Opinion
H048441
06-27-2023
THE PEOPLE, Plaintiff and Respondent, v. ORLANDO MOLINA, Defendant and Appellant.
NOT TO BE PUBLISHED
(Santa Clara County Super. Ct. No. B1800143)
GREENWOOD, P. J.
A jury convicted Orlando Molina of inflicting corporal injury on the mother of his child, in violation of Penal Code section 273.5, subdivision (a). The trial court found true the allegations that Molina had sustained two prior convictions for which he served prison terms, pursuant to section 667.5, subdivision (b), and that he was out on bail at the time of the offense, pursuant to section 12022.l. The court sentenced Molina to an aggravated term of six years in prison. On appeal, Molina argues that the judgment must be reversed and the matter remanded for resentencing in light of Assembly Bill No. 124 (Stats. 2021, ch. 695, § 5.3), which amended section 1170 to make a low-term sentence presumptively appropriate under specified circumstances, including where a defendant's experience of childhood trauma was a contributing factor to the commission of the offense. (§ 1170, subd. (b)(6).) Molina similarly asserts that he is entitled to resentencing under Senate Bill No. 567 (Stats. 2021, ch. 731, § 1.3), which amended section 1170, subdivision (b)(1) to make the middle term the presumptive sentence. (§ 1170, subd. (b)(1).) Both of these amendments to section 1170, subdivision (b) took effect after Molina was sentenced. We conclude that the matter must be remanded to give the trial court the opportunity to exercise its discretion under Assembly Bill No. 124. Because Molina must be resentenced pursuant to Assembly Bill No. 124, we do not reach his asserted sentencing error under Senate Bill No. 567. (People v. Buycks (2018) 5 Cal.5th 857, 893 [when part of a sentence is stricken on review, "a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances"].) We will reverse the judgment and remand the matter for resentencing under current sentencing law.
Subsequent undesignated statutory references are to the Penal Code unless otherwise indicated.
I. Factual and Procedural Background
We have omitted the facts of the offense because they are not relevant to the analysis and disposition of this appeal.
The Santa Clara County District Attorney filed an information charging Molina with mayhem, with the allegation that he personally inflicted great bodily injury on the victim (§§ 203, 667, 1192.7), and inflicting corporal injury on the mother of his child, with the allegation that he inflicted great bodily injury on the victim under circumstances involving domestic violence. (§§ 273.5, subd. (a), 1203, subd. (e)(3), 12022.7, subd. (e).) The information further alleged that Molina had been convicted of three prior offenses resulting in prison terms (§ 667.5, subd. (b)), and that at the time of the offenses, he was out of custody on bail on a felony offense. (§ 12022.1.)
A jury found Molina not guilty of mayhem but guilty of the lesser included offenses of assault and battery, both misdemeanors. The jury found Molina guilty of inflicting corporal injury on the mother of his child but found the great bodily injury allegation to be not true. Molina waived jury trial on his prior convictions, and the court found true beyond a reasonable doubt the allegations that Molina had sustained two prior convictions for which he served prison terms, and that he was out of custody on bail at the time of the charged offense.
The prosecutor dismissed the third alleged prison prior in advance of sentencing.
Molina's sentencing memorandum, prepared in advance of his sentencing hearing, focused primarily on the rehabilitative efforts he had undertaken while in custody. The sentencing memorandum briefly discussed Molina's childhood, noting that while Molina showed early promise in school, "with no father in the picture, Mr. Molina had negative peer associations which led him to show allegiance and loyalty to the wrong people in his neighborhood." The sentencing memorandum further stated that Molina had "learned about the dynamics of the cycle of violence" while in custody. In his interview with the probation officer who prepared sentencing recommendations to the court, Molina also confirmed that he never knew his father.
Molina was sentenced on September 11, 2020. At the sentencing hearing, the trial court found that under California Rules of Court, rule 4.421(a), seven factors supported the imposition of an aggravated sentence, including: (1) the crime involved the threat of great bodily harm, (2) the victim was particularly vulnerable, (3) Molina had engaged in violent conduct that indicated a serious danger to society, (4) Molina's prior convictions as an adult were numerous, (5) Molina had served a prior prison term, (6) Molina was on parole when the crime was committed, and (7) Molina's prior performance on parole was unsatisfactory. (See Cal. Rules of Court, rule 4.421(a)(1), (a)(3), (b)(1)-(5).) Balanced against these aggravating factors, the court considered mitigating factors, including the numerous programs and classes Molina had attended while in custody, his attempts to obtain a GED, his family support, and his job prospects. In the end, the court found that the aggravating factors "far outweigh[ed]" the mitigating factors and stated that even if it excluded the crime-related factors of rule 4.421(a) and relied only upon the factors enumerated in rule 4.421(b), it would still, "based on those factors alone," impose the aggravated sentence.
The court sentenced Molina to the aggravated term of four years for the violation of section 273.5, subdivision (a), and imposed a consecutive two-year term for the out-on-bail enhancement, for a total term of six years in prison. The court dismissed the two misdemeanor convictions for assault and battery and ordered the two prison priors stricken. The court imposed an additional consecutive eight-month term in a separate case, for which Molina had previously pled no contest.
Molina timely appealed from the judgment.
II. Discussion
A. Standard of Review
On appeal, Molina argues that the matter must be remanded for resentencing in light of Assembly Bill No. 124 and Senate Bill No. 567, both of which took effect after Molina was sentenced and made ameliorative changes to the sentencing provisions of section 1170, subdivision (b).
Defendants are entitled to sentencing decisions "made in the exercise of the 'informed discretion' of the sentencing court." (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) "A court which is unaware of the scope of its discretionary powers can no more exercise that 'informed discretion' than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record. [Citations.]" (Ibid.) In such circumstances, the appropriate remedy is 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.' [Citations]." (Ibid.)
B. Amendments to Section 1170, Subdivision (b)
At the time of Molina's sentencing in September 2020, section 1170, subdivision (b) gave trial courts discretion to sentence a defendant to one of three terms-the lower, middle, or upper term-with the trial court determining which term "best served the interests of justice." (Former § 1170, subd. (b).) Effective January 1, 2022, Assembly Bill No. 124 further amended section 1170, which now provides in subdivision (b)(6), "unless the court finds that the aggravating circumstances outweigh the mitigating circumstances that imposition of the lower term would be contrary to the interests of justice, the court shall order imposition of the lower term if any of the following was a contributing factor in the commission of the offense: [¶] (A) The person has experienced psychological, physical, or childhood trauma, including, but not limited to abuse, neglect, exploitation, or sexual violence." (§ 1170, subd. (b)(6).)
Also effective January 1, 2022, Senate Bill No. 567 amended section 1170, subdivision (b)(1) to make the middle term the presumptive sentence. (§ 1170, subd. (b)(1).) Moreover, subdivision (b)(2) now authorizes a sentence above the middle term "only when there are circumstances in aggravation of the crime that justify the imposition of a term . . . exceeding the middle term, and the facts underlying those circumstances have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at a trial by the jury or by the judge in a court trial." (§ 1170, subd. (b)(2).)
C. Retroactivity
The Attorney General concedes, and we agree with the parties, that Molina is entitled to the retroactive application of the ameliorative changes effected by Senate Bill No. 567 and Assembly Bill No. 124. (See, e.g., People v. Garcia (2022) 76 Cal.App.5th 887, 902-903 (Garcia) [changes effected by Senate Bill No. 567 and Assembly Bill No. 124 "apply retroactively to defendant's case as they are ameliorative in nature and therefore apply to all nonfinal appeals"]; People v. Flores (2022) 73 Cal.App.5th 1032, 1039 [amended section 1170, subdivision (b) applies retroactively "as an ameliorative change in the law applicable to all nonfinal convictions on appeal"].)
D. Resentencing Is Required under Section 1170, Subdivision (b)(6) (Assembly Bill No. 124)
While conceding the retroactive applicability of amended section 1170, subdivision (b), the Attorney General argues that a remand for resentencing under Assembly Bill No. 124 is unnecessary because nothing in the record suggests that Molina had suffered childhood trauma that contributed to his commission of the underlying offense.
Indeed, the sentencing memorandum Molina filed contained limited discussion of possible childhood trauma and childhood neglect. But we disagree with the Attorney General's assessment that there is no evidence of childhood trauma in the record. The sentencing memorandum noted that "with no father in the picture, Mr. Molina had negative peer associations which led him to show allegiance and loyalty to the wrong people in his neighborhood." Molina also informed the probation officer that he never knew his father.
Since Molina was sentenced prior to the enactment of subdivision (b)(6), he had little incentive to develop the record regarding his childhood experience, despite indications that he was fatherless and was influenced by undesirable peers. Without the benefit of the ameliorative legislation, counsel appears to have chosen to argue Molina's demonstrated efforts at rehabilitation in custody, which were easily confirmed through documentation and recognized as relevant mitigators under then-existing law. The absence of emphasis on Molina's childhood experience does not mean that there was no evidence of childhood trauma to present to the court, but that it was not the most compelling evidence under the law at the time Molina was sentenced.
Nor did the trial court have the benefit of the amended statute at Molina's sentencing, so that it could consider the low-term presumption and conduct the requisite analysis under the provision. (See People v. Gerson (2022) 80 Cal.App.5th 1067, 1096 (Gerson) [remand required because prior to Assembly Bill No. 124, "the trial court had no statutory reason to make, and [defendant] had no reason to seek, a finding that past psychological or physical trauma was a contributing factor to his commission of any of his offenses"]; People v. Banner (2022) 77 Cal.App.5th 226, 242 (Banner) [remand required because prior to Assembly Bill No. 124, "neither [defendant] nor the court had a meaningful incentive to assess whether mental illness was a limited but nonetheless 'contributing factor' in the crime"].)
Additionally, even if the trial court had been disinclined to impose the presumptive low term sentence in light of the multiple aggravating factors in Molina's case, evidence presented regarding Molina's childhood trauma experience under subdivision (b)(6) might have persuaded the court to impose the middle term. This is particularly true when we assess subdivision (b)(6) alongside Senate Bill No. 567, which makes the middle term the presumptive sentence in all cases-irrespective of evidence of trauma. (See § 1170, subd. (b)(1).) Molina is entitled to a remand for resentencing under Assembly Bill No. 124" '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" '" under subdivision (b)(6). (Gerson, supra, 80 Cal.App.5th at p. 1096.) Because it is not clear from this record that the trial court would have imposed the upper term sentence if section 1170, subdivision (b)(6) had been in effect at the time of Molina's sentencing, we must remand for resentencing to provide Molina the opportunity to develop a record regarding childhood trauma to the extent it exists, and for the trial court to resentence him under current sentencing law.
In remanding the matter for resentencing, we express no opinion as to whether the trial court should find that Molina had experienced childhood trauma under subdivision (b)(6), and if so, whether such trauma "was a contributing factor" to Molina's commission of the underlying offense. (§ 1170, subd. (b)(6); Banner, supra, 77 Cal.App.5th at p. 242.) In addition, because we remand for resentencing, we do not address Molina's contention that he is entitled to a reversal and remand for resentencing under Senate Bill No. 567. Molina will have the opportunity at his resentencing to present any argument concerning the limitations of amended section 1170, subdivision (b), on the sentencing court's discretion to impose an upper term sentence. (See Garcia, supra, 76 Cal.App.5th at p. 902.)
In connection with Senate Bill No. 567, the Attorney General argues that all seven aggravating factors that the trial court relied upon to impose the upper term were sufficiently proven to the standard of amended section 1170, subdivision (b). The district attorney may present and the trial court consider this argument at Molina's resentencing.
III. Disposition
The judgment is reversed, and the matter is remanded solely for resentencing under current sentencing law. (§ 1170.)
WE CONCUR: Grover, J. Lie, J.