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

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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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.

B327804

Los Angeles County

Super. Ct. No. A079362

APPEAL from an order of the Superior Court of Los 

Angeles County, Kathryn A. Solorzano, Judge. Reversed and 

remanded with instructions.

Edward H. Schulman, under appointment 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 Attorneys General, for Plaintiff and Respondent.
2

INTRODUCTION

Defendant 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 and 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 vacated. As discussed in 

greater detail below, at 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 below, 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 

depending 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.

The 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 could 

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 resentencing hearing. The prosecution asked the court to 

2 The Attorney 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 to 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 years on the firearm enhancement, 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.

Powell 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 convictions violated the 

ameliorative provisions of SB 567.5 In raising this argument, 

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 was the punishment 

under section 12022.5, subdivision (a) when Powell was 

sentenced in 1981 – namely two years imprisonment. (See People 

v. Martinez (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 shall 
5

Powell notes the trial court did not state its reasons 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 forfeited, 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 not 

preclude Powell from receiving the benefits 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 trial 

court]; People v. Hines (1997) 15 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 sentencing hearing. (Cf. 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 by 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 

firearm enhancement was an unauthorized sentence and must be 

stricken. The Attorney General contends Powell also forfeited 

this argument by not objecting 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 enhancements 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 of Appeal on this issue. (Compare Arellano, supra, 86 

Cal.App.5th at pp. 422, 432-437 [language of section 1172.6 does 

not authorize trial courts to attach enhancements to redesignated

target or underlying convictions when resentencing petitioners on 

those counts] with People v. Howard (2020) 50 Cal.App.5th 727,

741-742 (Howard) [section 1172.6 permits trial courts to impose 

related enhancements when resentencing on redesignated

convictions so long as the new sentence is not greater than the 

original sentence].)

7 The Supreme Court has granted 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 court 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 the 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 oneyear 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 remanding 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 years on the firearm enhancement. The 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 to 

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 mootness 

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, that 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 served exceed any 

possible sentence the court may re-impose, and whether the issue 

of resentencing is moot.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CURREY, P. J.

We concur: 

MORI, J.

ZUKIN, J.