97 Cal.App.5th 1068
Cal. Ct. App.2023Background
- Frank Ruiz was convicted of assault with a firearm, with enhancements for use of a firearm, prior serious felony conviction, and gang affiliation, relating to a 2013 shooting in a parking lot.
- Ruiz's original sentence (2018): 28 years, but was reduced to 18 years due to an improper stay of a 10-year consecutive firearm-use enhancement; the Court of Appeal corrected this error and remanded for resentencing.
- After two appeals, and with several legislative changes affecting sentencing (AB 333, SB 567, SB 81), Ruiz was resentenced to 23 years, with the gang enhancement stayed and new standards applied to aggravating factors.
- The Court of Appeal reviewed whether the upper-term sentences imposed were proper under current law, and whether the trial court properly considered mitigating factors, custody credits, and new sentencing restrictions.
- The People conceded that the gang enhancement finding was invalid under new law (AB 333), requiring remand for possible retrial on that issue, and agreed Ruiz should receive additional custody credit.
Issues
| Issue | Plaintiff’s Argument | Defendant’s Argument | Held |
|---|---|---|---|
| Validity of gang enhancement after AB 333 | Concedes enhancement now unsupported | Enhancement should be vacated | Gang enhancement vacated; remand for retrial |
| Use of aggravating factors for upper-term sentences under SB 567 | Sufficient aggravating factors found by jury or by certified record | Factors relied on were not found true or stipulated as required by SB 567 | Error harmless; upper term affirmed |
| Calculation of custody credits | Additional credits should be awarded | More custody credits due based to time served | Awarded additional (1,693) custody credits |
| Sentence exceeding the original (18-year) aggregate sentence | Corrected sentence can exceed original due to previous error | Sentence cannot exceed original aggregate | Court can impose longer sentence on remand |
| Consideration of new mitigating factors under § 1385 | Trial court presumed to know and apply law | Court failed to consider/mention new mitigating factors | Presumed considered; no abuse of discretion |
Key Cases Cited
- People v. Serrato, 9 Cal.3d 753 (Cal. 1973) (sets the exception allowing for a greater sentence on remand if prior sentence was unauthorized)
- People v. Williams, 17 Cal.4th 148 (Cal. 1998) (court can exercise discretion to address certain errors not objected to below)
- Denham v. Superior Court, 2 Cal.3d 557 (Cal. 1970) (judgments are presumed correct; error must be shown)