Opinion
A158096
06-22-2020
THE PEOPLE, Plaintiff and Respondent, v. MATEO PACHECO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Mendocino County Super. Ct. Nos. SCUKCRCR1930587, SCUKCRCR1895334) MEMORANDUM OPINION
We resolve this case by memorandum opinion pursuant to California Standards of Judicial Administration, section 8.1. (See People v. Garcia (2002) 97 Cal.App.4th 847, 853-855.)
I.
Mateo Pacheco appeals a sentence of ten years and eight months in state prison for second-degree robbery, receiving a stolen vehicle, and smuggling unauthorized substances into prison. Under recently enacted Senate Bill No. 136 (2019-2020 Reg. Sess.) (SB 136), which went into effect during the pendency of this appeal, Pacheco argues that his sentence must be reduced by one year. The Attorney General concedes that SB 136 applies retroactively, but contends that we should remand for resentencing rather than order Pacheco's sentence reduced. Agreeing with Pacheco, we shall strike the challenged one-year enhancement, modify the sentence accordingly, and affirm the judgment as modified.
II.
Police officers pulled Pacheco over on July 21, 2018, when they noticed the car he was driving failed to observe a stop sign and was swerving erratically. Pacheco claimed he was simply test-driving the vehicle, but dispatch notified the officers making the stop that the vehicle was stolen just two days earlier. They proceeded to arrest Pacheco. Upon searching the car, the officers found a screwdriver and a device under the dashboard connected to the ignition wires. Later, when brought to Mendocino County Jail, two small bags of methamphetamine were also found in Pacheco's possession, despite Pacheco's claims that he had no drugs on him. He was subsequently charged with (1) theft or unauthorized use of a vehicle and (2) smuggling unauthorized controlled substances into jail. He eventually pleaded no contest to an amended set of charges alleging receiving a stolen vehicle and smuggling unauthorized controlled substances into jail.
With the above charges still pending and before entering his no contest plea, Pacheco, after being released on his own recognizance, was recorded by a security camera walking into a gas station with a grocery bag, a weapon, and a stocking over his head. He pointed the weapon (later determined to be an airsoft gun) at the clerk and demanded money, threatening to kill him if he did not comply. Upon review of the footage, a detective recognized Pacheco's distinctive tattoos and bald spot, leading to a subsequent arrest by the police. For this incident, Pacheco was charged with second degree robbery. He eventually pleaded no contest to this subsequent charge as well.
Based on his no contest pleas to the above charges, a combined sentencing proceeding took place. The trial court imposed a prison term of five years for second degree robbery (Pen. Code §§ 211, 212.5, subd. (c)), as the principal term, with consecutive subordinate terms at one-third of the middle term for receiving a stolen car (§ 496d, subd. (a)) and smuggling an unauthorized controlled substance into prison (§ 4573). In the aggregate, that amounted to a total term of imprisonment of six years and eight months. Several sentencing enhancements lengthened the term. The use of a deadly weapon in the commission of the robbery (§ 12022, subd. (b)(1)) added one year, and the commission of the robbery while out on his own recognizance (§ 12022.1) added two more. Finally, because Pacheco had suffered a previous conviction for which he served prison time (§ 667.5, subd. (b)), and because he had failed to avoid incarceration or the commission of further crimes for five years after serving that time (ibid.), he received another year on top of that. Overall, the resulting sentence was ten years and eight months, subject to 244 days' presentence conduct credits. (Ibid.)
All statutory references are to the Penal Code, unless otherwise indicated. --------
Pacheco filed a notice of appeal on August 7, 2019. As it happened, concurrent with the proceedings against Pacheco that gave rise to his appeal, the California Legislature was debating sentencing reform. And among the enactments arising from these debates was SB 136, which was signed into law by Governor Newsom on October 8, 2019. SB 136 narrows the universe of qualifying prior prison terms under section 667.5. Under current law as revised by SB 136, a prior prison term that triggers sentencing enhancement under section 667.5 must be for a sexually violent offense. (Ibid.) This change in the law went into effect on January 1, 2020. (Stats. 2019, ch. 590, § 1; Pen. Code, § 667.5.)
III.
There is very little in this appeal that the parties do not agree upon. The validity of the trial court's judgment is undisputed, and the fact that the prior prison term Pacheco served was not for a sexually violent offense is undisputed. It is also undisputed that, under current law as revised by SB 136, Pacheco's prior prison term cannot serve as the basis for a one-year enhancement under section 667.5, and further, that SB 136 applies retroactively under In re Estrada (1965) 63 Cal.2d 740, 745, since there has been no final judgment in this case.
The only sliver of a dispute for resolution here is what the disposition on appeal should be now that the one-year sentencing enhancement imposed on Pacheco is no longer valid.
Pacheco asks us to order a sentencing reduction now, as part of our disposition. Because the one-year enhancement he suffered is no longer valid, he argues, the correct course of action is to strike the invalid enhancement, modify the judgment, and affirm the modified judgment. There is ample precedent for this approach in newly emergent SB 136 case law, where various Courts of Appeal have decided in recent months to modify the judgment under review, strike the challenged enhancement from the sentence, and then affirm the judgment as modified. (People v. Lopez (2019) 42 Cal.App.5th 337, 342; People v. Gastelum (2020) 45 Cal.App.5th 757, 773; People v. Petri (2020) 45 Cal.App.5th 82, 94; People v. Winn (2020) 44 Cal.App.5th 859, 872-873.)
The People argue we should do something slightly different and remand the matter to the trial court for resentencing. In support, they cite People v. Hill (1986) 185 Cal.App.3d 831, 834, where a Second District panel remanded for resentencing, having found a portion of an aggregate sentence void. That disposition was appropriate there, the Hill court explained, because the "[t]he trial court is entitled to rethink the entire sentence to achieve its original and presumably unchanged goal." (Ibid.) We cannot disagree with that reasoning (see People v. Buycks (2018) 5 Cal.5th 857, 893), but we think it is inapplicable on this record.
Pacheco has already received a maximum sentence. For the robbery, he was given the aggravated five-year term, plus all applicable enhancements under then-current law at the time of sentencing. The Attorney General points out that Pacheco was only given one-third of the middle term for the receiving a stolen car and drug smuggling convictions. This, he insists, is reason to remand the case, as the trial court may see it fit to increase those sentences to offset the loss of the enhancement. But what he overlooks is that, under section 1170.1, subdivision (a), one-third of the middle term is the maximum sentence for these offenses. (See People v. Nguyen (1999) 21 Cal.4th 197, 205 ["this provision defines the length of individual subordinate terms"].)
Because the terms given for receiving a stolen car and drug smuggling are subordinate terms, the trial court cannot sentence Pacheco to anything greater for those offenses, and because every other aspect of his aggregate sentence is already at the maximum as well, the trial court could not impose a harsher total sentence on remand. (People v. Burbine (2003) 106 Cal.App.4th 1250, 1258-1259 ["case law holds that, based on double jeopardy and due process, the aggregate prison term imposed for all of the surviving counts cannot be increased on remand after a partial reversal"].)
We therefore conclude that remanding for resentencing would be pointless. All the trial court could do is strike the invalid one-year enhancement. If, instead, we order that enhancement stricken now and affirm the judgment as modified without need for further proceedings on remand, the trial court's plainly evident sentencing objective—imposing the maximum punishment for Pacheco's several offenses—remains met, even with the one-year reduction in his prison term.
DISPOSITION
The one-year enhancement to Pacheco's prison term previously imposed under section 667.5, subdivision (b) is stricken. Pacheco's sentence is modified to a total of nine years and eight months, subject to previously calculated credits, and the judgment, as so modified, is affirmed. Upon issuance of the remittitur, the superior court clerk is directed to correct the abstract of judgment to reflect the modified sentence.
STREETER, J. WE CONCUR: POLLAK, P. J.
BROWN, J.