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People v. Allison

California Court of Appeals, First District, Second Division

September 5, 2019

THE PEOPLE, Plaintiff and Respondent,
v.
DENZIL FARRIAN ALLISON, Defendant and Appellant.

          Contra Costa County Superior Court Nos. 5-180579-7, 5-021253-0, 5-971130-0 Hon. Garrett J. Grant Trial Judge

          Alameda County Super. Ct. No. 135112

          Patrick McKenna, under appointment by the Court of Appeal, for Defendant and Appellant.

          Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Seth K. Schalit, Deputy Attorney General, Katie L. Stowe, Deputy Attorney General, for Plaintiff and Respondent.]

          STEWART, J.

         Defendant Denzil Farrian Allison was convicted of a series of violent felonies in three different cases, for which he received a 51-year aggregate sentence in 2005 under a plea agreement. Upon the grant of a petition for a writ of habeas corpus in 2017, he was resentenced to an aggregate sentence of 45 years and eight months. He argues we should vacate two consecutive one-year sentences imposed as part of this resentencing because they are unlawful under California Rules of Court, rule 4.452, remand for resentencing, and also remand so the court can decide whether to strike his four firearm enhancements.

         The People argue against Allison's appellate claims on a variety of grounds, including that the habeas order is void; that Allison needs, and has failed to obtain, a certificate of probable cause to raise his appellate claims; and that remand regarding the enhancement sentences would be futile.

         We conclude the habeas order is not void, Allison may raise his rule 4.452 claim without a certificate of probable cause and the two sentences he challenges must be vacated as unlawful. We agree with the People that remand regarding the firearm enhancement sentences would be futile and affirm those sentences.

         BACKGROUND

         This appeal involves Allison's 2017 resentencing in three different cases, which we shall refer to as Cases A, B and C. Each case was the subject of a negotiated disposition in which Allison pleaded no contest to certain charges. He was initially sentenced in 2000 in Case A; sentenced later in 2000 in Case B to an aggregate term for both Case A and Case B; and sentenced in 2005 in Case C to an aggregate term that included sentences for Case C and resentences for Case A and Case B. In 2017, after the superior court granted Allison's petition for a writ of habeas corpus, Allison was resentenced in all three cases.

         A. The Original Sentences in Cases A, B and C

         Specifically, in 2000, in Case A, case number 135112 in Alameda County Superior Court, Allison pleaded no contest to voluntary manslaughter (Pen. Code, § 192, subd. (a))[1] and admitted the truth of two enhancement allegations-his personal use of a firearm (§ 12022.5) and his sufferance of a prior prison term (§ 667.5, subd. (b)). The court found him guilty of these charges and sentenced him to a total of 17 years in prison. This consisted of 16 years for voluntary manslaughter and 1 year for the prior prison term enhancement under section 667.5, subdivision (b).

         Later in 2000, in Case B, case number 971130-0 in Contra Costa County Superior Court, Allison pleaded no contest to three counts of assault with a firearm (§ 245, subd. (a)(2)). The court found him guilty of these charges and sentenced him to an aggregate prison term of 18 years for Case A and Case B. This consisted of the 17-year term in Case A and a consecutive 1-year term in one of the three assault with a firearm convictions in Case B. The court imposed concurrent one-year sentences for the other two assault with a firearm convictions.

         In 2005, in Case C, case number 5-021253-0 in Contra Costa County Superior Court, Allison pleaded no contest to three counts of voluntary manslaughter (§ 192, subd. (a)), admitted the truth of the personal use of a firearm enhancement allegations attached to each of these three counts (§ 12022.5, subd. (a)) and pleaded no contest to two counts of attempted second degree murder (§§ 187, 664, subd. (a)). His pleas were part of an agreement that, as his counsel stated at the time, included the parties' “hope to come up with a combined sentence of 51 years on the three cases.” His counsel, with the approval of the prosecutor, then made a “suggestion” about how the court might reach this aggregate sentence.

         The trial court in Case C found Allison guilty of the charges he pled to in Case C and sentenced him to an aggregate prison term of 51 years for Cases A, B and C. This aggregate sentence included concurrent three-year terms for each of the three assault with a firearm convictions in Case B and consecutive upper terms for two of the personal use of a firearm enhancements in Case C. It also included a concurrent one-year term (rather than the previous consecutive one-year term) for Case A's prior prison term enhancement under section 667.5, subdivision (b).

         B. Allison's 2017 Habeas Petition

         Twelve years later, in 2017, Allison, appearing in propria persona, filed a petition for writ of habeas corpus in Contra Costa County Superior Court. He alleged the aggregate 51-year sentence imposed in 2005 was unauthorized by law in two respects. First, the Case C court imposed an upper term rather than a middle term sentence for his Case A voluntary manslaughter conviction without finding any aggravating circumstances. Second, the court violated section 1170.1, subdivision (a) by imposing (1) middle term three-year sentences rather than one-third of these middle terms, i.e., one year, as subordinate sentences for the Case B assault with a firearm convictions and (2) upper term 10-year sentences rather than one-third of each these terms (as subordinate sentences), or three years and four months, for two of the Case C personal use of a firearm enhancements. Allison requested the court resentence him to a lawful aggregate prison term of 34 years.

         Among the documents Allison submitted to the superior court in support of his petition was a November 20, 2015 letter from the California Department of Corrections and Rehabilitation (CDCR) to the Case C court stating that Allison's abstract of judgment could be in error or incomplete for multiple reasons. This included, regarding the Case C 10-year firearm enhancement sentences, that section 1170.1 required imposition of one-third of the term imposed for enhancements attached to subordinate offenses.

         In their return, the People acknowledged that under section 1170.1 any consecutive subordinate term and related enhancement must consist of one-third of the middle term for the offense or enhancement. They further acknowledged that an unauthorized sentence may be corrected at any time, citing In re Birdwell (1996) 50 Cal.App.4th 926, 931. They contended that nonetheless, “because the sentence was agreed upon in a plea bargain between the People and the petitioner, the People are entitled to the benefit of the plea bargain, should the petitioner be resentenced, ” but they did not explain this contention or state what it entailed.

         In his reply, Allison, now represented by counsel, focused on the ramifications of section 1170.1 to the lawfulness of his 2005 sentencing. He contended the court should impose a sentence of 26 years and 6 months.

         The superior court ruled in the habeas proceeding (habeas order) that Allison's 51-year sentence was unauthorized under section 1170.1 and that the People could not benefit from an illegal sentence. It remanded the matter to the Case C court for resentencing “in accordance with... Section 1170.1” and with the authority to reconsider its prior sentencing decisions in order to impose a term equaling Allison's previous sentence.

         C. The 2017 Resentencing

         The Case C court, with the same judge presiding as in 2005, held a resentencing hearing in November 2017. The parties submitted briefs and argued at the hearing about the lawful aggregate prison term that came closest to 51 years.

         The People stated there was no lawful way to arrive at a 51-year aggregate sentence and at first asserted a sentence of 39 years was the maximum lawful sentence possible. This included consecutive one-year sentences for each of the Case B assault with a firearm convictions (one third of the midterm under § 245, subd. (a)(2)).

         In a second brief filed soon after the first, the People argued the closest lawful sentence to 51 years was actually 45 years and 8 months, including consecutive one-year sentences for each of the three Case B assault with a firearm convictions. The People argued the court was not required by any previous discretionary sentencing decisions to resentence Allison to concurrent sentences for these three convictions. The People also argued that in 2005 the court erred by imposing a concurrent one-year term for the Case A prior prison term enhancement under section 667.5, subdivision (b). They asserted the 2017 resentencing court should either impose a consecutive sentence or strike this enhancement and included a consecutive one-year term for this enhancement in their proposed sentence.

         In his resentencing brief, Allison argued the court should resentence him to 31 years and 4 months. This includedconcurrent one-year sentences for the three Case B assault with a firearm convictions. At the resentencing hearing, his counsel also contended that California Rules of Court, rule 4.452 (rule 4.452) prohibited the court from changing concurrent terms to consecutive terms for sentences imposed by a previous court.[2] The People argued Allison had waived this claim in 2005 and that the 2017 resentencing court could undo any of its previous ...


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