Opinion
D073096
11-15-2018
THE PEOPLE, Plaintiff and Respondent, v. TOMAS GRAJEDA, JR., Defendant and Appellant.
Jill M. Klein, 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 Attorney General, A. Natasha Cortina and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FVA025452) APPEAL from an order of the Superior Court of San Bernardino County, Stephan G. Saleson, Judge. Vacated and remanded for resentencing. Jill M. Klein, 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 Attorney General, A. Natasha Cortina and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Tomas Grajeda, Jr. appeals from a postjudgment resentencing order following a judgment of the United States District Court, Central District of California (District Court) on his petition for habeas corpus after three prior appeals. The District Court discharged Grajeda "from all consequences of the street gang allegation appended to his conviction for carrying a loaded firearm in public" (former Pen. Code, § 12031, subd. (a)(1); count 2) and ordered the trial court to resentence Grajeda accordingly. Grajeda contends he was denied the right to counsel at the resentencing hearing and the abstract of judgment still does not reflect the correct amount of presentence conduct credits. He also contends recently amended section 12022.53, subdivision (h), applies retroactively and he should have the opportunity to request the court to strike or dismiss the firearm enhancement appended to his conviction for attempted murder (§§ 644/187, subd. (a); count 1).
People v. Grajeda (Mar. 22, 2011, D058090) [nonpub. opn.] (Grajeda I); People v. Grajeda (Oct. 22, 2012, D060725) [nonpub. opn.] (Grajeda II); and People v. Grajeda (June 10, 2014, D064452) [nonpub. opn.] (Grajeda III).
Further statutory references are to the Penal Code unless otherwise stated.
We agree with each of Grajeda's contentions. Accordingly, we vacate the postjudgment order and remand the matter to the trial court with directions to hold a new sentencing hearing in the presence of Grajeda and defense counsel to (1) consider if "all consequences" of the street gang allegations appended to the conviction for carrying a loaded firearm in a public place have been discharged in light of the dismissal of count 2; (2) amend the abstract of judgment to properly reflect presentence custody credits of 194 days pursuant to sections 4019 and 2933.1; and (3) consider whether to strike or dismiss the firearm enhancement pursuant to section 12022.53, subdivision (h).
PROCEDURAL BACKGROUND
Our prior opinions in Grajeda I, Grajeda II, and Grajeda III provided detailed factual summaries of Grajeda's convictions. Because the factual background is not pertinent to the issues on appeal, we focus on the relevant procedural history.
A jury convicted Grajeda in 2008 of one count of attempted murder with premeditation (§§ 664/187, subd. (a); count 1) and one count of carrying a loaded firearm in a public place (former § 12031, subd. (a)(1); count 2). With respect to count 1, the jury found true allegations Grajeda personally used a firearm (§ 12022.53, subd. (b)), personally discharged a firearm (§ 12022.53, subd. (c)), personally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)), and committed the crime for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)). With respect to count 2, the jury found true an allegation Grajeda was an active participant in a criminal street gang at the time of the offense. In a bifurcated proceeding, the court found true allegations Grajeda had three prior strike convictions. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).)
Former section 12031 was repealed as part of a bill to reorganize without substantive change provisions relating to deadly weapons. (Stats. 2010, ch. 711, § 4 (Sen. Bill No. 1080), eff. Jan. 1, 2011, operative Jan. 1, 2012.) See current section 25850, subdivisions (a), (c)(3).
The court sentenced Grajeda to a term of 45 years to life for count 1, based on the gang and three strikes enhancements, plus a consecutive term of 25 years to life for the firearm enhancement under section 12022.53, subdivision (d) for an aggregate indeterminate term of 70 years to life. The court sentenced Grajeda to a term of 25 years to life for count 2, to be served concurrently.
On appeal in Grajeda I, we reversed the judgment, in part. We concluded there was insufficient evidence to support the true finding that Grajeda committed count 1 for the benefit of a criminal street gang. We vacated the sentence and remanded the matter for resentencing. (Grajeda I, supra, at pp. 37-39.)
On August 22, 2011, the trial court resentenced Grajeda to a total term of 50 years to life in prison based on a term of 25 years to life for count 1 plus a consecutive term of 25 years to life for the firearm enhancement (§ 12022.53, subd. (d)). The term of 25 years to life for count 2 was to run concurrently.
In Grajeda II, we vacated the sentence and remanded the matter again for resentencing because Grajeda was not present for the second sentencing hearing. We also directed the court to award Grajeda 194 days of presentence conduct credits, which the People conceded was erroneously denied. (Grajeda II, supra, at pp. 11, 13-14.)
At the third sentencing hearing on July 16, 2013, the trial court denied Grajeda's request to dismiss two or more of his prior strike conviction allegations pursuant to section 1385. During the hearing, the People moved to dismiss count 2, stating it did not make a difference to the overall sentence. The court granted the motion and dismissed count 2. Applying the three strikes law, the court sentenced Grajeda to a term of 25 years to life for count 1 (§ 1170.12, subd. (c)(2)(A)) plus a term of 25 years to life for the firearm enhancement (§ 12022.53, subd. (d)), for a total term of 50 years to life. The clerk's minutes noted Grajeda was entitled to 194 days of presentence custody credits, but the credits were not reflected on the abstract of judgment.
In Grajeda III, we modified the judgment to award Grajeda 194 days of presentence custody conduct credits pursuant to sections 4019 and 2933.1 and to impose a $280 fine pursuant to section 1202.4. We directed the superior court clerk to amend the abstract of judgment accordingly. We otherwise affirmed the judgment as modified. (Grajeda III, supra, at p. 14.)
Thereafter, in December 2014, Grajeda filed a petition for writ of habeas corpus in the District Court raising several grounds including a lack of sufficient evidence to support the gang allegations and the failure of the court to award proper conduct credits. The warden apparently conceded the evidence was insufficient under People v. Rodriguez (2012) 55 Cal.4th 1125, 1132-1133, 1139 to prove Grajeda was an active gang member under section 186.22, subdivision (a) when he committed count 2 because there was no evidence he acted with another gang member. The District Court granted habeas corpus relief regarding this aspect of the judgment, noting it was not for the District Court to say if the firearm offense could remain a felony under alternative state legal principles. The District Court discharged Grajeda "from all consequences of the street gang allegation appended to his conviction for carrying a loaded firearm in public" and vacated that portion of his sentence. The judgment stated the trial court "shall resentence [Grajeda] accordingly within sixty (60) days."
In compliance with the District Court judgment, the People requested a resentencing hearing and sought orders to produce Grajeda at the hearing. On September 27, 2017, the trial court conducted a resentencing hearing in Grajeda's presence, but he was not represented. The court considered the District Court's order, but stated it previously dismissed the firearm charge (count 2). Therefore, the court determined it had already complied with the District Court's order. Nevertheless, the court reiterated count 2 was dismissed.
Grajeda was apparently transported to the wrong courthouse for the first scheduled resentencing hearing and sought a continuance. --------
Grajeda timely appealed the court's order stating he no longer understands the judgment or what has been appealed. He also stated he was not provided with an attorney for his most recent resentencing hearing.
DISCUSSION
I
Appealability
The court had jurisdiction to resentence Grajeda following the judgment of the District Court on Grajeda's petition for habeas corpus, which discharged Grajeda "from all consequences" of the street gang allegation related to the firearm conviction. Federal courts have broad discretion in conditioning a judgment granting habeas relief and may delay release of a petitioner to provide an opportunity to correct a constitutional violation. (People v. Black (2004) 116 Cal.App.4th 103, 109 citing Hilton v. Braunskill (1987) 481 U.S. 770, 775.) "Habeas remedies ' "should put the defendant back in the position he would have been in if [a constitutional] violation never occurred." ' " (Chioino v. Kernan (9th Cir. 2009) 581 F.3d 1182, 1184.) Thus, the order on resentencing is appealable as an "order made after judgment affecting the substantial rights of the party" even though the court concluded resentencing was not necessary. (§ 1237, subd. (b); Teal v. Superior Court (2014) 60 Cal.4th 595, 600 ["a postjudgment order 'affecting the substantial rights of the party' (§ 1237, subd. (b)) does not turn on whether that party's claim is meritorious, but instead on the nature of the claim and the court's ruling thereto"]; see People v. Loper (2015) 60 Cal.4th 1155, 1164-1165 [a defendant may appeal an adverse postjudgment decision even if another party sought the decision].)
II
Right to Counsel
"A criminal defendant is guaranteed the right to the assistance of counsel by the Sixth Amendment to the United States Constitution and article I, section 15 of the California Constitution." (People v. Doolin (2009) 45 Cal.4th 390, 417.) This constitutional right to counsel exists "at all critical stages of a criminal prosecution, including sentencing." (Id. at p. 453; People v. Parrott (2017) 10 Cal.App.5th 485, 496 ["Sentencing is considered a critical stage of a criminal proceeding, within the meaning of the Sixth Amendment"]; see United States v. Yamashiro (9th Cir. 2015) 788 F.3d 1231, 1235 (Yamashiro) [the " 'essence of a "critical stage" is not its formal resemblance to a trial, but the adversary nature of the proceeding, combined with the possibility that a defendant will be prejudiced in some significant way by the absence of counsel' "].) In examining the right to counsel, we examine whether "the accused required aid in coping with legal problems or assistance in meeting his adversary." (United States v. Ash (1973) 413 U.S. 300, 313.)
The resentencing hearing in this case required more than a ministerial act. In light of the District Court's judgment on habeas corpus, the trial court was obligated to consider anew Grajeda's sentence to ensure "all consequences" of the gang allegations were discharged. After noting it had previously dismissed count 2, the court asked Grajeda, "do you think that there's something else that we could be missing in your thinking at all?" Grajeda expressed confusion about the procedural posture of his appeals and the judgment. He did not have a copy of the District Court's order, which the trial court provided, but only at the end of the hearing. We conclude the resentencing hearing in this case was a critical stage of the criminal proceeding in which Grajeda required assistance of counsel to ensure "all consequences" of the gang enhancement allegations were discharged and he was not prejudiced in some way by the absence of counsel. This was structural error. (Yamashiro, supra, 788 F.3d at pp. 1235-1236.) Therefore, we vacate the order and remand the matter so Grajeda may have the benefit of counsel for resentencing.
III
Presentence Conduct Credits
In our decision in Grajeda III, we modified the judgment and directed the clerk of the superior court to amend the abstract of judgment to reflect 194 days of presentence custody conduct credits pursuant to sections 4019 and 2933.1. The amended abstract of judgment, filed on June 24, 2014, noted under section 11 for "Other orders" that Grajeda was entitled to "[p]resentence custody credits 194 pursuant to section 4019 and 2933.1." However, the 194 days of credits were not added to the number of credits in box 14 for credit for time served. On remand, we direct the court to amend the abstract of judgment to accurately reflect Grajeda's credits in box 14.
IV
Firearm Enhancement
At the time of sentencing, imposition of a 25-year-to-life enhancement was mandatory pursuant to section 12022.53, subdivision (d), for personally discharging a firearm in the commission of attempted murder. A couple of weeks after Grajeda's last resentencing hearing on September 27, 2017, the Legislature amended section 12022.53 to add subdivision (h), which allows courts discretion to "in the interest of justice ... strike or dismiss an enhancement otherwise required to be imposed by this section." (Stats. 2017, ch. 682, § 2.) We conclude this change in the law applies retroactively to this case.
"In general, statutes are presumed to apply prospectively unless they state otherwise. (See § 3.) However, the presumption against retroactivity does not apply when the Legislature reduces the punishment for criminal conduct. (In re Estrada (1965) 63 Cal.2d 740 (Estrada).) The Supreme Court's reasoning in Estrada is that when a statute reduces or ameliorates the punishment, it is presumed that the Legislature has determined the offense no longer merits the greater punishment, and this rationale applies even if the defendant was convicted and sentenced before the statute became effective." (People v. Frahs (2018) 27 Cal.App.5th 784, 790.) " 'The Estrada rule rests on an inference that, in the absence of contrary indications, a legislative body ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not.' " (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308 [Prop. 57, which reduces possible punishment for a class of persons, applies retroactively to judgments not final at the time of enactment].)
The statutory amendment expresses an intention to apply the statute as broadly as possible, stating, "The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (§ 12022.53, subd. (h), italics added.) Here, the matter was properly before the court for resentencing following habeas proceedings in federal court. The postjudgment order is not final in light of this appeal. Therefore, on remand, the court may consider whether to strike or dismiss the firearm enhancement under section 12022.53, subdivision (h).
DISPOSITION
The order of September 27, 2017 is vacated and the cause is remanded to the trial court with directions to hold a new sentencing hearing in the presence of Grajeda and defense counsel to consider if "all consequences" of the gang allegations appended to count 2 have been discharged, to amend the judgment and the abstract of judgment to correctly reflect an award of 194 days of presentence custody conduct credits, and to consider whether to strike or dismiss the firearm enhancement under section 12022.53, subdivision (h). The trial court is further instructed to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
McCONNELL, P. J. WE CONCUR: IRION, J. GUERRERO, J.