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Filed 4/28/23 P. v. Hempstead CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v. TYCORY TRAVON HEMPSTEAD,

Defendant and Appellant. C096992
(Super. Ct. No. 20FE007349)

Appointed counsel for defendant Tycory Travon Hempstead asked this court to conduct an independent review of the record to determine whether there are any arguable issues on appeal. ( People v. Wende (1979) 25 Cal.3d 436.) We requested supplemental briefing from the parties regarding whether defenda nt is entitled to relief under recent changes to sentencing law, including in Senate Bill No. 81 (Stats. 2021, ch. 721, § 1)2

(Senate Bill 81) amending Penal Code section 1385 1 to provide guidance on mitigating circumstances affecting the imposition of sen tenc e enhancements. In supplemental briefing, d efendant contends this case should be remanded for the
trial court to exercise its discretion to dismiss (1) the strike that doubled his sentence for robbery under the T

hree S trikes law (§§ 667, subds. (b)

- (i), 1170.12) as a multiple enhancement (§ 1385, subd. (c)(2)(B)), and (2) the five

- year enhancement for a prior serious felony conviction (§ 667, subd. (a)) because the conviction was over five years old (§ 1385, subd. (c)(2)(H) )

. The Peo ple respond that defendant forfeited any claim based on section 1385 by failing to raise the issue below . We agree with the People and will affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND This case was the subject of a prior appeal , People v. Hemps tead (Mar. 11, 2022, C092891) [nonpub. opn.] ( Hempstead ) , from which we take the following background:

“ At about 3:00 p.m. on May 6, 2020, motel employee Jonathan Valenti received complaints about room 214. Valenti went up to the room to investigate and heard a
commotion. He could not see into the room and did not know what was going on inside
the room. As he approached, the first thing he heard was banging against the door that sounded like a body falling against a door. Valenti knocked on the door two times and defendant opened it a couple [of] seconds later. The room was in disarray and the victim was standing behind defendant. Defendant appeared uninjured. The victim was bleeding
from the back of her head and from her mouth.

“ Defendant turned back into the room, walked to the back of the room, and picked up what looked like a wallet. Defendant then walked out of the room. The victim said defendant was taking her wallet. According to the motel’s sur veillance camera,

1 Undesignated statutory references are to the Penal Code.3

defendant went down the back staircase and jumped the fence towards the houses in the neighborhood. According to Valenti, the police arrived about five minutes after he
reached the room.

“ The victim called 911 and asked the dispatcher to send someone to her location. She told the dispatcher, ‘ My boyfriend put his hands on me, the back of my head is busted, he ran off with my money, my wallet

. . . my baby is, I don’t know

. . . .’ When asked what happened, the victim replied, ‘U m, me an d my boyfriend, we got into it. ’ She further elaborated, ‘ I’m the sole provider so I had all the money. He wanted to leave. He
had n

– no money to leave. I had already hidden my wallet. So he was getting ready to
leave. And he was looking for my wallet

. ’ The victim told the dispatcher defendant ran
out the door with her wallet. She said all of this happened 15 minutes prior to her call.

“ A Sacramento Sheriff’s Deputy went to the motel. He interviewed the victim. The victim was upset and in tears.

“ The victim told the deputy she had been in a relationship with defendant off and on over the past 14 years. The two of them had a child together. The victim informed the deputy the dispute between her and defendant started because she found some messages defendant sent to other women. The victim learned about these messages the day before the incident. She believed defendant would want to leave wh en confronted with this information, so she secreted her money wallet and another wallet in a baby bag and hid the baby bag under the bed.

“ When the victim confronted defendant about his infidelity, he wanted her money
and he wanted to leave. The victim t old the deputy when she refused to give him the money, defendant punched her in the face and head approximately seven times. The victim also told the deputy she and defendant had tussled over a baby bag. She grabbed the baby bag and held it against her c hest and defendant pulled on it to get it away from
her. Defendant then picked her up and slammed her to the ground causing her head injury

. She said once defendant got the baby bag from her, he took the wallets and then4

left the room.

“ Sheriff’s deputie s arrested defendant nearby shortly after the call. He had the victim’s wallet with her identification and credit card and a large wad of cash. They also found the victim’s other wallet in a nearby backyard in which defendant had been spotted. ” (

Hempste ad

, supra , C0 9 2891 .) A jury found defendant guilty of felony robbery and misdemeanor intimate partner battery . (§ § 211 , 2 43 subd. (e)(1) .) . ( Hempstead , supra , C092891 .) The trial court then
found that defendant had been convicted of a prior serious felony (§ 667, subds. (a) and (b)

- (i) ) . ( Hempstead

, C092891 .) The trial court sentenced defendant to 11 years , composed of the middle term of three years for robbery, doubled by the prior strike
conviction , and five years for a prior serious felo ny conviction. ( Ibid .) The court
sentenced defendant to a consecutive term of one year in county jail for intimate partner battery and applied defendant’s presentence credits to this term. ( Ibid. ) We held the trial court erred in failing to stay defenda nt’s sentence for intimate partner battery under section 654, given defendant’s single objective to obtain the victim’s money. ( Hempstead , supra , C092891 .) The parties also agreed, as did we, that the case should also be remanded for resentencing under A ssembly Bill No. 518 (Stats. 2021, ch. 441, § 1), effective January 1, 2022, which amended section 654 to give the trial court discretion to impose sentence on any offense subject to the bar on multiple punishments, rather than the current requirement that the court select s the offense with
the longes t potential prison term. ( Hempstead, C092891 .) We vacated the sentence and
remanded it for resentencing. ( I bid. ) Defense counsel filed a resentencing memorandum requesting the trial court

sentence defendant to the four

- year term recommended in the probation report in defendant’s original sentencing. The memorandum described defendant’s progress while imprisoned , including his training to fight forest fires, and attached letters of support
from defe ndant’s family member s and the community.5

The trial court resentenced defendant to the same term as before

. The court declined to impose a sentence based on misdemeanor intimate partner battery as the primary offense under the amendment to section 654 , bu t rather stayed the sentence on
that offense. The court also declined to strike the five

- year prior conviction enhancement
under section 1385. The trial court noted defendant had 143 days of custody credit and 21 days of good time/work time credit for a t otal of 164 days as of the date of his original sentence. The court stated that the Department of Corrections and Rehabilitation (CDCR) would recalculate defendant’s further credits up to the date of resentencing.
The trial court also imposed a $300 resti tution fine (§ 1202.4, subd. (b)), and a corresponding $300 p arole revocation fine (suspended unless parole is revoked) (§ 1202.4 5 )

. Defendant timely appealed th is judgment. In a letter to the superior court, defen dant’s appointed appellate counsel, citing People v. Buckhalter (2001) 26 Cal.4th 20, stated that the court erred in directing the CDCR to recalculate defendant’s presentence credits, which the court itself was required

to do. (Sangeeta Sinha, letter to Hon. Ernest W. Sawtelle, Nov. 17, 2022.)
I n response to the letter, the trial court issued a minute order that recalculated defendant’s presentence custody credits , adding 707 days for the period from the original sentencing to the date of resentencing , and directed the CDCR to recalculate defendant’s additional good time/work time credits . The court issued an amended abstract of judgment

. 2

2 We sua sponte take judicial notice of the defendant’s counsel’s letter, the trial court’s minute order in response to defense counsel’s letter , and the amended abstract of judgment

. (Evid . Code, § § 452, subd. (d) , 459, subd. (a) .)6

Thereafter, d efendant’s appointed counsel asked this court to conduct an independent review of the record under People v. Wende to determin e whether there are
any other arguable issues on appeal. Upon review of the record, we requested the parties to provide supplemental brief ing on whether defendant was entitled to relief under the amendments to section 1385 made by Senate Bill 81 or other recent changes to sentencing laws

. Defendant and the People filed letter briefs contesting whether remand
was warranted.
DISCUSSION
In his supplemental brief, d efendant asser ts that the trial court did not recognize
that it possessed discretion under sect ion 1385, subdivision (c)(2)(B) to dismiss defendant’s strike as a multiple enhancement

. Defendant further maintain s that, while the
trial court did recognize it had the authority to strike defendant’s five

- year prior
conviction enhancement and declined t o do so, the court did not give great weight to the age of the conviction

— for carjacking in 2015 (§ 215, subd. (a))

— as a factor mitigating
in favor of dismissal of this enhancement (unless dismissal would endanger public safety ), as required by section 1385 , subdivision (c) . The People respond that defendant forfeited any claim based on the amended version of section 1385 by failing to raise it at defendant’s resentencing on September 2, 2022, more than nine months after the

am endments went into effect on January 1, 2022. We agree with the People, and therefore do not reach the other arguments raised in the parties’ supplemental briefs. Senate Bill 81 amended section 1385 to include subdivision (c)(1)

- (2), 3 which provides in relevant part: “ (c)(1) Notwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute. [¶] (2) In exercising its discretion

3 Effective June 30, 2022, the Legislature enacted Assembly Bill No. 200, which made technical, nonsubstantive changes to these provisions. (Stats. 2 022, c h. 58, § 15.)7

under this subdivision, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in subparagraphs (A) to (I) are present. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety. ‘ Endanger public safety ’ means there is a likelihood that the dismissal of the en hancement would result in physical injury or other serious danger to others. [¶] (B) Multiple enhancements are alleged in a single case. In this instance, all enhancements beyond a single enhancement
shall be dismissed. [¶]

. . . . (H) The enhancemen t is based on a prior conviction that is over five years old. ” At the resentencing hearing on September 2, 2022 , the trial court stated, “I do understand that I have the right to

– to strike under [section] 1385 the five

- year prior and
I decline to do that as well. ” Defendant maintains we should vacate his sentence and remand for resentencing, because the record i s devoid of any indication that the trial court considered and gave great weight to dismissing the five

- year prior or the strike under section 1385, subdivision (c)(2)(B) and (H).
We conclude d efendant has forfeited th is issue by not raising it in defendan t’s sentencing memorandum or at the resentencing hearing. A “defendant cannot challenge the trial court’s sentencing choice for the first time on appeal because ‘defects in the court’s statement of reasons are easily prevented and corrected if called to t he court’s attention’ at the time of sentencing. ’ ” ( People v. Flowers (2022) 81 Cal.App.5th 680,
683

- 684 , quoting People v. Scott (1994) 9 Cal.4th 331, 353 ( Scott ) ; see also People v.
Anderson (2023) 88 Cal.App.5th 233, 241

- 242 .) Defendant argues that he did not forfeit his claims based on amended section 1385, because by requesting that the trial court impose a four

- year term as recommended by the probation report, defense counsel impliedly asked the trial court to dismiss the
five

- year enhancement under section 1385 , subdivision (c)(2 ) and (H) . Defendant points8

out that the probation report calculated the four

- year term without reference to the five

year enhancement. However, at the sentencing hearing, defense counsel asked the court to impose a four

- year term based on defendant’s “progress in custody and then also the support that he has in the community , ” which was the same argument defendant raised in
his sentencing memorandum. Even if it was counsel’s intent to raise section 1385,
subdivision (c), these statements were not sufficient to notify the trial court that defendant was invoking a statute requiring the court to exercise its discretion to dismiss an enhancement based on the age of the prior conviction

. When the trial court added five

y ears to defendant’s sentence under section 667, subdivision (a), defendant was obligated to object or otherwise inform the court that section 1385, subdivision (c) identified this enhancement as subject to dismissal. He did not , and therefore , forfeited t he issue on appeal. Next, defendant argues he did not have a meaningful opportunity to object because
the trial court did not state it s intended sentence before pronouncing the sentence. The court did tell the parties the sentence to be imposed and its re asoning for the sentence at some length. But the court did so after counsel for the parties had argued their positions. In Scott, supra , 9 Cal.4th at p age 356, the court said: “ Of course, there must be a meaningful opportunity to object to the kinds of claims otherwise deemed waived by today ’ s decision. This opportunity can occur only if, during the course of the sentencing hearing itself and before objections are made, the parties are clearly apprised of the sentence the court intends to impose and the reasons that support any discretionary choices.” In People v. Gonzalez (2003) 31 Cal.4th 74 5 ( Gonzalez ) , the court clarified that
the Scott rule does not require that the trial court issue a tentative ruling on the sentence it intends to impose, “if, at any time during the sentencing hearing, the trial cou rt describes the sentence it intends to impose and the reasons for the sentence, and the court thereafter considers the objections of the parties before the actual sentencing. ” ( Id. at p. 752.)9

People v. Superior Court ( Dorsey ) (1996) 50 Cal.App.4th 1216 ( Dorsey ) illustrates what constitutes a failure by a trial court to provide a “meaningful opportunity to object” at sentencing. In Dorsey, the trial court placed the defendant on probation in the “ ‘ interests of justice, ’ ” even though he was presumptively ineligible. ( Id. at
pp. 1221

- 1222 ) After inquiring whether defendant accepted the probation terms , the trial

court declared a recess without hearing from either party. ( Id . at pp. 1223

– 1224; Gonzalez, supra , 31 Cal.4th at p. 752.) Du e to the immediate recess, the Dorsey court held that “the prosecutor had no opportunity, meaningful or otherwise, to object.” ( Dorsey, at p. 1224; Gonzalez, at p. 752.) Here, unlike Dorsey , the record shows that the trial court, after pronouncing the sentence and stating its reasons , therefore , did not immediately declare a recess without hearing from the parties . Instead, the court discussed various matters with the prosecutor and defense counsel, during which time defense counsel could have raised s ection 1385, subdivision (c). Nothing in the record indicates that the trial court would not have permitted counsel to present section 1385, subdivision (c), as authority for the trial court
to dismiss the enhancement s after the court pronounced the sente nce. To the contrary,
after pronouncing the sentence and having a discussion about credits with defense
counsel , the court asked counsel, “do you want to put anything else on the record to preserve your client’s rights in that area?” The court thus signa led its openness to entertain any issue the defense might wish to raise, even if only to preserve the issue for appeal. Lastly, defendant contends that the Scott rule does not apply because defendant did not argue the trial court imposed the sentence in a “procedurally or factually flawed manner” ( Scott, supra , 9 Cal.4th at p. 354), but rather that the court did not exercise its discretion under section 1385, subdivision (c). However, other court s have applied the
forfeiture rule to claims that the trial c ourt did not exercise its discretion in conformance10

with a sentencing statute. (See , e.g., People v. Anderson, supra , 88 Cal.App.5th at
p. 241 ; People v. Flowers, supra , 81 Cal.App.5th at pp. 683

- 684 .)
Defendant has also waived any claim that the trial court should have dismissed his prior strike conviction under the Three Strikes law as a multiple enhancement under section 1385, subdivision (c)(2)(B) by failing to raise the issue at the resentencing hearing. We note in addition that it is well established that the T hree S trikes law is an alternative sentencing scheme, not an enhancement. ( People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 527; People v. Jenkins (1995) 10 Cal.4th 234, 254; People v. Cressy (1996) 47 Cal.App.4th 981 , 991; People v. Williams (2014) 227 Cal.App.4th 733, 744; People v. Frutuoz (2017) 8 Cal.App.5th 171, 174, fn. 3; People v. Burke (2023)
89 Cal.App.5th 237 .)
However , we modify the trial court’s oral pronouncement of judgment to impose

a n $80 court operat ions assessment (§ 1465.8) and a $60 criminal conviction assessment (Gov. Code, § 703 7 3) , which may not be waived and are correctly reflected in the
amended abstract of judgment.11 DISPOSITION
The oral pronouncement of judgment is modified to impose a n $80 court operations assessment (§ 1465.8) and a $60 criminal conviction assessment (Gov. Code, § 703 7 3). As modified, t he judgment is affirmed.

\ s \ , McADAM, J. *

We concur:

\ s \ , ROBIE, Acting P. J.

\ s \ , MAURO, J.

* Judge of the Yolo County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.