THE PEOPLE,
H049413
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT
Filed 12/16/22
CERTIFIED FOR PUBLICATION; (Santa Clara County Super. Ct. No. 159386)
In this appeal, we consider whether a trial court may include a sentence enhancement in the target offense or underlying felony when redesignating a conviction under
Defendant Luis Ramon Manzano Arellano (Arellano) appeals from a resentencing after the trial court vacated his second degree murder conviction under
We decide that the trial court erred under
I. FACTS AND PROCEDURAL BACKGROUND
In January 1992, J. Sacramento Benitez was killed during a home burglary and attempted robbery. In September 1992, the Santa Clara County District Attorney filed a second amended felony complaint (complaint) charging Arellano and two codefendants, Arturo Mendoza and Jesus Antonio Mandujano, with murder “with malice aforethought” (
In October 1992, prior to a preliminary hearing, the district attorney moved to amend the murder count to “strike ‘with malice’ ” and charge Arellano with second degree murder. Arellano then pleaded guilty to the second degree murder count with certain conditions, including that the firearm enhancement allegation attached to that count would be stricken and counts 2 and 3 of the complaint would be dismissed.
In November 1992, the trial court sentenced Arellano to an indeterminate term of 15 years to life for second degree murder (count 1), concurrent to another sentence that Arellano had been serving for a different case (No. 155635). The court also dismissed the other counts for attempted robbery (count 2) and first degree burglary (count 3).
Twenty-eight years later, in October 2020, Arellano, through counsel, filed a petition for resentencing under then-current section 1170.95 (petition). The district attorney opposed the petition, arguing that Arellano’s “bare-bones declaration of eligibility is insufficient pleading for a prima facie case.” Arellano’s counsel filed a reply, acknowledging that “[t]here were different accounts of who did what” during the “home burglary-robbery that ended in a terrible murder.” Counsel attached exhibits to the reply, including an excerpt from a habeas corpus petition that Arellano had filed in 2009 challenging a denial of parole, several police reports describing police interviews of Arellano and his codefendants Mendoza and Mandujano, and a page from an April 2008 “prison psychological evaluation quoting a correctional counselor’s report” that described the crime and what the murder victim’s sister, Rafaela H., had said about the incident.
In the habeas corpus petition excerpt attached to the reply, Arellano had alleged that “[a]lthough there were a lot [of] conflicting statements by the
According to the police reports attached to the reply, Arellano made “several conflicting statements” during his police interview about his proximity to the residence at the time of the crime but maintained that he was not present for the attempted robbery. Codefendant Mendoza told the police that he, Mandujano, and Arellano each had guns during the course of the robbery. Mandujano similarly told the police that he, Mendoza, and Arellano possessed guns during the incident.
According to the attached prison psychological evaluation, a “counselor’s report dated December 2002” included, inter alia, the following information about the crime: “According to the victim’s sister, four young males had come to her door looking for another address. About one hour later, they came back to her house and rang the doorbell. When she opened the door, Jesus Antonio Mandujano and Ramon Arellano rushed past her. Arturo Mendoza came in next and held a gun to the left side of Benitez’s sister. Benitez, the victim, appeared from a rear bedroom, saw what was happening and attempted to get back into the bedroom. Mandujano and Arellano saw Benitez and chased him down the hall with guns in their hands. Benitez attempted to shut the bedroom door[,] but Mandujano and Arellano were pushing against it. Mandujano had his hand, which was holding the .45 caliber handgun between the door and the [doorjamb] and fired one round, which struck Benitez in the shoulder. The three then fled on foot from the scene.”
On April 22, 2021, the trial court held a hearing on Arellano’s petition. The court ordered the district attorney to show cause why relief should not be granted. In response to that order, the district attorney stated that “the People will be stipulating to a resentencing.” The court confirmed with the parties the understanding that the matter would proceed under then-current section 1170.95, subdivision (d)(2).3 Given the district attorney’s concession, the court vacated Arellano’s murder conviction, stayed the
execution of that vacatur pending resentencing, and set the matter for further proceedings to redesignate the charge or charges upon which Arellano would be resentenced.
At the April 26, 2021 hearing, the trial court confirmed the parties’ agreement as to resentencing Arellano for the attempted robbery offense and the firearm enhancement and referred the matter to the probation department for a presentencing report. The court explained its understanding of the impending resentencing under then-current section 1170.95 as follows: “[T]his was a case in which Counts 2 and 3 did reflect what might be considered target offenses for the murder crime in Count No. 1. Those counts were submitted for dismissal. The defendant never pled to nor admitted them. So this is not a situation where statutorily under [section] 1170.95 I’m sentencing on the, quote, remaining counts. [] What I will be doing is by the agreement of the parties redesignating Count No. 1 to the violations of [sections] 664/211/212.5 subdivision (a) with the enhancement under 12022.5 subdivision (a).”
The district attorney subsequently filed a resentencing brief. Regarding the facts of the crime, the district attorney asserted, inter alia, the following: “Based on information provided by witnesses, detectives were able to identify the suspects, along
with a fourth participant who was killed shortly after the crime. Defendants Jesus Mandujano and Arturo Mendoza told police that Petitioner Arellano was present during the robbery/murder. [Arellano] told police he knew other individuals were planning to commit the robbery, but that he did not participate. [Arellano] provided several conflicting statements regarding his whereabouts at the time of the murder.” In addition, the district attorney noted the agreement of the parties concerning the “underlying felony committed by [Arellano]” (i.e., attempted robbery) and “that an arming enhancement pursuant to Penal Code section 12022.5 be imposed.” The
Defense counsel filed two memoranda regarding the impending resentencing—one objecting to the imposition of any parole term, and the other addressing the new sentence. Regarding parole, Arellano’s counsel argued that the trial court had no authority to impose a parole term because Arellano’s “years of excess credits far more than offset a 3-year period of parole ‘following the completion of the sentence’ (under [former § 1170.95,] subd. (g)).” Regarding Arellano’s new sentence, counsel reversed course on the agreement to include the firearm enhancement with the attempted robbery offense for redesignation. Counsel argued that “section 1170.95 does not permit [inclusion of the firearm enhancement], and this Court has no jurisdiction to add what the statute doesn’t
permit.” Counsel further asserted that “[s]ubdivision (e) provides that Mr. Arellano’s conviction is to be redesignated as the target offense or underlying felony for resentencing purposes, but it says nothing about adding enhancements that were not previously admitted or found true by a trier of fact.” Additionally, counsel argued that including the firearm enhancement would violate Arellano’s constitutional rights under Apprendi v. New Jersey (2000) 530 U.S. 466.
On May 24, 2021, the trial court held a hearing on redesignation and resentencing. Defense counsel reiterated her position regarding the court’s lack of authority to impose the firearm enhancement and asserted that “it isn’t clear in the evidence . . . as to whether or not Mr. Arellano possessed a firearm.”
The trial court rejected Arellano’s argument on the firearm enhancement stating, inter alia: “There are certainly cases, including [People v. Howard (2020) 50 Cal.App.5th 727, 739 (Howard)], in which the target or underlying crime was not the subject of a verdict or a conviction. And the Court has the authority to redesignate the murder conviction to an appropriate
The trial court explained further: “[G]iven the fact that there were Penal Code Section 12022.5 subdivision (a) enhancements attached to all three counts against Mr. Arellano in this case [sic]6, given the fact that the Court is going to move forward and resentence him only on . . . what was previously Count 2, even though I think [People v. Watson (2021) 64 Cal.App.5th 474 (Watson)] would give the Court the ability to sentence him for the burglary as well, given the fact that this was a negotiated disposition in which the firearm enhancement was stricken as opposed to . . . a not true
finding, and given what the Court does have available to it in the record of conviction regarding the circumstances of the underlying offenses, and it is unfortunate that the stipulation is no longer something the parties can agree upon, but I am going to move forward with resentencing on the attempted robbery charge with the arming allegation pursuant to [section] 12022.5 subdivision (a).” The court also stated that “there is evidence in the record that would suggest that [Arellano] did possess a handgun during the time of the underlying offenses.”
After rejecting Arellano’s argument against the firearm enhancement, the trial court recalled Arellano’s prior sentence for second degree murder and “redesignated Count 1 to allege a violation of Penal Code Section[s] 664/211 and 212.5 [subdivision] (a) with an enhancement pursuant to Penal Code Section 12022.5 [subdivision] (a).” On redesignated count 1, the court sentenced Arellano to a total term of seven years comprising the upper term of three years for the attempted robbery and the middle term of four years for the firearm enhancement. The court found the seven-year prison term was satisfied by time served, calculated as 3,137 actual days of custodial credit.7
In addition, the trial court rejected Arellano’s argument against imposing a parole term. The court concluded that “excess custodial credit is not to be applied to a period of parole supervision under section 1170.95.” The court further concluded that parole supervision was appropriate for Arellano and imposed a three-year period of parole (former § 1170.95, subd. (g)).
Later, upon Arellano’s motion asserting that a three-year parole term was unauthorized under section 3000.01 (see People v. Tan (2021) 68 Cal.App.5th 1, 3–6), the trial court modified its prior order of parole by reducing the period of supervision to two years.
II. DISCUSSION
Arellano raises two claims challenging the redesignation of his conviction and resentencing. He contends the trial court erred by redesignating the “target offense” of attempted robbery to include the firearm enhancement. Second, he asserts that the trial court erred by placing him on parole because his prison custody credits exceeded his new sentence, and the excess credits should have been applied against the parole term.
We address Arellano’s claims in turn.
A. Inclusion of Firearm Enhancement for Resentencing
In his opening brief, Arellano makes several arguments as to why we should reverse the trial court’s designation of the firearm enhancement as part of the attempted robbery offense. Specifically, he contends that “[b]ecause this allegation, though initially charged, had been dismissed as part of the plea bargain and thus the truth of which had never been litigated, principles of preclusion and collateral estoppel should have barred it as being part of the target offense. In addition, and more importantly, no admissible evidence was adduced at any of the hearings to support this finding. Further, even if the trial court was entitled to rely on the hearsay attachments to the pleadings as such evidence, the enhancement was not proven beyond a reasonable doubt due to conflicts in the evidence.” He further asserts that “[s]ection 1170.95 creates a special proceeding in which a court is strictly limited by its terms” and “the court cannot exceed the parameters of the literal language of the statute.”
The Attorney General counters Arellano’s various arguments and asserts generally that Arellano’s resentencing on the underlying attempted robbery and attached firearm enhancement was proper because, “[i]n crafting section 1170.95, the Legislature accorded the superior court wide latitude in the redesignation process. . . . Given this wide latitude, [Arellano] is unable to demonstrate error.”
After reviewing the parties’ briefing, we requested simultaneous supplemental letter briefs addressing the meaning of the phrase “target offense or
1. Applicable Legal Principles
In Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437), the Legislature “significantly limited the scope of the felony-murder rule to effectuate the Legislature’s declared intent ‘to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.’ ” (People v. Strong (2022) 13 Cal.5th 698, 707–708 (Strong).) “Senate Bill 1437 also created a special procedural mechanism for those convicted under the former law to seek retroactive relief under the law as amended.” (Id. at p. 708.) “The purpose of Senate Bill No. 1437 was ‘to more equitably sentence offenders in accordance with their involvement in homicides,’ and to reduce ‘lengthy sentences that are not commensurate with the culpability of the individual.’ ” (People v. Machado (2022) 84 Cal.App.5th 973, 984.)
When the trial court receives a petition under
Regarding the process that follows issuance of an order to show cause (OSC),
Under
Additionally,
Regarding statutory construction, “ ‘ “ ‘ “our fundamental task here is to determine the Legislature’s intent so as to effectuate the law’s purpose. [Citation.] We begin by examining the statute’s words, giving them a plain and commonsense meaning.” ’ ” ’ [Citation.] ‘ “[W]e look to the entire substance of the statute . . . in order to determine the scope and purpose of the provision . . . . [Citation.]’ [Citation.] That is, we construe the words in question ‘ “in context, keeping in mind the nature and obvious purpose of the statute . . . .” [Citation.]’ [Citation.] We must harmonize ‘the various parts of a statutory enactment . . . by considering the particular clause or section in the context of the statutory framework as a whole.’ ” ’ ” (People v. Lewis (2021) 11 Cal.5th 952, 961 (Lewis).)
“ ‘ “ ‘If the language is clear, courts must generally follow its plain meaning unless a literal interpretation would result in absurd consequences the Legislature did not intend. If the statutory language permits more than one reasonable interpretation, courts may consider other aids, such as the statute’s purpose, legislative history, and public policy.’ ” ’ ” (Smith v. LoanMe, Inc. (2021) 11 Cal.5th 183, 190.)
The question before us is one of statutory interpretation, which we review de novo. (Lewis, supra, 11 Cal.5th at p. 961.)
Arellano argues that neither subdivision (d)(3) nor subdivision (e) of section 1172.6 is, on its face, applicable in the present circumstances. Arellano contends that the resentencing “ ‘on the remaining charges’ ” contemplated by section 1172.6, subdivision (d)(3), does not apply because counts 2 (attempted robbery) and 3 (first degree burglary) (and the associated firearm enhancement allegations attached to counts 1 and 2) had been
dismissed by the court pursuant to the plea agreement at Arellano’s original sentencing in 1992. Once the court vacated Arellano’s sole conviction for murder pursuant to the parties’ stipulation of eligibility (
On the other hand,
Notwithstanding the statute’s failure to speak directly to the circumstances present in this case, as discussed ante, the parties and the trial court proceeded with Arellano’s resentencing upon the agreement that a redesignation of Arellano’s sole, vacated murder conviction to a conviction for attempted robbery could occur under then-current section 1170.95.
Further, the parties agree (as do we) that the trial court had the authority under
The Attorney General acknowledges in his supplemental briefing that “section 1172.6, subdivision (e) does not expressly address the trial court’s use of sentencing enhancements.” Nevertheless, relying on Howard and the Legislature’s “wish[] for resentenced murder defendants to be held responsible for their non-murderous criminal behavior,” the Attorney General contends that “the language ‘target offense or underlying felony’ reasonably includes enhancements.”
In his supplemental briefing, Arellano factually distinguishes the present case from Howard (where the petitioner had been convicted by a jury of first degree murder with a felony-murder special circumstance) and states that this appeal “raises questions as to what procedural and constitutional protections a trial court must properly afford a petitioner once it or the prosecutor proposes that a petitioner should be resentenced for any [target offense or offenses].” Further, Arellano notes that Howard “seems quite susceptible to criticism in that nothing in [section 1172.6] provides for the addition of enhancements as part of the target offense – previously charged or otherwise. In fact, [the statute] suggests the opposite.”
We begin our analysis of the parties’ contentions by looking at the words of the statute, focusing on the terms “target offense or underlying felony for resentencing purposes.” (
In addition, the court in Howard addressed arguments regarding whether the trial court properly designated the first degree burglary conviction as a violent felony (
Applying this standard, the Howard court concluded that “the evidence proven at trial, and recited in [its prior opinion], established beyond any possible dispute” the violent felony designation and the arming enhancement “relative to the underlying felony, burglary.” (Howard, supra, 50 Cal.App.5th at p. 742.) The Howard court further observed that “[w]hen a court resentences a defendant pursuant to section 1170.95, the only limitation is the new sentence cannot be greater than the original sentence. (§ 1170.95,
Relatedly, in Watson, supra, 64 Cal.App.5th 474, the Court of Appeal considered whether the trial court was authorized under
We accept the Howard court’s conclusion that the language now included in
In accord with Howard, we interpret “target offense or underlying felony” to mean the “offense” upon which liability was based for either the natural and probable consequences doctrine or the felony-murder rule. Although the Penal Code does not otherwise define the term “offense,” it does define “public offense.”
By contrast, “a sentence enhancement is ‘an additional term of imprisonment added to the base term.’ ” (Robert L. v. Superior Court (2003) 30 Cal.4th 894, 898.) Moreover, “California courts have consistently stated that ‘section 12022.5 does not prescribe a new offense but merely additional punishment for an offense in which a firearm is used.’ ” (People v. Wolcott (1983) 34 Cal.3d 92, 100.) In the same vein, our Supreme Court has explained: “Enhancements are not substantive crimes. [Citation.] California courts have long recognized that an enhancement is not a separate crime or offense. [Citation.] . . . ‘[I]n our statutory scheme sentence enhancements are not “equivalent” to, nor do they “function” as, substantive offenses. Most fundamentally, a sentence enhancement is not equivalent to a substantive offense, because a defendant is not at risk for punishment under an enhancement allegation until convicted of a related substantive offense. [Citation.] . . . The Legislature, moreover, has in various ways expressed its intention that
By directing that the vacated conviction shall be redesignated only “as the target offense or underlying felony for resentencing purposes” (
Although this interpretation of
The text of
him under the purview of section 1172.6, subdivision (e), it could not properly include the firearm enhancement (
We thus reverse Arellano’s redesignated conviction on count 1 and remand the matter for further proceedings to redesignate Arellano’s vacated murder conviction as a conviction of the underlying felony and resentence him. We leave it to the trial court and parties on remand to determine whether the underlying felony for resentencing purposes should comprise either or both attempted robbery and first degree burglary.11
Considering the difference between our interpretation of
B. Imposition of Parole Supervision
For the benefit of the parties and the trial court on remand, we address Arellano’s contention that the trial court improperly imposed a parole term, instead of applying excess credits to satisfy the entirety of the parole term.
As Arellano acknowledges, other Courts of Appeal have rejected similar arguments. (See People v. Lamoureux (2020) 57 Cal.App.5th 136, 145; People v. Wilson (2020) 53 Cal.App.5th 42, 52.) Considering those decisions, we are not persuaded by Arellano’s claim. We thus conclude that the trial court did not err by ordering Arellano to complete a parole term upon his custodial release (see
III. DISPOSITION
The judgment is reversed, and the matter is remanded for redesignation of Arellano’s vacated murder conviction and resentencing consistent with this opinion.
Danner, J.
WE CONCUR:
Bamattre-Manoukian, Acting P.J.
Wilson, J.
H049413 People v. Arellano
Trial Court: County of Santa Clara
Trial Judge: Hon. Daniel T. Nishigaya
Counsel: Peter F. Goldscheider, by appointment of the Court of Appeal under the Sixth District Appellate Program, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Senior Assistant Attorney General, Arlene A. Sevidal, Supervising Deputy Attorney General and James H. Flaherty III, Deputy Attorney General, for Plaintiff and Respondent.
H049413 People v. Arellano