Opinion
B296010
04-02-2020
THE PEOPLE, Plaintiff and Respondent, v. TINA MARIE MONSIVAIS, Defendant and Appellant.
Jerome McGuire, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, William H. Shin, Deputy Attorney General, and Idan Ivri, Acting Supervising Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. TA126401) APPEAL from an order of the Superior Court of Los Angeles County. Pat Connolly, Judge. Affirmed. Jerome McGuire, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, William H. Shin, Deputy Attorney General, and Idan Ivri, Acting Supervising Deputy Attorneys General, for Plaintiff and Respondent.
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This is another in a series of appeals and writ petitions filed by defendant and appellant Tina Marie Monsivais following her conviction by jury in February 2014, along with two codefendants, of one count of premeditated attempted murder. A gang enhancement (Pen. Code, § 186.22, subd. (b)(1)(C)) and a firearm use enhancement (§ 12022.53, subd. (e)(1)) were also found true. Defendant was sentenced to an indeterminate term of 40 years to life.
In an unpublished opinion, we affirmed defendant's conviction but reversed the firearm use enhancement and remanded for resentencing. (People v. Ifopo (Feb. 16, 2016, B255922) [nonpub. opn.].) The Supreme Court denied review.
In August 2016, the resentencing hearing was held. Defendant's counsel was present, but defendant was not present in court for the resentencing. The court struck the firearm use enhancement and imposed a sentence of 15 years to life in accordance with Penal Code section 186.22, subdivision (b)(5).
Defendant appealed her sentence. In an unpublished opinion, we affirmed. (People v. Monsivais (Dec. 6, 2017, B280865) [nonpub. opn.].) We said, "[i]t is undisputed that a defendant's failure to be present at a critical stage of [the] proceedings is not structural error and prejudice must be demonstrated to warrant reversal." (Ibid.) We held that the error in holding the resentencing hearing without defendant's presence was harmless beyond a reasonable doubt and therefore reversal was not warranted. (Ibid.) The Supreme Court denied review.
After issuance of the remittitur, defendant filed a petition for writ of habeas corpus in this court which we denied without prejudice to defendant first seeking relief in the superior court. (See, e.g., In re Steele (2004) 32 Cal.4th 682, 692-693.)
In May 2018, defendant filed a petition for writ of habeas corpus in the superior court requesting a new sentencing hearing so she could be present in court at the hearing. The court requested briefing from the People. The People did not oppose defendant's request for a new sentencing hearing.
On July 9, 2018, the court, the Honorable Michael Shultz presiding, issued the following order: "The petition is granted. [Defendant's] sentence imposed on August 26, 2016, is vacated. A new sentencing hearing is ordered."
Defendant filed a new sentencing memorandum with the court, urging the court to strike the gang enhancement because defendant had a minimal criminal record prior to the charged offense and her involvement in the attempted murder was "relatively limited," and requesting a sentence of seven years to life.
The new sentencing hearing took place on February 19, 2019. Defendant and her two attorneys were present in court.
The court, the Honorable Patrick Connolly presiding, advised counsel it had "reviewed everything . . . I believe ten volumes from the AG's office. I have read the preliminary hearing. I have read all the motions. I've read . . . the appeals. So I believe I have gone through this as thoroughly as I possibly could." The court allowed the parties to argue and then discussed, at relative length, the evidence it found to be compelling support for the judgment. The court said it did not think it "would be doing justice . . . to dismiss the gang allegation" and ordered "no change in the sentence." The court also stated the habeas petition was denied—a point reiterated in the February 19, 2019 minute order.
Defendant filed a notice of appeal.
Defendant appeals from the trial court's order of February 19, 2019. In denying defendant a reduction in the sentence, the trial court also mistakenly stated it was denying her petition for writ of habeas corpus. Ordinarily, a denial of a habeas petition in the superior court is not an appealable order but rather, requires the filing of a habeas petition in the appellate court. (See, e.g., People v. Garrett (1998) 67 Cal.App.4th 1419, 1423.)
However, the trial court simply misspoke. The habeas petition had previously been granted in July 2018 by a different judge, vacating defendant's sentence and setting a new sentencing hearing so defendant could be present in court with counsel. On February 19, 2019, the court held the new sentencing hearing. In preparation for the hearing, the court read the entire trial court and appellate record in order to be fully informed. The court entertained at length defendant's request to strike the gang allegation and impose a reduced sentence instead of imposing 15 years to life pursuant to Penal Code section 186.22, subdivision (b)(5). The trial court declined to do so and imposed a sentence of 15 years to life. We conclude the February 19, 2019 order from the sentencing hearing was an appealable postjudgment order under section 1237, subdivision (b).
In July 2016, our Supreme Court concluded that trial courts have the discretion to strike a gang enhancement under Penal Code section 1385, subdivision (a), and are not constrained by the more limited grounds set forth in section 186.22, subdivision (g). (People v. Fuentes (2016) 1 Cal.5th 218, 222.) We review such rulings for abuse of discretion. (See, e.g., People v. Carmony (2004) 33 Cal.4th 367, 374-375.)
Defendant has not met her burden of showing the court acted capriciously or outside the bounds of applicable law in refusing to strike the gang enhancement under Penal Code section 1385. There is no indication in the record the trial court misunderstood the scope of its discretion. The court engaged in a thorough discussion of the evidence with counsel, noting the evidence it found compelling regarding defendant's role in aiding and abetting the attempted murder and ultimately concluding it was not in the interests of justice to strike the gang allegation.
DISPOSITION
The judgment of conviction is affirmed.
GRIMES, J.
WE CONCUR:
BIGELOW, P. J.
WILEY, J.