Opinion
H050331
10-02-2023
THE PEOPLE, Plaintiff and Respondent, v. VINCENT ERNEST MARQUEZ, Defendant and Appellant.
NOT TO BE PUBLISHED
Santa Cruz County Super. Ct. No. WF00282
We resolve this case by memorandum opinion pursuant to California Standards of Judicial Administration, Title 8, Standard 8.1. (See also People v. Garcia (2002) 97 Cal.App.4th 847, 853-855.)
Wilson, J.
In 2009, a jury convicted defendant Vincent Ernest Marquez of residential burglary and found true an allegation that during the burglary someone other than an accomplice was present. (Pen. Code, § 459.) The jury also convicted Marquez of receiving stolen property. (§ 496, subd. (a).) Thereafter, the court found that Marquez had three prior strike convictions and five prior felony convictions for which he had served prison terms. (§§ 667, subds. (b)-(i), 667.5, subd. (b).) The court sentenced Marquez to a term of 44 years to life, consisting of: 25 years to life for first-degree burglary based on the prior strike findings, 15 years for the prior serious felony convictions, three years for the prior violent felony prison term, and a one-year enhancement for a prior prison term pursuant to section 667.5, subdivision (b), while staying the sentence for receiving stolen property.
Unspecified statutory references are to the Penal Code.
This court affirmed Marquez's conviction and sentence in 2012. (People v. Marquez (Apr. 10, 2012, H033995) 2012 WL 1200950 [nonpub. opn.].)
On March 2, 2022, Marquez filed a petition for resentencing pursuant to Senate Bill No. 483 (2021-2022 Reg. Sess.) (Senate Bill N0. 483) and newly adopted section 1171.1. He argued that under the new law, his one-year enhancement under section 667.5, subdivision (b) was no longer valid, and the trial court must resentence him by applying the law "as it currently exists, and the court must exercise its own independent discretion, regardless of previous sentences imposed, or the reasons for such previously imposed sentences."
Section 1171.1 was subsequently renumbered to section 1172.75. (Stats. 2021, Ch. 728, § 3; Stats. 2022, Ch. 58, § 12, eff. June 30, 2022.)
After an evidentiary hearing in August 2022, the trial court struck the one-year enhancement pursuant to section 667.5, subdivision (b), and resentenced Marquez to a term of 43 years to life. However, the court declined to exercise its discretion to consider any other changes in the law since the original sentence in 2009.
On appeal, the parties agree that remand for full resentencing is required because, under section 1172.75, the trial court must apply all changes to sentencing laws that occurred after Marquez was sentenced.
Effective January 1, 2022, the Legislature enacted Senate Bill No. 483, which added former section 1171.1 to the Penal Code. (Stats. 2021, Ch. 728, § 3; Stats. 2022, Ch. 58, § 12, eff. June 30, 2022.) Section 1172.75 provides that "[a]ny sentence enhancement that was imposed prior to January 1, 2020, pursuant to subdivision (b) of Section 667.5, except for any enhancement imposed for a prior conviction for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code is legally invalid." (§ 1172.75, subd. (a).) Section 1172.75, subdivision (b) sets forth a procedure by which the Secretary of the Department of Corrections and Rehabilitation (CDCR) shall identify eligible persons in custody, and subdivision (c) sets forth a timeline by which the trial court shall review, recall, and resentence eligible individuals. Section 1172.75, subdivision (d)(1) specifies that "[r]esentencing pursuant to this section shall result in a lesser sentence than the one originally imposed as a result of the elimination of the repealed enhancement, unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety."
Although Marquez filed the petition for resentencing himself, the record reflects that the CDCR also identified Marquez as a person eligible for resentencing pursuant to section 1172.75, subdivision (b). The People initially contended the trial court lacked jurisdiction to hear Marquez's petition, but subsequently abandoned that argument.
In addition, section 1172.75, subdivision (d)(2) provides that "[t]he court shall apply the sentencing rules of the Judicial Council and apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing."
Here, the trial court recognized that section 1172.75, subdivision (a) required that Marquez's prior one-year enhancement under section 667.5, subdivision (b) be struck. However, the trial court declined to consider any other changes in the law since Marquez's initial sentencing in 2009. The trial court judge explained: "I don't read the language in Penal Code section [1172.75] broadly to engage the Court in the dismissal of serious felony allegations which the Court may have imposed. [¶] Again, I understand and you are both probably correct that we may have a decision that comes, maybe in the near future, that instructs the Court to engage in a full resentencing of the entire case of the type of which we have before us of Mr. Marquez. But in looking at the language in conjunction with the legislative history behind section [1172.75], I'm going to adopt my tentative ruling in this case."
On appeal, Marquez argues that "the court was required to apply any changes in the law since Marquez was sentenced that reduce sentences or provide judicial discretion to do so." The People agree and concede that Marquez is entitled to a full resentencing, "including consideration of the application of new laws to sentences that were previously final."
In the trial court, the People argued that it was unclear whether the court was required to fully resentence Marquez at the time. The People now concede that the trial court was required to do so.
The concession is well-taken. Shortly after the resentencing hearing in August 2022, the Second District Court of Appeal considered this issue and held: "[b]y its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly 'invalid' enhancements. For example, section 1172.75 subdivision (d)(1) creates a presumption that the resentencing 'shall result in a lesser sentence than the one originally imposed,' subdivision (d)(3) expressly requires the court to consider 'post conviction factors, including ... evidence that reflects that circumstances have changed since the original sentencing,' and subdivision (d)(4) guides the trial court in selecting among the lower, middle, and upper term on each count." (People v. Monroe (2022) 85 Cal.App.5th 393, 402.)
On appeal, Marquez also specifically identifies various changes in the law since his initial sentencing which, he claims, "reduce sentences or provide judicial discretion to do so, which potentially affect him." Marquez argues that the cited changes in the law are not exhaustive, but demonstrate that the trial court's error was prejudicial. The People agree that the trial court may consider the specific statutes cited by Marquez. The People also concede that where, as here, a defendant is entitled to a sentencing decision made in the exercise of informed discretion, but the court is unaware of the scope of its discretionary powers and therefore fails to exercise them, "the appropriate remedy is to remand for resentencing unless the record 'clearly indicate[s]' that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion,'" citing People v. Gutierrez (2014) 58 Cal.4th 1354, 1391. Applying that standard here, the record does not clearly indicate that the trial court would have imposed the same sentence had it been aware of the full scope of its discretion and considered additional ameliorative changes in the law. Accordingly, we accept the People's concession and remand for resentencing.
We need not address the extent to which the specific changes in the law cited by Marquez are applicable, as the issue is not properly before us on appeal. It is for the sentencing court in the first instance to "apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing." (§ 1172.75, subd. (d)(2).)
DISPOSITION
The judgment is reversed for the sole purpose of resentencing. On remand, the trial court is directed to vacate Marquez's sentence and resentence him pursuant to section 1172.75, subdivision (d).
WE CONCUR: Bamattre-Manoukian, Acting P.J. Danner, J.