THE PEOPLE, Plaintiff and Respondent, v. PATRICK ALLEN TRENT, Defendant and Appellant.
C096306
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin)
Filed 10/3/23
CERTIFIED FOR PARTIAL PUBLICATION*
(Super. Ct. No. STK-CR-FE-1997-0006966)
The Law Office of Brad K. Kaiserman and Brad K. Kaiserman, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Erin Doering and Eric L. Christoffersen, Deputy Attorneys General, for Plaintiff and Respondent.
*
Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified for publication with the exception of parts II and III.
In 1999, a jury convicted defendant Patrick Allen Trent of first degree murder (
Thereafter, in July 2020, defendant filed a petition for resentencing pursuant to former
Defendant timely appealed and complains the trial court prejudicially erred in: (1) failing to retroactively apply Assembly Bill No. 333 (2021-2022 Reg.
We agree with the parties that the abstract of judgment should be corrected to reflect conviction by jury. We also agree with defendant that he is entitled to the retroactive application of Assembly Bill 333, requiring reversal of his
FACTUAL AND PROCEDURAL BACKGROUND
A. The underlying murder
We summarize the evidence from our previous appellate opinion for context. Defendant and his codefendant Nico Luciano Vasquez were convicted of murdering Primotivo Villasana, a heroin addict and former member of “Northern Structure,” a criminal street gang. The People theorized “the murder was the gang execution of a dropout to advance the defendants’ status in Northern Structure.” (Vasquez, supra, C032492.) In support of this theory, the People presented evidence that Tony Giminez, the leader of Northern Structure in Stockton who had turned state‘s evidence, identified defendant and Vasquez as Villasana‘s killers. Defendant and Vasquez killed Villasana because he was on the gang‘s “hit list.” (Ibid.)
Vasquez‘s former girlfriend B.T. testified that Vazquez and defendant helped her move into an apartment near the murder scene on the day of the murder. The pair ran into Villasana at the door to her apartment, and the three men stayed outside talking and drinking while B.T. unpacked her belongings. “Vasquez came into the apartment twice—once to get more beer, and once to take something she could not see from a kitchen drawer that contained knives. She later identified a broken knife handle and knife blade found at the scene, and testified her knives were not broken when she last saw them.” (Vasquez, supra, C032492.)
“Vasquez told [B.T.] he was going for a walk around the corner. She watched defendants and Villasana head toward the park as it was starting to get dark. Vasquez returned about 45 minutes later, went to the drawer, and got a butcher knife with a wooden handle. He told [B.T.] the first knife had broken because it was too skinny. Vasquez said he needed the knife to take care of his business. [B.T.] testified Vasquez was mad, out of breath, but uninjured at the time.
“[B.T.] saw Vasquez at his sister‘s house several days after Villasana was killed. He showed [B.T.] a newspaper article about the murder and explained, ‘This is what I did last night.’ He said he threw the clothes he was wearing into a creek behind his mother‘s house. Vasquez later told [B.T.] he cut Villasana‘s throat, and one of the knives broke during the assault. Vasquez and [defendant] met with [B.T.] to discuss what to tell police about the night of the murder.
“At some point after the murder, [B.T.] watched while [defendant] had a star tattooed under his eye. Vasquez said, ‘He‘s a killer now.’ [B.T.] also heard Vasquez tell [defendant] ‘he done killed a man.’ ” (Vasquez, supra, C032492.)
Xavier Lozano testified as part of a plea agreement. According to Lozano, “he previously held the highest position in Northern Structure, responsible for overall security inside and outside of prison. He testified that Vasquez had been a gang member for three or four years, and [defendant] was a sympathizer. While Lozano was imprisoned at Pelican Bay, he received instructions that all dropouts in Stockton should be killed. He relayed the information directly to Giminez and Vasquez upon his parole. Lozano explained that by killing Villasana, defendants would gain status within Northern Structure, and possibly become eligible for membership in Nuestra Familia.” (Vasquez, supra, C032492.)
Defendant testified in his defense, acknowledging he left B.T.‘s apartment with Vasquez and Villasana to get more beer. The other men were behind him, and defendant turned around to see Vasquez and Villasana wrestling on the ground. Vasquez repeatedly punched Villasana, but defendant denied seeing a knife or “kicking, punching, or touching Villasana in any way.” (Vasquez, supra, C032492.) Defendant left the park, and Vasquez eventually caught up. Defendant admitted obtaining the star tattoo, but denied it held “special significance.” (Ibid.)
B. Legal background
Effective January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) significantly limited the scope of the felony-murder
Senate Bill 1437 also established a new procedure to allow defendants who could not have been convicted under the new law to petition the sentencing court to vacate their murder conviction and resentence them on any remaining counts. (See
Effective January 1, 2022, Senate Bill No. 775 (2021-2022 Reg. Sess.) (Senate Bill 775) amended
“If the prosecution fails to sustain its burden of proof, the prior conviction, and any allegations and enhancements attached to the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charges.” (
C. The resentencing proceedings
On July 1, 2020, defendant filed a petition for resentencing pursuant to
In their resentencing briefs, the parties disagreed over the redesignation and ultimate sentence. The People argued the murder should be redesignated assault with a deadly weapon (
At the resentencing hearing on March 28, 2022, defendant argued that the People had not proven the great bodily injury enhancement beyond a reasonable doubt because the record did not disclose whether the victim‘s broken nose was a displaced fracture. Ultimately, the trial court denied defendant‘s request to vacate the gang conviction, finding
DISCUSSION
I
Retroactive Application of Assembly Bill 333
Defendant argues the trial court erred in failing to retroactively apply the changes brought about by Assembly Bill 333 to his gang conviction, requiring reversal of that conviction and remand for possible retrial on that count. The People do not dispute that Assembly Bill 333 applies retroactively to all nonfinal judgments, or that reversal and remand for further proceedings would be required if Assembly Bill 333 applies retroactively. We concur with these concessions. (See People v. Sek (2022) 74 Cal.App.5th 657, 667 [Estrada retroactivity applies to Assembly Bill 333]; People v. Cooper (2023) 14 Cal.5th 735, 742, 746-747 [reversing because trial court‘s failure to instruct on new substantive requirements brought about by Assembly Bill 333 was not harmlessness beyond a reasonable doubt] (Cooper).)5 The People dispute, however, that vacatur of defendant‘s murder conviction under
There is no published authority addressing whether the granting of a petition for resentencing pursuant to
There is, however, authority holding that these amendments apply in the context of a recall and resentencing conducted pursuant to former
The People argue that Salgado‘s reliance on Padilla was misplaced, and that Padilla actually supports the nonapplication of Assembly Bill 333 to a long-final gang conviction. We do not read Padilla this way.
Padilla addressed “whether Proposition 57 [(the Public Safety and Rehabilitation Act of 2016) (Proposition 57)] applies during resentencing when a criminal court sentence imposed on a juvenile offense before the initiative‘s passage has since been vacated.” (Padilla, supra, 13 Cal.5th at p. 158.) In Padilla, the defendant “was originally sentenced before Proposition 57 was enacted, but his judgment later became nonfinal when his sentence was vacated on habeas corpus and the case was returned to the trial court for imposition of a new sentence.” (Padilla, at p. 158.) Thus, the majority concluded, Proposition 57 applied to his resentencing. (Ibid.)
Padilla explained, “A case is final when ‘the criminal proceeding as a whole’ has ended (People v. Esquivel (2021) 11 Cal.5th 671, 678) and ‘the courts can no longer provide a remedy to a defendant on direct review’ [Citation.] When Padilla‘s sentence was vacated, the trial court regained the jurisdiction and duty to consider what punishment was appropriate for him, and Padilla regained the right to appeal whatever new sentence was imposed. His judgment thus became nonfinal, and it remains nonfinal in its present posture because the Court of Appeal ordered a second resentencing, from which the Attorney General now appeals. There is no ‘constitutional obstacle’ to applying the Estrada presumption to his case. (Esquivel, at p. 679.)” (Padilla, supra, 13 Cal.5th at pp. 161-162.)
Padilla rejected the proposed distinction between “cases that are nonfinal because the defendant is undergoing retrial or resentencing” and those “ ‘not yet final on initial review.’ ” (Padilla, supra, 13 Cal.5th at p. 162.) The court reasoned, “Estrada made no such distinction. The Estrada
The Attorney General highlights the last paragraph of the majority‘s opinion, which addressed the People‘s argument that applying Proposition 57 to a defendant‘s vacated sentence would be inconsistent with principles limiting modification of judgment after initial finality. Therein, Padilla stated, “[T]he right and remedy we recognize today does not allow Padilla to raise claims unrelated to his sentence.” (Padilla, supra, 13 Cal.5th at p. 169.) Rather, the defendant would receive a transfer hearing wherein the juvenile court will decide whether “criminal adjudication is appropriate for the murder of his mother and conspiracy to kill his stepfather.” (Id. at p. 170.) “Whatever potential that [transfer] hearing may have for reducing his punishment (the nonfinal part of his judgment), it does not authorize or constitute relitigation of guilt.” (Ibid.)
The Attorney General, however, fails to provide authority showing that once defendant‘s collateral attack successfully vacated his murder conviction—entitling him to redesignation and resentencing (
It is worth noting that other intermediate appellate courts have determined that resentencing pursuant to a
This conclusion also is consistent with the “full resentencing rule,” which affords a resentencing court the authority to conduct “ ‘a full resentencing as to all counts . . . so the trial court can exercise its sentencing discretion in light of the changed circumstances.’ ” (Ramirez, supra, 71 Cal.App.5th at p. 999, citing People v. Buycks (2018) 5 Cal.5th 857, 893-894.) Resentencing is not limited to “just the portion [of the sentence] subjected to recall.” (Buycks, supra, at p. 893.) Rather, “the full resentencing rule allows a court to revisit all prior sentencing decisions when resentencing a defendant.” (People v. Valenzuela (2019) 7 Cal.5th 415, 424-425.)
Like the court in Ramirez, we see no reason to distinguish Estrada retroactivity for purposes of a judgment vacated under former
We accept the People‘s concession that reversal of the
II
Inclusion of an Uncharged Enhancement in the Redesignation
Defendant brings a multifaceted challenge to the trial court‘s decision to impose a great bodily injury enhancement on his redesignated conviction. He complains the imposition of this uncharged enhancement violated his state and federal rights to a jury trial, due process, and notice of the charges. The People counter that defendant forfeited this argument by failing to raise it in the trial court, and defendant has failed to show his counsel was ineffective for not raising the issue. Given defendant‘s ineffective assistance of counsel claim, we will address the merits. Having done so, we conclude the trial court did not err.
Here, the information generically alleged a violation of
We thus begin our analysis with
There is a split of authority on whether
The court in Howard upheld imposition of a sentence for first degree burglary with a violent felony designation and arming enhancement following vacatur of defendant‘s murder conviction under
Moreover, Howard concluded that while
Further, Howard determined that not requiring imposition of a lesser sentence was consistent with the legislation‘s stated purpose “to ‘eliminat[e] lengthy sentences which have been declared incommensurate with the culpability of defendants such as [Howard],’ and instead punish a defendant according to his ‘ “own level of individual culpability.” ’ ” (Howard, supra, 50 Cal.App.5th at p. 739.) Nor was defendant‘s right to a fair trial or due process violated because the retroactive relief provided by section
Finally, Howard concluded the trial court‘s redesignation resentencing authority is broad enough to include any enhancements proven by the People beyond a reasonable doubt at the resentencing hearing. (Howard, supra, 50 Cal.App.5th at p. 741.) The only limitation at resentencing is that the new sentence cannot be longer than the original. (Id. at p. 742, citing
Howard reasoned, “Our conclusion finds support in the principle that ‘[t]o the extent the court is determining the sentence to impose after striking the murder conviction, the traditional latitude for sentencing hearings should be allowed.’ [Citation.]” (Howard, supra, 50 Cal.App.5th at pp. 741-742.) It is also consistent with
As noted, ante, the court in Arellano disagreed with Howard, finding a trial court may not include a sentence enhancement in the target offense or underlying felony when redesignating a conviction under
Arellano explained: “By directing that the vacated conviction shall be redesignated only ‘as the target offense or underlying felony for resentencing purposes’ (
The court in Arellano further supported this interpretation by comparing the language in
Arellano concluded: “Given the settled distinction in our penal law between an ‘offense’ and a sentence enhancement and the statutory framework of
Our Supreme Court will definitively resolve the question, but until it does, we believe the result in Howard better comports with the purpose and intent of
III
The Abstract of Judgment
Finally, the parties concur that the amended abstract of judgment must be corrected to reflect defendant‘s convictions were by jury, rather than by plea. We will direct the trial court on remand to prepare an amended abstract of judgment to reflect that defendant‘s convictions were by jury, not by plea.
DISPOSITION
Defendant‘s
/s/
Krause, J.
We concur:
/s/
Earl, P. J.
/s/
Robie, J.
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