Opinion
B334404
03-12-2025
THE PEOPLE, Plaintiff and Respondent, v. NICK BUSTAMANTE, Defendant and Appellant.
Mi Kim, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Zee Rodriguez and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. NA084561, Tomson T. Ong, Judge. Reversed.
Mi Kim, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Zee Rodriguez and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
WEINGART, J.
The Three Strikes Reform Act of 2012 (the Reform Act or the Act; Prop. 36, as approved by voters, Gen. Elec. (Nov. 6, 2012)) amended the three strikes sentencing system so that, in most circumstances, a defendant convicted of a felony after having suffered two prior serious or violent felony convictions is subject to a "third strike" indeterminate sentence of at least 25 years to life only if the defendant's new offense is itself a serious or violent felony. The Reform Act also created a mechanism for defendants already serving third-strike sentences for nonserious, nonviolent felonies to have their sentences reduced, but only if the trial court finds that such a resentencing would not "pose an unreasonable risk of danger to public safety." (Pen. Code, § 1170.126, subd. (f).) The Act may be amended by the Legislature, but only upon a vote of at least two-thirds the membership of both houses. (Prop. 36, supra, § 11(a).)
Unless otherwise specified, subsequent statutory references are to the Penal Code.
In 2021, the Legislature enacted Senate Bill No. 483 (20212022 Reg. Sess.) (Senate Bill 483) (Stats. 2021, ch. 728) without two-thirds support from both houses. The law created section 1172.75, which provides a process for resentencing inmates whose sentences include enhancements for prior prison terms under section 667.5, subdivision (b) that are no longer valid. (See Stats. 2021, ch. 728, § 3.) "By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly 'invalid' enhancements." (People v. Monroe (2022) 85 Cal.App.5th 393, 402.) If this full resentencing requires that the court apply the revised penalty provisions of the Reform Act, it would mean resentencing defendants serving third-strike sentences for nonserious, nonviolent felonies to second-strike sentences regardless of whether doing so would endanger public safety, and indeed, regardless of whether a court had previously denied the defendants' petitions for resentencing under the Reform Act.
The question in this case is whether section 1172.75, so interpreted, would be an unconstitutional amendment of the Reform Act. We agree with four recent opinions that the answer is yes. (See People v. Superior Court (Williams) (2024) 102 Cal.App.5th 1242, 1250, review granted Aug. 28, 2024, S286128 (Williams); People v. Santos (2024) 100 Cal.App.5th 666, 675-677, review granted May 29, 2024, S284341; People v. Kimble (2024) 99 Cal.App.5th 746, 756, review granted Apr. 24, 2024, S284259; People v. Superior Court (Guevara) (2023) 97 Cal.App.5th 978, 986-987, review granted Mar. 12, 2024, S283305.)
Accordingly, when the trial court in this case reduced two indeterminate terms imposed for third strike nonserious, nonviolent felonies to determinate terms when resentencing defendant Nick Bustamante under section 1172.75, it imposed an unauthorized sentence. We therefore reverse the trial court's resentencing order and remand the case for a new sentencing hearing.
BACKGROUND
In 2010, a jury found Bustamante guilty of one count of being a felon in possession of a deadly weapon (former § 12020, subd. (a)(1)), one count of possessing a controlled substance (Health &Saf. Code, § 11350, subd. (a)), three counts of robbery (§ 211), and three counts of false imprisonment by violence (§ 236). Bustamante then admitted she had 16 prior strikes under the Three Strikes law, one prior serious felony, and had served four prior prison terms. Bustamante was ultimately sentenced to an aggregate term of 133 years to life. (People v. Bustamante (Dec. 23, 2011, B229098) [nonpub. opn.].)
The weapon in question was a set of metal knuckles. The statute forbidding their manufacture, import, sale, supply, or possession is now codified at section 21810.
Bustamante is a transgender woman.
Two years later, the electorate enacted the Reform Act. As stated above, the Act eliminated third strike sentencing for most defendants whose current felony offense is neither serious nor violent. (See §§ 667, subd. (e)(2)(C), 1170.12, subd. (c)(2)(C); People v. Santos, supra, 100 Cal.App.5th at pp. 672-673.) Bustamante's robbery convictions were serious and violent felonies; her drug and weapon possession convictions were not.Despite the provisions of section 1170.126, subdivision (b), it appears that Bustamante did not petition for a recall of sentence on the subset of her convictions that were not serious or violent felonies.
The false imprisonment convictions were likewise not serious or violent felonies, but at the original sentencing hearing, the trial court stayed the sentence on those convictions under section 654.
In 2022, the Department of Corrections and Rehabilitation (CDCR) determined that Bustamante might be eligible for resentencing under section 1172.75 because her sentence included three now-invalid enhancements under section 667.5, subdivision (b). Following a resentencing hearing, the court struck the three invalid enhancements under section 667.5, subdivision (b), but it also granted additional relief by reducing the sentence on the drug and weapon possession charges under the Reform Act's reduced penalty provisions. For the weapon possession offense, the court sentenced Bustamante to six years, consisting of the high term of three years (see §§ 1170, subd. (h), 21810) doubled because of her prior strikes (see §§ 667, subd. (e)(1), 1170.12, subd. (c)(1)). For the drug offense, which is now classified as a misdemeanor (Health &Saf. Code, § 11350, subd. (a)), the court imposed a sentence of six months but permanently stayed the sentence. The court reimposed three consecutive terms of 25 years to life for robbery, along with a single five-year enhancement under section 667, subdivision (a)(1) for a prior serious felony conviction. This yielded a new aggregate sentence of 86 years to life.
DISCUSSION
Bustamante appeals from the order imposing the new sentence, arguing that the trial court abused its discretion by declining to strike the five-year enhancement under section 667, subdivision (a)(1), and by deciding not to reduce her sentence further by striking her prior strikes for purposes of sentencing on the robbery counts under People v. Superior Court (Romero) (1996) 13 Cal.4th 497. She also argues that her attorney rendered ineffective assistance by failing to object to the court's decision. We find no abuse of discretion on the issues Bustamante has raised, but we conclude her sentence is unauthorized because, as we described at the outset, the court applied the reduced penalty provisions of the Reform Act in resentencing her. Because our decision requires remand for a new resentencing hearing at which Bustamante can raise issues she failed to raise before, we need not address her claim of ineffective assistance of counsel based on her attorney's failure to make certain arguments at the prior hearing.
We requested supplemental briefing on this issue, which neither party had addressed in its appellate briefing.
A. By Resentencing Bustamante on the Nonserious, Nonviolent Felony Counts, the Trial Court Imposed an Unauthorized Sentence
Under the state constitution, an initiative statute can establish whether and in what circumstances the Legislature may amend it in the future. (Williams, supra, 102 Cal.App.5th at p. 1258.) The Reform Act allows for its own amendment, but only upon a vote with at least two-thirds support of the membership of both houses. (Ibid.) Senate Bill 483 did not meet this threshold, and "[a]ccordingly, section 1172.75 would be invalid to the extent it amended" the Reform Act. (Williams, supra, at p. 1259.) A legislative act is an amendment for these purposes if it is" 'designed to change an existing initiative statute by adding or taking from it some particular provision.'" (People v. Superior Court (Pearson) (2010) 48 Cal.4th 564, 571.) Or, in other words, to determine whether a statute amends an initiative, "we simply need to ask whether it prohibits what the initiative authorizes, or authorizes what the initiative prohibits." (Ibid.)
On its face, section 1172.75 does not appear to amend the Reform Act. Its text does not mention the Act, and the remedy it provides to all defendants serving sentences that include enhancements under section 667.5, subdivision (b)-that is, to "recall the sentence and resentence the defendant" (§ 1172.75, subd. (c))-closely mirrors the relief available under section 1172.1, a statute that existed in a somewhat different form as the former subdivision (d) of section 1170 at the time of Bustamante's original sentencing. Thus, both Bustamante and the Peopleargue that section 1172.75 merely provides an additional avenue of relief for those serving third-strike sentences for nonserious, nonviolent offenses. In doing so, it does not alter anything about the Reform Act.
"[W]e are not bound by concessions made by the People in a criminal case." (People v. Kimble, supra, 99 Cal.App.5th at p. 749.) As we explain, we disagree with their position on this issue.
This argument overlooks the way the Reform Act carefully calibrated the availability of retroactive relief under the statute, and the way section 1172.75, if interpreted in the manner Bustamante and the People urge, would sweep away the Reform Act's restrictions. Under the Estrada rule, when the Legislature enacts a law that reduces the punishment for an offense," 'the amendment will operate retroactively so that the lighter punishment is imposed,'" but only for defendants whose cases are not yet final at the time the law became effective. (People v. Santos, supra, 100 Cal.App.5th at pp. 674-675, quoting In re Estrada, supra, 63 Cal.2d at p. 748.) The Reform Act overrode the Estrada rule by enacting section 1170.126, which provides the possibility of resentencing even for defendants whose cases were already final when the Reform Act was enacted. (People v. Conley (2016) 63 Cal.4th 646, 657-658; Santos, supra, at p. 675.)
In re Estrada (1965) 63 Cal.2d 740.
The Reform Act's expanded scope of retroactive application was not unlimited, however, and includes two restrictions. First, a defendant must file a petition within two years of the effective date of the law or make a showing of good cause for filing a late petition. (§ 1170.126, subd. (b).) Second, the trial court may deny relief if "in its discretion, [it] determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety." (Id., subd. (f).)
Section 1172.75 does not include the same restrictions. The statute does not require a defendant to file a petition at all, let alone by a certain deadline. And it requires resentencing regardless of an inmate's dangerousness. The statute states that "[i]f the court determines that the current judgment includes [a now invalid enhancement under section 667.5, subdivision (b)], the court shall recall the sentence and resentence the defendant." (§ 1172.75, subd. (c), italics added.) When doing so, "[t]he court shall apply the sentencing rules of the Judicial Council and apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing." (Id., subd. (d)(2), italics added.) The implication of this mandatory language is unavoidable: if the trial court determines that the defendant's sentence includes invalid enhancements under section 667.5, subdivision (b), the court must resentence the defendant and must give the defendant the benefit of any ameliorative laws enacted since the defendant's previous sentencing hearing. The issue of the defendant's dangerousness does not enter into this determination.
Indeed, courts have interpreted virtually identical language in section 1172.1 stating that courts "shall apply the sentencing rules of the Judicial Council and apply any changes in law that reduce sentences or provide for judicial discretion" (id., subd. (a)(2)) as requiring courts to give defendants the benefit of subsequent changes in the law. (People v. McMurray (2022) 76 Cal.App.5th 1035, 1041.)
To be clear, section 1172.75 includes a subdivision stating that "Resentencing pursuant to this section shall result in a lesser sentence than the one originally imposed as a result of the elimination of the repealed enhancement, unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety." (Id., subd. (d)(1).) But this provision is unlikely to have any application in most cases involving third-strike defendants. Subdivision (d)(1) of section 1172.75 creates a qualification on the longstanding principle that when a court resentences a defendant, it is "entitled to consider the entire sentencing scheme. Not limited to merely striking illegal portions, the trial court may reconsider all sentencing choices. [Citations.] . . . The trial court is entitled to rethink the entire sentence to achieve its original and presumably unchanged goal." (People v. Hill (1986) 185 Cal.App.3d 831, 834.) Under this rule, when a court is required to reduce a portion of a defendant's sentence, it may compensate by increasing other aspects of the sentence. (See id. at pp. 833-834 [when the court struck an erroneously imposed consecutive sentence, it did not err when it reduced the benefit to the defendant by ordering other concurrent terms to be served consecutively].) Section 1172.75, subdivision (d)(1) forbids the court from increasing other aspects of a defendant's sentence to completely negate the benefits of striking enhancements under section 667.5, subdivision (b) unless the court finds by clear and convincing evidence that a reduction in sentence would endanger public safety. Thus, in People v. Garcia (2024) 101 Cal.App.5th 848, the trial court struck seven one-year enhancements under section 667.5, subdivision (b), but compensated by imposing a firearm enhancement that had previously been stricken, so that the defendant's aggregate sentence of 12 years remained unchanged. (Garcia, supra, at pp. 852, 854.) The Court of Appeal affirmed the decision not to reduce the aggregate sentence, concluding that the trial court did not abuse its discretion in finding by clear and convincing evidence that a reduction in sentence would endanger public safety. (Id. at pp. 857-858.)
As the court noted in Williams, even to the extent this provision applies, it amends the Reform Act by "impos[ing] a higher evidentiary standard for a trial court to find a danger to public safety than the preponderance of the evidence standard under section 1170.126." (Williams, supra, 102 Cal.App.5th at p. 1260.)
But the court's authority under section 1172.75, subdivision (d)(1) would often prove irrelevant if the court is required to impose the reduced penalty provisions of the Reform Act, simply because the reduction from a third-strike indeterminate sentence to a second-strike sentence typically results in such a dramatic reduction that it is not possible to increase other aspects of the defendant's sentence to compensate. In this case, for example, at the original sentencing hearing, the trial court was required to impose terms of 25 years to life for all of the felony counts (see §§ 667, former subd. (e)(2)(A), 1170.12, subd. (c)(2)(A)) and was required to run them consecutively (see §§ 667, former subd. (c)(6), 1170.12, subd. (a)(6).) Nothing in the text of section 1172.75 suggests that subdivision (d)(1) places any limitation on subdivision (d)(2). Instead, they are two separate requirements that the court must follow when resentencing a defendant under the statute. If the reduced penalty provisions of the Reform Act are a "change[ ] in law that reduce[s] sentences" (§ 1172.75, subd. (d)(2)), then the court must apply those provisions when resentencing a defendant. If the court was required to do so in Bustamante's case, we do not see any way it could have increased other aspects of her sentence to come anywhere near negating the reduction in the nonserious, nonviolent felony terms if it found Bustamante continued to pose a danger to public safety. And, although the court did not say so directly, it appeared to believe Bustamante did continue to pose danger to society, noting she had 16 prior strike convictions and "had no prospect of living a crime-free life."
In Bustamante's case, whether her sentence allows for parole after 86 years or 133 years is largely academic. But in other cases, the potential difference in sentence can have immediate consequences. In Guevara, the defendant received a third-strike sentence in 2009 for felony spousal abuse, a nonserious, nonviolent felony. (People v. Superior Court (Guevara), supra, 97 Cal.App.5th at p. 982.) He petitioned for resentencing under section 1170.126, but the court denied him relief on the ground that resentencing him would pose an unreasonable risk of danger to public safety. Years later, the case again came up for resentencing under section 1172.75. The trial court "expressed its concern for public safety, but believed it was compelled by law to resentence Guevara." (Guevara, supra, at p. 983.) The court reduced Guevara's aggregate sentence from an original term of 28 years to life to only eight years or double the high term for felony spousal abuse. (Id. at pp. 981-983.) "This would [have made] Guevara eligible for imminent release" (id. at p. 983) if the Court of Appeal had not granted a writ petition to prevent the new sentence from becoming effective.
Bustamante argues that there should be no bar on reducing her sentence because she was never eligible for resentencing under section 1170.126. In a recent case where the defendant was serving indeterminate third strike sentences for three robbery convictions, People v. Rogers (2025) 108 Cal.App.5th 340, the court held that resentencing the defendant on those offenses did not conflict with section 1170.126 because the defendant "has never been eligible for relief under section 1170.126 [citations] and did not seek any application of the Reform Act's revised penalty provisions at his section 1172.75 resentencing. Instead, he requested that the trial court strike his strike priors pursuant to Romero." (Rogers, supra, at p. 363.) Because the Reform Act did not alter the court's authority under Romero, "[t]he application of . . . Romero in the instant context does not implicate the same constitutionality concerns about improper legislative amendment of the voter approved Reform Act ...." (Rogers, supra, at p. 363.)
But Bustamante was eligible for resentencing under section 1170.126. In People v. Johnson (2015) 61 Cal.4th 674, our Supreme Court held that the Reform Act "requires an inmate's eligibility for resentencing to be evaluated on a count-by-count basis." (Id. at p. 688.) Thus, a defendant like Bustamante, who is serving indeterminate sentences for serious and violent felonies as well as nonserious, nonviolent felonies, may file for relief on the latter counts even though section 1170.126 does not provide relief on the former. (Johnson, supra, at p. 688.) The record shows that the court indeed reduced Bustamante's sentence because of the Reform Act's change in sentencing on nonserious, nonviolent felonies and not, as in Rogers, because of a Romero motion or some other independent reason-indeed, the trial court here denied relief under Romero. Thus, for purposes of this analysis, Bustamante is indistinguishable from the defendants in Williams and the other cases. She is ineligible for resentencing to the same extent they were.
Bustamante and the People are correct that at the time it was enacted, the Reform Act was not unique in providing a method for resentencing defendants whose judgments were already final, including defendants serving third-strike sentences for nonserious, nonviolent offenses. But as far as we are aware, all of those other methods provided protections against reducing sentences for dangerous inmates. For example, under section 1170, former subdivision (d), the trial court gained authority to "recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if he or she had not previously been sentenced" only upon a recommendation from the secretary of the CDCR or the Board of Parole Hearings.Moreover, at the time, the court was not required to grant resentencing, or even to respond at all to a recommendation. (Dix v. Superior Court (1991) 53 Cal.3d 442, 459.) Thus, no relief could be granted unless the trial court and an authority overseeing the defendant's incarceration agreed that it was appropriate. The law has been subsequently amended to create "a presumption favoring recall and resentencing of the defendant," but even this presumption may "be overcome if a court finds the defendant currently poses an unreasonable risk of danger to public safety." (§ 1172.1, subd. (b)(2).) Similarly, under section 1170, former subdivision (e), terminally ill or permanently medically incapacitated inmates were eligible for resentencing, but only at the discretion of the court, if the court found that "[t]he conditions under which the prisoner would be released or receive treatment do not pose a threat to public safety." (§ 1170, former subd. (e)(2)(B).) Against this backdrop, it is reasonable to conclude that the electorate, in voting for the restrictions on resentencing contained in section 1170.126, intended not to allow any resentencing of third-strike defendants without a similar protection against the release of dangerous inmates.
The court could also resentence a defendant on the court's own motion, but only within 120 days of pronouncing judgment. (§ 1170, former subd. (d).)
This provision has subsequently been amended and recodified at section 1172.2, but even the amended version allows courts to deny relief in cases of "unreasonable risk of danger to public safety." (§ 1172.2, subd. (b).)
In considering whether a legislative enactment amends an initiative statute, "we must decide what the voters contemplated. '[T]he voters should get what they enacted, not more and not less.' [Citation.]" (People v. Superior Court (Pearson), supra, 48 Cal.4th at p. 571.) The first section of the Reform Act expressed the goals of imposing life sentences under the Three Strikes law "only when a defendant's current conviction is for a violent or serious crime" (Prop. 36, § 1(2)) while at the same time "[p]revent[ing] the early release of dangerous criminals" (id., § 1(5)). The trial court's discretion to deny resentencing that "would pose an unreasonable risk of danger to public safety" (§ 1170.126, subd. (f)) is a central expression of this purpose. It is a core principle that "[t]he law respects form less than substance." (Civ. Code, § 3528.) In form, section 1172.75 has little to do with the resentencing rules set forth in section 1170.126. Yet in substance, if section 1172.75 allows for resentencing according to the reduced penalty provisions of the Reform Act, it would effectively eliminate the protections embodied in section 1170.126 for a large number of defendants. In this manner, section 1172.75 would "authorize[ ] what the initiative prohibits." (Pearson, supra, at p. 571.)
Because section 1172.75 was not enacted with the requisite two-thirds majority of both houses of the Legislature, it cannot be interpreted as amending section 1170.126. Bustamante's new sentence is thus unauthorized, in that it "could not lawfully be imposed under any circumstance in the particular case." (People v. Scott (1994) 9 Cal.4th 331, 354.) When, as here, the court imposes an "unauthorized sentence[ ] which [was] unlawfully lenient to the detriment of the People," the ordinary bar on the imposition of a harsher sentence after appeal does not apply. (People v. Trammel (2023) 97 Cal.App.5th 415, 434; accord, People v. Serrato (1973) 9 Cal.3d 753, 764, disapproved on another ground in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1.)
Our decision reversing the trial court's resentencing order does not prejudice Bustamante from filing a petition under section 1170.126 provided that she can show good cause for her delay in doing so. (See § 1170.126, subd. (b).)
B. The Court Did Not Abuse Its Discretion in Denying the Romero Motion and Imposing the Enhancement under Section 667, Subdivision (a)(1)
In proceedings before the trial court, Bustamante did not request that the court strike the five-year enhancement under section 667, subdivision (a)(1), nor that the court disregard her prior strike convictions for purposes of sentencing under Romero. Nevertheless, at the resentencing hearing, the court sua sponte raised and addressed both issues. The court elected to reimpose the five-year enhancement because "there is no justification to strike that based on the court's read of the record and based on [Bustamante's] records." The court denied relief under Romero because Bustamante "has 16 prior strike convictions," all of which "involve the same class of crimes, robbery and theft, [for] which the defendant had been convicted" in the instant case. Accordingly, the court concluded that Bustamante "had no prospect of living a crime-free life."
Bustamante challenges both of these rulings. We review the denial of a Romero motion and the refusal to strike an enhancement for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 377-378.) The current record reveals no error under that deferential standard. The trial court's description of Bustamante's record was apt. Prior to the robberies at issue in this case, she committed 16 strike offenses beginning in 1987. The first three times she was released on parole (in 1988, 1990 and in 2004), she committed a new offense within three months of her release. She committed the robbery in the current case in 2010, less than two years after her most recent parole. The court could reasonably conclude that Bustamante was not" 'outside the . . . spirit'" (id. at p. 377) of the Three Strikes law and accordingly denied her relief under Romero. Similarly, the court could have reasonably found that "dismissal of the enhancement [under section 667, subdivision (a)(1)] would endanger public safety" (§ 1385, subd. (c)(2)) and thus declined to strike the enhancement regardless of the presence of any mitigating factors."' "A judgment or order of the lower court is presumed correct" (People v. Nitschmann (2010) 182 Cal.App.4th 705, 708), and Bustamante has not shown otherwise.
Bustamante argues that in refusing to strike the section 667, subdivision (a)(1) enhancement, and in denying relief under Romero, the court failed to consider several relevant factors and mitigating circumstances. She notes that many of her prior offenses occurred many years ago, when she was in her late teens and early 20s, that she committed those crimes because of an untreated alcohol and drug addiction, that she accepted responsibility for her actions, that no one was injured as a result of her actions, that she may have been suffering mental health problems when she committed the 2010 robbery, and she argues that she is less likely to commit new offenses as a result of her advancing age (she is currently 57), and that she has made great strides toward rehabilitation since transitioning in 2021.
Bustamante did not raise these arguments before the trial court, and she argues that her attorney rendered ineffective assistance by failing to do so. We need not address the issue of alleged ineffective assistance because we have already granted Bustamante a new resentencing hearing. At that hearing, she may make the arguments she failed to make the first time concerning the section 667, subdivision (a)(1) enhancement and Romero for the court's consideration.
DISPOSITION
The trial court's order is reversed, and the case is remanded for a new sentencing hearing.
We concur: ROTHSCHILD, P. J. M. KIM, J.