AB 518, Staying a Sentence and One Strike Sentencing

Defendant DeAnthony Tyquan Govan was charged and convicted in the Norwalk Superior Court of three counts of false imprisonment by violence (Penal Code § 236), three counts of forcible oral copulation (Penal Code § 288a(c)(2)(A)), three counts of forcible rape (Penal Code § 261(a)(2)) and one count of attempted forcible rape (Penal Code §§ 261(a)(2), 664).

The jury also found true the special allegation under Penal Code §§ 667.61(b) and (e)(4) that Mr. Govan committed the offenses against more than one victim.

Mr. Govan waived his right to a jury trial on the prior conviction allegation and the judge, Andrew Kim found true that in 2012 that Mr. Govan suffered a sustained juvenile petition for rape in concert (Penal Code § 264.1(a)) and that the prior adjudication was a strike with the meaning of the Three Strikes Law (Penal Code §§ 667(b) – (i), 1170.12) and a violent felony under Penal Code § 667.5(c).  However, the judge granted Mr. Govan’s Romero motion to strike the prior felony conviction allegation and dismissed the allegation under Penal Code § 1385.

The charges arose over four meetings Mr. Govan had with four different women in 2017 and 2018, wherein he met then for dates and then forced them to orally copulate him and then he raped, or attempted to rape them while holding an Airsoft gun.

In sentencing in 2021, Judge Kim imposed under the One Strike Law, Penal Code §§ 667.61(b) and (e)(4), six consecutive sentences of 15 years to life on the forcible oral copulation and rape counts for an aggregate term of 90 years to life. 

The judge also imposed a consecutive term of four years, the upper term, on the attempted forcible rape.  The judge also imposed, but stayed under Penal Code § 654, the upper term of three years on each false imprisonment count.  In doing so, Judge Kim explained that he was imposing the upper term because the crime “involved great violence, great bodily injury, the threat of great bodily injury or other acts disclosing a high degree of cruelty, viciousness or callousness.”

Mr. Govan appealed on many grounds, but this article’s scope will only address his contention that he was entitled to resentencing under the newly amended Penal Code § 654.

Effective January 1, 2022, Assembly Bills 567 and 518 changed sentencing in significant ways.

Prior to Assembly Bill (AB) 567 becoming law, a judge had discretion under Penal Code § 1170(b)(1) to sentence defendant to the low, middle or high term for any crime committed with a sentencing triad.  After AB 567 became effective,  §§ 1170(b)(1) and (b)(2) were changed to permit a judge to impose the high term only when there are aggravating factors stipulated to by defendant or found true beyond a reasonable doubt by the judge or jury in trial.  Such changes were regarded as ameliorative and therefore retroactive under In re Estrada (1965) 63 Cal. 2d 740, 744.

Prior to AB 518 becoming law, Penal Code § 654(a) provided that “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.”

Effective January 1, 2022, AB 518 amended Penal Code § 654 “to remove the requirement that a court impose the longest sentence when a defendant is convicted of more than one offense arising from the same conduct.”  People v. Lopez (2022) 78 Cal. App. 5th 459, 465.  AB 518 is also considered ameliorative and therefore retroactive under Estrada, supra.

The One Strike Law, however, provides at Penal Code § 667.61(h), that “Notwithstanding any other law, probation shall not be granted to, nor shall execution or imposition of sentence be suspended for, a person who is subject to punishment under this section.”

Mr. Govan argued that this provision did not prevent the judge from staying imposition of a sentence under the One Strike Law.

In response, the Second Appellate District agreed, although it noted that the First Appellate District had held otherwise in People v. Caparaz (2022) 80 Cal. App. 5th 669, 689 (a stay is a form of suspension).  The Second Appellate District disagreed with the ruling in Caparaz.  The Second Appellate District explained that the One Strike Law merely prohibited giving an offender probation in such a One Strike case.

Accordingly, the Second Appellate District remanded the case back to the Norwalk Court for the judge to reconsider the sentence in light of AB 518, as well as AB 567.