argues the court erred by imposing upper terms for robbery and burglary in light
of Senate Bill No. 567 (2021

- 2022 Reg. Sess.) (SB 567)

. He also argues the court erred by imposing the firearm enhancement. We conclude remand is warranted for resentencing in light
of SB 567 and order Powell’s sentence v acated. As discussed in greater detail below, a t Powell’s new sentencing hearing , the trial
court is directed to consider its full range of sentencing options, including whether to reimpose the firearm enhancement. Additionally, for the reasons discussed b elow, on remand the trial
court is directed to consider whether and how the question of mootness impacts this case.

1 All undesignated statutory references are to the Penal Code. Effective June 30, 2022, the Legislature renumbered section 1170.95 to section 1172.6. (Stats. 2022, ch. 58, § 10.) There were no substantive changes to the statute. We will refer interchangeably to these two different section numbers depe nding on the context. Section 1172.6 provides relief for certain individuals convicted of murder under the felony murder rule, natural and probable consequences doctrine, or any other theory of imputed

- malice liability. (See § 1172.6, subd. (a).)3 PROCEDURAL BACKGROUND

In 1979, the Los Angeles County District Attorney filed an information charging Powell with murder ( § 187, subd. (a))

, robbery ( § 211), and burglary (§ 459). With respect to all counts, the information alleged Powell personally used a firearm

. (§ 12022.5, subd. (a)

. ) 2 In 1981, Powell pled guilty to second degree murder and admitted the firearm use allegation was true.
Th e trial court sentenced him to a seven

- year term for the murder, plus a two

- year firearm enhancement, for a total term of nine years in state prison.
In 2021, Powell filed a petition for resentencing under
former section 1170.95. 3 The prosecution conceded Powell had made a prima facie showing of entitlement to relief because he was charged and pled guilty under the felony murder rule

. In 2022, the trial court held an evidentiary hearing under section 1172.6, subdivision (d). The prosecution indicated it cou ld not locate its witness, Gregory Locke, and had no other admissible evidence proving Powell was the actual killer or that
Powell could otherwise be convicted of murder under current law. At a later hearing, the court noted Powell’s guilty plea
could not establish that he remained guilty of murder under
current law. The court vacated Powell’s murder conviction and
held a re sentencing hearing. The prosecution asked the court to

2 The A ttorney General’s request for judicial notice of Powell’s information and the reporter’s transcript from his change of plea hearing is granted.

3 While serving his murder sentence, Powell was convicted in an unrelated drug case and sentenced to 25 years t o life under the Three Strikes law. He was still in custody serving that
sentence as his resentencing petition proceeded in the trial court.4

sentence Powell on the remaining charges of robbery and burglary, and to impose a firearm enhancement on the robbery

count

. Defense counsel did not object to the prosecution’s request
that the court impose the firearm enhancement

. The court sentenced Powell to an upper term of five years on the robbery, plus two year s on the firearm e nhancement, for a
total term of seven years in state prison. 4 It imposed a three

- year upper term on the burglary count but stayed sentencing under
section 654. Defense counsel did not object to the court’s imposition of upper term sentences.
Powel l timely appealed.

DISCUSSION

I. The matter is remanded for resentencing in light of SB 567

Powell first argues the trial court’s imposition of upper

terms on his robbery and burglary co nvictions violated the ameliorative provision s of SB 567. 5 In raising this argume nt,

4 Although the trial court orally imposed a one

- year firearm enhancement, the sentencing hearing minute order and abstract of judgment reflect the court imposed a two

- year term on the firearm enhancement. The proper sentence w as the punishment under section 12022.5, subdivision (a) when Powell was sentenced in 1981

– namely two years imprisonment. (See People v. Marti nez (1987) 194 Cal.App.3d 15, 18, People v. Zamarron (1994) 30 Cal.App.4th 865, 871 [prior to January 1, 1990, a firearm use enhancement under section 12022.5, subdivision (a) was punishable by a two

- year term].)

5 Effective January 1, 2022, Senate Bill No. 567 “amended section 1170, subdivision (b) to specify that, when a sentencing court chooses a term from a statutory triad, the chosen term shall5

Powell notes the trial court did not state its reason s for imposing the upper term sentences. The Attorney General counters Powell forfeited his argument by not objecting in the trial court, but
contends that

, assuming Powell’s argument is not forfeite d, the matter should be remanded for resentencing because it is not clear what the court relied on in imposing the upper terms

. Although it is true Powell ’s attorney did not object in the trial court, we are of the view that forfeiture principles should no t preclude Powell from receiving the benefit s conferred by the Legislature in enacting SB 567. (See, e.g., People v. Smith (2001) 24 Cal.4th 849, 852 [arguments that a sentence is unauthorized
are reviewable whether or not an objection was raised in the tr ial court]; People v. Hines (1997) 1 5 Cal.4th 997
, 1061 [reviewing court may consider issues not raised in the trial court that present pure questions of law on undisputed facts ] .) 6 We
therefore order his sentence vacated and remand the matter for a

new se ntencing hearing. ( C f. People v. Buycks (2018) 5 Cal.5th 857, 893 [“when 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

not exceed the middle term, unless the facts supporting the aggravating circumstances are (1) established b y the defendant’s stipulation to them, (2) proven to a jury (or to a court, if jury is waived) beyond a reasonable doubt, or (3) based on prior convictions evidenced by a certified record of conviction. (Stats. 2021, ch. 731, §§ 1.3, 3(c), adding Pen. Code , § 1170, subd. (b)(1)

— (3), by amendment.)” ( People v. Jones (2022) 79 Cal.App.5th 37, 44.)

6 We agree with Powell that SB 567 applies retroactively to his nonfinal case. ( People v. Lewis (2023) 88 Cal.App.5th 1125, 1130

- 1131.)6

discretion in light of the changed circumstances.’”] .) At the new hearing, the trial court is directed to apply SB 567 in determining
Powell’s sentence

.
II. Powell’s arguments regarding the firearm
enhancement

Powell next argues the trial court’s imposition of the
firear m enhancement was an unauthorized sentence and must be
stricken. The Attorney General contends Powell also forfeited this argument by not object ing in the trial court, and assuming
Powell had not forfeited it

, the imposition of the enhancement

was proper. Review is currently pending before our Supreme
Court in another case on whether enhancement s may be imposed by a trial court when resentencing under section 1172.6. 7 And, as the parties expound in their briefs, there is a split of authority in
the Courts o f Appeal on this issue. (Compare Arellano

, supra , 86
Cal. App. 5th at p p . 422 , 432

- 43 7 [language of section 1172.6 does

not authorize trial courts to attach enhancements to redesignated target or underlying conviction s when resentencing petitioners on those counts ] with People v. Howard (2020) 50 Cal.App.5th 727,
74 1

- 742 ( Howard ) [section 1172.6 permits trial courts to impose related enhancements when resentencing on redesignated
conviction s so long as the new sentence is not greater than the original sentenc e ].)

7 The Supreme Court has g ranted review in People v. Arellano (2022) 86 Cal.App.5th 418 ( Arellano ) , review granted Mar. 15, 2023, S277962 on the following issue: “When a defendant obtains resentencing for a conviction under Penal Code section 1172.6, subdivision (e), is the trial c ourt permitted to impose not only the [sentence for the] target offense or underlying felony, but also corresponding enhancements?”7 Because (as discussed above) we are vacating Powell’s entire sentence, including the firearm enhancement, and remanding the matter for a full resentencing hearing, we need not address Powell’s argument that the firearm enhancement

must be stricken. We note the trial court has discretion to strike
the firearm enhancement in light of Senate Bill No. 620 (SB 620) (2017

- 2018 Reg. Sess.)

. 8

III. The court’s oral pronouncement of judgment on the firearm enhancement

The Attorney General points out that although th e trial court apparently intended to impose a two

- year term on the firearm enhancement, which was the punishment under section 12022.5, subdivision (a) when Powell was sentenced in 1981, at the resentencing hearing, the court instead orally imposed a one

y ear term on the firearm enhancement. As noted above in footnote four, the proper enhancement would have been two

years. The Attorney General requests that we order oral pronouncement of judgment corrected. Because we are vacating
Powell’s sentence and rema nding the matter for a resentencing hearing, we need not address this issue

.
IV. Mootness

As mentioned above, at Powell’s resentencing hearing, the
court sentenced him to an upper term of five years on the robbery, plus two year s on the firearm enhancement. T he trial

court then awarded Powell 18,803 days of custody credit. The

8 Effective January 1, 2018, Senate Bill No. 620 amended section 12022.5, subdivision (c) to give trial courts discretion t o strike firearm enhancements imposed under section 12022.5. ( People v. Contreraz (2020) 53 Cal.App.5th 965, 967

- 969.)8

parties’ briefing does not address whether the issues presented on appeal are rendered moot by the fact that Powell has already served significantly more prison time than the trial court may lawfully impose on resentencing. (See People v. Rish (2008) 163 Cal.App.4th 1370, 1380 [“‘[A] case becomes moot when a court ruling can have no practical effect or cannot provide the parties with effective relief.’”].) The issue of mootness, and how m ootness might impact this case as it proceeds through the appellate

process, is an issue the trial court should consider on remand.9 DISPOSITION

Powell’s sentence is vacated , and the matter is remanded to the trial court for a resentencing hearing

. At the hearing, the trial court is directed to consider its full range of lawful sentencing options. As discussed above, th at includes ( but is not limited to ) applying SB 567 and SB 620. The court is also directed
to consider whether Powell’s credits for time se rved exceed any possible sentence the court may re

- impose , and wh e ther the issue of resentencing is moot.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CURREY, P. J.
We concur:

MORI, J.

ZUKIN , J.