Opinion
E079869
01-31-2024
THE PEOPLE, Plaintiff and Respondent, v. AMANDO ZOSA CLAVANO, Defendant and Appellant.
Arthur Martin, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Alan L. Amann and Heather B. Arambarri, Deputy Attorney Generals, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. FVA17430 Daniel W. Detienne, Judge. Reversed with directions.
Arthur Martin, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Alan L. Amann and Heather B. Arambarri, Deputy Attorney Generals, for Plaintiff and Respondent.
OPINION
MILLER, J.
On remand from a prior appeal (People v. Clavano (July 2, 2021, E074133) [modified July 30, 2021] [nonpub. opn.] (Clavano II)), the trial court reconsidered the resentencing petition of defendant and appellant Amando Zosa Clavano. (Pen. Code, § 1172.6.) The trial court reduced defendant's first degree murder conviction to second degree murder. Correspondingly, the trial court reduced the indeterminate portion of defendant's sentence from 25 years to life to 15 years to life.
An unpublished case may be cited for the purpose of providing background information. (Pacific Gas & Electric Co. v. City and County of San Francisco (2012) 206 Cal.App.4th 897, 907, fn. 10.).
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant raises three issues on appeal. First, defendant contends the trial court lacked authority to reduce his conviction to second degree murder, so he should be resentenced for aiding and abetting assault with a firearm. Second, in the alternative, defendant contends substantial evidence does not support the finding that he aided and abetted second degree murder. Third, defendant asserts the abstract of judgment needs to be corrected. We reverse with directions.
FACTS
A. FIRST RULING ON DEFENDANT'S PETITION
In 2019, defendant petitioned the trial court for resentencing on the basis that he had been convicted under a natural and probable consequence theory and, under changes to section 188, he could no longer be convicted of murder. (§ 1172.6.) The trial court denied defendant's petition because defendant was a major participant in the offense and acted with reckless indifference. (Clavano II, supra, E074133 at p. *1.)
Defendant appealed, and we reversed with directions for the trial court to reconsider defendant's petition. (Clavano II, supra, E074133 at p. *8.) In our opinion, we explained that whether defendant was a major participant in a murder and acted with reckless indifference are only relevant in a felony murder analysis. (§ 189, subd. (e)(3).) In the instant case, the jury was not instructed on felony murder, so the trial court erred by analyzing the issues as if it were a felony murder case. (Clavano II, supra, E074133 at p. *5.)
B. SECOND RULING ON DEFENDANT'S PETITION
On remand, during a hearing on September 2, 2022, the trial court asked if it could "re-sentence defendant to an implied malice second degree murder." The trial attorneys agreed that the court could change defendant's murder conviction from first degree to second degree. Nevertheless, defendant's trial attorney argued that the intent evidence supported, at most, a conviction for assault with a firearm. Meanwhile, the People argued the evidence supported a finding of either first degree or second degree murder.
After taking the matter under submission, on September 16, 2022, during a hearing, the trial court found that defendant directly aided and abetted an implied malice second degree murder. The trial court resentenced defendant for second degree murder, imposing a determinate prison term of three years and an indeterminate term of 15 years to life.
DISCUSSION
A. SECOND DEGREE MURDER
Defendant and the People agree that the trial court did not have the authority to reduce defendant's conviction to second degree murder.
The resentencing statute "does not contain a mechanism for a trial court to reduce a first degree murder conviction to second degree murder." (People v. Gonzalez (2023) 87 Cal.App.5th 869, 880.) Rather, the statute provides a trial court with two options: (1) Deny the petition in its entirety, leaving the first degree murder conviction in place; or (2) grant the petition in its entirety and vacate the murder conviction. (Id. at p. 881.) In the instant case, the trial court reduced defendant's first degree murder conviction to second degree murder when there was no legal authority for that action. Therefore, the trial court erred.
" '[W]e deem an error harmless unless it is "reasonably probable" the outcome would have been different in the absence of the error.'" (People v. Schuller (2023) 15 Cal.5th 237, 251.) If the trial court had not erred, then defendant would be convicted of either first degree murder or assault. Under no legal authority would defendant be convicted of second degree murder. Thus, the trial court's error was prejudicial because the outcome would necessarily have been different in the absence of the error. We will reverse and direct the trial court to again reconsider defendant's petition.
Defendant contends that, because the People failed to convince the trial court that defendant committed first degree murder, we should direct the trial court to reduce defendant's conviction to assault. We will not direct a particular ruling when the trial court has not yet had a chance to rule on the petition with a clear understanding of the law. (See People v. Rodriguez (1998) 17 Cal.4th 253, 257.) Thus, we will direct the trial court to again reconsider the petition.
At oral argument in this court, we asked defendant's appellate counsel if he understood the risk of returning the case to the trial court and questioned if it was a risk he wanted to take. In other words, we asked if defendant's appellate counsel wanted to withdraw the appeal rather than risk the second degree murder conviction and sentence reverting to a first degree murder conviction and sentence. Defendant's counsel represented that he and defendant understood the risk and wanted to proceed with the appeal.
B. SUBSTANTIAL EVIDENCE
In the alternative, defendant contends substantial evidence does not support the trial court's finding of second degree murder. We have accepted defendant's primary assertion of error. Therefore, we need not address defendant's alternative contention.
C. ABSTRACT OF JUDGMENT
Defendant contends his abstract of judgment should be corrected to reflect 7,791 days of custody credits. Because we are reversing the second degree murder conviction, we will also reverse the sentence and vacate the abstract of judgment. Therefore, this issue is moot.
DISPOSITION
The order, the underlying findings related to the order, and the second degree murder sentence are reversed. The abstract of judgment filed in the trial court on September 19, 2022, is vacated. The trial court is directed to reconsider defendant's petition for resentencing.
We concur: RAMIREZ P. J., RAPHAEL J.
RAPHAEL, J., Concurring.
I join the opinion. Because defendant Amando Clavano is choosing a remand for a new hearing on his Penal Code section 1172.6 petition rather than accept the reduction from first-degree to second-degree murder, I offer these observations for the possibility that they will be helpful on remand.
Penal Code section 1172.6, subdivision (d)(3), states that for the prosecution to prevail, it must prove, beyond a reasonable doubt, that the petitioner is guilty of "murder" or attempted murder under California law as amended in 2019. On its face, that means that if the People prove a defendant guilty of murder under any valid theory-whether first-degree or second-degree-a petition must be denied. Under that reading, the trial court would be obligated to deny Clavano's petition if it found him guilty of murder on the same theory it already did, aiding and abetting an implied malice murder.
In a recent section 1172.6 case, People v. Reyes (2023) 14 Cal.5th 981, our Supreme Court remanded for the trial court to determine whether a defendant was guilty under the theory of aiding and abetting an implied malice murder. The court explained the elements (see id. at p. 991), which may provide helpful guidance here. In that opinion, the court also stated, "we express no view on whether a court may deny a section 1172.6 resentencing petition based on a theory of murder not argued by the prosecution at trial." (People v. Reyes, supra, at p. 987.)