Opinion
C084805
06-22-2018
THE PEOPLE, Plaintiff and Respondent, v. ALAN ALFONSO NOGUEDA, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 10-3290)
Defendant Alan Alfonso Nogueda appeals the judgment entered following his resentencing after a grant of a federal habeas corpus petition. He contends that in light of the recent amendment to Penal Code section 12022.5, this matter must be remanded to permit the trial court to consider whether it should exercise its discretion to strike or dismiss the firearm enhancements imposed under this provision. Because we conclude that the trial court's well-supported choice of the maximum consecutive terms on the precise enhancements at issue here informs us that remand would be futile, we decline to remand for resentencing and instead affirm the judgment as pronounced.
Undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant requests we take judicial notice of the record in his prior appeal. The People request we take judicial notice of our prior opinion disposing of that appeal. We construe defendant's unopposed request for judicial notice as a motion to incorporate the prior record by reference pursuant to California Rules Court, rule 8.147(b), and grant the motion. We also grant the People's unopposed request to take judicial notice of our unpublished opinion in the prior appeal. (Evid. Code, § 452, subd. (d); Mendoza v. Wichmann (2011) 194 Cal.App.4th 1430, 1433, fn. 2.) Unless otherwise specified, the facts and procedural background are taken from our opinion disposing of defendant's prior appeal. (People v. Nogueda (Feb. 14, 2013, C067538) [nonpub. opn.].)
Trial and the Original Sentencing
L.A. was the mother of defendant's baby daughter. On the date of the incident in question, July 2, 2010, L.A. and defendant were no longer in a relationship because L.A. ended the relationship when defendant went to jail. However, defendant's mother L.R. helped L.A. watch the baby.
On July 2, 2010, the baby was staying with L.R. L.A. went there to pick her up around 8:00 p.m. L.R.'s other son, defendant's brother, was also at L.R.'s house. Defendant arrived at the house, and L.A. got up to leave. She testified that she saw defendant do something with his hands but did not see anything in his hands; she heard a click that sounded like he was loading a gun. She testified she thought he was doing it just to scare her and that the gun was just a toy. However, she acknowledged that she testified at the preliminary hearing that defendant came in carrying a gun.
Defendant said he wanted to talk to L.A. She did not want to talk to him, so she picked up the baby and started to walk out the door. Defendant followed her as she walked to her truck. He grabbed the baby's car seat, saying all the while that he wanted to talk to L.A. They began arguing and he accused her of going out with someone else.
L.A. acknowledged that she had testified at the preliminary hearing that defendant pulled a gun out, but testified at trial she could not say for sure it was a gun. She testified that she was sitting in her truck when defendant began hitting her. He hit her repeatedly with his fists and with the gun, and held the gun against the side of her head and told her he was going to kill her. She no longer thought the gun was a toy. He bit her on her nose, cheek, lip, and ear.
L.A. slid out of the truck onto the ground; defendant kept hitting her. A neighbor arrived and pleaded with him to stop and calm down. Defendant did not stop, but continued hitting L.A. and began kicking her. L.R and defendant's brother came out to the truck and tried to stop defendant by grabbing and pulling at him, but he continued the attack.
Finally, defendant calmed down. Then L.A.'s cell phone rang. Defendant answered it and argued with the person on the phone, saying "[s]omething about Sureños or something like that." The person on the phone, an acquaintance of L.A.'s brother, was calling because he wanted to talk to L.A.'s brother. Defendant threw down the phone and said he was going to kill L.A., called her a bitch, then hit her again.
L.A. tried to run away from defendant, but he grabbed her, threw her on the ground, and tried to hit her again. L.R. intervened, but to no avail. Defendant then grabbed the baby. L.R. implored him to think of the baby. He said, "Well, what's the big deal? The kid isn't even mine." At this point, a neighbor took L.A. into her home.
Officer Jerry Watson responded to the scene and interviewed L.A., who was crying and hysterical. She said that defendant held a gun to her head and that defendant pointed a gun at both L.R. and the baby. Officer Renaldo Monterrosa interviewed L.R., who told him that defendant had assaulted her when she tried to intervene. L.R. told Monterrosa that defendant threatened to kill her and L.A. He also held the gun while holding the baby, and said he was going to kill it because it was not his. He pointed the gun at L.R. as well, and said that if anyone tried to take away the baby he would kill them.
Officer Jason Fortier also took a statement from L.R., who informed him that she had seen defendant with a chrome handgun enter the parking lot of a nearby gas station and walk toward the rear. Fortier found an unloaded gun on the lifting rail of a trash dumpster behind the station. He searched the area, but did not find any ammunition.
L.A. admitted that L.R. told her defendant would get 48 years in jail because of the gun. L.A. admitted she still loved defendant and did not want anything bad to happen to him. L.R. admitted talking to L.A. about the case and telling her to testify that there was not a gun involved in the incident.
The jury found defendant guilty of four counts of assault with a semiautomatic firearm against L.A. (for aiming the gun and hitting with the gun, respectively), L.R., and the baby, one count of false imprisonment with force and violence against L.A., one count of corporal injury to the parent of his child (L.A.), two counts of making threats to commit a crime resulting in death or great bodily injury against L.A., one count of abusing or endangering the health of a child, and two misdemeanor violations not pertinent to this appeal. The jury also found true the allegations that defendant personally used a firearm (§ 12022.5, subd. (a)) as to all felony counts on which he was convicted, except false imprisonment with force and violence and one count of making threats to commit a crime resulting in death or great bodily injury.
The jury did not find defendant guilty of making threats to commit a crime resulting in death or great bodily injury against L.R.
At the original sentencing following the jury verdicts, the trial court indicated at the outset that it was inclined to impose the middle term for assault with a semiautomatic firearm as to L.A., but it was inclined to impose the upper term of 10 years for the firearm enhancement because defendant repeatedly used a gun to place several people in danger. The prosecutor argued that an upper term sentence was warranted on this count for various reasons but did not specifically discuss the firearm enhancement. Defense counsel did not request a low term sentence on this count but argued that a low term or midterm sentence on the firearm enhancement was appropriate because the gun was unloaded. However, counsel acknowledged that the victims were not aware the gun was unloaded. Neither attorney discussed any of the firearm enhancements attached to the other counts of conviction.
The trial court sentenced defendant to the middle term of six years for the count of assault with a semiautomatic firearm on L.A. In pronouncing sentence, the court stated in relevant part as follows: "the Court has considered the aggravating and mitigating factors, find[s] that they balance in addition to the things I mentioned at the very beginning such as the total aggregate term being taken into account."
In selecting the upper term for the firearm enhancement to this count, the trial court stated "it may be that it truly was unloaded. We don't really know, but we know an unloaded weapon was what was recovered, but it had been recovered from where [defendant] went and hid it. We don't know if he also dropped the ammunition somewhere else and it was never recovered. [¶] It really doesn't matter whether it was loaded or not, though it was used . . . against multiple victims. It was used in a circumstance where people who are around the use of the weapon, whether they are victims or other people, are looking at that and wondering whether desperate measures need to be taken, desperate measures that put other people's lives or health, safety, at risk. [¶] We have the three victims identified in this case and the others who are around the police officers who show up and hear that there is a firearm involved. Somebody could have died that night whether that weapon was loaded or not, and happily no one did. [¶] But the upper base term -- these aggravating factors, based on the circumstances of this offense, show that the upper base term of ten years [for the enhancement] is appropriate . . . ." The court went on to impose the upper term for the other firearm enhancements for the same reasons. The aggregate sentence originally imposed was 26 years 8 months in prison.
Postconviction Proceedings
In his first appeal, defendant argued there was insufficient evidence that he had the present ability to commit an assault because there was no evidence the gun was loaded. He argued the trial court should have sua sponte instructed the jury that there was no present ability to commit an assault if the gun was unloaded, and that his trial counsel was ineffective for not requesting such an instruction. He further argued that he received ineffective assistance of trial counsel because his counsel failed to object to certain testimony. Finally, he argued that two of his prison sentences should have been stayed pursuant to section 654.
In February 2013, we issued an opinion directing the trial court to stay the two-year concurrent sentence on the false imprisonment with force and violence count and the two-year concurrent sentence on one count of making threats to commit a crime resulting in death or great bodily injury (§ 654). In all other respects, we affirmed the judgment.
In June 2016, the United States District Court for the Eastern District of California granted defendant's habeas corpus petition, reversing his convictions for assault with a semiautomatic firearm against L.R. and the baby. The district court ordered a retrial on those counts at the People's discretion.
After the People declined to retry defendant, the trial court scheduled a resentencing hearing. Prior to the hearing, the People filed a sentencing brief, requesting the trial court impose an aggregate sentence of 26 years. The People proposed the court impose the same sentence it previously imposed on the remaining counts, with the exception that the sentence on the count of abusing or endangering the health of a child now run consecutive rather than concurrent. Defendant filed a written opposition, requesting that the court order the sentence on that count to remain as previously imposed (i.e., concurrent).
At the resentencing hearing in May 2017, defense counsel added the request that the court impose concurrent sentences on the two counts of assault on L.A. with a semiautomatic firearm. The prosecutor disagreed with defendant's sentencing request, arguing that consecutive sentences on these three counts were warranted. The prosecutor asserted that the two counts involving L.A. involved separate acts and uses of the gun (aiming the gun and hitting with the gun) while the count of abusing or endangering the health of a child involved a third victim--the baby--and consecutive sentences were previously ordered for the assaults on L.A. and L.R.
The trial court agreed with the People, stating, "This is not a case where there's a reason to exercise discretion to bring things concurrent. It's just not appropriate to do so." The court imposed an aggregate sentence of 26 years in prison. During the oral pronouncement of sentence, the court stated that it was imposing the upper term on the firearm enhancements for the same reasons it articulated at the original sentencing hearing.
Defendant timely appealed from resentencing.
DISCUSSION
Defendant's sole claim on appeal is that his case should be remanded for yet another sentencing hearing to permit the trial court to exercise its newly acquired discretion regarding his many firearm enhancements. For the reasons we now explain, we decline to remand defendant's case.
On October 11, 2017, the Governor signed into law Senate Bill No. 620 (2017-2018 Reg. Sess.) (hereafter Senate Bill 620), which amended sections 12022.5, subdivision (c), and 12022.53, subdivision (h), effective January 1, 2018 (Stats. 2017, ch. 682, §§ 1 & 2, respectively). Prior to the enactment of Senate Bill 620, and at the time defendant was resentenced by the trial court, these provisions required mandatory imposition of sentencing enhancements in certain enumerated situations. As amended, these provisions now state: "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (§§ 12022.5, subd. (c), 12022.53, subd. (h).) Here, as noted above, defendant's sentence includes multiple firearm enhancements imposed pursuant to section 12022.5, subdivision (a).
Defendant argues that his case must be remanded to permit the trial court to exercise its newly acquired discretion to decide whether to strike or dismiss any of the firearm enhancements imposed under section 12022.5, subdivision (a). The People agree that defendant is entitled to the retroactive ameliorative effect of the amendment to section 12022.5, but argue that remand is not appropriate because no reasonable trial court would exercise its discretion to strike or dismiss any of the firearm enhancements.
As we outlined in People v. Woods (2018) 19 Cal.App.5th 1080, 1090-1091, we conclude that the recent amendment to section 12022.5 is retroactive and applies to this case. However, we conclude that remand is not required in the instant case because such a remand would simply serve no purpose. (See People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 [remand not required where trial court's comments at sentencing and sentence itself show that "no purpose" would be served by a remand].) Here, the trial court made all the required considerations and findings and purposely chose the upper term sentence--from a triad of three, four, or 10 years--on the precise enhancements at issue here. Under these circumstances, remand is not required.
In finding that the recent amendment to section 12022.53 is retroactive, this court reasoned as follows, "[T]he amendment to subdivision (h) of Penal Code section 12022.53 . . . necessarily reflects a legislative determination that the previous bar on striking firearm enhancements was too severe, and that trial courts should instead have the power to strike those enhancements in the interest of justice. Moreover, because there is nothing in the amendment to suggest any legislative intent that the amendment would apply prospectively only, we must presume that the Legislature intended the amendment to apply to every case to which it constitutionally could apply." (People v. Woods, supra, 19 Cal.App.5th at p. 1091.) --------
The trial court expressly stated that the upper term sentence it imposed for the full-term firearm enhancement on the base term was "appropriate." The court then imposed one-third the upper term on the firearm enhancements attached to the counts for which it imposed consecutive sentences, and the upper term concurrent on the counts for which it imposed concurrent sentences. The court arrived at this conclusion after listing the variety of factors it considered, set forth in detail ante. In doing so, the court expressly rejected defendant's sole mitigation argument supporting his request for a low or midterm sentence on the firearm enhancements; the court concluded that whether the gun was or was not loaded was irrelevant given the circumstances and the number of people victimized.
Although it is true that the trial court did not impose the maximum aggregate sentence, but instead imposed the midterm on the assault with a firearm count, it twice expressly stated that in doing so it took into account the total aggregate term it intended to impose. Striking any of the determinate term firearm enhancements that were run consecutively would substantially reduce the aggregate term the trial court thought appropriate when it imposed that midterm sentence on the assault with a firearm count. Under the specific facts of the two sentencing hearings already conducted in this case, and the trial court's articulated reasons for exercise of its discretion regarding choosing from a triad of terms for the enhancements at sentencing, it is clear that the court, in effect, already determined that striking any of the enhancements found true in this case was not appropriate. Remand would serve no purpose and indeed be futile.
DISPOSITION
The judgment is affirmed.
/s/_________
Duarte, J. I concur: /s/_________
Murray, J. I dissent.
The majority goes to great lengths to show remand "would simply serve no purpose" because "the trial court made all the required considerations and findings and purposely chose the upper term sentence" for the firearm enhancements. The majority supports this holding by pointing to the court's discretionary sentencing decision to impose the upper term of imprisonment for the Penal Code section 12022.5, subdivision (a) firearm enhancements and the court's statement of reasons for why the term was "appropriate" to reach the intended aggregate sentence imposed.
I have a fundamental disagreement with the majority's reasoning. I do not believe I or any appellate court has the wisdom to determine what the trial judge would have done at a defendant's sentencing hearing if it had been aware of the full extent of its discretion under Senate Bill No. 620. "When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act." (In re Estrada (1965) 63 Cal.2d 740, 745.)
With the enactment of Senate Bill No. 620 following defendant's resentencing, the Legislature changed the calculus a trial judge must enter when determining whether a firearm enhancement is appropriate. Because of this change, anything the trial judge said at the time of sentencing is tainted by the policy considerations behind the law then in effect. The trial judge's determination that the upper term of imprisonment was appropriate is necessarily informed by what the judge and the Legislature thought was appropriate under the law at the time. But what was appropriate then may not be what is appropriate now under a law the Legislature amended for being too stringent.
" 'Defendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court. [Citations.] 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.' " (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) After taking into account the change in policy and after hearing argument from both sides, the trial judge may feel differently than when he initially sentenced defendant to the enhancements. Defendant should not be denied this opportunity. Accordingly, I would remand for the trial judge to exercise his informed discretion when sentencing defendant to the firearm enhancements.
/s/_________
Robie, Acting P. J.