Opinion
H051554
10-10-2024
THE PEOPLE, Plaintiff and Respondent, v. RICHARD CORTEZ, Defendant and Appellant.
NOT TO BE PUBLISHED
(Santa Clara County Super. Ct. No. C1359060)
LIE, J.
Before this court for the third time, appellant Richard Cortez appeals from the judgment imposed after this court remanded the matter for resentencing in light of ameliorative amendments made to sentencing laws (Sen. Bill No. 567 (2021-2022 Reg. Sess.) [amending the determinate sentencing law under Pen. Code, § 1170] and Sen. Bill No. 81 (2021-2022 Reg. Sess.) [amending § 1385]). At his most recent resentencing, the trial court denied Cortez's renewed request to dismiss his prior strike convictions and enhancements. The trial court thereafter sentenced Cortez to a term of 25 years to life consecutive to 14 years.
Undesignated statutory references are to the Penal Code.
On appeal, Cortez's counsel has filed a brief which states the case but raises no issues, asking this court to conduct an independent review under People v. Wende (1979) 25 Cal.3d 436 (Wende). We advised Cortez of his right to submit written argument on his own behalf within 30 days, and he has not done so. Having independently reviewed the record, we conclude there are no arguable issues on appeal.
I. BACKGROUND
In 2015, Cortez was convicted of attempted murder (§§ 664, 187) and found to have personally used a deadly weapon (§ 12022, subd. (b)(1)) and personally inflicted great bodily injury (§ 12022.7, subd. (a)) in the offense's commission. The trial court found true the allegations that Cortez had suffered three prior strike convictions (§§ 667, subds. (b)-(i), 1170.12) and two serious felony prior enhancements (§ 667, subd. (a)). After declining to dismiss any of Cortez's prior strike convictions, the trial court sentenced Cortez to a total term of 27 years to life, consecutive to a determinate term of 14 years for the sentencing enhancements.
Upon Cortez's first appeal in 2019, we reversed and remanded the matter for resentencing in light of Senate Bill No. 1393 (2017-2018 Reg. Sess.), which amended section 1385 and gave the trial court the discretion to strike the section 667, subdivision (a) serious felony enhancements. In 2020, the trial court resentenced Cortez and reimposed the original sentence, declining to exercise its discretion to strike the serious felony enhancements.
In 2022, Cortez appealed from the judgment imposed at resentencing. Finding that Cortez was entitled to the retroactive application of still-newer ameliorative legislation-Senate Bill No. 567 amended section 1170, requiring the imposition of a middle term unless there are circumstances in aggravation that justify the greater term- we reversed and remanded the matter again for resentencing. On remand, we directed the trial court to apply the laws now in effect, including the version of section 1385 as amended by Senate Bill No. 81.
Before the sentencing hearing, Cortez filed a brief requesting that the trial court dismiss his section 667, subdivision (a) enhancements. Cortez also renewed his request for the trial court to dismiss his prior strike convictions under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, arguing that the amended version of section 1385 applied to prior strikes.
At the sentencing hearing, the trial court declined to dismiss any enhancements or strike priors. The court questioned whether the Romero request was within the scope of this court's remittitur. The court also found that the amended version of section 1385 was inapplicable to prior strikes (see, e.g., People v. Olay (2023) 98 Cal.App.5th 60, 67- 68) but alternatively "incorporate[d] by reference" its rationale for denying Cortez's request to dismiss his enhancements. The trial court concluded that dismissing enhancement allegations "would create an undue risk and danger to public safety."
In support of its conclusion, the trial court noted that Cortez had prior convictions for attempted voluntary manslaughter in 1984 and voluntary manslaughter in 1998 and observed it was "a rare occurrence in which a defendant comes before the [c]ourt upon [a] third conviction for a homicide or attempted homicide offense." Further, the recurrence of these homicide or attempted homicide offenses over a span of time suggested that the age of the prior offenses "d[id] not outweigh public safety concerns." The trial court also observed that Cortez engaged in much of his prior criminality not as a youth or young adult but as a "grown and adult person" who nonetheless "continued to engage in extremely serious and dangerous homicidal and attempted homicidal behavior." The trial court also considered the victim's "lasting [e]ffects and suffering."
Given its finding that dismissal of enhancements would endanger public safety, the trial court did not believe it needed to give the mitigating factors "great weight" but alternatively concluded that even giving the mitigating factors "great weight," the countervailing aggravating circumstances outweighed those factors such that dismissing the enhancements would not be in the furtherance of justice.
The mitigating factors, as identified by Cortez in his sentencing brief, include the allegations of multiple enhancements in the case (§ 1385, subd. (c)(2)(B)), that the imposition of the alleged enhancements would result in a sentence of over 20 years (id., subd. (c)(2)(C)), and that the enhancements were based on prior convictions over five years old (id., subd. (c)(2)(H)). We recognize that in People v. Gonzalez (2024) 103 Cal.App.5th 215, the Fourth District held that a trial court errs by limiting its focus to whether a defendant subject to an indeterminate term currently poses a risk of danger to public safety. (Id. at pp. 230-231.) But even if the trial court erroneously assessed Cortez's dangerousness as of the sentencing hearing rather than at the point when dismissal of an enhancement might allow him to be paroled, the court here alternatively found that dismissal was not warranted even if affording the mitigating factors great weight. (See People v. Walker (2024) 16 Cal.5th 1024, 1036 [holding that "credible evidence of countervailing factors . . . 'may nonetheless neutralize even the great weight of the mitigating circumstance, such that dismissal of the enhancement is not in furtherance of justice' "].)
The trial court, however, noted that the prosecution was not pursuing a jury trial on any additional aggravating factors and that Cortez's criminal history itself did not justify the aggravated term for count 1. The court accordingly resentenced Cortez to a middle term of seven years for count 1, which under the Three Strikes law became a 25-year-to-life sentence (§ 667, subd. (e)(2)(A)(iii)), and reimposed a determinate term of 14 years for the enhancements.
II. DISCUSSION
Having independently reviewed the record pursuant to Wende, we find no arguable issues.
III. DISPOSITION
The judgment is affirmed.
WE CONCUR: BAMATTRE-MANOUKIAN, Acting P. J. GROVER, J.