Opinion
E082309
10-23-2024
THE PEOPLE, Plaintiff and Respondent, v. RIGOBERTO ALBOR, Defendant and Appellant.
Justin Behravesh, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Robin Urbanski and Namita Patel, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. RIF1203368 John D. Molloy, Judge. Reversed with directions.
Justin Behravesh, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Robin Urbanski and Namita Patel, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MILLER J.
In July 2012, defendant and appellant Rigoberto Albor met with Rudy D. on a street in Moreno Valley to sell him methamphetamine. Rudy and defendant argued over the amount of drugs, and during this argument, defendant pulled out a gun and shot Rudy in the chest. Defendant was convicted of the attempted, premeditated and deliberate murder of Rudy along with two enhancements involving the use of a firearm, one of which was pursuant to Penal Code section 12022.53, subdivision (d); dissuading a witness from testifying; and being a felon addicted to narcotics in possession of a firearm. He also was found to have suffered five one-year prison priors within the meaning of section 667.5, subdivision (b).
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant filed an appeal; we affirmed his conviction in an unpublished opinion on November 27, 2017. The California Supreme Court granted review and transferred the matter back to this court with directions to vacate our decision and reconsider the cause in light of a recent amendment to section 12022.53, which permitted the trial court to strike a firearm enhancement that was previously mandatorily imposed. We issued a new unpublished opinion on April 20, 2018, reversing defendant's conviction of dissuading a witness and ordering that the sentence on one of the firearm enhancements should have been stayed. We vacated defendant's sentence and remanded for the trial court to resentence defendant in light of the amendment to section 12022.53. On remand, the trial court refused to strike the section 12022.53, subdivision (d), enhancement and resentenced defendant.
Defendant filed another appeal. In that appeal he argued that he was entitled to remand for the trial court to consider mental health diversion pursuant to section 1001.36 and that his five one-year prison priors for which he was sentenced pursuant to section 667.5, subdivision (b), must be stricken based on recently enacted Senate Bill No. 136. In an unpublished opinion filed on October 7, 2020, People v. Rigoberto Albor, E071761 (Opinion), we rejected defendant's claim that he was entitled to mental health diversion but ordered the five one-year prison priors be struck based on the change in the law. We ordered remand to the trial court for the sole purpose of preparing a new abstract of judgment reflecting the striking of the prison priors. Upon remand, the trial court at a hearing held in July 2021, ordered that a new abstract of judgment be prepared and did not conduct a full resentencing.
After the hearing in July 2021, Senate Bill No. 567 (SB 567) amended section 1170 to limit a sentencing court's discretion to impose upper terms; SB 567 was effective January 1, 2022. (Stats. 2021, ch. 731, § 1, 3.) In addition, on January 20, 2022, the California Supreme Court issued its opinion in People v. Tirado (2022) 12 Cal.5th 688 (Tirado), in which it found that a trial court has the discretion not only to strike a section 12022.53 firearm enhancement, but it can impose a lesser uncharged enhancement under that code section. Defendant filed a notice of appeal in 2023, which we construed to be timely.
On appeal, defendant contends (1) the trial court prejudicially erred by failing to hold a full resentencing hearing upon remand and such failure to resentence him was prejudicial based on changes to the law, and (2) the abstract of judgment must be corrected to show the accurate fines and fees after the dismissal of his conviction for dissuading a witness.
FACTUAL AND PROCEDURAL HISTORY
The factual and procedural history are drawn from the Opinion and the records in the instant appeal.
A. FACTUAL HISTORY
"On July 1, 2012, Christina L. and defendant had been at a shop owned by their friend A.R. and stayed up all night taking methamphetamine. The next day, defendant, Christina and A.R. drove to Moreno Valley and parked the truck they were in on War Admiral Street. Rudy and another person drove up and parked near them. Rudy and defendant met inside the truck and exchanged drugs for money. They exited the truck and a heated conversation ensued between them; Rudy was upset about the amount of drugs defendant had given him. At that point, defendant pulled out a gun and shot Rudy in the chest, but he survived. Defendant and the others drove away in the truck and defendant said, 'I think I shot that fool in the neck.' Defendant made a phone call to his brother while he was in jail awaiting trial. He told his brother to contact Rudy about how he should testify in court.
B. PROCEDURAL HISTORY
Defendant was found guilty in two separate trials of attempted premeditated, deliberate and willful murder. (§§ 664, 187, subd. (a); count 1). In addition, for count 1, he was found to have personally and intentionally discharged a firearm causing great bodily injury or death (§ 12022.53, subd. (d)), and personally inflicted great bodily injury (§ 12022.7, subd. (a)). In count 2, defendant was found guilty of being a felon addicted to drugs in possession of a firearm (§ 29800, subd. (a)(1)); and in count 3, he was found guilty of preventing or dissuading a witness from attending and giving testimony at a trial (§ 136.1, subd. (a)(1)). Defendant admitted he had suffered five prior convictions for which he served prison terms (§ 667.5, subd. (b))."
Defendant was sentenced to the upper term of three years on count 2, the midterm of two years on count 3, and five years for each of the prior prison terms, for a total of 10 years. In addition, he was sentenced to a term of 25 years to life for the section 12022.53, subdivision (d) firearm enhancement, 7 years to life for the attempted murder and 3 years for the great bodily injury enhancement. Defendant was ordered to pay "a restitution fine of $10,000, pursuant to Penal Code [s]ection 1202.4; a parole revocation restitution fine of $10,000, pursuant to Penal Code section 1202.[4]5" In addition, he was ordered to pay, "a $90 court conviction fee, $30 per convicted count; $120 court security fee, $40 per convicted count." These fines and fees imposed were included in the original abstract of judgment.
After the first appeal, defendant was resentenced on November 20, 2018. This court reversed his conviction of dissuading a witness and ordered that the sentence on the section 12022.7 firearm enhancement should have been stayed. The matter was remanded, and defendant was resentenced to the upper term of three years on count 2, plus five years for the section 667.5, subdivision (b), prior convictions. On count 1, he received an indeterminate sentence of 7 years to life, plus 25 years to life on the section 12022.53, subdivision (d), enhancement. Defendant received a total sentence of 32 years to life plus 8 years. At the time of the resentencing, the trial court did not revisit the fines and fees. The same fines and fees that were included on the original abstract of judgment were included on the abstract of judgment filed on November 28, 2018.
After we issued the Opinion, finding that the section 667.5, subdivision (b), priors should be stricken, but found no other errors or reasons for resentencing, we remanded for the clerk of the superior court to issue a new abstract of judgment reflecting the striking of the section 667.5, subdivision (b), priors.
Upon remand, on July 15, 2021, counsel appeared for defendant. Defendant was not present. The trial court inquired if counsel had contacted defendant. Defendant's counsel stated, "I did write him a letter, but I don't think his presence is necessary. The . . . appellate court already struck the prison priors pursuant to 667.5 (b). That's already done. The only instructions to us is for us to prepare a new abstract reflecting that, so I don't think his presence is actually needed." The trial court ordered, "At this time, the superior court has been ordered to prepare a new abstract of judgment reflecting that the 667.5(b) priors have all been stricken and to submit it to the Department of Corrections." New abstracts of judgment for the indeterminate and determinate sentences were prepared and filed. The abstract of judgment included the same fines and fees as the original sentencing. This included the $10,000 restitution fine imposed pursuant to Penal Code section 1202.4, subdivision (b), and a suspended $10,000 parole revocation fine. In addition, there was a court security fee imposed pursuant to Penal Code section 1465.8 in the amount of $120 and a criminal conviction assessment fee in the amount of $90 pursuant to Government Code section 70373. Defendant filed an appeal from the July 15, 2021, hearing on April 3, 2023. On October 9, 2023, this court ordered that the appeal had been filed timely.
DISCUSSION
Defendant contends the trial court erred by failing to conduct a full resentencing upon remand after the issuance of our Opinion. He insists that such refusal to conduct a full resentencing was prejudicial based on two changes to the law. First, he contends SB 567, which amended section 1170 to limit a sentencing court's discretion to impose upper terms, is applicable to him. He was sentenced to the upper term on count 2 and was entitled to be resentenced on that count. Further, the California Supreme Court's decision in Tirado finding that a trial court has discretion to impose a lesser uncharged statutory enhancement for a section 12022.53 enhancement required that he be resentenced. While the trial court had already rejected that the section 12022.53, subdivision (d), enhancement should be stricken, it may have been willing to impose a lesser uncharged statutory enhancement. Defendant further contends the abstract of judgment should be modified to properly reflect the fines and fees with the dismissal of count 3.
A. TRIAL COURT WAS NOT REQUIRED TO PROVIDE DEFENDANT A FULL RESENTENCING AT THE JULY 2021 HEARING
In our Opinion, we limited remand to the trial court as follows: "Defendant's judgment is modified to strike the five one-year enhancements imposed pursuant to section 667.5, subdivision (b). The clerk of the superior court is ordered to prepare a new abstract of judgment reflecting the striking of the section 667.5, subdivision (b), priors and forward it to the Department of Corrections and Rehabilitation. In all other respects the judgment is affirmed."
"The order of the reviewing court is contained in its remittitur, which defines the scope of the jurisdiction of the court to which the matter is returned." (Griset v. Fair Political Practices Com'n (2001) 25 Cal.4th 688, 701.) "If the appellate court's order upon remand requires correction as to one part of a sentence but the remand order limits the scope of resentencing, the trial court must adhere to the limits set forth in the remand order." (People v. Walker (2021) 67 Cal.App.5th 198, 205.)" 'The issues a trial court may address in remand proceedings are therefore limited to those specified in the reviewing court's directions, and if the reviewing court does not direct the trial court to take a particular action or make a particular determination, the trial court is not authorized to do so.'" (People v. Cervantes (2021) 72 Cal.App.5th 326, 332, fn. omitted.) This court in the prior appeal limited remand to a correction of the abstract of judgment and the trial court properly adhered to that order.
Additionally, at the time, remand for a full resentencing would have been an idle act as the trial court had already rejected that the section 12022.53 subdivision (d), enhancement should be stricken. Defendant has not identified any other grounds for resentencing at the time of remand in July 2021 as section 1170 had not been amended and the California Supreme Court had not decided Tirado. There was no discretion for the trial court to exercise at the time. (See People v. Buycks (2018) 5 Cal.5th 857, 896 fn. 15 ["Because the resentencing court had imposed the maximum possible sentence, regardless of whether the two-year on-bail enhancement was stricken, there is no need to remand the matter to the trial court to exercise its sentencing discretion anew"].) The trial court properly limited its actions to modifying the abstract of judgment and did not have to conduct a full resentencing.
Defendant insists that under People v. Buycks, supra, 5 Cal.5th 857, he was entitled to a full resentencing upon remand. In Buycks, the court held that "when part of a sentence is stricken on review, on remand for resentencing 'a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.'" (Id. at p. 893.) However, as noted ante, when there is nothing for which the trial court must exercise its discretion, remand for resentencing is not required. (Id. at p. 896 fn. 15.) Defendant has not provided any changes in the law that would have required the trial court to exercise its discretion at the hearing held in July 2021 after this court struck the prior-prison-term convictions. As such, the trial court properly followed this court's directives and only amended the abstract of judgment.
B. RESENTENCING BASED ON CHANGES IN THE LAW
Defendant provided a confusing argument in the opening brief that the failure to conduct the full resentencing in 2021 was prejudicial because he was entitled to be resentenced based on the two changes of the law-Tirado and section 1170. As aptly argued by the People, these changes were not effective in 2021 so defendant cannot now show he was prejudiced by the trial court failing to conduct a full resentencing at that time. The People also stated that even if the trial court had addressed the issues, it would not have reduced defendant's sentence based on the aggravated nature of the crime. In the reply brief, defendant recognized the argument of the People that Tirado and SB 567 were not in effect at the time of the July 2021 hearing. Defendant stated, "While this is true, [the People] provide[] no authority for why [defendant] is not entitled to seek relief now under these new authorities." Defendant referred to his citation in the opening brief regarding section 1170 being applied retroactively to all cases not yet final on appeal and that he should be permitted to argue to the trial court that it exercise its "newfound" discretion under Tirado.
Initially, due to the delay in the filing of the notice of appeal, defendant has benefitted from changes in the law, to which he would not have been entitled had the appeal been filed in 2021. Nonetheless, this court allowed defendant to file the appeal and his conviction is not final. Moreover, defendant could have presented this claim more clearly, but we conclude he has properly raised the claim that he is entitled to remand for resentencing for the trial court to exercise its discretion based on the changes in the law. We will order remand for resentencing.
Section 1170, subdivision (b)(2), as amended by SB 567 (effective January 1, 2022) provides: "The court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term, and the facts underlying those circumstances have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial." At the time he was sentenced in 2015, the trial court relied on the probation report in determining the aggravating and mitigating factors. These factors included defendant's criminal history, that the crime involved great violence, and that there was a high degree of cruelty and viciousness. It found no mitigating factors. There is no indication in the record that the jury was asked to find the aggravating factors and defendant is entitled to retrospective application of the statute. (See People v. Burgos (2024) 16 Cal.5th 1, 16 [Retroactive application of a statute is appropriate if it reduces punishment for a criminal offense or "create[s] discretion to reduce such punishment"].)
The California Supreme Court recently held, "[U]nder the current statute a Sixth Amendment violation occurs when the trial court relies on unproven aggravating facts to impose an upper term sentence, even if some other aggravating facts relied on have been properly established. The violation is prejudicial unless an appellate court can conclude beyond a reasonable doubt that a jury would have found true all of the aggravating facts relied upon by the trial court to justify an upper term sentence, or that those facts were otherwise proved true in compliance with the current statutory requirements. If the reviewing court cannot so determine, applying the Chapman [v. California (1967) 386 U.S. 18, 24] standard of review, the defendant is entitled to a remand for resentencing." (People v. Lynch (2024) 16 Cal.5th 730, 901.) We need not decide whether the imposition of the upper term in this case was prejudicial as we are ordering remand for resentencing based on the change in the law under Tirado and the trial court can determine under amended section 1170 whether to impose the upper term on count 2.
The trial court should consider at resentencing whether further litigation of the aggravating factors is necessary. (See People v. Lynch, supra, 16 Cal.5th at p. 908.)
In Tirado, the California Supreme Court explained that "When an accusatory pleading alleges and the jury finds true the facts supporting a section 12022.53(d) enhancement, and the court determines that the section 12022.53(d) enhancement should be struck or dismissed under section 12022.53(h), the court may, under section 12022.53(j), impose an enhancement under section 12022.53(b) or (c). The plain statutory language supports this conclusion." (Tirado, supra, 12 Cal.5th at p. 692, fns. omitted.) We also note that the California Supreme Court recently held that a trial court has the discretion to impose a lesser, uncharged enhancement under other Penal Code sections, e.g. section 12022.5. (People v. McDavid (2024) 15 Cal.5th 1015, 1022-1023, 1030.) Despite Tirado, and now McDavid, not being decided at the time of the prior hearing, defendant is entitled to retrospective application to his case because the judgment in his case is not final.
Here, the record does not show that the trial court was aware that it had discretion to impose a lesser, uncharged section 12022.53 enhancement or any other lesser enhancement if it struck the section 12022.53, subdivision (d) enhancement. We cannot speculate whether the trial court, which refused to strike the section 12022.53, subdivision (d), enhancement, would nonetheless be willing to impose a lesser enhancement if it was aware it had the discretion to do so. The appropriate remedy is to remand the matter to the trial court for it to conduct a resentencing hearing at which it shall exercise its discretion as to whether to impose a lesser, uncharged section 12022.53 enhancement or other enhancement, as authorized by Tirado and McDavid. Upon remand, the trial court should also address the change to section 1170 and whether to impose the upper term on count 2 and any other changes in the law as defendant's case is not final. The trial court should also consider the arguments made by counsel on appeal that the fines and fees should be modified.
DISPOSITION
We affirm the judgment but vacate defendant's sentence and remand for resentencing in accordance with this opinion.
We concur: RAMIREZ P. J. McKINSTER J.