Opinion
B332954
07-05-2024
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL V. GONEZ, Defendant and Appellant.
Marta I. Stanton, 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, Kenneth C. Byrne and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. VA151697, Debra Cole-Hall, Judge. Remanded with directions.
Marta I. Stanton, 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, Kenneth C. Byrne and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
EDMON, P. J.
After a jury convicted Michael Gonez of attempted voluntary manslaughter, the trial court imposed a sentence that included enhancements. On appeal, Gonez contends that remand for resentencing is necessary because the trial court failed to consider dismissing an enhancement under Senate Bill No. 81. We agree.
BACKGROUND
I. Evidence at Gonez's trial
The background is from nonpublished opinion People v. Gonez (Feb. 3, 2023, B319678).
"In June 2017, Gonez was living at a property his father had owned. In addition to a main house where Gonez lived, there were two other residential structures on the property. The victim, Martin Garcia, [had] lived at one of the structures but [ ] moved out several months before June 9, 2017. Garcia told a neighbor he was moving out because of problems with Gonez.
"When Garcia lived at the property, his son sometimes stayed with him. In 2016 or 2017, Gonez told Garcia's son that he and his' "fuckin dad just watch."' In February 2017, Garcia's son heard what sounded like a sledgehammer hitting the ground outside their home. When he looked outside, he saw a raccoon with its head smashed and Gonez running to the main house.
"Lorenzo Melchor lived in the back structure on the property with his sister, Rebeca Melchor. At about 7:30 p.m., on June 9, 2017, Lorenzo heard a man yell,' "Help. Neighbors help."' Looking out a window, Lorenzo saw Gonez and Garcia, who was yelling for help and holding his hands above his head. Garcia had nothing in his hands, but Gonez had something with a sharp point in his hand and was attacking Garcia. Gonez made swinging motions at Garcia. Rebeca saw Gonez holding Garcia by the head as Garcia lay face down on the ground. Rebeca called Gonez's brother and told him that Gonez was beating a man.
To avoid confusion, we refer to the Melchors by their first names, intending no disrespect.
"A 911 caller reporting the event said he heard a man scream,' "[P]lease don't kill me." '
"A law enforcement officer who responded to the scene found Garcia's van parked in front of the property. The officer smelled alcohol in the van. Garcia was in the backyard. He had suffered 11 wounds to his face, scalp, neck area, chest, and abdomen. Five of those wounds were to the head area. An officer smelled alcohol on Garcia. No weapons were found near Garcia. He survived but, as of trial, was in a functionally vegetative state.
"Gonez was seen by a doctor that night. He had tenderness along his neck and elbows and a small superficial laceration to his right palm.
"Although the property had security cameras, officers did not find the recording device that should have been connected to the cameras. Two knives, both with Garcia's DNA on them, were recovered. One knife was on the top of an entertainment center, and the second knife was in a flower pot in front of the house.
"Margarita Valle Solis testified that she had lived next door to Gonez for seven years. The night of June 9, 2017, she saw Garcia enter the property and walk toward Gonez. She recognized Garcia, as she had seen him and Gonez argue many times in the past. This time, Garcia pushed Gonez, who told Garcia to leave and that he did not want any problems. Garcia said he wouldn't leave, it wasn't Gonez's house, and he was there to see a friend. Garcia got close to Gonez with his arms out and hands clenched as if to hit Gonez. Solis saw Garcia touch Gonez 'a bit.' Not wanting to see more, Solis left.
Solis testified for the defense.
"Gonez also testified. He admitted he did not get along with Garcia, but this was because Garcia mistreated the property. Garcia urinated on a wall, took fruit Gonez grew to sell, and cut a cord to a surveillance camera. Gonez also admitted that he reported the building code violation that resulted in Garcia's eviction.
"On the night Garcia was stabbed, Gonez heard something outside. It was Garcia. His eyes were glassy and bloodshot, and Gonez smelled beer on his breath. Gonez told him to leave, but Garcia refused, saying that Gonez did not own the property. Garcia, who weighed about 100 pounds more than Gonez, pushed him. Garcia began punching Gonez. Although Gonez said he did not want any problems, Garcia kept coming at him, trying to punch Gonez, who was able to avoid getting hit. Frustrated, Garcia grabbed a wood chair and swung it at Gonez, saying he was going to kill Gonez. Gonez backed away, and, fearing for his life, took out his pocketknife.
"Gonez swung the knife at Garcia, striking Garcia's arm. Garcia threw the chair at Gonez, missing him. Repeating that he was going to kill Gonez, Garcia rushed towards Gonez, picked him up, and 'body slammed' him. Garcia began to choke Gonez, who then stabbed Garcia in the neck. Garcia released his grip, and Gonez stabbed Garcia under the ribs. Garcia tried to grab the knife, and he bit Gonez on the chest. Garcia redirected the knife so that it was pointing at Gonez's throat and said it was his turn now. At some point, Garcia stabbed Gonez's palm. Gonez managed to grab Garcia's hand and slash Garcia's face with the knife, and then Gonez stabbed him again. Garcia stumbled and fell. He said that Gonez's brother had sent him to hurt Gonez.
"Gonez said he tried to call 911 but his cell phone was not working. However, law enforcement did not recover a cell phone.
"Gonez testified that he acted out of fear for his life and that he did not intend to kill Garcia." (People v. Gonez, supra, B319678.)
II. Verdict and original sentence
A jury found Gonez guilty of attempted voluntary manslaughter (Pen. Code, §§ 664, 192, subd. (a); count 1), and of assault with a deadly weapon (§ 245; count 2). As to count 1, the jury found true two enhancements: first, Gonez used a deadly and dangerous weapon, a knife (§ 12022, subd. (b)(1)) and second, he personally inflicted great bodily injury (§ 12022.7, subd. (b)).
All further undesignated statutory references are to the Penal Code.
At a January 2020 sentencing hearing, the trial court found two mitigating factors: Gonez was home the day the victim came onto Gonez's property, and Gonez did not have a substantial record. However, the trial court also found that there were four aggravating factors: Gonez committed the crime in a vicious and callous way, Gonez was the aggressor "when it came to the physical aspect" of the altercation in that he stabbed the victim 11 times with five of the stabs being to the head, Gonez did not try to help the victim and instead left him bleeding, and Gonez tried to hide the knife.
Based on the aggravating factors, the trial court sentenced Gonez on count 1 to a total prison term of 11 years 5 months, consisting of the upper term of five years five months, one year for the weapon enhancement, and five years for the great bodily injury enhancement. The trial court imposed but stayed the sentence on count 2.
III. Postjudgment proceedings
In March 2022, the Department of Corrections and Rehabilitation informed the trial court that the judgment imposed was incorrect because the upper term sentence for attempted voluntary manslaughter is five years six months and not five years five months (§ 664). The trial court corrected the error nunc pro tunc but otherwise declined to resentence Gonez.
Gonez appealed, contending that the trial court had failed to reconsider his upper term sentence under section 1170, which had been amended to provide that an upper term may be imposed only when there are aggravating circumstances, and the defendant stipulated to the facts underlying those circumstances or the trier of fact found those facts true beyond a reasonable doubt. This Division agreed with Gonez's contention and remanded for resentencing. (People v. Gonez, supra, B319678.)
On remand, at the August 8, 2023 resentencing hearing, the prosecutor asked the court to resentence Gonez on count 1 to the middle term of three years, five years for the great bodily injury enhancement, and one year for the personal use of a knife enhancement. Defense counsel agreed that the middle term was the presumptive term on count 1 but asked the trial court to exercise its discretion to impose the low term. Neither the prosecutor nor defense counsel raised Senate Bill No. 81, and the trial court did not mention it. The trial court imposed the sentence urged by the prosecutor of nine years in prison.
DISCUSSION
Gonez contends that remand is required for the trial court to consider whether to dismiss a sentencing enhancement under section 1385, subdivision (c), enacted by Senate Bill No. 81 (2021-2022 Reg. Sess., added by Stats. 2021, ch. 721, § 1). The People counter that remand is unnecessary because the trial court acted within its discretion in not dismissing an enhancement. As we now explain, we agree with Gonez.
Section 1385, subdivisions (a) and (b), provide that a trial court may strike or dismiss an enhancement in the furtherance of justice. Effective January 1, 2022, Senate Bill No. 81 added subdivision (c) to section 1385 as follows: "Notwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute." "In exercising its discretion under this subdivision, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in subparagraphs (A) to (I) are present. Proof of the presence of one or more of those circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety," meaning there is a likelihood that dismissing the enhancement would result in physical injury or serious danger to others. (§ 1385, subd. (c)(2); see generally People v. Sek (2022) 74 Cal.App.5th 657, 674 [Sen. Bill No. 81 specifies factors trial court must consider when deciding whether to strike enhancements].)
As relevant here, a mitigating circumstance is where multiple enhancements are alleged in a single case. (§ 1385, subd. (c)(2)(B).) "In this instance, all enhancements beyond a single enhancement shall be dismissed." (Ibid.)
Gonez argues that the word "shall" mandates dismissal of an enhancement. Courts of Appeal, however, have consistently rejected this argument, finding instead that dismissal is not mandatory. (See, e.g., People v. Mazur (2023) 97 Cal.App.5th 438, 446, review granted Feb. 14, 2024, S283229; People v. Mendoza (2023) 88 Cal.App.5th 287, 290, 297; People v. Anderson (2023) 88 Cal.App.5th 233, 240-241, review granted Apr. 19, 2023, S278786; People v. Lipscomb (2022) 87 Cal.App.5th 9, 1521.) As one court explained, the text of section 1385, the purpose of section 1385 and Senate Bill No. 81, and the rules of statutory construction show that trial courts are not obligated to dismiss all but one enhancement whenever a jury finds multiple enhancements true. (People v. Walker (2022) 86 Cal.App.5th 386, 396, review granted Mar. 22, 2023, S278309.) Reading section 1385, subdivision (c)(2) to mandate dismissal would mean that "the existence of multiple enhancements" does not" 'weigh greatly' in favor of dismissal-it would weigh dispositively. But that is not what the statute says, and we are not allowed to rewrite the statute." (Walker, at p. 397; accord, Anderson, at p. 240 ["dismissal shall occur but only if, in exercising its discretion and giving great weight to certain factors, the court finds dismissal is in the interests of justice or would not endanger public safety"].) Gonez acknowledges this authority, and we agree with it. Therefore, the trial court did not have a mandatory obligation to strike or dismiss an enhancement.
Gonez alternatively argues that the trial court abused its discretion by failing to give great weight to the mitigating circumstance and failing to consider whether dismissing an enhancement would further justice or endanger public safety. The People respond by arguing that Gonez forfeited any issue under Senate Bill No. 81 by not raising it below. (See, e.g., People v. Coleman (2024) 98 Cal.App.5th 709, 724-725 [failure to raise Sen. Bill No. 81 in trial court constitutes forfeiture on appeal].) Unlike the Coleman defendant, Gonez has argued (albeit in his reply brief) that his trial counsel provided ineffective assistance by failing to ask for relief under Senate Bill No. 81. Such a claim requires Gonez, as appellant, to show that trial counsel's performance fell below an objective standard of reasonableness and prejudice. (See generally Strickland v. Washington (1984) 466 U.S. 668, 687-688.) Viewing this issue in the ineffective-assistance-of-counsel context, we agree that Gonez has established error and prejudice.
As to error, Gonez's trial counsel did not raise Senate Bill No. 81, even though it had been in effect for a year and a half when the August 2023 sentencing hearing was held. And Gonez had a clear mitigating circumstance per that new law: multiple (two) enhancements had been found true in his case (§ 1385, subd. (c)(2)(B)). At a minimum, he had a fair argument for relief under Senate Bill No. 81.
The People counter that even though Gonez did not raise Senate Bill No. 81, the trial court must have considered it. The People cite the general principle that we must presume a trial court knew the law and followed it, absent evidence to the contrary. (People v. Ramirez (2021) 10 Cal.5th 983, 1042.) We are reluctant to follow that general principle where, as here, the case was before the trial court on remand for reconsideration of the sentence under a different recently amended sentencing statute (section 1170 as amended by Senate Bill No. 567), and the record shows the trial court focused entirely on that statute when resentencing Gonez. Indeed, given that Gonez had a mitigating circumstance under section 1385, subdivision (c)(2)(B), one would expect the trial court to say something about it and to explain why it was exercising its discretion not to dismiss or strike an enhancement. Stated otherwise, the record's silence under these circumstances suggests the trial court was unaware of its discretion or failed to consider the issue. (See People v. Frederickson (2023) 90 Cal.App.5th 984, 988-989 [defendants are entitled to sentencing decisions made with informed discretion].) Further, trial courts have been grappling with a spate of new and amended laws affecting sentencing in recent years. While we do not doubt that trial courts know these laws, it nonetheless behooves trial counsel to raise them.
Turning to prejudice, the People urge that the trial court would have acted within its discretion to deny relief. But that is not the question before us. In considering whether trial counsel rendered ineffective assistance, we ask whether it is reasonably probable the trial court would have granted relief but for the error. (In re Avena (1996) 12 Cal.4th 694, 721.) Gonez had one mitigating circumstance in his favor, as two enhancements had been found true. (§ 1385, subd. (c)(2)(B).) The trial court had to give that mitigating circumstance great weight and then consider whether dismissing an enhancement would further justice or endanger public safety. (§ 1385, subd. (c)(2).)
Courts of Appeal have interpreted section 1385, subdivision (c) differently. One court found that requiring trial courts to afford great weight to the enumerated mitigating circumstances creates a rebuttable presumption favoring dismissal of an enhancement unless the trial court finds dismissal would endanger public safety. (People v. Walker, supra, 86 Cal.App.5th at p. 395.) People v. Ortiz (2023) 87 Cal.App.5th 1087, 1098, review granted April 12, 2023, S278894, found that the ultimate question for the trial court "remains whether it is in the furtherance of justice to dismiss an enhancement," and that section 1385, subdivision (c)(2)(B), contemplates the trial court's "exercise of sentencing discretion, even as it mandates that the court give 'great weight' to evidence of enumerated factors." (Ortiz, at p. 1098; accord, People v. Ponder (2023) 96 Cal.App.5th 1042, 1052, review granted Jan. 10, 2024, S282925.) Notwithstanding disagreement about how a trial court is to exercise its discretion under section 1385, courts agree that discretion exists and that subdivision (c)(2)(B) of section 1385 requires dismissing a sentencing enhancement only where the trial court concludes it would be in the furtherance of justice and not endanger public safety.
At the original sentencing hearing, the trial court found two factors mitigated in favor of not imposing a higher term: the victim came onto Gonez's property when Gonez was home, and Gonez did not have a substantial record. But the trial court also found four aggravating factors: Gonez committed the crime in a vicious and callous way; Gonez was the aggressor during the altercation, as he stabbed the victim 11 times with five of the stabs being to the head; Gonez did not help the victim and instead left him bleeding; and Gonez tried to hide the knife. Given these nuances, we cannot determine with the requisite certainty how the trial court would have exercised its discretion. Stated otherwise, it is reasonably probable Gonez would have obtained a different result had his counsel raised Senate Bill No. 81.
Remand is therefore required. We express no opinion on how the trial court should exercise its discretion on remand.
DISPOSITION
Michael Gonez's sentence is vacated, and the matter is remanded with the direction to the trial court to reconsider his sentence under Penal Code section 1385, as amended by Senate Bill No. 81. We affirm the judgment in all other respects.
We concur: EGERTON, J. LAVIN, J.