People v. RuizPeople v. Ruiz
A second appeal followed. In People v. Ruiz (March 29, 2022, B307717) [nonpub. opn.] (Ruiz II), we rejected appellant‘s claims that (1) the trial court abused its discretion in refusing to strike the prior serious felony conviction and firearm-use enhancements, and (2) the cause must be remanded to the trial court for resentencing in light of Assembly Bill No. 518, which amended
On remand the trial court resentenced appellant to an aggregate term of 23 years, calculated as follows: assault with a firearm (
Appellant now contends: (1) the true finding on the gang enhancement allegation must be vacated, (2) in selecting the upper term for both the conviction of assault with a firearm and the firearm-use enhancement, the trial court relied on aggravating factors that are inapplicable pursuant to S.B. 567; (3) appellant is entitled to additional days of custody credit, (4) the aggregate sentence imposed on remand could not have exceeded the 18-year aggregate sentence originally imposed; and (5) the matter must again be remanded for resentencing because of a recent amendment of
Facts
The facts are taken from our first unpublished opinion. (Ruiz I, supra, slip opn. at pp. 3-4.)
“One night in October 2013, [R.M. (victim)] and his girlfriend, [J.M], drove to Vons to buy baby supplies. [J.M.] entered the store while [victim] remained by the vehicle in the parking lot. A young, skinny man approached [victim] and asked, ‘[W]here you from?’ [Victim] replied, ‘I ain’t from nowhere, where you from?’ The man said he was from ‘Southside’ or ‘Sur Town.’ The man ‘tried to sucker punch’ [victim] and ‘barely misse[d]’ him.
“[Victim] chased the man, who was not armed. He heard [his girlfriend] call out that someone had a gun. [Victim] suddenly saw a bigger, older man about 15 feet away and ‘could hear him try to cock [the gun], but he couldn’t.’ [Victim] ‘started running.’ ‘He was zig-zagging in an attempt not to get shot.’ He heаrd one shot fired. The bullet did not strike him.
“[Witness E.W. testified that he had seen] the bigger, older man chase [victim]. The man shot once at [victim]. He ‘was definitely trying to hit [him].’ ‘He was aiming directly at [him].’ It was not ‘a warning shot.’ The shooter and his companions ran to a car, entered it, and drove away ‘at a high rate of speed.’
“The shooter was identified as appellant. He was a long-time member of the Sur Town Chiques (Sur Town) criminal
“The skinny, younger man who threw the punch at [victim] was identified as [J.H.]. A gang expert opined that [J.H.] ‘was a Sur Town gang member . . . .’
“A police officer found a spent shell casing in the Vons parking lot. The shell casing had been ejected from the same 9-millimeter pistol that had been used in four other gang shootings.
“In response to the prоsecutor’s hypothetical question incorporating the facts of the Vons parking-lot shooting, a gang expert opined that it had been committed for the benefit of a criminal street gang.”
Gang Enhancement
The jury found true an allegation that appellant had committed the assault with a firearm for the benefit of a criminal street gang (
We accept the People’s concession, which is as follows: “[T]he elements of the newly amended gang enhancement under
S.B. 567: Selection of the Base Term
S.B. 567 became effective on Januаry 1, 2022. It amended the standards for imposing an upper-term sentence. As amended,
S.B. 567 similarly amended
The People Concede that the Trial Court Considered Inapplicable Aggravating Factors
The trial court said it was imposing the 4-year upper term for the assault with a firearm charge and the 10-year upper term for the firearm-use enhancement because appellant “poses a serious danger to society.”
In concluding that appellant “poses a serious danger to society,” the trial court relied on seven factual findings. The People submit that four of the findings “were not found true beyond a rеasonable doubt by the jury, and . . . it cannot be said with certainty that a jury would . . . conclude [they were true] beyond a reasonable doubt.” The four findings are: (1) “[appellant] has a predilection for unprovoked, unpredictable violent behavior and a disregard for human life”; (2) “[t]his offense is almost identical in many significant respects to his prior 2002 violent offense, demonstrating a failure to rehabilitate or change his violent behavior”; (3) “[t]he present offense was committed in concert with another person, thereby increasing the danger to the victims and the public”; and (4) “[appellant] has a substantial criminal record dating back to the age of 13.”
“[T]o the extent the trial court’s imposition of the upper term was based on” the above four findings, conceded by the People to be inapplicable, “it committed error under Senate Bill 567. That is because, contrary to the dictates of the new law, [appellant] had not stipulated to the facts underlying these factors, nor were the facts found true beyond a reasonable doubt by a jury or by a judge in a court trial.” (People v. Ross (2022) 86 Cal.App.5th 1346, 1353, review granted Mar. 15, 2023, S278266 (Ross).) Moreover, the fourth finding concerning appellant’s criminal recоrd “dating back to the age of 13” was not “based on a certified record of conviction.” (
The People maintain that the trial court properly relied on three of the trial court’s seven factual findings because they “were found true beyond a reasonable doubt by a trier of fact or were supported by a certified record of conviction.” The three findings are: (1) “[appellant] has engaged in unprovoked violent conduct under circumstances that indicate that he is a serious danger to society”; (2) “[l]ess than 5 years [had] elapsed between [appellant’s] release from prison for his prior violent offense and less than one month [had] elapsed from his discharge from parole . . . [when he] committed the present offense[, thus] demonstrating that a longer period of incarceration is necessary to protect the public and potentially aid in rehabilitation”; and (3) “[appellant] served a prior prison term.”
Appellant contends “[t]he only . . . facts supported by the certified record of conviction are that the charged offense occurred less than five years from his release from prison, less than a month after being discharged from parole, and [that he] served a prior prison term.” Appellant asserts, “No other factor was proven beyond a reasonable doubt or stipulated to by appellant.”
People’s Contention that Appellant Forfeited Claim of Resentencing Error
Appellant’s counsel did not object to the trial court’s reliance on inapplicable aggravating factors. The People contend that, by not objecting, appellant forfeited his claim of resentencing error. (See, e.g., People v. Tilley (2023) 92 Cal.App.5th 772, 778.) We neеd not decide whether a forfeiture occurred. Even if appellant’s failure to object constituted a forfeiture, we would again extend fairness to appellant and exercise our discretion to reach the merits of his claim of sentencing error. (See People v. Williams (1998) 17 Cal.4th 148, 161-162, fn. 6.)
Harmless Error
“Courts . . . have concluded this type of [sentencing] error is subject to harmless error review.” (Ross, supra, 86 Cal.App.5th at p. 1353.) The appellate courts are divided on the standard for assessing prejudice. (See, e.g., People v. Flores (2022) 75 Cal.App.5th 495, 500; Ross, supra, at p. 1353.) The issue is pending before our Supreme Court in People v. Lynch (May 27, 2022, C094174) [nonpub. opn.], review granted Aug. 10, 2022, S274942.
Our Supreme Court recently considered the standard for assessing prejudice where, before the effective date of S.B 567, the trial court did not impose the lower term for an offense as provided by new subdivision (b)(6) of section 1170.2 (People v. Salazar (Nov. 20, 2023, S275788) __ Cal.5th __ [2023 Cal. LEXIS 6529] (Salazar).) The Supreme Court did not consider the standard for assessing prejudice where, as here, after the effective date of S.B. 567 the trial court imposed the upper term instead of the middle term under section 1170, new subdivisions
We assess prejudice thrоugh a two-step process. The first step is whether the jury would have found true beyond a reasonable doubt the aggravating factor that appellant “has engaged in unprovoked violent conduct under circumstances that indicate that he is a serious danger to society.”
We are convinced that the jury would have found true beyоnd a reasonable doubt the aggravating factor that appellant “has engaged in unprovoked violent conduct under circumstances that indicate that he is a serious danger to society.” Appellant’s assault with a firearm was “unprovoked violent conduct.” The victim was unarmed and had not attacked or threatened appellant. When appellant committed the assault, the victim was running away from him. “‘[The victim] was zig-zagging in an attempt not to get shot.’” A witness testified that appellant “‘was definitely trying to hit [the victim].’ ‘He was aiming directly at [the victim].’”
The evidence prеsented to the jury, together with appellant’s criminal record based on a certified record of conviction, makes clear that “he is a serious danger to society.” The pistol used in the shooting “had been used in four other gang
The second step in assessing prejudice is whether the trial court would have seleсted the upper term had it known that it could rely solely on the following four applicable aggravating factors: appellant’s (1) 2002 strike conviction, (2) service of a prior prison term for that conviction, (3) commission of the new offense less than five years after his release from prison and less than one month after his discharge from parole, and (4) commission of “unprovoked violent conduct under circumstances that indicate that he is a serious danger to society.”
In Salazar, supra, 2023 Cal. LEXIS 6529, at *12-13, our Supreme Court concluded that, where a court “‘“is unaware of the scope of its discretionary [sentencing] powers,”’” the “‘appropriate remedy is to remand for resentencing unless 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
The record clearly so indicates. This is the third time that the same trial court judge sentenced appellant to the upper terms. In its ruling the court mentioned only aggravating factors. It did not refer to a single mitigating factor. Appellant contends that “any formal objection” to the trial court’s reliance on inapplicable aggravating circumstances “would have been futile” because “the court’s comments indicate that it would not consider reimposing a different sentenсe,” i.e., a sentence other than the upper term on the firearm-use enhancement and the conviction of assault with a firearm.
In Salazar the trial court sentenced the defendant before the effective date of S.B. 567. Our Supreme Court noted, “When the applicable law governing the defendant’s sentence has substantively changed after sentencing, it is almost always speculative for a reviewing court to say what the sentencing court would have done if it had known the scope of its discretionary powers at the time of sentencing.” (Salazar, supra, 2023 Cal. Lexis 6529 at *28.) Unlike Salazar, here S.B. 567 became operative months before the trial court resentenced appellant. In the second appeal (Ruiz II) we vacated the sentence and remanded the cause for resentencing in light of S.B. 567. Appellant asserts, “There was no indication here that the [trial] court did not understand its discretion or the law, and SB 567 was the only issue at resentencing.”
Thus, reversal for a fourth sentencing hearing would be an unwarranted exaltation of form over substance. (See People v. Blessing (1979) 94 Cal.App.3d 835, 839; United States v. DiFrancesco (1980) 449 U.S. 117, 142 [“The exaltation of form over substance is to be avoided”].) It would be a waste of judicial resources to afford the trial court a fourth opportunity to impose the middle term.
Appellant’s Custody Credits
Appellant contends he should have received credit for his actual days of presentence custody plus the time he had actually served in prison for a total of 1,693 days. We agree.
Appellant’s Sеntence on Remand Could Lawfully Exceed the Sentence Originally Imposed
The trial court originally imposed an aggregate sentence of 28 years, but erroneously stayed a consecutive 10-year upper term for the firearm-use enhancement pursuant to
Appellant contends thаt “because [at the original sentencing] the court could have reached the same total [an
We disagree. “Under the general rule of state constitutional law that the California Supreme Court has referred to as the Henderson rule, ‘[w]hen a defendant successfully аppeals a criminal conviction, California’s constitutional prohibition against double jeopardy precludes the imposition of more severe punishment on resentencing.’” (People v. Vizcarra (2015) 236 Cal.App.4th 422, 431.) “However, in People v. Serrato (1973) 9 Cal.3d 753, 764 . . . , disapproved on another point in People v. Fosselman (1983) 33 Cal.3d 572, 583 . . . , the California Supreme Court ‘set out an exception to this general [Henderson] rule.’ [Citation.] In Serrato . . . the Supreme Court explained that ‘[t]he rule is otherwise when a trial court pronounces an unauthorized sentence. Such a sentence is subject to being set aside judicially and is no bar to the imposition of a proper judgment thereafter, even though it is more severe than the original unauthorized pronоuncement.’” (Id. at pp. 431-432.) “[T]he fact that the trial court at the original sentencing theoretically could have imposed an [authorized sentence that was the same length as the unauthorized sentence] does not mean that the . . . sentence the court actually imposed at the original sentencing was an authorized sentence.” (Id. at p. 438.)3
The Trial Court Did Not Abuse Its Discretion Under the Recent Amendment to Section 1385
In his supplemental brief, appellant contends that the matter must again be remanded for resentencing so the trial court can consider new mitigating factors in determining whether the enhancements should be dismissed pursuant to
Appellant asserts that “[t]hree mitigating circumstances from the newly amended
Appellant claims: “Because the record makes no mention of the specific [mitigating] factors enumerated in
The amendment to
We cannot presume the trial court “failed” to properly consider the three claimed relevant mitigating factors merely because it did not expressly mention them. Nothing in amended
We have given the trial court two opportunities to extend leniency. It has declined to do so. This is a clear indication that the trial court would not now extend leniency to appellant. (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.)
Disposition
The true finding on the gang enhancement (
YEGAN, Acting P. J.
We concur:
BALTODANO, J.
CODY, J.
There is a price to bе paid in the quest for perfect justice. Here, by reason of the Legislature’s constant tinkering with sentencing rules, we are asked to reverse/remand for a fourth sentencing hearing. And, of course, if appellant is not satisfied, he will appeal for the fourth time. This is an undue burden upon the criminal justice system, the Superior Court and the Court of Appeal. It also adversely impacts the civil justice system. And, perfect justice, while an admirable goal, is unattainable despite our best efforts.
This appeal is not an outlier. Resentencing issues now dominate our appellаte calendars. There are, undoubtedly, jurists who believe that there should be no limitation on how many resentencing hearings and appeals should transpire. This is a purely academic view of criminal procedure. It ignores practical and “workable” sentencing procedures, as well as the California constitutional harmless error rule. It also erodes the concept of “Finality of Judgment.”
Appellant is lucky to be serving a 23-year determinate term. He could have easily been charged with and convicted of willful, deliberate, and premeditated attempted murder with a firearm. Such a conviction would have been punishable by life imprisonment with the possibility of parole. (
Ah!, those dear dead days of the indeterminate sentence law. Then, sentencing was pretty easy upon denial of probation. The only significant “choice” was whether to impose consecutive or concurrent terms. There were few sentencing disputes on appeal and I recall no instance where the superior court was called upon to resentence a defendant three times. The sentencing court would say: “You are sentenced to state prison for the term prescribed by law.” That was it. Sentencing was simple and the Adult Authority would either keep the defendant in prison “for the term prescribed by law,” or grant parole after a suitable period of confinement. The indeterminate sentence law was repealed by the enactment of the Uniform Determinate Sentencing Act of 1976, which became operative on July 1, 1977.
Because of the Legislature’s constant tinkering with the already complex sentencing rules, the law has become an unsettled minefield.1 The goal of the Determinate Sentence Law
CERTIFIED FOR PUBLICATION.
YEGAN, Acting P. J.
Notes
Trammel is contrary to appellant’s position. In Trammel the question was “whether an erroneous sentence under section 654 which improperly inflated Trammel‘s aggregate sentence falls within the Serrato exception, thus allowing a harsher sentence on remand.” (Trammel, supra, 2023 Cal.App. Lexis at *36.) The Court of Appeal held that such a sentence does not fall within the exception. (Id., at *36-37.) “[T]he Serrato exception only applies to unauthorized sentences which were unlawfully lenient to the detriment of the People.” (Id., at *37.) Here, the trial court’s erroneous original sentence under section 654 was unlawfully lenient. It reduced appellant’s aggregate unstayed sеntence by 10 years. Therefore, the Serrato exception applies.