Opinion
F085556
07-24-2023
THE PEOPLE, Plaintiff and Respondent, v. RAYMOND NICKLAS FACIO, Defendant and Appellant.
Deanna L. Lopas, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Fresno County No. CF00652196. Houry A. Sanderson, Judge.
Deanna L. Lopas, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
OPINION
THE COURT [*]
INTRODUCTION
In 2000, appellant and defendant Raymond Nicklas Facio (appellant) was convicted of commission of a lewd act upon a child who was 15 years old, where appellant was at least 10 years older than the victim, with two prior strike convictions and a prior prison term enhancement (Pen. Code, § 667.5, subd. (b)). Appellant was sentenced to the third strike term of 25 years to life, and the court ordered the prior prison term enhancement stricken.
All further statutory citations are to the Penal Code unless otherwise indicated.
In 2022, the trial court conducted a hearing to determine whether appellant was eligible for resentencing to strike a prior prison term enhancement, pursuant to section 1172.75. The court found appellant was ineligible because the prior prison term enhancement was stricken and never imposed at his sentencing hearing in 2000.
On appeal, appellate counsel filed a brief which summarized the procedural history with citations to the record, raised no issues, and asked this court to independently review the record pursuant to both People v. Delgadillo (2022) 14 Cal.5th 216 and People v. Wende (1979) 25 Cal.3d 436. Appellant filed his own letter brief and requested this court independently review the record. We have done so and affirm the trial court's order.
PROCEDURAL HISTORY
Charges, conviction, and sentence
On July 26, 2000, a first amended information was filed in the Superior Court of Fresno County charging appellant with count 1, commission of a lewd act upon a child who was 15 years old, and appellant was at least 10 years older than the victim, on or about March 27 through April 3, 2000 (§ 288, subd. (c)(1)), with prior conviction allegations.
On September 11, 2000, after a jury trial, appellant was convicted as charged of count 1. The instant record does not contain a minute order or reporter's transcript as to the resolution of the prior conviction allegations. According to the probation report, appellant either admitted or the allegations were found true that he had two prior strike convictions and a section 667.5, subdivision (b) prior prison term enhancement.
On October 13, 2000, the trial court conducted the sentencing hearing and denied appellant's request to dismiss the two prior strike convictions. The court imposed the third strike term of 25 years to life for count 1.
The trial court stated it was striking the section 667.5, subdivision (b) prior prison term enhancement.
On October 17, 2000, the abstract of judgment was filed that stated appellant was sentenced to 25 years to life and, contrary to the trial court's order at the sentencing hearing, that the prior prison term enhancement was "stayed."
At the time of appellant's sentencing hearing, an enhancement under the then applicable version of section 667.5, subdivision (b) had to be imposed or stricken, and could not be stayed. (People v. Solorzano (2007) 153 Cal.App.4th 1026, 1040-1041; People v. Lopez (2004) 119 Cal.App.4th 355, 364; People v. Bradley (1998) 64 Cal.App.4th 386, 390-392.)
Direct appeal
On May 21, 2002, this court filed the nonpublished opinion in appellant's direct appeal that affirmed the judgment. In doing so, this court noted that the trial court declined to dismiss appellant's two prior strike convictions, and he was sentenced to 25 years to life. (People v. Facio (May 21, 2002, F036800) [nonpub. opn.].)
SECTION 1172.75 PROCEEDINGS
In 2022, the trial court conducted proceedings to determine whether appellant should be resentenced pursuant to section 1172.75. As relevant herein, section 1172.75, subdivision (a) states: "Any sentence enhancement that was imposed prior to January 1, 2020, pursuant to subdivision (b) of Section 667.5, except for any enhancement imposed for a prior conviction for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code is legally invalid."
As we explain below, there is nothing in the instant record to indicate whether appellant filed a motion for resentencing based upon section 1172.75, or the court placed the matter on calendar to recall his sentence as a result of a notification from the Department of Corrections and Rehabilitation (CDCR).
On August 23, 2022, the trial court filed a notice of calendar setting to appoint counsel. On August 29, 2022, the court appointed counsel to represent appellant in this matter.
The trial court's denial of the motion
On November 16, 2022, the trial court convened a hearing as to whether appellant should be resentenced under section 1172.75. Appellant's counsel was present.
The prosecutor stated appellant was ineligible for resentencing because the prior prison term enhancement was based on a sexual assault conviction. In addition, the trial court had ordered the enhancement stricken, and it was never imposed.
The trial court stated it had reviewed the probation report, and it showed the prior prison term enhancement was based on appellant's conviction for violating section 288, subdivision (a), continuous sexual abuse of a child under the age of 14 years. The court stated the minute order from the sentencing hearing had a written interlineation that the prior prison term enhancement was stricken, but the abstract indicated it had been stayed. The court also reviewed this court's opinion that affirmed the judgment, and it stated the prior strike convictions were not dismissed and appellant was sentenced to 25 years to life. (People v. Facio, supra, F036800.)
The probation report states appellant was convicted in 1993 of violating section "288(a)," commission of a lewd and lascivious act with a child under the age of 14 years. The original information alleged that appellant had a prior prison term enhancement based upon a conviction for violating section "288.5," continuous sexual abuse of a child. The first amended information alleged appellant had two prior strikes but did not allege a prior prison term enhancement. There are no other charging documents in the instant record. The minute order and abstract clearly reflect that a prior prison term enhancement was found true, but the record does not contain direct evidence of the prior conviction underlying the section 667.5, subdivision (b) enhancement. In any event, appellant would have been ineligible for resentencing under section 1172.75, subdivision (a) if the underlying prior conviction for the enhancement was either a violation of section 288, subdivision (a) or section 288.5. (Welf. & Inst. Code, § 6600, subd. (b).)
The trial court stated it was "satisfied" that appellant's prior prison term enhancement was stricken at the sentencing hearing, it was never imposed or stayed, and he was not eligible for resentencing. The court took the matter off calendar.
On January 5, 2023, appellant filed a timely notice of appeal from the "[d]enial of re-sentencing pursuant to ... section 1172.75."
On or about March 20, 2023, while this appeal was pending, appellate counsel sent a letter to the trial court, summarizing the discussion at the November 16, 2022, hearing about the error in the abstract of judgment. Counsel requested correction of the abstract consistent with the reporter's transcript, to reflect the prior prison term enhancement was stricken and not stayed. On March 23, 2023, the trial court filed the amended abstract of judgment to reflect appellant was sentenced to 25 years to life, and the prior prison term enhancement was not imposed.
DISCUSSION
As noted above, appellate counsel filed a brief with this court pursuant to Delgadillo and Wende. The brief also included counsel's declaration that appellant was advised he could file his own brief with this court. This court sent appellant an order that, pursuant to Delgadillo, the appeal would be dismissed as abandoned if he failed to submit a letter brief within 30 days.
On May 31, 2023, appellant filed a letter with this court in response to our order. In his letter, appellant stated that he did not contest his conviction, regretted his irresponsible and immature behavior, took full responsibility for his crime, and believed his sentence was fair. Appellant further stated he had been in prison for 24 years, had done a lot of work for rehabilitation, and asked this court to "have my case fully reviewed" for possible correction of his sentence.
The instant appeal is from the trial court's determination that appellant was not eligible for resentencing pursuant to section 1172.75.
"Prior to January 1, 2020, section 667.5, subdivision (b) required trial courts to impose a one-year sentence enhancement for each true finding on an allegation the defendant had served a separate prior prison term and had not remained free of custody for at least five years. [Citation.] Effective January 1, 2020, Senate Bill No. 136 ... amended section 667.5 by limiting the prior prison term enhancement to only prior terms for sexually violent offenses. [Citations.] Enhancements based on prior prison terms served for other offenses became legally invalid. [Citation.] The amendment was to be applied retroactively to all cases not yet final on January 1, 2020." (People v. Burgess (2022) 86 Cal.App.5th 375, 379-380 (Burgess).)
"Later, in 2021, the Legislature enacted Senate Bill No. 483 .... This bill sought to make the changes implemented by Senate Bill 136 retroactive. [Citation.] It took effect on January 1, 2022, and added former section 1171.1, now section 1172.75, to the Penal Code." (Burgess, supra, 86 Cal.App.5th at p. 380.)
As previously explained, "[s]ection 1172.75 states that '[a]ny sentence enhancement that was imposed prior to January 1, 2020, pursuant to subdivision (b) of [s]ection 667.5, except for any enhancement imposed for a prior conviction for a sexually violent offense ... is legally invalid.' [Citation.] The statute further establishes a mechanism to provide affected defendants a remedy for those legally invalid enhancements. Subdivision (b) of section 1172.5 directs the Secretary of the ... []CDCR[] and the correctional administrator of each county to 'identify those persons in their custody currently serving a term for a judgment that includes an enhancement described in subdivision (a) and ... provide the name of each person, along with the person's date of birth and the relevant case number or docket number, to the sentencing court that imposed the enhancement.' [Citation.] The statute provides this is to be done in two groups. First, '[b]y March 1, 2022, for individuals who have served their base term and any other enhancements and are currently serving a sentence based on the [affected] enhancement.' [Citation.] And second, '[b]y July 1, 2022, for all other individuals.'" (Burgess, supra, 86 Cal.App.5th at p. 380.)
"After the trial court receives from the CDCR and county correctional administrator the information included in subdivision (b) of section 1172.5, 'the court shall review the judgment and verify that the current judgment includes a sentencing enhancement described in subdivision (a),' and if so, 'recall the sentence and resentence the defendant.' [Citation.] This part of section 1172.75 also divides relief into two parts. Specifically, the review and resentencing shall be completed '[b]y October 1, 2022, for individuals who have served their base term and any other enhancement and are currently serving a sentence based on the [affected] enhancement' [citation] and '[b]y December 31, 2023, for all other individuals.'" (Burgess, supra, 86 Cal.App.5th at pp. 380-381.)
In Burgess, the defendant filed his own motion under section 1172.75 for the trial court to recall his sentence and dismiss his prior prison term enhancement. The court denied the motion and held it did not have statutory authority to recall the sentence on its own motion. (Burgess, supra, 86 Cal.App.5th at pp. 378-379.) Burgess agreed the trial court "lacked jurisdiction to adjudicate [the defendant's] motion for resentencing," and further held the appellate court "lack[ed] jurisdiction over his appeal from the motion's denial." (Id. at p. 382.) Burgess held that even if considered on the merits, defendant's appeal lacked merit because "section 1172.75 provides deadlines for the CDCR Secretary and the courts to comply with its provisions" and "simply does not contemplate resentencing relief initiated by any individual defendant's petition or motion," and dismissed the appeal. (Burgess, supra, 86 Cal.App.5th at pp. 382-384, 385.)
B. Analysis
As to the proceedings in this case, it is unclear from the record whether the CDCR initiated the trial court's hearing under section 1172.75, based on the erroneous notation in the original abstract of judgment that the prior prison term enhancement had been imposed and stayed, or if appellant filed a motion or petition for resentencing to strike the enhancement as was done in Burgess. Given the lack of clarity on this point, we decline to dismiss this appeal.
As to the merits, however, the record supports the trial court's finding that, based on the reporter's transcript of the sentencing hearing in 2000, the section 667.5, subdivision (b) prior prison term enhancement was stricken and never imposed. As a result, even if this matter was placed on calendar as a result of a CDCR notice consistent with section 1172.75, subdivision (b), appellant was not entitled to resentencing and the court correctly declined to do so.
Finally, even if the trial court had imposed and stayed the prior prison term enhancement at the sentencing hearing in 2000, appellant was legally ineligible for resentencing because the record strongly implies the enhancement was based on a prior conviction for violating either section 288, subdivision (a) or section 288.5, both of which are sexually violent offenses as defined in Welfare and Institutions Code section 6600, subdivision (b). (§ 1172.75, subd. (a)).
After independent review of the record, we find that no reasonably arguable factual or legal issues exist.
DISPOSITION
The court's order of November 16, 2022, finding that appellant was ineligible for resentencing under section 1172.75, is affirmed.
[*] Before Hill, P. J., Levy, J. and Franson, J.