Filed 3/18/16 P. v. Superior Court (Harris) CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                          H041594
                                                                    (Santa Clara County
         Petitioner,                                                 Super. Ct. No. 19602)

         v.

THE SUPERIOR COURT OF SANTA
CLARA COUNTY,

         Respondent;

NICHOLAS HARRIS,

         Real Party in Interest.


         The People petition for a writ of mandate directing the trial court to vacate its
September 26, 2014 order relating to the resentencing of real party in interest Nicholas
Harris. In that order, the trial court found that Harris, initially sentenced in 1997 to a total
term of 77 years to life, was entitled to be resentenced under the automatic
nondiscretionary provisions of the Three Strikes Reform Act of 2012 (Reform Act),
passed by the voters as Proposition 36. Accordingly, the trial court indicated it intended
to sentence Harris as a second strike offender on many, if not all, of the counts.
         After we initially summarily denied relief, the Supreme Court granted review and
transferred the matter to us with directions to vacate our order and issue an order to show
cause why the relief sought in the petition should not be granted. We vacated our prior
order and issued an order to show cause. Harris filed a formal opposition, the People
filed a reply, and we heard oral argument. At oral argument, we requested supplemental
briefing which he have received and considered.
       We conclude the trial court erred and therefore will grant the petition for a writ of
mandamus.
I.     FACTUAL AND PROCEDURAL BACKGROUND1
       A.     1997 conviction and sentencing
       In 1997, a jury convicted Harris of two counts of grand theft by false pretenses
(Pen. Code, §§ 484, 487, subd. (a))2 and one count each of access card forgery (§ 484f,
subd. (b)), escape from jail (§ 4532, subd. (b)(1)), and dissuading a witness in furtherance
of a conspiracy (§ 136.1, subd. (c)(2)). The jury also found true the allegation that one of
the grand thefts involved a taking of more than $150,000 in value from the victim.
(§ 12022.6, subd. (b).) The trial court denied Harris’ Romero3 motion and sentenced him
to consecutive sentences of 25 years to life on the two grand theft convictions as well as
the escape from jail conviction. The trial court imposed a concurrent 25 years to life
sentence on the conviction for dissuading a witness, and an additional 25 years to life
sentence was imposed, but stayed under section 654, on his conviction for access card
forgery term. With the two-year enhancement imposed on one of the grand theft
convictions, Harris was originally sentenced to a total term of 77 years to life. We
affirmed his conviction in June 2000. (People v. Miller (2000) 81 Cal.App.4th 1427.)
       B.     Federal habeas corpus proceeding
       In 2010, the Northern District of California granted Harris’ petition for writ of
habeas corpus, finding he was “entitled to habeas corpus relief as to his conviction of one

       1
         The underlying facts of Harris’ original conviction are not relevant to this
proceeding. We instead provide a summary of the relevant procedural background
pertaining to his case.
       2
         Unspecified statutory references are to the Penal Code.
       3
         People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

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of the two counts of grand theft” because there was insufficient evidence to support that
conviction. (Harris v. Garcia (N.D.Cal. 2010) 734 F.Supp.2d 973, 981.) The federal
court held that Harris was not otherwise entitled to relief and expressly stated his
continued incarceration on his remaining convictions was lawful. With respect to the
unsupported grand theft conviction it ordered: “[T]he conviction and the portion of
petitioner’s sentence based thereon are VACATED. Within 60 days of the date this order
is filed, the [People] shall seek a recalculated sentence from the state superior court . . . .”
(Id. at p. 1018.)
       C.      Resentencing at the trial court upon remand from federal court
       Upon remand from the federal court, Harris sought to bring a renewed Romero
motion in connection with his resentencing. The trial court concluded the federal court’s
order did not allow for such a motion and refused to consider it. The trial court dismissed
Harris’ conviction for grand theft as directed but noted that dismissal of that particular
conviction removed the basis for staying Harris’ 25 years to life sentence for access card
forgery under section 654. Accordingly, the trial court imposed a consecutive 25 years to
life sentence on the access card forgery conviction and resentenced Harris to a total term
of 77 years to life.
       Harris appealed, arguing the trial court erred by failing to consider his renewed
Romero motion, an argument the People conceded. In a brief unpublished opinion, we
accepted the People’s concession, reversed and remanded for a renewed Romero hearing
and resentencing. (People v. Harris (Dec. 12, 2012, H036908, H037667) [nonpub. opn.]
(the 2012 opinion).) In the 2012 opinion, we quoted People v. Hill (1986) 185
Cal.App.3d 831, 834 (Hill) as follows: “When a case is remanded for resentencing by an
appellate court, the trial court is entitled to consider the entire sentencing scheme. Not
limited to merely striking illegal portions, the trial court may reconsider all sentencing
choices. [Citations.] This rule is justified because an aggregate prison term is not a


                                               3
series of separate independent terms, but one term made up of interdependent
components. The invalidity of one component infects the entire scheme.”
       D.     Proceedings culminating in the instant mandamus petition
       In May 2014 Harris filed a “motion”4 asking that the trial court find him eligible
for resentencing under section 1170.126 of the Reform Act. Harris argued his conviction
for attempting to dissuade a witness, which offense he committed in 1995, should not be
treated as a strike because it was not classified as a serious felony until 2000 (see
§ 1192.7, subd. (c)(37)). He further argued that even if he were found to be ineligible for
resentencing on his conviction for attempting to dissuade a witness, he is still eligible for
resentencing on the remaining counts all of which are nonserious, nonviolent offenses.
       On July 2, 2014, Harris filed a second motion arguing that he was entitled to
“automatic, non-discretionary sentencing” under the new version of section 667 created
by the Reform Act. In this motion, Harris contended that the judgment originally entered
against him in 1997 was “not yet final” and he should be treated as if he were being
sentenced for the first time.
       The People opposed both motions arguing Harris is entitled to nothing more than a
Romero hearing where he is considered a Three Strike defendant on the four remaining
convictions. The People also argued that Harris’ dissuading a witness count should be
treated as a serious felony for sentencing purposes and that such a conviction renders him
ineligible for resentencing pursuant to the Reform Act.
       The trial court rejected the People’s arguments and ruled it was obligated to treat
Harris as if he were being sentenced for the first time. The trial court explained: “I am
reading the remand that came from the Court of Appeal [i.e., the 2012 opinion] on this


       4
        Section 1170.126, subdivision (b) provides that a “person serving an
indeterminate term of life imprisonment . . . may file a petition for a recall of
sentence . . . .” (Italics added.)

                                              4
particular case to be very clear, that I was to conduct a complete re-sentencing of Mr.
Harris, regardless of [the] fact that the federal court had, in fact, found that four of the
terms remained, one went. [¶] . . . [¶] . . . [T]he Court of Appeal [said] I was to
re-sentence and it quoted the language from Hill indicating that one error can infect
everything. I think that . . . really is a command to redo the entire process.”
       As a result, the trial court concluded Harris was not eligible for resentencing under
section 1170.126 because he “is not currently serving an indeterminate life sentence.”
(Italics added.) The trial court further agreed with Harris that, as an unsentenced
defendant, his convictions for grand theft, access card forgery and escape from jail
“cannot be life cases [anymore].” As to Harris’ conviction for dissuading a witness, the
court acknowledged there was still a possibility this offense was subject to an
indeterminate term of 25 years to life. The trial court set Harris’ Romero hearing for
December 5, 2014, at which it would also decide whether Harris could be sentenced to 25
years to life on that one conviction and would pronounce sentence on all four remaining
counts.
       The People petitioned this court for a writ of mandamus.
II.    DISCUSSION
       In the petition for writ of mandamus, the People argue the trial court erred by
reclassifying Harris as a two strike defendant before the Romero hearing on three of the
strike convictions. Because the court is improperly treating Harris as an “unsentenced
defendant,” the court “erred when it applied prospective section 1170.12 [and section
667] rather than retrospective section 1170.126 in ruling how it will proceed at the
December 5, 2014 Romero hearing.” The People also renew the argument that Harris’
conviction of dissuading a witness makes him entirely ineligible for discretionary




                                               5
resentencing under section 1170.126 since that offense is now classified as a serious
felony.5
       A.     Scope of the 2012 opinion
       In the 2012 opinion, the matter under review was limited to whether the trial court,
on remand from the federal court, erred in refusing to consider Harris’ renewed Romero
motion. We were not asked to address and expressed no opinion on whether the trial
court also erred by again sentencing Harris to a total term of 77 years to life by
“unstaying” the 25 year to life sentence for access card forgery, execution of which had
been originally stayed under section 654 at his 1997 sentencing.
       A decision is authority only for points actually considered and decided therein.
(Santisas v. Goodin (1998) 17 Cal.4th 599, 620.) Likewise, the doctrine of “ ‘ “law of the
case” ’ ” applies only to matters that were necessary to the prior decision and that were
actually presented and determined therein. (People v. Ramos (1997) 15 Cal.4th 1133,
1161.) As a result, the scope of the 2012 opinion was strictly limited to reviewing the
trial court’s decision to refuse to consider a renewed Romero motion and our remand was
similarly limited to correcting that error.6
       “[A] reviewing court has the power, when a trial court has made a mistake in
sentencing, to remand with directions that do not inevitably require all of the procedural
steps involved in arraignment for judgment and sentencing. . . . Thus, it appears we may

       5
         At discussed below, the People have now abandoned this argument,
acknowledging it was expressly rejected by the California Supreme Court in People v.
Johnson (2015) 61 Cal.4th 674, 687 (Johnson), which was decided after briefing in this
case was complete.
       6
         At oral argument, the People expressed regret for conceding this issue in 2012
and urged this court to “overrule” itself on the question of Harris’ entitlement to a
renewed Romero motion. Even if we were convinced that our resolution of that question
was erroneous, absent a significant change in circumstances or manifest injustice, the law
of the case doctrine requires that we adhere to our prior decision. (Searle v. Allstate Life
Ins. Co. (1985) 38 Cal.3d 425, 434-435.)

                                               6
properly remand to permit the trial court to make the threshold determination of whether
to exercise its discretion in defendant’s favor [pursuant to Romero] without necessarily
requiring resentencing unless the court does act favorably.” (People v. Rodriguez (1998)
17 Cal.4th 253, 258, italics added.) As pointed out in People v. Alford (2010) 180
Cal.App.4th 1463, “[a] sentence must be imposed on each count, otherwise if the
non-stayed sentence is vacated, either on appeal or in a collateral attack on the judgment,
no valid sentence will remain.” (Id. at p. 1469.) That is why, under section 654, a
sentence is imposed but execution of that sentence is stayed because “if the unstayed
sentence is reversed, a valid sentence remains extant.” (People v. Alford, supra, at
p. 1469, italics added.)
       In 1997, the trial court undertook the calculus involved in crafting an appropriate
sentence for Harris. It considered his initial Romero motion, selected a term of
imprisonment for each count, considered whether to impose concurrent or consecutive
terms, and also concluded a sentence for access card forgery should be imposed but
stayed under section 654. Although the federal district court subsequently found one of
his convictions for grand theft was not supported by sufficient evidence, Harris’ other
convictions and sentence—including the stayed sentence for access card forgery—
“remain[ed] extant.” (People v. Alford, supra, 180 Cal.App.4th at p. 1469.)
       With this in mind, we now turn to a closer examination of the effect of the Reform
Act on further proceedings in the trial court.
       B.     The Reform Act
       In the November 6, 2012 election, California voters approved Proposition 36, the
so-called Three Strikes Reform Act of 2012. Prior to the passage of Proposition 36, the
Three Strikes law (§§ 667, subds. (b)-(i), 1170.12) required that a defendant convicted of
two prior serious or violent felonies be subject to a sentence of 25 years to life upon
conviction of a third felony. As amended by the Reform Act, section 1170.12,
subdivision (c)(2)(C), and section 667, subdivision (e)(2)(C), now mandate that a
                                                 7
defendant with two or more strikes who is convicted of a felony that is neither serious nor
violent be sentenced as a second strike offender unless “the prosecution pleads and
proves” one or more disqualifying factors.
       The Reform Act also added section 1170.126, which allows eligible inmates
who are currently subject to 25-years-to-life sentences under the Three Strikes law to
petition the court for resentencing. “Section 1170.126, subdivisions (a) and (b), broadly
describe who is eligible to file a petition and to be resentenced. Subdivision (a) of
section 1170.126 states: ‘The resentencing provisions under this section and related
statutes are intended to apply exclusively to persons presently serving an indeterminate
term of imprisonment pursuant to paragraph (2) of subdivision (e) of Section 667 or
paragraph (2) of subdivision (c) of Section 1170.12, whose sentence under this act would
not have been an indeterminate life sentence.’ ” (Teal v. Superior Court (2014) 60
Cal.4th 595, 598 (Teal).) “Subdivision (b) of section 1170.126 states: ‘Any person
serving an indeterminate term of life imprisonment imposed pursuant to paragraph (2) of
subdivision (e) of Section 667 or paragraph (2) of subdivision (c) of Section 1170.12
upon conviction, whether by trial or plea, of a felony or felonies that are not defined as
serious and/or violent felonies by subdivision (c) of Section 667.5 or subdivision (c) of
Section 1192.7, may file a petition for a recall of sentence. . . .’ ” (Id. at p. 599.)
       Subdivision (e) of section 1170.126 addresses eligibility more specifically. It
provides that an inmate is “eligible for resentencing” if (1) he or she is “serving an
indeterminate term of life imprisonment” imposed under the Three Strikes law “for a
conviction of a felony or felonies that are not defined as serious and/or violent felonies”
and (2) his or her current and prior convictions are not for certain designated offenses.
(§ 1170.126, subd. (e)(1); Teal, supra, 60 Cal.4th at p. 600.) An eligible prisoner “shall
be resentenced” as a second strike offender unless the court determines that resentencing
him or her “would pose an unreasonable risk of danger to public safety.” (§ 1170.126,
subd. (f).)
                                               8
       C.     Harris not entitled to nondiscretionary automatic resentencing
       The trial court interpreted the 2012 opinion to mean, in effect, that Harris was to
be treated as if he had never been sentenced for his convictions in 1997 and it was
obligated to redo the entire sentencing process, not just consider a renewed Romero
motion. Accordingly, the trial court believed it was required under the terms of the
Reform Act to impose determinate rather than indeterminate terms on three of Harris’
four convictions. As discussed above, this was error because the 2012 opinion did not
invalidate Harris’ sentences.
       There is no basis for treating Harris as if he had never been sentenced for his 1997
convictions, and the trial court should have simply, as we ruled in 2010, held a Romero
hearing. The only way in which Harris could be entitled to a recalculation of his
sentence of 77 years to life would be if the trial court elected to strike one or more prior
strikes under Romero. Assuming it does not, and his existing sentence of 77 years to life
remains intact, Harris could then be evaluated under the Reform Act for a recall of that
sentence. Under those circumstances, Harris’ sentence may be recalculated on a
count-by-count basis, so long as the trial court were to make the necessary threshold
finding that resentencing him would not pose a danger to public safety.
       D.     Harris’ eligibility for resentencing under section 1170.126
       We now turn to Harris’ entitlement to resentencing under section 1170.126, which
was the subject of Harris’ May 2014 motion. In that motion, Harris argued his conviction
for attempting to dissuade a witness was not considered a serious or violent felony at the
time he committed the offense and thus should not be considered a disqualifying serious
felony for purposes of section 1170.126. Harris also argued that even if the trial court
found that his conviction for attempting to dissuade a witness was a disqualifying serious
felony, that conviction does not render him ineligible for resentencing on the remaining
counts, i.e., he is entitled to be resentenced on a count-by-count basis under
section 1170.126.
                                              9
       Following the close of briefing in this case, the California Supreme Court issued
an opinion resolving both of these questions. Regarding the classification of Harris’
conviction for attempting to dissuade a witness, the Supreme Court has held that, “for
purposes of resentencing under section 1170.126, the classification of the current offense
as serious or violent is based on the law as of November 7, 2012, the effective date of
Proposition 36.” (Johnson, supra, 61 Cal.4th at p. 687.) Consequently, it makes no
difference that Harris’ attempt to dissuade a witness was not considered a serious felony
when he committed that offense. As of November 7, 2012, it was considered a serious
felony and therefore he is not eligible for resentencing on that count.
       However, as the People conceded at oral argument, Johnson also rejected the
People’s argument that one disqualifying conviction is enough to render an inmate
ineligible for resentencing, holding the Reform Act “requires an inmate’s eligibility for
resentencing to be evaluated on a count-by-count basis.” (Johnson, supra, 61 Cal.4th at
p. 688.) Thus, “an inmate may obtain resentencing with respect to a three-strikes
sentence imposed for a felony that is neither serious nor violent, despite the fact that the
inmate remains subject to a third strike sentence of 25 years to life.” (Ibid.)
       Accordingly, although Harris’ current sentence includes one disqualifying offense
under section 1170.126, subdivision (e)(1), namely the conviction for attempting to
dissuade a witness, the trial court must evaluate his eligibility for resentencing on a
count-by-count basis. In doing so, of course, the trial court ultimately retains the
discretion to deny resentencing entirely if it finds that “resentencing [Harris] would pose
an unreasonable risk of danger to public safety.” (§ 1170.126, subd. (f).)
III.   DISPOSITION
       The People’s petition for writ of mandamus is granted. Let a peremptory writ of
mandate issue directing respondent court to: (1) vacate its September 26, 2014 order
granting real party in interest Harris’ motion to be resentenced under the nondiscretionary
sentencing provisions set forth in Penal Code sections 667 and 1170.12; (2) enter a new
                                             10
order denying that motion; (3) schedule a further resentencing hearing at which it shall
consider Harris’ renewed Romero motion as directed in the 2012 opinion as well as
Harris’ eligibility for resentencing under the discretionary resentencing provisions set
forth in Penal Code section 1170.126, including an evaluation of the risk of danger to
public safety of any such resentencing.
       The temporary stay of the superior court proceedings is dissolved upon the finality
of this opinion.




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                                    Premo, J.




      WE CONCUR:




             Rushing, P.J.




             Elia, J.




People v. Superior Court (Harris)
H041594
