Opinion
G056876 G056895
02-06-2020
THE PEOPLE, Plaintiff and Respondent, v. ENRIQUE GUERRERO, Defendant and Appellant.
Cathryn L. Rosciam, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. 16CF2953, 15WF1240) OPINION Appeal from a judgment of the Superior Court of Orange County, David A. Hoffer, Judge. Judgment reversed and remanded for resentencing. Cathryn L. Rosciam, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
* * *
In 2017, a jury convicted Enrique Guerrero of being a felon in possession of a firearm, related crimes, and found true prior convictions (15WF1240; the Garden Grove case). The trial court imposed a sentence of nine years, four months. This court affirmed the judgment. (People v. Guerrero (Dec. 7, 2018, G055485) [nonpub. opn.].)
In 2018, a jury convicted Guerrero of evading an officer and related crimes (16CF2953; the Santa Ana case). Guerrero represented himself. The trial court found Guerrero committed the crimes while out on bail, and found true prior convictions. The court imposed an aggregate sentence (for both cases) of 12 years, eight months.
This is a consolidated appeal in which appointed appellate counsel raised no arguable issues. (People v. Wende (1979) 25 Cal.3d 436, 441-442 (Wende).) Guerrero filed a supplemental brief arguing the trial court denied him the tools necessary to defend himself, and other contentions.
On September 11, 2019, we filed an opinion affirming the judgment. (People v. Guerrero (Sep. 11, 2019, G056876, G056895) [nonpub. opn.].) Thereafter, Guerrero filed a motion to recall the remittitur based on a change to the law regarding prison priors. (Pen. Code, § 667.5, subd. (b).) We granted the motion, recalled the remittitur, and vacated the prior opinion.
Further undesignated statutory references will be to the Penal Code.
The judgement is reversed and remanded for resentencing.
I
FACTS AND PROCEDURAL HISTORY
On November 16, 2016, at around 2:45 p.m., Santa Ana Police Officer Weston Hadley saw a silver Toyota Camry driving 49 miles per hour on a street with a posted speed limit of 35 miles per hour. Hadley followed the Camry on his police motorcycle. Hadley turned on his emergency lights, and eventually the siren, but the Camry failed to stop. The car made a U-turn, and as it passed by Hadley going in the opposite direction, Hadley could see that Guerrero was the sole occupant and driver.
Officer Hadley made a U-turn and pursued Guerrero, who turned into a parking lot. Guerrero was driving at about 30 to 45 miles per hour. According to Hadley: "Generally, it's accepted about 15 miles an hour is considered a safe speed in a parking lot . . . ." Guerrero cut through an alley and turned onto another street. Hadley continued to pursue Guerrero, who was now driving about 50 miles per hour in a 40-mile-per-hour zone. Guerrero was moving from lane to lane "[v]ery aggressively." At one point, Guerrero pulled into oncoming traffic to pass a car.
Guerrero reached speeds between 60 and 75 miles per hour in a 40-mile-per-hour zone. For officer safety reasons, marked patrol cars began taking over as the primary units in the pursuit. Officer Trevor Stanaland was in a patrol car several car lengths behind Guerrero. Officer Connor Ahearn was in a patrol car directly behind Guerrero, who then turned into another parking lot.
Guerrero accelerated around some concrete planters in the parking lot. Guerrero crashed into the front bumper of Officer Ahearn's car, went over a concrete barrier, and continued to accelerate. Guerrero eventually drove into a dead-end area of the parking lot. As Guerrero attempted to make a three-point turn, the Camry was "rammed" by Officer Ryan Johnson, who was driving one of the 20 to 25 police vehicles that had joined in the pursuit.
Guerrero was eventually arrested. Police searched the Camry and found about 39 car registration stickers from the Department of Motor Vehicles. The entire pursuit had lasted about 14 minutes and covered approximately four miles.
Procedural History
On May 11, 2017, the prosecution filed an information charging Guerrero with evading while driving recklessly, evading a peace officer, hit and run, and possession of stolen property. (Veh. Code, §§ 2800.2, 2800.4, 20002, subd. (a); § 496, subd. (a).) The information further alleged that on the day of the alleged crimes Guerrero was out on bail in the Garden Grove case and on two San Diego County cases. (§ 12022.1, subd. (b).) The information further alleged two prior convictions: a strike prior and prison prior (both arising out of an attempted murder conviction). (§§ 667, subd. (d), 1170.12, subds. (b) & (c)(1), 664, subd. (a), 187, subd. (a), 667.5 subd. (b).)
On June 8, 2017, the trial court filed an order notifying the Sherriff's Department that Guerrero "has been provided Propria Persona status in his criminal case now pending before this Court." The court ordered that Guerrero "shall be provided" certain pro per privileges in jail to include office supplies, telephone privileges, and library privileges. The order stated: "When the defendant believes that jail personnel have violated any provision of this Order, the defendant may set forth that information in writing, and forward that in writing to the captain of the jail facility . . . ." The order further stated: "After notifying the captain or his/her designee in writing, an inmate may seek action by the Court by filing . . . written notice of the complaints. The Court shall review the complaint and take whatever action is warranted including scheduling a hearing if deemed necessary."
Hereinafter referred to as "pro per."
On May 29, 2018, a jury trial began; Guerrero represented himself. During the prosecution's case-in-chief, Santa Ana Police Officers Hadley, Stanaland, Ahearn, and Johnson each testified as to what happened during the pursuit on November 16, 2016. Each officer positively identified Guerrero as the driver of the Camry. The court admitted into evidence an audio recording of the radio communications during the pursuit. Guerrero called no witnesses and did not testify.
On June 5, 2018, the jury acquitted Guerrero of the misdemeanor stolen property charge and convicted him of the remaining counts. In a bifurcated trial, the court found true the allegations that Guerrero committed the crimes while out on bail, and found true the two prior conviction allegations.
On August 17, 2018, the trial court conducted a combined sentencing hearing (on the Garden Grove and Santa Ana cases). The court declined to dismiss the strike prior. The court imposed 16 months for evading an officer with reckless driving (one-third midterm doubled). The court stayed the remaining charges. (§ 654.) The court imposed a consecutive two-year term for one out-on-bail enhancement. The court struck the other bail enhancements and the prison prior.
The court imposed an aggregate sentence of 12 years, eight months, which consisted of nine years, four months for the Garden Grove case, and a consecutive three years, four months for the Santa Ana case. The court awarded presentence custody credits of 1,736 days (868 actual and 868 conduct). The credits were based on the Garden Grove case (497 actual days and 496 conduct days), and the Santa Ana Case (371 actual days and 372 conduct days). The court additionally imposed a $300 restitution fine, stayed a parole revocation fine, imposed $120 in court services fees, and imposed a $90 conviction assessment fee. (§§ 1202.4, 1202.45, 1465.8; Govt. Code, § 70373.)
On September 28, 2018, Guerrero filed a notice of appeal (G056876). On October 5, 2018, Guerrero filed an amended notice of appeal as to the aggregate sentence (G056895). On February 5, 2019, this court consolidated the two cases.
On June 7, 2019, Guerrero's appointed appellate counsel filed an opening brief; counsel raised no arguable issues and requested that we independently review the record for error. (Wende, supra, 25 Cal.3d at pp. 441-442.) On July 11, 2019, Guerrero filed a supplemental opening brief on his own behalf.
As counsel stated, the opening brief "summarizes the proceedings and facts, and outlines some issues counsel considered, but it raises no specific contentions as grounds for relief." We commend counsel for the thoroughness of the brief. --------
II
DISCUSSION
Guerrero contends the trial court imposed excessive bail, denied him meaningful access to the tools necessary to defend himself, erred in imposing consecutive sentences, and erred in awarding presentence custody credits. Guerrero also contends a change to section 667.5, subdivision (b), requires resentencing.
1. Standards of Review
Generally, there are three standards of review on appeal: 1) de novo; 2) abuse of discretion; and 3) substantial evidence. On a pure question of law we apply a de novo standard, exercising our independent judgment with no deference to the trial court's ruling. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799.) An abuse of discretion occurs when the court has acted in an arbitrary or capricious manner, or its decision exceeds the bounds of reason. (People v. Beames (2007) 40 Cal.4th 907, 920-921.) In a substantial evidence review, we examine "the whole record in the light most favorable to the judgment to determine whether it discloses . . . evidence that is reasonable, credible, and of solid value . . . ." (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
We can only reverse a judgment when "the error complained of has resulted in a miscarriage of justice." (Cal. Const., art. VI, § 13.) Ordinarily, we apply one of two standards for assessing a miscarriage of justice or a "prejudicial error": (1) the Watson test (the defendant must show a reasonable probability that the outcome of the proceeding would have been different in the absence of the error); or (2) the Chapman test (the prosecution must show the error was harmless beyond a reasonable doubt). (See People v. Watson (1956) 46 Cal.2d 818, 836; Chapman v. California (1967) 386 U.S. 18, 24.)
2. General Legal Principles
When appointed counsel is unable to identify any arguable issues on appeal, we then independently review the record for arguable issues. (Wende, supra, 25 Cal.3d at pp. 441-442.) Generally, "an arguable issue on appeal consists of two elements. First, the issue must be one which, in counsel's professional opinion, is meritorious. That is not to say that the contention must necessarily achieve success. Rather, it must have a reasonable potential for success. Second, if successful, the issue must be such that, if resolved favorably to the appellant, the result will either be a reversal or a modification of the judgment." (People v. Johnson (1981) 123 Cal.App.3d 106, 109.)
When appellate counsel files a Wende brief, the appellant has the right to file a supplemental brief raising his or her own contentions. (Wende, supra, 25 Cal.3d at p. 440.) When "the defendant has filed supplemental contentions" and the judgment is affirmed on appeal "the appellate court necessarily must have considered and rejected those contentions." (Kelly, supra, 40 Cal.4th at p. 120.) In these situations, the "opinion must reflect the contentions and the reasons that they fail." (Ibid.)
However, "[a] written decision does not require an extended discussion of legal principles. [Citations.] Moreover, a recitation of each of the defendant's assertions will not be necessary in all cases; the purposes of the constitutional requirement [for a written decision] may in some circumstances be satisfied by a summary description of the contentions made and the reasons they fail." (Kelly, supra, 40 Cal.4th at p. 121.) That is, a written decision need not include "information or analysis beyond that necessary to apprise the reader of the contention considered and the reasons underlying that court's conclusion that the contention fails." (Id. at p. 122.)
3. Analysis
We have independently reviewed the record on appeal and find no arguable issues. Our analysis is based, in part, on the strength of the evidence. Four Santa Ana police officers described a dangerous high speed pursuit during the middle of the day. Each officer positively identified Guerrero as the driver. At one point, Guerrero crashed into a police vehicle and continued to flee. Even if we were to hypothetically identify an issue, and then resolve it in Guerrero's favor, it is not reasonable to argue that this would result in "a reversal or a modification of the judgment." (See People v. Johnson, supra, 123 Cal.App.3d at p. 109.) Thus, we affirm the judgment in all respects.
Guerrero contends the trial court imposed excessive bail and denied him meaningful access to tools in jail in order to mount a defense as a pro per litigant (generally telephone and law library privileges). As far as bail, that issue has been mooted by Guerrero's conviction and sentence. (See People v. Lowery (1983) 145 Cal.App.3d 902, 904.) As far as Guerrero's pro per privileges, the court conducted numerous hearings addressing his complaints. In those hearings the jail was represented by County Counsel. In at least one hearing, the court heard testimony from the jail's pro per liaison, Sergeant Joses Walehwa. Some of the court's rulings were in Guerrero's favor, and some were not. But we find no indication that the court acted in an arbitrary or capricious manner; therefore, we find no abuse of discretion. Further, Guerrero has not shown how any of the court's rulings regarding his pro per privileges may have prejudicially affected the outcome of the trial.
Guerrero contends the trial court erred in imposing a consecutive term for the Santa Ana case (three years, four months), rather than a concurrent term. Several months before the trial, the court offered Guerrero an opportunity to plead straight up to the court and to receive a six-year sentence, to run concurrent to the sentence in the Garden Grove case (nine years, four months). Guerrero turned down that opportunity and now contends the court later punished him for exercising his right to a trial. We disagree. A court generally has wide discretion when imposing a lawful sentence, and it can consider a defendant's early admission of guilt as a factor in mitigation. (See People v. Burg (1981) 120 Cal.App.3d 304, 306.) Here, at the time of sentencing, the court chose the midterm and struck Guerrero's prison prior, which indicates that the court did not maliciously punish him for taking the matter to trial. Again, we see no indication whatsoever that the court abused its discretion.
Finally, Guerrero contends the trial court erred by not separately awarding him pretrial custody credits as to the Santa Ana case (16CF2953), and by not separately granting him credits for time served in the Garden Grove case (15WF1240). But when a court imposes determinate sentences from separate cases, it must merge the sentences into a single aggregate term. (In re Reeves (2005) 35 Cal.4th 765, 772-773.) Here, the court lawfully imposed an aggregate prison term of 12 years, eight months, lawfully awarded Guerrero 1,736 days of pretrial custody credits, and then properly applied those credits against the aggregate sentence. (See § 2900.5, subd. (b) ["Credit shall be given only once for a single period of custody attributable to multiple offenses for which a consecutive sentence is imposed"].)
4. Prison Priors
Effective January 1, 2020, the Legislature approved Senate Bill No. 136, approved by the Governor on October 8, 2019 (2019-2020 Reg. Sess.) ch. 590, § 1. The change in the law generally eliminates the one-year sentencing enhancement for a defendant who has served a prior prison term within five years (there is an exception for sexually violent prior offenses). (§ 667.5, subd. (b).)
Here, in the consolidated sentence, the trial court imposed two one-year prison priors for crimes that were not sexually violent offenses (two years total). Guerrero contends that the statute is ameliorative and applies retroactively. (See In re Estrada (1965) 63 Cal.2d 740, 744.) The Attorney General concedes the issue and we agree. Thus, Guerrero's two prison priors are vacated.
III
DISPOSITION
The judgment is reversed and remanded for resentencing consistent with the views expressed in this opinion. In all other respects, the judgment is affirmed.
MOORE, ACTING P. J. WE CONCUR: FYBEL, J. GOETHALS, J.