Filed 9/30/15 P. v. Phyfiher CA4/1

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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D066607

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD246223)

JASON PHYFIHER,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Peter C.

Deddeh, Judge. Appeal dismissed.



         Neil Auwarter, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Marvin E.

Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
       Jason Phyfiher appeals following the trial court's imposition of a consecutive

prison sentence of three years four months for two separate felony convictions, the first

of which was Phyfiher's first strike for the purposes of the "Three Strikes" law (Pen.

Code, §§ 667, subds. (b)-(i)), 1170.12).1 Phyfiher contends that the abstract of judgment

could be misread to indicate that he was sentenced under the Three Strikes law for both

convictions, even though the earlier conviction was his first strike. Phyfiher argues that if

we do not order that the trial court amend the abstract of judgment to clarify that he was

sentenced under the Three Strikes law for only one of his two convictions, it is possible

that the Department of Corrections and Rehabilitation (the Department) will rely on the

current abstract of judgment to erroneously calculate the postconviction credits available

to Phyfiher. (§ 2930 et seq.) As we will explain, because there is no indication that the

Department will rely on the abstract of judgment in calculating Phyfiher's postconviction

credits in a manner that Phyfiher contends is contrary to law, we conclude that Phyfiher's

appeal raises an issue that is not ripe for adjudication. Accordingly, we dismiss the

appeal.

                                              I

                   FACTUAL AND PROCEDURAL BACKGROUND

       In February 2013, Phyfiher pled guilty in case No. SCD246223 to corporal injury

to a cohabitant (§ 273.5, subd. (a)), with the further admission that he personally inflicted



1      Unless otherwise indicated, all further statutory references are to the Penal Code.

                                              2
great bodily injury on the victim (§ 1192.7, subd. (c)(8)) (the 2013 conviction). The 2013

conviction qualified as a serious felony due to the allegation that Phyfiher personally

inflicted great bodily injury, and it accordingly constituted Phyfiher's first strike under the

Three Strikes law. (§ 1170.12, subd. (b)(1) [defining "serious felony" for the purposes of

the Three Strikes law to include those offenses described in § 1192.7 as a serious felony];

§ 1192.7, subd. (c)(8) [stating that "any felony in which the defendant personally inflicts

great bodily injury" is a " 'serious felony' "].) In March 2013, the trial court imposed a

sentence of three years of formal probation, with 240 days of custody on work furlough.

The trial court also issued a 10-year protective order prohibiting Phyfiher from having

contact with the victim.

       In July 2014, Phyfiher violated the protective order and the terms of his probation

for the 2013 conviction by making contact with the victim. In August 2014, the trial

court revoked probation on the 2013 conviction, and Phyfiher pled guilty in a new case,

case No. SCD 257542, to charges of violating a protective order (§ 166, subd. (c)(1)), and

violating a protective order after having been convicted of the same offense within seven

years and using violence or a credible threat of violence (§ 166, subd. (c)(4)) (the 2014

conviction). In connection with his guilty plea to the 2014 conviction, Phyfiher also

admitted that he incurred a prior strike in the 2013 conviction.

       In September 2014, the trial court sentenced Phyfiher to prison for both the 2013

conviction and the 2014 conviction, imposing a consecutive sentence comprised of two

years for the 2013 conviction and 16 months for the 2014 conviction, for an aggregate

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sentence of three years four months. As relevant here, the sentence for the 2014

conviction was doubled (from eight months to 16 months) pursuant to section 1170.12,

subdivision (c)(1) because of the prior strike that Phyfiher incurred in the 2013

conviction.

                                               II

                                        DISCUSSION

       In completing the abstract of judgment for Phyfiher's consecutive sentence on the

2013 and 2014 convictions, the trial court checked the box on the Judicial Council form

indicating that Phyfiher was "sentenced . . . per" the Three Strikes law. According to

Phyfiher, the abstract of judgment should have been more specific about the fact that only

the 2014 conviction was calculated under the Three Strikes law and that the 2013

conviction was his first strike and thus he was not "sentenced . . . per" the Three Strikes

law for that conviction.2

       Phyfiher seeks relief in the form of an order requiring that the trial court clarify the

abstract of judgment to indicate that only the 2014 conviction was "sentenced . . . per" the

Three Strikes law. Specifically, Phyfiher explains that he seeks clarification of the


2       We note that the abstract of judgment is accurate and correct in stating that
Phyfiher was "sentenced . . . per" the Three Strikes law, as Phyfiher's sentence for the
2014 conviction was doubled pursuant to the Three Strikes law. (§ 1170.12,
subd. (c)(1).) The Judicial Council form does not anticipate the situation presented by
this case, in which a defendant is sentenced at the same time for two different
convictions, only one of which is subject to the Three Strikes law at sentencing. Thus,
Phyfiher's position is that the abstract of judgment, as filled out by the trial court, is not
sufficiently specific and should be amended to make clear that only the 2014 conviction
was sentenced under the Three Strikes law.
                                               4
abstract of judgment because, as currently constituted, it "could cause the Department . . .

to limit appellant's entire sentence to the 20% conduct credits applicable to Three Strikes

sentences." Phyfiher points to section 667, subdivision (c)(5) in the Three Strikes law,

which states that "if a defendant has been convicted of a felony and it has been pled and

proved that the defendant has one or more prior serious and/or violent felon[ies,]" "[t]he

total amount of credits awarded pursuant to Article 2.5 (commencing with Section 2930)

of Chapter 7 of Title 1 of Part 3 shall not exceed one-fifth of the total term of

imprisonment imposed and shall not accrue until the defendant is physically placed in the

state prison." (Ibid.) Phyfiher contends that (1) properly interpreted, this provision

authorizes a 20 percent limit on the accrual of postconviction credits only for that portion

of his consecutive sentence that is attributable to the 2014 conviction; and (2) the abstract

of judgment, as currently constituted, may cause the Department to erroneously conclude

that the entire consecutive sentence for the 2013 conviction and the 2014 conviction is

subject to a 20 percent limit on the accrual of postconviction credits.

       Taking issue with the first premise of Phyfiher's argument, the Attorney General

opposes Phyfiher's appeal and argues that the abstract of judgment need not be clarified.

Specifically, citing dicta in In re Reeves (2005) 35 Cal.4th 765, the Attorney General

explains that Phyfiher's entire consecutive sentence is subject to a 20 percent limit on the

accrual of postconviction credits set forth in section 667, subdivision (c)(5) — contrary to

Phyfiher's position — and thus even if the Department were to rely on the abstract of

judgment to impose a limit on postconviction credit accrual, the Department's approach

                                              5
would be legally correct. Based on this analysis, the Attorney General concludes that

there is no need to order that the abstract of judgment be clarified.

       Upon reviewing Phyfiher's appeal, we asked the parties to provide supplemental

briefing on whether the appeal should be dismissed on the ground that it does not present

a ripe controversy appropriate for judicial resolution. As we will explain, we agree with

the Attorney General's position in its supplemental letter brief that this appeal should be

dismissed.

       "The ripeness requirement, a branch of the doctrine of justiciability, prevents

courts from issuing purely advisory opinions. [Citation.] It is rooted in the fundamental

concept that the proper role of the judiciary does not extend to the resolution of abstract

differences of legal opinion. It is in part designed to regulate the workload of courts by

preventing judicial consideration of lawsuits that seek only to obtain general guidance,

rather than to resolve specific legal disputes. However, the ripeness doctrine is primarily

bottomed on the recognition that judicial decisionmaking is best conducted in the context

of an actual set of facts so that the issues will be framed with sufficient definiteness to

enable the court to make a decree finally disposing of the controversy." (Pacific Legal

Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, 170 (Pacific Legal

Foundation ).) " '[A] controversy is "ripe" when it has reached . . . the point that the facts

have sufficiently congealed to permit an intelligent and useful decision to be made.' "

(Vandermost v. Bowen (2012) 53 Cal.4th 421, 452 (Vandermost).) In part, the ripeness

doctrine is based on the concern that "courts not be drawn into disputes which depend for

                                              6
their immediacy on speculative future events." (Pacific Legal Foundation, at p. 173.)

"The legal issues posed must be framed with sufficient concreteness and immediacy so

that the court can render a conclusive and definitive judgment rather than a purely

advisory opinion based on hypothetical facts or speculative future events." (Hayward

Area Planning Assn. v. Alameda County Transportation Authority (1999) 72 Cal.App.4th

95, 102 (Hayward Area Planning).)

       Here, Phyfiher asks us to order that the abstract of judgment be clarified based on

the mere possibility that the Department (1) will rely on the box that the trial court

checked on the abstract of judgment form when the Department calculates Phyfiher's

postconviction credits and (2) will calculate Phyfiher's postconviction credits in a manner

that Phyfiher contends is contrary to law. As there is no indication that either of those

contingencies will occur, this matter has not " 'reached . . . the point that the facts have

sufficiently congealed to permit an intelligent and useful decision to be made.' "

(Vandermost, supra, 53 Cal.4th at p. 452.)

       Moreover, as we have noted, Phyfiher and the Attorney General have taken

opposing positions on the issue of whether section 667, subdivision (c)(5) requires that

Phyfiher's postconviction credits be limited to 20 percent of his entire consecutive

sentence, for both the 2013 conviction and the 2014 conviction, or whether only the

portion of the consecutive sentence attributable to the 2014 conviction is subject to that

limitation. Were we to decide Phyfiher's appeal, we would be required to resolve that

dispute, but in doing so we would be issuing "a purely advisory opinion based on

                                               7
hypothetical facts or speculative future events" (Hayward Area Planning, supra, 72

Cal.App.4th at p. 102), as it is not yet clear that the Department will calculate Phyfiher's

postconviction credits in a manner that Phyfiher believes is contrary to law.

       An appeal that is not ripe is not justiciable and must be dismissed. (See Pacific

Legal Foundation, supra, 33 Cal.3d at p. 170.) Having concluded that Phyfiher's appeal

presents an issue that is not ripe for review and would require us to issue an advisory

opinion, we dismiss the appeal.

                                      DISPOSITION

       The appeal is dismissed.



                                                                                   IRION, J.

WE CONCUR:



         MCINTYRE, Acting P. J.



                    O'ROURKE, J.




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