Opinion
F083604
09-15-2022
THE PEOPLE, Plaintiff and Respondent, v. GERARDO MENDOZA GONZALEZ, Defendant and Appellant.
Jill M. Klein, 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, Louis M. Vasquez, Kari Mueller, Amanda D. Cary, and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. LF011593A. John W. Lua, Judge.
Jill M. Klein, 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, Louis M. Vasquez, Kari Mueller, Amanda D. Cary, and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
Gerardo Mendoza Gonzalez appeals from a judgment pronounced after this court previously ordered a new sentencing hearing. (People v. Gonzalez (Feb. 27, 2020, F077226) [nonpub. opn.].) He now raises three claims. One, the trial court erred in imposing five-year serious felony enhancements (Pen. Code, § 667, subd. (a)). Two, recently enacted Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731, §§ 13) (SB 567) warrants a new sentencing hearing. Three, the abstract of judgment should accurately reflect custody credits.
Undesignated statutory references are to the Penal Code.
We agree SB 567 justifies a new sentencing hearing in this case. Accordingly, we need not address the remaining points but will remind the trial court to properly calculate custody credits.
Gonzalez filed a request to judicially notice records in the prior appeal. Finding those records unnecessary to resolve the appeal, we will deny the request in the disposition.
BACKGROUND
Charges
The Kern County District Attorney charged Gonzalez with committing four crimes: assault with a deadly weapon (§ 245, subd. (a)(1); Count 1), assault with a deadly weapon (§ 245, subd. (a)(1); Count 2), burglary (§ 460; Count 3), and aggravated mayhem (§ 205; Count 4). The charges included several enhancements for prior convictions (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e), 667, subd. (a), &667.5, subd. (b)).
Trial Evidence
In the prior appeal we summarized the facts as follows: "Gonzalez attacked his sister's boyfriend, the victim. The attack began inside the sister's residence. After bloodying the victim inside, Gonzalez dragged the victim outside. The beating continued.
"While assaulting the victim outside, Gonzalez announced, 'I'm gonna [sic] eat him alive.' Gonzalez was speaking quite literally and actually bit off part of his nose." Verdict
The jury acquitted Gonzalez on Counts 1, 2, and 3. It found him guilty of felony assault (§ 245, subd. (a)(4)), a lesser included offense to Count 1. It also found him guilty of aggravated mayhem (Count 4). The judge separately found true various prior convictions including the section 667, subdivision (a) and section 667.5, subdivision (b) allegations.
Prior Opinion
We ordered the court to strike the section 667.5, subdivision (b) enhancements pursuant to a postsentencing amendment to the law. We also ordered a new sentencing hearing.
See Senate Bill No. 136 (2019-2020 Reg Sess.) (Stats. 2019, ch. 590, § 1).
Original Sentencing Hearing
At the original sentencing hearing, the court found the following factors in aggravation:
"[T]he defendant was armed with and used a weapon at the time of the commission of the crime. Even though he was found not guilty of the substantive charge that would require the use of that weapon, he was found guilty of a lesser-included offense in that regard, to wit: Force likely.
"The defendant did engage in violent conduct which indicated a serious danger to society based on circumstances of the offense and his prior criminal history.
"His prior convictions as an adult and sustained petitions in juvenile delinquency proceedings are numerous.
"He has served a prior prison term and a California Youth Authority commitment not being used to enhance this case.
"He was on parole and misdemeanor probation when this crime was committed in 2017, and his prior performance on probation and parole have been unsatisfactory in that he has violated terms and subsequently reoffended."
The court then imposed an upper term sentence on the assault with force likely conviction (lesser included offense to Count 1). The sentence was ordered to run consecutive to a life sentence imposed on Count 4 (aggravated mayhem).
Sentencing Hearing After Original Appeal
At the latest sentencing hearing, the court addressed only the section 667.5, subdivision (b) and section 667, subdivision (a) enhancements. It struck the section 667.5, subdivision (b) enhancements but left the section 667, subdivision (a) enhancements in place. The resulting sentence was 19 years to life on Count 4, plus 16 years for the assault conviction.
DISCUSSION
SB 567, enacted after the sentencing hearing in this case, recently amended Penal Code section 1170. As relevant, it now reads:
"(2) 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. Except where evidence supporting an aggravating circumstance is admissible to prove or defend against the charged offense or enhancement at trial, or it is otherwise authorized by law, upon request of a defendant, trial on the circumstances in aggravation alleged in the indictment or information shall be bifurcated from the trial of charges and enhancements. The jury shall not be informed of the bifurcated allegations until there has been a conviction of a felony offense." (Pen. Code, § 1170, subd. (b)(2).)
There is no doubt this amendment applies retroactively to this case. (People v. Lopez (2022) 78 Cal.App.5th 459, 465.)
The parties agree SB 567 applies retroactively in this case.
There is also no doubt the sentencing hearing in this case did not comply with SB 567. The sentencing court found as an aggravating factor the fact Gonzalez "used a weapon at the time of the commission of the crime." In so finding, the court did not conduct a separate trial nor did it apply the beyond-a-reasonable-doubt standard mandated by SB 567. The jury, of course, acquitted Gonzalez on both counts of assault with a deadly weapon.
The alleged weapons were a "concrete rock" and a "metal pole . . .." We acknowledge the jury's acquittal on these charges is not tantamount to a finding Gonzalez did not use a weapon. Our holding does not preclude the possibility a hearing on remand in compliance with SB 567 may result in a beyond-a-reasonable-doubt finding Gonzalez used a weapon.
Under "such circumstances, ... 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 discretion.'" (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) We see no clear indication in the record. (People v. Wandry (2022) 80 Cal.App.5th 962, 983 [remand appropriate where "speculation would necessarily be required . . . to conclude . . . the trial court would have exercised its sentencing discretion in the same way if it had taken the [section 1170, subdivision (b)(2)] presumption in favor of the middle term into account."].)
Accordingly, we will vacate the sentence and order a new sentencing hearing. After pronouncing judgment, the trial court should ensure the abstract of judgment properly reflects custody credits. (§ 2900.1.)
As noted, Gonzalez argues the court erred in imposing the section 667, subdivision (a) enhancements. This claim is moot as Gonzalez may present it in the trial court after remand.
DISPOSITION
The request for judicial notice filed on August 1, 2022, is denied.
The sentence is vacated and the matter remanded for a new sentencing hearing in compliance with SB 567 and all other laws in effect at the sentencing hearing. The judgment is otherwise affirmed.
[*] Before Smith, Acting P. J., Meehan, J. and Snauffer, J.