Opinion
B315669
11-21-2022
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER RANGEL ALVARA et al., Defendants and Appellants.
Robert Derham, under appointment by the Court of Appeal, for Defendant and Appellant Christopher Rangel Alvara. David Andreasen, under appointment by the Court of Appeal, for Defendant and Appellant Matthew John Miller. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Kenneth C. Byrne and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. NA093430, James D. Otto, Judge. Reversed and remanded.
Robert Derham, under appointment by the Court of Appeal, for Defendant and Appellant Christopher Rangel Alvara.
David Andreasen, under appointment by the Court of Appeal, for Defendant and Appellant Matthew John Miller.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Kenneth C. Byrne and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ, J.
Defendants and appellants Christopher Rangel Alvara and Matthew John Miller appeal from the order denying their petitions filed pursuant to Penal Code former section 1170.95 (now § 1172.6). Each defendant contends that the trial court erred in summarily denying his petition without an evidentiary hearing after finding that he failed to make a prima facie showing of eligibility under that statute. We agree, reverse the orders, and remand with directions to the trial court to issue an order to show cause and hold an evidentiary hearing.
Effective June 30, 2022, Penal Code section 1170.95 was renumbered section 1172.6, with no significant change in text. (Stats. 2022, ch. 58, § 10.) All further statutory references are to the Penal Code, unless otherwise indicated.
Miller further contends that the trial court's oral imposition of fines and fees was inadequate and that the court's minutes and the abstract of judgment contained $36,000 for an unauthorized fine with penalty assessments. The People agree that the matter should be remanded for clarification and agree that the $36,000 was not part of the court's oral pronouncement. We strike the unauthorized fine and penalty assessments with conditional directions to the trial court on remand to amend the judgment by setting forth the statutory bases for the orally pronounced assessments.
BACKGROUND
In 2013 Alvara and Miller were charged with murder and second degree robbery. The information alleged as a special circumstance (§ 190.2, subd. (a)(17)) that defendants committed the murder during the commission of a robbery. A jury convicted both defendants of second degree murder, found not true the robbery-murder special-circumstance allegation, convicted Miller of robbery, and acquitted Alvara of robbery. On January 17, 2014, Alvara was sentenced to 15 years to life in prison, and Miller was sentenced to a prison term of 20 years to life. We affirmed both judgments in People v. Alvara (May 20, 2015, B253959) (nonpub. opn.).
At defendants' request, we have taken judicial notice of the original trial transcripts and summarize the evidence from those transcripts, rather than from our prior opinion affirming the judgments against defendants in People v. Alvara, supra, B253959.
Mylon Waggoner decided to move to San Francisco. Carrying a backpack and a suitcase, he took a bus to retrieve his belongings from a sober living home for sex offenders in Long Beach, managed by Dennis Thomas, who allowed him to store some of his belongings in the garage. On April 4, 2011, Waggoner contacted Thomas to arrange retrieval of his things the next morning. Waggoner told Thomas that he would be across the street from the sober living home near a storage facility, where he intended to "kick back" behind a tree. When Thomas arrived the next morning, he saw police surrounding a bus bench where Waggoner had been found dead with 10 stab wounds and several cuts and bruises. Waggoner's backpack was missing and never recovered.
No witnesses to the assault on Waggoner were ever found, but two people who lived nearby described what they saw and heard during the night. Eduardo Lorenzo looked out a window and saw two men arguing face to face and two other men at the corner. Though he identified one of the men as Waggoner wearing a black jacket, it was dark, and he was unable to identify the other three men. Lorenzo saw Waggoner get up from the ground and walk toward two men saying, "What's up, guys, what's up, guys." Waggoner did not appear to be hurt. Carrying the suitcase, Waggoner walked to a security company car and then to a bus bench. Lorenzo approached Waggoner and asked whether he was okay, to which Waggoner replied, "I am okay, those guys jumped me," and added that those kids were crazy. Waggoner also said he was going to go to sleep and take a rest.
Between midnight and 1:00 a.m. another witness was awakened by the sound of barking and people running. He looked out his window and saw a person he later identified as Waggoner walk or run while shouting three times, "I want my backpack." Waggoner did not appear to be hurt. The witness had seen Waggoner the day before with his backpack and what the witness called a briefcase.
The deputy medical examiner who performed the autopsy on Waggoner found a total of 10 stab wounds, none of which would have been immediately fatal or incapacitating. The weapon used had both a sharp and a dull side, like a kitchen knife.
Waggoner died slowly. It is possible he remained upright and walking for a period of time, despite the wounds having caused him pain. It was not possible to determine over what period of time the wounds were inflicted, whether seconds or hours. The cause of death was the cumulative effect of three potentially fatal wounds: one to the diaphragm, one to the liver and one near the kidney, ranging from two and a half to three and a half inches deep, all which caused internal bleeding.
More than a year after the murder, Detectives Peter Lackovic and Hugo Cortes received information causing them to suspect defendants of the crime. They prepared a criminal information bulletin about the murder including drawings of both defendants. In September 2012, defendants were in custody on unrelated charges. The bulletin posting was posted in the police station booking and jail areas where defendants could see it. The bulletin was intended to stimulate conversation about the murder when each defendant was placed in a cell with an informant. The jailhouse conversations were recorded and portions were played for the jury.
Miller indicated to a jail informant that he believed he would be charged with murder and did not know what to tell his family. The informant encouraged him to tell the truth. Miller replied, "Tell him we killed some [unintelligible]," and expressed concern that if he told them "they [were] trying to catch [him] up" in a murder, he would be asked who did it. The informant urged him to be honest, offered to call Miller's sister when he got out, and asked what he should say to her. Later in the conversation Miller said that he and "a couple [of] homies" were in the neighborhood and saw a "child molester" who he assumed had been kicked out of the sober living home. Miller continued: "Supposedly, I just walked up and 'hey G' [unintelligible] being an asshole . . . just socked [the man]," and a fight ensued during which the man was "whacked." When Miller picked up the man's suitcase he swung at Miller, began fighting with Miller, and knocked him out.
Miller said he heard the next day that the man died. Miller told the informant that he got "sliced" on his finger, "like somebody stuck me too," that "she" knew about it, had seen his finger, and had seen the "vato, dead" at the crime scene, but "she won't say shit." Miller indicated that there were two people with him during the fight. He described the fight, explaining: "[Unintelligible] started it. Started it with a fight .... It just popped off. It's just a random thing," and "we just ran up on some random nigger. [A]nd the next thing I know, I see the homie just crack that fool, boom." Asked who "cracked him," Miller replied, "One of the homies [unintelligible] I'm not going to say who . . . cracked his head [unintelligible].... So I picked up the suitcase." Miller said, "[H]e's stabbed, but I'm sliced." When the informant said that he had a feeling about the third person who "was with you guys," Miller said he was "like one of us dog [unintelligible] snitch on [unintelligible] fool. Trust me. I know him," adding, "Just like I know Chris, fool. I know him." Miller told the informant that they "never took nothing. The suitcase was left there. The only thing we took was a backpack. Had a vodka bottle, and an iPod. That was about it, and we threw it away. We threw it in the dumpster."
When Alvara was asked by an informant whether his homeboy was "running his mouth," Alvara said "hopefully not." The informant asked whether it was a "strap" and whether he got rid of it. Alvara replied, "[Unintelligible] filero," and said he had disposed of it. Alvara said the incident happened one block from his "pad" and that he knew the man was a pedophile, because there was no middle or elementary school in his neighborhood. Resentencing petitions
Detective Cortes explained that "filero" was a knife with just one sharp edge.
In 2018, the Legislature passed Senate Bill No. 1437 (20172018 Reg. Sess.), which amended sections 188 and 189, effective January 1, 2019. "Except as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime." (§ 188, subd. (a)(3).) Subdivision (e) of section 189 now reads: "A participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) [including robbery] in which a death occurs is liable for murder only if one of the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. [¶] (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2."
The Legislature also added former section 1170.95, which created a procedure for persons convicted of murder, but who could not be convicted under the amended law to retroactively seek relief from their convictions and resentencing. Senate Bill No. 775 (2021-2022 Reg. Sess.) (Senate Bill 775) expanded the eligibility provisions of former section 1170.95, subdivision (a)(1) now section 1172.6, subdivision (a)(1), which provides, as relevant here: "A person convicted of felony murder or murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime, . . . may file a petition with the court that sentenced the petitioner to have the petitioner's murder . . . conviction vacated and to be resentenced on any remaining counts when all of the following conditions apply: [¶] (1) A complaint, information, or indictment was filed against [him] that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine, or other theory under which malice is imputed to a person based solely on that person's participation in a crime .... [¶] (2) [He] was convicted of murder . . . following a trial .... [¶] [And] (3) [he] could not presently be convicted of murder . . . because of changes to Section 188 or 189 made effective January 1, 2019." (§ 1172.6, subd. (a).)
When a petition alleges all three conditions, the trial court is required to entertain briefing by both parties, and then it "proceeds to subdivision (c) to assess whether the petitioner has made 'a prima facie showing' for relief. (§ [1172.6], subd. (c).)" (People v. Lewis (2021) 11 Cal.5th 952, 960; see id. at p. 962 [interpreting former § 1170.95 as originally codified].) If the court determines that a prima facie showing has been made, it issues an order to show cause and then holds an evidentiary hearing pursuant to section 1172.6, subdivision (d) to determine whether to vacate the conviction and resentence the petitioner.
Here, after defendants each filed a petition for vacatur and resentencing alleging all three conditions and requesting the appointment of counsel, the trial court ordered the prosecutor to file responses, scheduled the responses and defendants' replies, and appointed counsel. After briefs were filed, a hearing on whether defendants had made a prima facie showing of the conditions for relief was held. The trial court found that, although there was a jury instruction regarding felony murder, defendants were convicted of second degree murder, and thus the only theory on which the jury could have convicted these defendants was implied malice murder, not felony murder. The court agreed with the prosecutor that because the jury returned a second degree murder verdict, the defendants were not convicted of felony murder as a matter of law. The court concluded that defendants had not made a prima facie showing and denied the petitions.
Defendants filed timely notices of appeal from the order.
DISCUSSION
I. Defendants' prima facie showing
Defendants contend that the trial court erred in finding no prima facie showing had been made and that they were thus ineligible for relief as a matter of law.
A. Standard and scope of review
"We independently review the trial court's ruling on whether the petitioner has made the requisite prima facie showing." (People v. Jenkins (2021) 70 Cal.App.5th 924, 933.) The trial court's prima facie inquiry is limited. (People v. Lewis, supra, 11 Cal.5th at p. 971.) The court must begin by taking the factual allegations of the petition as true and may not reject them on credibility grounds unless the court finds that the record of conviction refutes them as a matter of law. (Id. at pp. 971-972.) "As a matter of law" means that the record of conviction conclusively refutes the allegations of the petition without resort to factfinding, weighing of evidence, or credibility determinations. (People v. Lopez (2022) 78 Cal.App.5th 1, 14.)
The trial court here reasoned that because defendants were convicted of second degree murder, which is still a valid theory of murder after the amendments to sections 188 and 189, the jury necessarily found that defendants harbored implied malice, making defendants ineligible for relief as a matter of law. Following amendment to sections 188 and 189, second degree implied malice murder remained a valid theory of murder liability (although it may not be based upon the natural and probable consequences theory). (People v. Gentile (2020) 10 Cal.5th 830, 850-851.) However, as Alvara points out it is not enough that second degree murder in general remains a valid theory. The issue is whether the record of conviction conclusively refutes the allegation that defendants "could not presently be convicted of murder . . . because of changes to Section 188 or 189 made effective January 1, 2019." (§ 1172.6, subd. (a)(3), italics added.) We thus address defendants' assertion that the record does not conclusively show that they personally harbored malice and were not convicted of murder based solely on their participation in a crime.
B. Inadequacy of instructions
The People suggest that a finding of ineligibility for relief as a matter of law is established solely by the absence of instructions on the natural and probable consequences doctrine and second degree felony murder. They argue that, although the jury was instructed regarding first degree felony murder, the jury's verdict of second degree murder, in addition to the absence of a second degree felony-murder instruction, established that defendants were not convicted of first or second degree felony murder. Paradoxically, the People also acknowledge that Senate Bill 775 expanded former section 1170.95, subdivision (a) to permit relief if a murder conviction was based on some "other theory under which malice is imputed to a person based solely on that person's participation in a crime," and not solely on a natural and probable consequences theory or a felony murder theory. (See now § 1172.6, subd. (a)(1).) Defendants contend that ambiguous instructions, particularly CALJIC Nos. 3.00, 3.01 and 8.31, along with the prosecutor's arguments, permitted conviction based solely on their participation in a crime.
The trial court read CALJIC No. 3.00, defining principals in a crime as those who are involved in committing that crime and instructing that a principals may be the actual perpetrator of the crime or an aider and abettor and "each principal, regardless of the extent or manner of participation is equally guilty." The instruction continued: "When the crime charged is murder, the aider and abettor's guilt is determined by the combined acts of all the participants as well as that person's own mental state. [¶] If the aider and abettor's mental state is more culpable than the actual perpetrator, that person's guilt may be greater than that of the actual perpetrator. [¶] Similarly, the aider and abettor's guilt may be less than the perpetrator's, if the aider and abettor has a less culpable mental state."
The trial court read CALJIC No. 3.01: "A person aids and abets the commission of a crime when he, with knowledge of the unlawful purpose of the perpetrator, and with the intent or purpose of committing or encouraging or facilitating the commission of the crime, and by act or advice aids, promotes, encourages or instigates the commission of the crime. [¶] A person who aids and abets the commission of a crime need not be present at the scene of the crime. Mere presence at the scene of a crime which does not itself assist the commission of the crime does not amount to aiding and abetting. [¶] Mere knowledge that a crime is being committed and the failure to prevent it does not amount to aiding and abetting."
The trial court also read CALJIC No. 8.30, defining second degree express malice murder as "the unlawful killing of a human being with malice aforethought when the perpetrator intended unlawfully to kill a human being but the evidence is insufficient to prove deliberation and premeditation. [¶] This is express malice murder." (Italics added.) Immediately following this instruction, the trial court read CALJIC No. 8.31, defining implied malice second degree murder as follows: "Murder of the second degree is also the unlawful killing of a human being when the killing resulted from an intentional act, the natural consequences of the act are dangerous to human life, and the act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life. [¶] When the killing is the direct result of such an intentional act it is not necessary to prove that the defendant intended that the act would result in the death of a human being. [¶] This is implied malice murder."
Defendants rely on the facts and reasoning of People v. Langi (2022) 73 Cal.App.5th 972 (Langi), which found that instructions similar to those given here do not adequately explain the elements of direct aiding and abetting second degree murder. As here, Langi involved an appeal from the summary denial of the defendant's former section 1170.95 petition at the prima facie stage. In opposing the petition the prosecution in Langi took a position similar to the one the People advance here, arguing "that the jury cannot have found him guilty under the natural and probable consequences doctrine because the court gave no instruction framed in terms of that doctrine," and "that the jury could not have found appellant guilty on a 'theory under which malice is imputed to a person based solely on that person's participation in a crime' because it was 'instructed that to convict appellant of murder it had to find that he acted with implied malice.'" (Langi, supra, at p. 981 &fn. 9.)
Similar to the instructions given here, the Langi trial court read CALJIC Nos. 8.31 and 3.01, which the appellate court found inadequate because, "CALJIC No. 8.31 state[d] that the perpetrator must have acted with conscious disregard for human life, [while] the definition of an aider and abettor in CALJIC No. 3.01 does not include the same requirement. Thus, under the instructions that were given, the jury was entitled to conclude that, to be guilty as an aider and abettor of second degree murder, appellant need only have intended to encourage the perpetrator's intentional act [of punching the victim] whether or not appellant intended to aid or encourage [the] killing, and whether or not he personally knew of and disregarded the risk of such a killing." (Langi, supra, 73 Cal.App.5th at p. 983.) The Langi court noted that "[t]he likelihood of such a misunderstanding is increased by the statement in CALJIC No. 3.31, also given to the jury, that 'there must exist a union or joint operation of act or conduct and a certain specific intent in the mind of the perpetrator,' with no mention of the mind of an aider and abettor." (Id. at p. 983, fn. 11.)
As in Langi, the trial court here read CALJIC Nos. 3.31, 8.31 and 3.01, which could have caused similar misunderstandings in the minds of jurors. The People reject Langi as distinguishable on its facts as no weapons were used in that case. In Langi, the defendant and three companions attacked four people with fists and kicks when the defendant or one of his companions suddenly punched one of the victims in the face, causing him to fall backward and hit his head on the curb, which inflicted the fatal injury. (Langi, supra, 73 Cal.App.5th at p. 976.) We find Langi's reasoning persuasive. Both here and in Langi, the evidence did not conclusively identify the actual perpetrator. Furthermore, although a weapon was used in this case, the evidence failed to conclusively establish who used the knife and whether either defendant knew before or during the attack that the actual perpetrator had a knife that he intended to use.
The Court of Appeal quoted the summarized facts stated in its previous opinion, affirming Langi's judgment, but noted that although the summary suggested that Langi was the actual perpetrator, the trial evidence did not support such a conclusion. The actual perpetrator was not identified, and the actual perpetrator's identity was not necessary to the outcome of that appeal. (See Langi, supra, 73 Cal.App.5th at pp. 976, 980.)
Langi relied on the clarification in People v. Powell (2021) 63 Cal.App.5th 689 of the precise elements of directly aiding and abetting a second degree implied malice murder; and the court noted Powell's observation that the unmodified standard instruction on aiding and abetting fails to convey those elements. (Langi, supra, 73 Cal.App.5th at p. 982, fn. 10, citing Powell, supra, at pp. 712-714.) Appropriate instructions regarding aiding and abetting implied malice murder tell the jury that the aider and abettor must have knowledge before or during the fatal crime that the perpetrator intended to commit the act that caused death, that the act was dangerous to human life, that the aider and abettor intended to aid the perpetrator in the commission of that act, and that he aided and abetted the perpetrator in committing the act with a conscious disregard for human life. (Powell, supra, at pp. 712-714.)
Here, the trial court instructed that the aider and abettor's mental state may be more culpable or less culpable than that of the actual perpetrator, but also instructed that all persons involved in committing a crime are principals in that crime and all are equally guilty regardless of the extent or manner of his participation. (CALJIC No. 3.00.) The jurors were also instructed that "[w]hen the crime charged is murder, the aider and abettor's guilt is determined by the combined acts of all the participants as well as that person's own mental state." (CALJIC No. 3.00.) CALJIC Nos. 8.11 and 8.31 describe the mental state of the person who commits the fatal act, but there was no instruction defining the specific mental state of the aider and abettor of implied malice murder. Indeed, CALJIC No. 8.11 instructs that no other mental state need be shown. The jury could very well have understood these instructions to mean that so long as defendants participated in a crime during which an unknown perpetrator committed a fatal act with the mental state of implied malice, they were equally guilty of committing the fatal act. In other words, the instructions "permitted the jury to impute malice to [defendants] based solely on [their] participation in a crime, without having to find that [they] personally acted with malice." (Langi, supra, 73 Cal.App.5th at p. 981.)
As Alvara asserts, any misunderstanding could easily have been exacerbated by the prosecutor's final arguments, such as incorporating ambiguous instructions to argue that all those who are involved in committing a crime are principals and each principal is equally guilty, and aiders and abettors "whether it be in the beating, the fighting, the chunking . . ., the taking, the robbing of the backpack and the stabbing of Mr. Waggoner, [a]ll of those individuals are equally guilty."
Thus we agree with defendants that the instructions may have permitted the jury to convict them of second degree murder as aiders and abettors based solely upon participation in the beating of Waggoner without regard to each defendant's own mental state. The record thus does not conclusively establish that defendants could be convicted of murder under current law. (See § 188, subd. (a)(3).) We conclude that since the record did not conclusively refute the allegations of defendants' petitions, they have made the prima facie showing necessary to require the trial court to issue an order to show cause and proceed pursuant to subdivision (d) of section 1172.6. (See § 1172.6, subd. (c).)
II. Fines, fees, and other assessments
Miller challenges the assessments imposed by the trial court at sentencing due to inconsistencies between the oral pronouncement, the minute order and the abstract of judgment, as well as a failure to specify statutory bases for the assessments. He asks that the matter be remanded for full resentencing.
The sentencing court is required to specify in its oral pronouncement the statutory bases for the fine, fees, and penalty assessments imposed. (People v. Hartley (2016) 248 Cal.App.4th 620, 636.) "The oral imposition of sentence constitutes the judgment in an action, and the minutes cannot add anything substantive to the oral pronouncement. [Citations.] Generally, the oral pronouncement controls if there is a discrepancy, and the court clerk lacks the authority to add fines or fees not imposed by the trial court. [Citation.] 'The clerk cannot supplement the judgment the court actually pronounced by adding a provision to the minute order and the abstract of judgment. [Citation.] . . . [T]he clerk's minutes must accurately reflect what occurred at the [sentencing] hearing.' [Citation.] If the clerk includes fines in the court's minutes or the abstract of judgment that were not part of the oral pronouncement of sentence, those fines must be stricken from the minutes and the abstract of judgment." (People v. Bongani El (2021) 65 Cal.App.5th 963, 967.)
Here, the trial court orally pronounced the fines and other assessments as follows: "Ten thousand dollar penal fine. Ten thousand dollar restitution fine, $30, $40 and booking fees to be paid."
The minute order lists the following assessments: "$40.00 court operations assessment (pursuant to 1465.8(A)(1) P.C.) [¶] $30.00 criminal conviction assessment (pursuant to 70373 G.C.) [¶] -Commitment issued. [¶] Total due: $70." The minute order then states: "Court orders and findings: [¶] -The defendant is ordered to pay the penal fine of $10,000 plus penalty assessment of $26,000 for a total of $36,000. [¶] -The defendant is to pay a restitution fine pursuant to section 1202.4(B) Penal Code in the amount of $10,000. [¶] -The defendant is to pay a parole/postrelease community supervision/mandatory supervision restitution fine pursuant to section 1202.45 Penal Code in the amount of $10,000[.] Said fine is ordered stayed unless parole, postrelease community supervision or mandatory supervision is revoked."
The abstract of judgment indicates a $10,000 penal fine in addition to a $10,000 restitution fine pursuant to section 1202.4, subdivision (b) and a stayed $10,000 parole revocation restitution fine pursuant to section 1202.45, in addition to the $40 court operations assessment and $30 criminal conviction assessment pursuant to section 1465.8, subdivision (a)(1) and Government Code section 70373 respectively.
The trial court failed to specify any statutory basis for the fines and other assessments imposed, imposed only two fines, not three, and did not orally impose any penalty assessments. We found no statute defining "penal fine," and it appears to be a generic term which the court did not explain. The People argue that statutory bases of the fines and fees, other than the $36,000 fine and penalty assessments, can easily be deduced and thus no remand is required to clarify them. However, they do not object to having the trial court identify the statutory bases, because remand is required to clarify the $36,000 in any event. The People also note that Alvara's sentence suffered the identical errors and thus this issue should apply equally to his sentencing.
We agree that the matter should be remanded for the trial court to explain the statutory bases of the sentence orally pronounced. We thus reverse the sentence and remand for that purpose; however, as the trial court did not orally impose a third $10,000 fine or any penalty assessments, whether in the amount of $36,000 or any other amount, we strike them from the minutes and the abstract of judgment. (See People v. Bongani El, supra, 65 Cal.App.5th at p. 967; People v. Hartley, supra, 248 Cal.App.4th at p. 637; People v. High (2004) 119 Cal.App.4th 1192, 1200.) As Alvara has joined in Miller's arguments, we will do as the People suggest and make the same orders as to Alvara's sentence.
We are cognizant that it might be premature to order resentencing to explain the statutory bases of the fees and fines immediately upon remand, as we reverse the order denying defendants' former section 1170.95 petitions and remand for the issuance of an order to show cause and evidentiary hearing. If the trial court grants either petition for vacatur and resentencing, the affected defendant will be entitled to a full resentencing hearing. (See People v. Buycks (2018) 5 Cal.5th 857, 893.) This could render moot the issue presented in this section of our discussion. We will thus reverse the sentence and leave to the sound discretion of the trial court the timing of amending the judgment in accordance with the views expressed here regarding fines and other assessments.
DISPOSITION
The order denying defendants' former section 1170.95 petitions are reversed, defendants' sentences are vacated, and the fine plus penalty assessments totaling $36,000 are stricken from the court's minutes and abstracts of judgment. The matter is remanded to the superior court with directions to issue an order to show cause pursuant to section 1172.6, subdivision (c) and to hold an evidentiary hearing pursuant to section 1172.6, subdivision (d). If either petition is denied after hearing and the original sentence is reinstated, the court is directed to enter an amended judgment as to the affected defendant setting forth the statutory basis for each fine and assessment chosen by the court. For each judgment so amended, the trial court shall file amended minutes, and an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation.
We concur: LUI, P. J., HOFFSTADT, J.