Opinion
D071184
03-23-2018
THE PEOPLE, Plaintiff and Respondent, v. RICHARD ANTHONY FUENTEZ, Defendant and Appellant.
Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorneys General, Charles C. Ragland and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION ON REHEARING
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. FWV1302419) APPEAL from a judgment of the Superior Court of San Bernardino, Mary E. Fuller & Shahla S. Sabet, Judges. Affirmed in part, reversed in part, and remanded with directions. Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorneys General, Charles C. Ragland and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
Based on his conviction by jury for numerous counts, defendant Richard Anthony Fuentez again appeals. He contends his case must be remanded for resentencing in light of an amendment to the firearm enhancement statute under which he was sentenced. (Pen. Code, § 12022.53.) The People properly concede the amendment operates retroactively on cases like Fuentez's. But they also argue that remand would serve no purpose. We disagree on the latter point. Although the record suggests it is unlikely the trial court will reduce Fuentez's sentence, it does not clearly show that the court will not. Accordingly, we remand for resentencing.
Further statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
A jury convicted Fuentez of one count of attempted murder (§§ 664, 187, count one); two counts of assault with a semiautomatic firearm (§ 245, subd. (b), counts two and four); and one count of possession of a firearm by a felon (§ 29800, subd. (a), count three). The jury also rendered true findings for multiple enhancements. Namely, it found true that as to count one, Fuentez both personally used a firearm (§ 12022.53, subd. (b)) and personally and intentionally discharged a firearm (§ 12022.53, subd. (c)); that as to counts two and four, he personally used a firearm (§ 12022.5, subds. (a), (d)); and that all four counts were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)). Separately, Fuentez admitted that he had three "prison priors" within the meaning of section 667.5, subdivision (b). He was subsequently sentenced to a term of 49 years and 4 months.
In Fuentez's first appeal, we vacated his sentence and remanded with instructions to stay certain enhancements. (People v. Fuentez (Feb. 9, 2016, D069062) [nonpub. opn.] (Fuentez I).) Fuentez was resentenced accordingly and is currently serving a 48-year term. The 39-year principal term consists of 9 years for count one, 20 years for the section 12022.53, subdivision (c) enhancement, and 10 years for the section 186.22, subdivision (b) enhancement. The balance of Fuentez's sentence is based on counts three and four. As to count three, the court imposed an 8-month term plus a consecutive one-year term for the section 186.22, subdivision (b) enhancement. With respect to count four, a 2-year term was imposed, with a consecutive 3-year, 4-month term for the section 186.22, subdivision (b) enhancement. Two additional 1-year terms were appended for two of his priors. (§ 667.5, subd. (b).) All other terms imposed were stayed—i.e., those stemming from count two and its attendant enhancements and those based on the additional firearm enhancements attached to counts one and four. (§§ 654, 1170.1, subd. (f).)
We also instructed the trial court to revisit Fuentez's restitution order. He was initially ordered to pay $65,958.99 to the Arrowhead Medical Regional Center, which treated one of the victims. Following Fuentez I, the court on remand reserved jurisdiction over restitution.
DISCUSSION
Fuentez again argues his case should be remanded for resentencing, this time due to changes to the firearm enhancement sentencing scheme. Amended section 12022.53 now provides the trial court with discretion to strike or dismiss firearm enhancements in the interest of justice. (§ 12022.53, subd. (h); see also § 1385.) Previously, exercise of such discretion was explicitly prohibited. (Former § 12022.53, subd. (h) (amended by Stats. 2017, ch. 682 § 1, eff. Jan. 1, 2018).)
Appointed appellate counsel initially filed a Wende brief presenting no argument for reversal, but instead asking this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738. We agreed with counsel that no arguable appellate issues existed and affirmed Fuentez's conviction by unpublished opinion on December 29, 2017. Fuentez's counsel timely petitioned for rehearing in light of amendments to the firearm enhancement sentencing scheme that became effective on January 1, 2018. We granted the petition.
The People properly concede the amendment operates retroactively on all nonfinal judgments, including Fuentez's, in light of In re Estrada (1966) 63 Cal.2d 740 (Estrada) and its progeny. Estrada provides that, absent contrary evidence, we infer the Legislature intends for statutory amendments reducing criminal punishment to apply retroactively to cases not yet final on appeal. It has been invoked not only as to amendments that "revoke one penalty and provide for a lesser one," but also those that "vest[] in the trial court discretion to impose either the same penalty as under the former law or a lesser penalty." (People v. Francis (1969) 71 Cal.2d 66, 76 (Francis).) Just recently, our Supreme Court applied the Estrada "inference of retroactivity" to a statutory amendment that "ameliorated the possible punishment for a class of persons, namely juveniles." (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308.)
The same inference of retroactivity applies here. The amendment to section 12022.53—like that in Francis, supra, 71 Cal.2d at p. 76—gives the trial court discretion to impose a lesser penalty than that formerly required. And we are aware of no evidence of a contrary legislative intent that would controvert the inference in favor of retroactivity. Accordingly, we agree with the People's concession that the amendment to section 12022.53 operates retroactively in cases not yet final on appeal. (See, e.g., People v. Arredondo (Mar. 19, 2018, D072632) ___ Cal.App.5th ___ (2018 Cal.App. Lexis 217.)
Yet our analysis does not end there. Relying on People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 (Gutierrez), the People argue that remand is unnecessary since, in their view, the record "clearly indicate[s]" that the court would not exercise its discretion to strike Fuentez's firearm enhancement. (Ibid.)
No sufficiently clear indication appears in this record. It is true the trial court imposed the upper term for count one, as well as terms for several enhancements. And the court explained it was imposing the maximum term for count one because there were several aggravating factors and no mitigating factors. But more importantly—and in stark contrast to Gutierrez—the court did not discuss why it declined to strike Fuentez's other enhancements. (See Gutierrez, supra, 48 Cal.App.4th at p. 1896 [quoting the trial court, " '[T]here really isn't any good cause to strike it. There are a lot of reasons not to, and this is the kind of individual the law was intended to keep off the street as long as possible.' "].) Without comments of that nature, we can only speculate as to what the trial court might do with its newly minted discretion.
Moreover, the discretion here is not simply to choose between the 20-year enhancement and nothing. The jury also found true an allegation under section 12022.53, subdivision (b); the 10-year term based on that enhancement was stayed. As such, the court on remand could strike the 20-year term based on section 12022.53, subdivision (c), and impose instead the 10-year term based on section 12022.53, subdivision (b). Again, we can only speculate which option it will pick.
Certainly the record here may suggest it is unlikely the court will exercise its discretion to strike the enhancements. But absent compelling evidence of futility, the defendant is entitled to have the trial court decide what is the appropriate sentence. Accordingly, we remand to allow the trial court the opportunity to exercise its informed discretion.
Fuentez only argues that his case should be remanded because of the changes to section 12022.53. Yet his jury also rendered true findings under section 12022.5, which was similarly amended. (See § 12022.5, subd. (c).) Following our instructions in Fuentez I, the trial court stayed the section 12022.5 terms in light of section 1170.1, subdivision (f), People v. Rodriguez (2009) 47 Cal.4th 501, and People v. Le (2015) 61 Cal.4th 416. Because those terms are only stayed, we note that on remand the trial court will have the option of striking those enhancements as well. (See § 12022.5, subd. (c) ["The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law."].) --------
DISPOSITION
The judgment of conviction is affirmed. The case is remanded for the trial court to exercise its discretion under section 12022.53, subdivision (h).
DATO, J. I CONCUR: O'ROURKE, J. BENKE, J., concurring.
For the reasons set forth in my concurring opinion in People v. Arredondo (Mar. 19, 2018, D072632) ___ Cal.App.5th ___ (2018 Cal.App. Lexis 217), I concur in the result. BENKE, Acting P. J.