People v. GonzalezPeople v. Gonzalez
I.
FACTUAL AND PROCEDURAL BACKGROUND
The issues presented in this appeal do not require a repetition of the factual detail set forth in our first opinion, and we accordingly present a truncated discussion.
A jury found that Gonzalez shot and killed a man in April 2014 by personally using a firearm. Specifically, the conviction was for first degree murder (
In deciding Gonzalez‘s first appeal, we remanded so that the trial court could choose whether or not to dismiss the firearm enhancement (
In his second appeal, Gonzalez sought a remand so that the trial court could apply a statutory amendment that went into effect on January 1, 2019, after he was resentenced. Specifically, Senate Bill No. 1393 (Stats. 2018, ch. 1013 (§§ 1, 2)) amended sections 667 and 1385 to allow a court to exercise its discretion to strike or dismiss a prior serious felony conviction for sentencing purposes. We remanded for resentencing in light of Senate Bill No. 1393, with instructions that the trial court consider whether to exercise its discretion to strike or dismiss Gonzalez‘s five-year enhancement for his prior
After multiple continuances during the pandemic, the trial court resentenced Gonzalez on April 7, 2023. By that time, the Legislature had enacted Senate Bill No. 81, effective January 1, 2022 (Stats. 2021, ch. 721 § 1), which amended section 1385 to include subdivision (c). Under subdivision (c)(1), the court “shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute.” Under subdivision (c)(2), in exercising its discretion, “the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in subparagraphs (A) to (I) are present. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety.” (
In advance of the resentencing hearing, Gonzalez filed a sentencing position memorandum. Gonzalez argued that pursuant to section 1385, subdivision (c), the trial court should dismiss (1) the five-year enhancement for his prior serious felony conviction imposed pursuant to section 667, subdivision (a); and (2) the 25-years-to-life firearm enhancement imposed pursuant to section 12022.53, subdivision (d). Gonzalez contended that dismissal of the enhancements was warranted because (1) more than one of the mitigating circumstances identified in subparagraphs (A) to (I) of section 1385, subdivision (c)(2) were present,6 and (2) dismissal would not “[e]ndanger public safety” within the meaning of section 1385, subdivision (c)(2).7
In the People‘s response, they did not attempt to dispute that at least some of mitigating factors in section 1385, subdivision (c)(2) applied.8 The People stated, “The real issue is whether or not dismissing the enhancement would endanger public safety. Factually, the People would like the court to consider the facts in this case which do indicate that the defendant is a danger to public safety . . .” The People then went on to discuss the particular circumstances of the murder and Gonzalez‘s criminal history.
At the resentencing hearing, defense counsel took issue with the People‘s focus, in their memorandum, on Gonzalez‘s criminal history and the circumstances of the murder when they argued that dismissing the enhancements would endanger public safety. Defense counsel stated, “The
In ruling on whether it would dismiss the 25-years-to-life firearm enhancement, the trial court first explained that if section 1385, subdivision (c) did not exist, it would not exercise its discretion to dismiss the enhancement. “[T]his is a poster child fact pattern for the imposition of the additional time considered by 12022.53. . . . He is the person holding the firearm. He used it to deadly impact. So if we‘re just considering normal 12022.53(h) discretion, I would not exercise my discretion for his benefit.” However, in light of section 1385, subdivision (c), the trial court stated, “So then the next question is under 1385. Do I consider him to be a danger to society?” The trial court asked defense counsel for clarification about how to approach that analysis, leading to the following exchange:
“THE COURT: . . . And I‘m not sure, [defense counsel], how exactly to—I think—I‘m not sure that when I‘m sentencing and finding someone is a danger that I have to consider each and every charge that I‘m sentencing on to say, well, but now it‘s going to be 75 years before he‘s out, so in 75 years he‘s not going to be a danger. [¶] Isn‘t it—when you‘re considering the time of sentencing, does he currently at the time of sentencing represent a danger to society? That‘s how I read the law. [¶] Do you have a case that says I‘m wrong about that?
“[DEFENSE COUNSEL]: Your Honor, I believe the Williams case . . . cited in a footnote talks about a forward-looking inquiry whether he‘s a risk of danger. “THE COURT: And this is forward looking. It‘s from this point forward—
“[DEFENSE COUNSEL]: Right.
“THE COURT:—based on what I‘ve seen. And so from this point forward, I would conclude he is a danger. What I was saying is, I‘m not sure that Williams obliges me to say, well, he‘s already been sentenced to 50 years to life, so the Court has to say in 50 years he‘s still going to be a danger in order to impose the other enhancements. I think it‘s forward looking from today, not forward looking from 50 years from now.
“[DEFENSE COUNSEL]: Yes, I agree, because the rest of that statement says, ‘And when the defendant would be released if the recommendation is granted and defendant is resentenced,’ so it‘s would he be released.
“THE COURT: Okay. A tougher one, as I said before, I think presently he does represent a danger to society, and for that reason, while I am mindful of the prohibition set forth in 1385, I do think it is appropriate for the Court to impose an additional 25 years to life for the gun use enhancement for what amounts to now a total aggregate term of 75 years to life . . . .”
The trial court therefore declined to exercise its discretion to dismiss the 25-year-to-life firearm enhancement based on its finding that Gonzalez “presently. . . does represent a danger to society.” It then turned to the five-year enhancement for Gonzalez‘s prior serious felony conviction, deciding to dismiss that enhancement. The trial court explained, “I think that at this point, especially given the 75 years to life that I‘m imposing, that the [five-
Gonzalez appeals from the judgment.
II.
DISCUSSION
Gonzalez contends that the trial court erred in its analysis of whether to dismiss the 25-years-to-life firearm enhancement imposed pursuant to section 12022.53 because it misunderstood the inquiry that it was supposed to conduct in determining whether “dismissal of the enhancement would endanger public safety” within the meaning of section 1385, subdivision (c)(2). Gonzalez contends that the trial court erred in focusing on whether he “presently” and “currently” endangered public safety rather than assessing whether, looking forward, public safety would be endangered due to an earlier release from prison (i.e., in 50 years to life rather than in 75 years to life) if the enhancement was dismissed.
A. Standard of Review
In reviewing the trial court‘s determination that dismissal of Gonzalez‘s firearm enhancement would endanger public safety, we apply an abuse of discretion standard of review. (People v. Mendoza (2023) 88 Cal.App.5th 287, 298 (Mendoza).) As relevant here, “an abuse of discretion arises if the trial court based its decision on impermissible factors . . . or on an incorrect legal standard.” (People v. Knoller (2007) 41 Cal.4th 139, 156 (Knoller); see also Conservatorship of Bower (2016) 247 Cal.App.4th 495, 506 [“Case law is clear . . . that getting the legal standard wrong means that a subsequent decision becomes itself a per se abuse of discretion“].)
As an initial matter, we must address the People‘s argument that Gonzalez has forfeited his appellate challenge because defense counsel, at the resentencing hearing, purportedly “agreed with the trial court‘s interpretation of section 1385.”
The applicable forfeiture rule is set forth in People v. Scott (1994) 9 Cal.4th 331, under which “complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal.” (Id. at p. 356.) “Although the court is required to impose sentence in a lawful manner, counsel is charged with understanding, advocating, and clarifying permissible sentencing choices at the hearing.” (Id. at p. 353.) Further, although not specifically advanced by the People, the doctrine of invited error is also relevant here, as the People contend that defense counsel agreed with the trial court‘s interpretation of section 1385, subdivision (c)(2) that Gonzalez now challenges on appeal. ” ‘The doctrine of invited error is designed to prevent an accused from gaining a reversal on appeal because of an error made by the trial court at his behest.’ ” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 49.) However, for the doctrine to apply, it “must be clear that counsel acted for tactical reasons and not out of ignorance or mistake.” (Ibid.)
Turning to the question of whether Gonzalez has preserved his appellate challenge, it is centrally relevant that, both in the sentencing position memorandum and during the resentencing hearing, defense counsel advocated for the same legal standard that Gonzalez now advances on appeal. First, the sentencing position memorandum included a footnote, citing Williams, supra, 19 Cal.App.5th 1057, which Gonzalez continues to
The People‘s forfeiture argument depends on the final part of the exchange between the trial court and defense counsel, which occurred after defense counsel clarified that it is “a forward-looking inquiry.” Specifically, the trial court stated, “I think it‘s forward looking from today, not forward looking from 50 years from now,” referring to a date 50 years in the future when Gonzalez might be released from prison if the enhancements were dismissed. Defense counsel, replied, “Yes, I agree, because the rest of that statement says, ‘And when the defendant would be released if the recommendation is granted and defendant is resentenced,’ so it‘s would he be released.”
Although, as the People point out, during that exchange, defense counsel replied, “Yes, I agree,” when the trial court stated the inquiry was “forward looking from today,” it is evident, based on the context of the entire
In sum, we conclude that defense counsel simply misunderstood the trial court‘s statement rather than agreeing with it. We accordingly reject the People‘s contention that defense counsel agreed that the trial court should apply the interpretation of section 1385, subdivision (c)(2) that Gonzalez now challenges on appeal. Gonzalez has consistently taken the position that, in assessing whether dismissal of the firearm enhancement would endanger public safety, the focus must be on whether an earlier release date resulting from a dismissal would endanger public safety. As counsel simply made a mistake in stating, “Yes, I agree,” the argument is not forfeited; nor does the doctrine of invited error apply.9
C. The Trial Court Abused Its Discretion by Applying an Erroneous Legal Standard
Turning to Gonzalez‘s contention that the trial court erred in its analysis of whether dismissing the 25-years-to-life firearm enhancement
As one court has observed, section 1385, subdivision (c)(2) “does not require the trial court to consider any particular factors in determining whether ‘there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others.’ ” (Mendoza, supra, 88 Cal.App.5th at p. 299, italics added.) The question before us, however, is whether the trial court erred in interpreting the statute in a specific manner. The trial court believed that it was required to decide whether the defendant “currently at the time of sentencing represent[s] a danger to society.” Premised on its understanding of the proper inquiry, the trial court imposed the firearm enhancement based on its conclusion that Gonzalez “presently . . . does represent a danger to society.”
“The proper interpretation of a statute is a question of law we review de novo.” (People v. Lewis (2021) 11 Cal.5th 952, 961.) ” ’ ” ‘When we interpret a statute, “[o]ur fundamental task . . . is to determine the Legislature‘s intent so as to effectuate the law‘s purpose. We first examine the statutory language, giving it a plain and commonsense meaning. We do not examine that language in isolation, but in the context of the statutory framework as a whole in order to determine its scope and purpose and to harmonize the various parts of the enactment. If the language is clear, courts must generally follow its plain meaning unless a literal interpretation would result
The plain words of the statute do not support the trial court‘s singular focus on whether the defendant currently poses a danger. Notably, section 1385, subdivision (c)(2) focuses on the danger associated with the dismissal of an enhancement, phrasing the inquiry as whether ”dismissal of the enhancement would endanger public safety,” and whether “there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others.” (
The analysis in Williams, supra, 19 Cal.App.5th 1057, although arising under a different sentencing statute, supports our interpretation of the plain meaning of section 1385, subdivision (c)(2). In Williams, the defendant, who was serving a term of 193 years to life, filed a section 1170.126 petition for resentencing, which directed the trial court to consider “whether a new sentence would result in an unreasonable risk of danger to public safety.” (Williams, at pp. 1060–1062, quoting
We find Williams‘s discussion to be instructive here because the relevant language of section 1170.126, subdivision (f), which focuses on “whether a new sentence would result in an unreasonable risk of danger to public safety” is similar in design to the language of section 1385, subdivision (c)(2), which focuses on whether “dismissal of the enhancement would endanger public safety.” Both provisions direct the trial court to consider the impact to public safety if the defendant was granted sentencing relief. As Williams persuasively explains, such a provision requires the trial court to consider, among other things, the date on which the defendant would be released under the revised sentence, and, in the case of an indeterminate
The People present two unconvincing arguments in an attempt to defend the trial court‘s interpretation of section 1385, subdivision (c)(2), neither of which grapple with the plain language of the statute.
First, the People point out that in a death penalty trial, juries must not be instructed that a defendant serving a life sentence might nevertheless be released from prison at some point in the future based on the Governor‘s commutation because “it invites the jury to consider speculative and impermissible factors in reaching its decision.” (People v. Ramos (1984) 37 Cal.3d 136, 159.) The People contend that if speculation about future events is not permitted in the context presented in Ramos, we should not require the trial court to speculate about a defendant‘s future dangerousness when applying section 1385, subdivision (c)(2). We reject the argument, which is entirely unmoored from the text of the statute. Ramos has no applicability here because we are deciding the very specific question of what the Legislature intended by including particular statutory language in section 1385, subdivision (c)(2). That question has no overlap with the proper scope of issues that a jury may be instructed to consider when deciding whether to return a death verdict.
Next, the People argue that when a defendant like Gonzalez is serving an indeterminate sentence, the Board of Parole Hearings “is best suited to assess [a defendant‘s] dangerousness once he completes his indeterminate term.” According to the People, the trial court should not “usurp the [Board of Parole Hearings‘] role by guessing 50 years or more into the future.” We find no merit to the People‘s argument, which once again is unmoored from the statutory language. For one thing, the relief afforded by section 1385,
In sum, we conclude that based on the plain language of section 1385, subdivision (c)(2), the trial court erred because it considered only whether Gonzalez currently posed a danger to the public when assessing if a dismissal of the firearm enhancement would “endanger public safety.” (
The People argue that even if the trial court erred in limiting its analysis to Gonzalez‘s current dangerousness, reversal for resentencing is not warranted because the error was not prejudicial.
The People rely on the principle that when a trial court misapprehends the scope of its sentencing discretion, a remand is not warranted if “the record ‘clearly indicate[s]’ that the trial court would have reached the same conclusion ‘even if it had been aware that it had such discretion.’ ” (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) The People contend that “as the trial court would not exercise its discretion differently if [Gonzalez] were sentenced a fourth time, remand would be futile.”
We reject the People‘s contention because we find no clear indication in the record that the trial court would have declined to dismiss the firearm enhancement if, rather than limiting its inquiry to Gonzalez‘s current dangerousness, it had analyzed whether public safety would be endangered by the sentence of 50 years to life that would result from dismissing the firearm enhancement.
In making its ruling, the trial court specifically explained, “I think presently [Gonzalez] does represent a danger to society, and for that reason . . . I do think it is appropriate for the Court to impose an additional 25 years to life for the gun use enhancement.” (Italics added.) The trial court gave no indication of how it would rule if it did not limit its inquiry to Gonzalez‘s current dangerousness. Indeed, because a sentence of 50 years to life would result in a potential release from prison far into the future when Gonzalez is elderly, and because a review by the Board of Parole Hearings and the Governor will take place before Gonzalez is released, it is conceivable that, if the trial court holds a new sentencing hearing in which it does not
We therefore conclude that the trial court‘s error was prejudicial and requires a remand for resentencing so that the trial court may apply the interpretation of section 1385, subdivision (c)(2) set forth in this opinion. The trial court shall consider, among other factors it finds relevant, whether the reduction of the sentence, from a term of 75 years to life to a term of 50 years to life resulting from a dismissal of the firearm enhancement, would endanger public safety. We express no view on how the trial court should exercise its discretion on remand.
The sentence is vacated, and this matter is remanded for the trial court to conduct a resentencing proceeding consistent with this opinion.
IRION, Acting P. J.
WE CONCUR:
DO, J.
KELETY, J.