Filed 2/24/23 P. v. Connor CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,

v.

JAMISON MITCHELL CONNOR,
Defendant and Appellant. D079346

(Super. Ct. No. SCN408029 )

APPEAL from a judgment of the Superior Court of San Diego County,
Sim v on Kalinowski, Judge. Judgment affirmed, sentence vacated and remanded for resentencing

. Daniel J. Kessler, under appointment by the Court of Appeal, f or Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Robin Urbanski, Paige Hazard and Laura Baggett, Deputy Attorneys General, for Plaintiff and Respo ndent.2 INTRODUCTION Jamison Mitchell Connor appeals his prison sentence of 28 years, and
asks us to remand for resentencing because his non
- final sentence fails to comply with ameliorative changes to sentencing laws effected by Assembly
Bill No. 518 (Stats. 2021, ch. 441, § 1) (Assembly Bill 518) and Senate Bill
No. 567 (Stats. 2021, ch. 731, § 1.3) (Senate Bill 567) . He also requests the benefit of Senate Bill No. 81 ( Stats. 2021, ch. 721, § 1 ) (Senate Bill 81)

. We
shall remand for resentencing due to error under Assembly Bill 518. At the time of Connor’s sentencing in June 2021 , former Penal Code 1 section 654, subdivision (a), required a defendant who committed an act punishable by two or more provisions of law be punished under the provision
th at provided for the longest possible term. As amended by Assembly Bill 518, section 654 now gives the trial court discretion to impose and execute the sentence of any term, including the shorter rather than the longest

sentence. Because we see no clear i ndication the trial court would have imposed the same sentence even if it had been aware that it had such discretion under amended section 654, remand is warranted

. We find it unnecessary to address the merits of Connor’s claims under
Senate Bill 567 and Senate Bill 81 because the trial court , when it fully resentences Connor, will be required to make all sentencing decisions in accordance with current sentencing law. We vacate Connor’s sentence and remand the matter for resentencing. In all other respects, the judgment is
affirmed.

1 All further undesignated statutory references are to the Penal Code.3 FACTUAL AND PROCEDURAL BACKGROUND
I. Conviction Offenses On the morning of November 23, 2019, Connor struck and killed a bicyclist w ith his car. He fled the scene and drove his car to a friend’s house
and covered it up with a tarp ; this was all captured on video by a neighborhood surveillance camera

. Police later found the severely damaged car two miles from the fatal accident scene. The car had blood and tissue on
the hood and windshield , and in it w ere two prescription drug bottles, a baggie of methamphetamine, and an empty vodka bottle. Five days later, at 8:27 a.m. on November 28, 2019, police attempted to stop Connor who was driving a truck with a large crack across the
windshield. He knew he was wanted by the police. D espite the activated
sirens on the marked patrol car, Connor continued to drive until he was forced to stop by another officer who drove a patrol car across Connor’s path
and blocked him. Connor was determined to be driving under the influence of alcohol and methamphetamine

. His four

- year
- old son was riding in the
middle seat unrestrained , and within reach of a useable amount of methamphetamine and a loaded gun with three rounds of ammunition inside the magazine

. The gun also had one round in the chamber and the safety

was disengaged

. The adult passenger in Connor’s car was also intoxicated. O n May 14, 2021, Connor pled guilty to vehicular manslaughter ( Pen. Code, § 192, subd. (c)(1) ; count 1 ) and hit and run with death ( Veh. Code, § 20001, subd. (b)(2) ; count 2 ) , arising from the November 23, 2019 fatal car
accident. He also admitted he unlawfully fled the scene (Veh. Code, § 20001,
subd. (c) ) and he had suffered a strike prior ( Pen. Code, §§ 667, subds. (a)(1), (b)

– (i), 668, 1170.12, & 1192.7 , subd. (c)).4

On May 20, 2021, a jury convicted Connor of child abuse ( Pen. Cod e, § 273a, subd. (a); count 3 ), possession of a firearm by a felon ( Pen. Code, § 29800, subd. (a)(1); count 4 ), having a concealed firearm in a vehicle ( Pen. Code, § 25400, subd. (a)(1); count 5 ), possession of ammunition by a felon ( Pen. Code, § 30305, su bd. (a)(1); count 6 ), being under the influence of a
controlled substance with a firearm (Health & Saf. Code, § 11550, subd. (e);

count 7 ), possession of a firearm while also in possession of a controlled substance (Health & Saf. Code, § 11370.1, subd. (a) ; count 8 ), and driving under the influence of alcohol and drugs (Veh. Code, § 23152, subd. (g); count
9 ) , arising from the November 28, 2019 traffic stop

. The jury found true the allegation attached to count 5 that Connor had been previously convicted of a felony ( Pen. Code, § 25400, subd. (c)(1)).
II. Sentencing Connor was sentenced on June 21, 2021

. The trial court heard and denied Connor’s Romero 2 motion to strike his 2018 conviction for assault with a deadly weapon (§ 245, subd. (a)(1 )) under section 1385. The court found Connor was on parole for that strike prior at the time of the charged offenses and so it was not remote in time; his “lengthy criminal history” goes back two decades and his crimes we re increasing in severity; he has a history of violence; and he “clearly” did not successfully complete probation or parole.
The trial court then imposed a total sentence of 28 years in prison and six months in county jail , consisting of the following:

2 People v. Superior Court (Romero) (1996) 13 Cal.4th 497

.5

On count 1, the court selected t he upper term of six years , doubled it to 12 years for the strike prior, and added five years consecutive for the
enhancement under Vehicle Code section 20001, subdivision (c) , for a total of 17 years in prison

. On count 2 , the court imposed the upper term of four years and doubled
it to eight years for the strike prior and stayed the term pursuant to section
654

. On counts 3, 6, and 8, t he court imposed one

- third the midterm doubled for the strike prior , resulting in terms of two years eight months on count 3,

one year four months on count 6, and two years on count 8, for a total of six

years consecutive

. On counts 4, 5, and 7, the cour t selected the upper terms of three years, doubled to six years for the strike prior but stayed each of those terms pursuant to section 654. 3 Last, the court imposed an additional five years for the strike prior , as Connor was also convicted of a seriou s felony in the instant case (§§ 667, subd. (a)(1) , 668, 1192.7, subd. (c)) , and six months county jail for the misdemeanor driving under the influence in count 9. In selecting the upper terms on counts 1, 4, 5, and 7 , the trial court found numerous factors in aggravation and none in mitigation, including: Connor’s prior convictions as an adult are numerous and of increasing seriousness; his criminal history dates back to 1997; he has a strike offense, “which was [ also an ] assault on h is girlfriend using a vehicle”; he has served

3 When Connor was sentenced on June 21, 2021, the trial court did not stay counts 4 and 7. On July 20, 2021, the court recalled the sentence pursuant to section 1170, subdivision (d)(1), to stay counts 4 and 7 pursuant to section 654.6

multiple state prison terms and local prison terms; he was on parole when he committed the charged crimes; his prior performance was unsatisfactory “throughout his criminal history

. ” Consistent with the senten cing law in effect at the time , none of these aggravating factors were proven beyond a reasonable doubt nor stipulated to by Connor

⎯ except his stipulation to his felony conviction and the jury’s true finding on the allegation attached to
count 5 that Conno r had previously been convicted of a felony. DISCUSSION
I. Remand Is Warranted Due to Error Under Assembly Bill 518 As noted, Connor pled guilty to vehicular manslaughter and admitted the enhancement that he fled the scene of the accident within the meanin g of
Vehic le Code section 20001, subdivision (c) (enhancement) , as charged in
count 1

. He also pled guilty to hit and run with a death in violation of Vehicle Code section 20001, subdivision (b)(2) , as charged in count 2

. The enhancement carried a manda tory consecutive sentence of five years in state prison. Thus, the court imposed t he upper term of six years , doubled it to 12 years for the strike prior, and added five years consecutive for the enhancement, for a total of 17 years in prison on count 1

. On count 2 , the court imposed the upper term of four years and doubled it to eight years for the strike prior but stayed the term pursuant to section 654

. At the time of Connor’s sentencing, former section 654, subdivision (a), provided th at a defendant who committed an act “ punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment.” (Stats. 1997,
ch. 410, § 1.) In other words, t he sentenc ing court was required to impose the longer sentence and stay execution of the shorter term. ( People v. Mani7

(2022) 74 Cal.Ap p. 5th 343, 379 ( Mani ) ; People v. Jones (2022 ) 79 Cal.A p p

. 5 th 37, 45

− 46 ( Jones ).)
Because the trial court determined the enhancement and count 2 involved “identical” conduct, it properly concluded section 654 barred double punishment. U nder then

- existing law, the trial court also properly concluded former section 654 required the court to impose the longer sentence of 17 years on count 1 and stay execution of the shorter term of eight years on count 2. Effective January 1, 2022, A ssembly B ill 518 amended section 654 to provide, in relevant part: “An act or omission that is punishable in differe nt ways by different provisions of law may be punished under either of such provisions , but in no case shall the act or omission be punished under more than one provision.” (Stats. 2021, ch. 441, § 1.) “As amended by Assembly Bill 518, . . . section 654 now provides the trial court with discretion to impose and execute the sentence of either term , which could result in the trial court imposing and executing the shorter sentence rather than the longer sentence.” ( Mani , supra, 74 Cal.Ap p. 5th at p. 379 , italics added .) The People properly concede Assembly Bill 518 applies retroactively to Connor ’s non

- final judgment under the rule of In re Estrada (1965 ) 63 Cal.2d 740, 745 ( Estrada )

. We agree. (See People v. Sek (2022) 74 Cal.Ap p. 5th 657, 673 [holding A ssembly B ill 518 applies retroactively to defendants whose convictions were not yet final on the law’s effective date of January 1, 2022];
Mani , supra , 74 Cal.Ap p. 5th at pp. 379

– 380 [same].) We disagree, however, with the People’s contention that remand is unnecessary because the trial
court would not have exercised its discretion under amended section 654 to impose the shorter term on count 2 and stay the longer s entence on count 1.8

Ordinarily, remand is the appropriate course when retroactive changes in law affect the sentencing court’s discretion. This is so because

“ ‘[d]efendants are entitled to sentencing decisions made in the exercise of the “informed discre tion” of the sentencing court’ ” ( People v. Gutierrez (2014) 58 Ca l. 4th 1354, 1391), and “ ‘a court that is unaware of its discretionary authority cannot exercise its informed discretion’ ” ( People v. McDaniels (2018) 22 Cal.Ap p. 5th 420, 425 ( McDaniels ) ). An exception to this requirement exists, however, in the circumstance where “the record ‘clearly indicate[s]’ that the trial court would have reached the same conclusion ‘even
if it had been aware that it had such discretion.’ ” ( Gutierrez , at p. 1391.) When “ ‘ “the record shows that the trial court would not have exercised its discretion even if it believed it could do so, then remand would be an idle act
and is not required.” ’ ” ( McDaniels , at p. 425.) Here, t he trial court concluded its sentencing by telling Connor: “So Mr. Connor, you’ve shown an extreme callousness towards human life here. And you’ve had ample opportunities to deal with your drug problems which led to this and you didn’t. And that end result is that a human being is dead, and it will affect his friends and family and loved ones for the rest of their lives. And it’s all because of your actions. No one else’s. [ ¶ ] On top of that, you put your own c hild in danger of great bodily injury. You’ve been extremely selfish in this, and you deserve this sentence .” (Italics added.) Capitalizing on that single phrase

⎯ “ you deserve this sentence ” (italics added)

⎯

the People argue the court “structured [Connor’s] sentence [as it did] because it believed he deserved a long prison sentence , not because it was solely restricted by the former version of section 654.”
Thus , the People contend “remand is unnecessary as there is not a possibility t he trial court would alter its sentencing decision.”9

We disagree with the People’s attempt to recast the trial court’s

comment. The trial court did not say “he deserved a long prison

sentence

. ” ( I talics added, o riginal i talics omitted

. ) Nor can we agree that the comment the trial court did make demonstrates it would have
sentenced Connor no differently even if it had the discretion to do so
under amended section 654

. The People’s argument ignores the court’s own explanation as to why it structured Connor’s sentence as it did. In imposing the longer sentence of 17 years on count 1 and staying the shorter term of 8 years on count 2, the court said: “In the [c]ourt’s evaluation, Penal Code [ section] 654 does apply because this conduct was identical to the enhancement for [Vehicle Code s ection 20001 , subdivisio n (c) ] that was imposed in [c]ount 1. That term, therefore, is stayed as required by law for Penal Code [s]ection 654. That would be a total of 8 years staye d under Penal Code [s]ection 654 as the upper term would be doubled. [ ¶] The imposition of the 5

- year consecutive sentence under [ Vehicle Code section 200 0 1 , subdivisio n (c) ] results in a longer sentence than .

. . imposition of a consecutive sentence f

or [section 200 0 1 , subdivision (b) ] , which would have to be one

- third the midterm doubled or 2 years. The [c]ourt is imposing the enhancement and staying the term for [Vehicle Code section 20001 , subdivision (b) ] resulting in the longer sentence.” The cou rt’s s entencing decision was mandatory under former section 654. It
had no discretion to choose the shorter term . S o the court’s comment that Connor “ deserve [s] this sentence ” (italics added) , a sentence th e court recognized was mandatory, does not clearly indicate it would have imposed the longe r sentence even if it was aware of its new discretion under amended
section 654.10

T he trial court’s comment in this case is not “analogous” to the
situation in People v. McVey (2018) 24 Cal.Ap p. 5th 40 5 , as the People
contend

. There, the Court of Appeal concluded the record clearly indicated the trial court would not strike a firearm enhancement even if allowed to
under amended section 12022.5, subdivisi on (c) , because the court said:

“ ‘[T]his is as aggravated as personal use of a firearm gets,’ and ‘the high term of 10 years on the enhancement is the only appropriate sentence on the enhancement.’ ” ( McVey , at p. 419, italics added.) We do not have such a n unequivocal statement in this case. Although the trial court’s comment s that Connor showed “extreme callousness towards human life” and “extreme [ ] selfis h [ ness ] ” and thus “deserve [ s ] this sentence” evince a lack of sympathy for Connor, it is not a
clear indication that it would be an idle act to allow the trial court to consider
its discretion under amended section 654. (See , e.g. , People v. Johnson (2019 ) 32 Cal.App.5 th 26, 69 [ remand warranted even where trial court stated mandatory enhancement “ ‘appears to me t o be entirely appropriate’ ” ]

. ) Remand is required “ even when the reviewing court considers it reasonably probable that the sentence will not be modified on remand.” ( McDaniels,

supra , 22 Cal.App.5th at p. 427 , italics added .) Thus, as this court did in
Johnson , “out of an abundance of caution, we remand this matter for resentencing to allow the [trial] court to consider” its discretion under the
new law. 4 ( Johnson , at p. 69

. )

4 I n his opening brief on appeal, Connor states the trial court also applied section 654 to “the firearm related offenses, staying sentences for the offenses carrying the shorter terms, and imposing the provision that had the lon gest term.” The People respond that counts 4, 5, and 6 all carry the same triad of 16 months, two or three years; thus even under newly amended section 654, Connor would not have received a lighter prison sentence no11 II. We Need Not Reach Connor’s Other Contentions of Sentencing Error Senate Bill 567 amended subdivision (b) of section 1170 by making the middle term the presumptive term unless aggravating circumstances justifying a higher term have been stipulated to by the defendant or found true beyond a reasonable doubt by the jury. (§ 1170, subd. (b)(1)

− (3).) Senate
Bill 567 applies retroactive ly to a nonfinal judgment on its effective date of January 1, 2022 under the Estrada rule

. (See People v. Lopez (2022) 78 Cal.App.5th 459, 464

− 465 .) Connor contends his upper
- term sentence violate s the new law and this matter should be remanded for the trial court to impose the middle term, or for a new sentencing proceeding under
amended section 1170, subdivision (b). Because we are remanding for a full resentencing, we do not ne ed to address the merits of Connor’s claims of sentencing error under S enate B ill
567

. “[T]he full resentencing rule allows a [trial] court to revisit all prior sentencing decisions when resentencing a defendant.” ( People v. Valenzuela (2019) 7 Cal.5th 415, 424

– 425 .) A court conducting a full resentencing on all

counts can “exercise its sentencing discretion in light of the changed circumstances.” ( People v. Navarro (2007) 40 Cal.4th 668, 681.) This necessarily entails application of any new legislation delimiting the court’s sentencing discretion. (See Jones , supra , 79 Cal.App.5th at pp. 45

– 46 [concluding “the need to apply amended sections 1170, subdivision (b), and

matter which count the trial court sel ected to run consecutive ly . We agree, and Connor does not address this point in his reply brief. (See § § 29800, subd. (a)(1) [count 4 ] , 25400, subd. (a)(1) [count 5 ] , 30305, subd. (a)(1) [count 6 ].)12

654 creates sufficiently ‘ “changed circumstances” ’ [citation] to warrant a full resentencing”].) When it conducts its full resentencing, the trial court will be required to apply Assembly Bill 518 and Senate Bill 567, which will necessitate reconsidering which triad terms to impose and which terms to stay or
execute. (See Jones , supra , 79 Cal.App.5th at p. 46.) And s ince resentencing on remand will occur after the effective date of January 1, 2022 , Connor will
be entitled to seek the benefit of the statutory amendments to section 1385 implemented by Senate Bill 81.
I II

.

Custody Credit and Abstract of Judgment As b oth parties agree , we conclude Connor is entitled to an additional 29 days of conduct credit pursuant to section 2900.1 , for time spent in custody
between his original sentencing on June 21 , 2021 and resentencing o n July 20, 2021. (See §§ 2900.1, 2900.5, subd. (d); People v. Buckhalter (2001) 26 Cal.4th 20, 29 [ when a defendant is resentenced, all actual time spent in custody, whether in jail or prison, should be credited against the modifi ed sentence, and such credit should be reflected in the amended abstract of judgment ]

. ) On remand for full resentencing, the trial court is directed to recalculate Connor’s custody credits after resentencing.
The People request we order the trial court to issue an amended abstract of judgment to conform to its oral pronouncement of judgment that
Connor was sentenced to an additional six months to be served “ in any penal
institution ” for the misdemeanor in count 9 . Connor disagrees this was the court’s oral pronouncement of judgment on count 9 , and asserts the maximum sentence for a violation of Vehicle Code section 23152, subdivision (g ) , is six months in county jail. (Veh. Code, § 23536, subd. (a)

. )13

We have reviewed t he reporter’s transcript of both sentencing hearings on June 21 and July 20, 2021 and the trial court did not state Connor may
serve the six months on count 9 “in any penal institution.” T he clerk’s
minute order of the sentencing hearing on July 20, 2021, however, specifies the term on count 9 “may be served in any penal institution.” The abstract of judgment also does not reflect the term of 6 months on count 9 at all. “Any discrepancy between the judgment as orally pronounced and as recorded in
the cle rk’s minutes or abstract of judgment is presumed to be the result of clerical error. [Citation.] The abstract of judgment ‘does not control if different from the trial court’s oral judgment and may not add to or modify the judgment it purports to digest or summarize.’ ” ( People v. Leon (2020) 8 Cal.5th 831, 855.) On remand, the trial court may clarify its sentence on
count 9 and execute an amended abstract judgment to so reflect

. DISPOSITION The sentence is vacated, and the matter is remanded for full resentencing with the following directions : The trial court is directed to exercise its discretion under the current version of section 654, as amended by Assembly Bill 518. The trial court is further directed to resentence Connor consistent with c urrent applicable sentencing laws, including section 1170, as amended by Senate Bill 567 , and section 1385, as amended by Senate Bill 81 . The People may elect to proceed by meeting the requirements of the amended version of section 1170, subdivision (b ) (2 ) , or alternatively, to have the court resentence Connor on
the record as it stands.
T he trial court is directed to recalculate Connor’s actual custody credits as of the date of resentencing on remand. The court is also directed to correct the abstract of judgment to include the six

- month term for count 9 in the14

amended abstract of judgment. Following resentencing, the trial court shall forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
In a ll other respects, the judgment is affirmed.

DO, J.

WE CONCUR:

HUFFMAN, Acting P. J.

DATO, J.