Opinion
H046964
04-17-2020
THE PEOPLE, Plaintiff and Respondent, v. JOSE CARLOS ROMERO, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. SS161675)
Defendant Jose Carlos Romero was convicted by jury trial of murder (Pen. Code § 187, subd. (a)), unlawful possession of a firearm (§ 29800, subd. (a)(1)), and unlawful possession of ammunition (§ 30305, subd. (a)(1)). The jury also found true the allegation that defendant personally discharged a firearm causing great bodily injury and/or death (§ 12022.53, subd. (d)). The trial court found that defendant had served a prior prison term (§ 667.5, subd. (b)). The trial court sentenced defendant to 25 years to life for murder, a consecutive term of 25 years to life for the firearm enhancement, and a consecutive one-year term for the prior prison term.
Subsequent statutory references are to the Penal Code unless otherwise noted.
When defendant was originally sentenced, section 12022.53 prohibited a trial court from striking "an allegation under this section or a finding bringing a person within the provisions of this section." (Former § 12022.53, subd. (h); Stats. 2010, ch. 711, § 5.) Effective January 1, 2018, section 12022.53 was amended to provide that a trial court may "in the interest of justice pursuant to [s]ection 1385 . . . strike or dismiss an enhancement otherwise required to be imposed by this section." (Stats. 2017, ch. 682, § 2.) In People v. Romero (Dec. 20, 2018, H044453) [nonpub. opn.], we remanded defendant's case to allow the trial court to decide whether to exercise its discretion under section 12022.53, subdivision (h) to strike the firearm enhancement. On remand, the trial court determined that the interests of justice did not warrant striking the firearm enhancement, and the court reinstated the original judgment.
On appeal, defendant argues that his case must be remanded again because the trial court did not understand the scope of its discretion in deciding whether to strike the firearm enhancement. We reject this claim. Defendant also argues that his case must be remanded for resentencing based on a recent amendment to section 667.5, subdivision (b), which eliminated the one-year prison prior enhancement for most offenses. We agree that the prison prior enhancement must be stricken but see no need for a remand regarding the firearm enhancement. We modify and affirm the judgment.
I. Background
Following remand, a hearing was held on May 30, 2019. Defense counsel argued that the court should strike the firearm enhancement in its entirety. The prosecutor argued that the firearm enhancement should be left in place. The prosecutor asked the court if it had adopted a "balancing test"—i.e., weighing factors in aggravation and mitigation—to decide whether to exercise its discretion.
The trial court replied: "Well, there's been no guidance, as you both know, no court authority or case authority at this point to indicate exactly -- well, I don't know if I even call it a weighing process. The Court, in its discretion, can choose to impose the enhancement or not. What I've been looking at are the actual circumstances of the individual case to see if it warrants the imposition of that sentence." The court continued: "Here in terms of your argument, [defense counsel], it's really no different than any other big use type enhancement case. Here it is a little different, I find, because [defendant] came to the scene with a loaded weapon, shot the victim at fairly close range. Not all cases are like that. Where here it did seem particularly planned, cold, callous; even though I know he -- there was some evidence he was upset about what was going on with his child's mother, I believe it is."
After a brief discussion about the circumstances of the killing, the court continued: "Okay. I do find in the Court's discretion that the 12022.53(d) enhancement is appropriate here. I do think [defendant] merits the additional punishment for the use of a firearm in this case. Again, he came to the -- came back to the scene with a loaded weapon again, as stated by counsel, shot [the victim] at close range in the face." The court then listed some factors in aggravation, but stated: "I don't even know that I need to go that far. I find the facts and circumstances here warrant the imposition of the enhancement."
II. Discussion
A. Scope of Sentencing Discretion
In People v. Morrison (2019) 34 Cal.App.5th 217 (Morrison), the defendant was sentenced to 50 years to life, which consisted of 25 years to life for murder (§ 187, subd. (a)) and 25 years to life for a firearm enhancement (§ 12022.53, subd. (d)). (Morrison, at p. 220.) The defendant later "filed a request to recall the sentence pursuant to section 1170, subdivision (d)(1), based on recent amendments to section 12022.53 that gave the court the discretion . . . to strike a firearm enhancement under its provisions." (Ibid.) At a subsequent hearing, the court reimposed the original sentence of 50 years to life. The defendant appealed, arguing that "the court did not understand the scope of its discretion." (Id. at p. 221.) The defendant contended that "the court had the discretion to modify the enhancement from that established by section 12022.53, subdivision (d), which carries a term of 25 years to life, to a 'lesser included' enhancement under section 12022.53, subdivision (b) or (c), which carry lesser terms of 10 years or 20 years, respectively." (Ibid.)
The Morrison court agreed, holding that "[t]he [trial] court had the discretion to impose an enhancement under section 12022.53, subdivision (b) or (c) as a middle ground to a lifetime enhancement under section 12022.53, subdivision (d), if such an outcome was found to be in the interests of justice under section 1385." (Morrison, supra, 34 Cal.App.5th at p. 223.) The court recognized that "no published case" had so held at the time the defendant was resentenced. (Id. at p. 224.) Thus, "because it [did] not appear the court considered the issue now raised, [the Morrison court] remand[ed] for resentencing." (Ibid.) The court acknowledged that "after the publication of our decision today [April 11, 2019], the usual presumption that a sentencing court correctly applied the law will apply and will ordinarily prevent remand where the record is silent as to the scope of a court's discretion." (Id. at p. 225.)
As the Morrison court acknowledged, it is "the general rule that a trial court is presumed to have applied the law correctly in the absence of a clear indication to the contrary, [and courts have] concluded that in cases in which the trial court record is silent, ordinary principles of appellate review require that an appellate court presume the trial court properly understood" its discretion. (People v. Fuhrman (1997) 16 Cal.4th 930, 944 (Fuhrman).) When the record is silent, remand is not available, and a defendant must seek relief by habeas. (Id. at pp. 944-945.)
We are bound by the California Supreme Court's decision in Fuhrman. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) In Fuhrman, the defendant had been sentenced under the "Three Strikes" law before the California Supreme Court held in People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) that a trial court had discretion to strike a strike. (Romero, at p. 531; Fuhrman, supra, 16 Cal.4th at pp. 941-942.) The Romero decision resolved a split of authority on whether the trial court had such discretion and was explicitly "retroactive." (Fuhrman, at pp. 942-943.) In Fuhrman, the California Supreme Court rejected a line of Court of Appeal cases that had held that remands were appropriate where the defendant was sentenced prior to the Romero decision. (Fuhrman, at p. 945.) Instead, the California Supreme Court held that in those cases remand would be appropriate only where there was an "affirmative indication in the record that the trial court" misunderstood its discretion. (Id. at pp. 945-946.)
Here, defendant has failed to identify any "affirmative indication in the record" demonstrating that the trial court misunderstood the scope of its sentencing discretion. Defendant was sentenced after the opinion in Morrison issued, and thus we presume that the trial court was aware of the decision and followed the applicable law. Defendant points to the following statement as evidence the court misunderstood its sentencing discretion: "The Court, in its discretion, can choose to impose the enhancement or not." However, the fact that the court did not expressly set forth all the available sentencing options is not an "affirmative indication" that the court was unaware of those options or the scope of its discretion. On this record, we cannot presume the trial court misunderstood its sentencing discretion in the absence of some affirmative showing that it did, and thus we reject defendant's claim.
We recognize that another published opinion has since disagreed with Morrison. (See People v. Tirado (2019) 38 Cal.App.5th 637, review granted Nov. 13, 2019, S257658 (Tirado).) Tirado was published on August 12, 2019, well after defendant's sentencing date. Thus, at the time of sentencing, the "applicable law" included only Morrison. We express no opinion as to the validity of the holdings in Morrison and Tirado.
B. Senate Bill No. 136
On October 8, 2019, the Governor signed Senate Bill No. 136 (2019-2020 Reg. Sess.) into law. Effective January 1, 2020, Senate Bill No. 136 (2019-2020 Reg. Sess.) amended section 667.5, subdivision (b) to limit the one-year enhancement for prior prison terms so that it will apply only where the offense underlying the prior prison term was a sexually violent offense as defined in Welfare and Institutions Code section 6600, subdivision (b). (Stats. 2019, ch. 590, § 1; § 667.5, subd. (b).)
Under In re Estrada (1965) 63 Cal.2d 740 (Estrada), "[w]hen the Legislature has amended a statute to reduce the punishment for a particular criminal offense, we will assume, absent evidence to the contrary, that the Legislature intended the amended statute to apply to all defendants whose judgments are not yet final on the statute's operative date. [Citation.]" (People v. Brown (2012) 54 Cal.4th 314, 323, fn. omitted.) "The rule in Estrada has been applied to statutes governing penalty enhancements, as well as to statutes governing substantive offenses. [Citations.]" (People v. Nasalga (1996) 12 Cal.4th 784, 792-793.) We find nothing in Senate Bill No. 136 (2019-2020 Reg. Sess.) that suggests a legislative intent that the amendments to section 667.5, subdivision (b) apply only prospectively. Therefore, it is appropriate to infer, as a matter of statutory construction, that the Legislature intended it to apply to all cases to which it could constitutionally be applied. (People v. Conley (2016) 63 Cal.4th 646, 657 ["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 were final and sentences that are not"].)
Here, defendant's case was not final on January 1, 2020. (People v. Vieira (2005) 35 Cal.4th 264, 306.) The record reflects that defendant's prior prison term was for resisting an officer (§ 69). Because defendant's prior prison term was not served for a sexually violent offense, his section 667.5, subdivision (b) enhancement is now unauthorized under the amended statute. "When sentencing error does not require additional evidence, further fact finding, or further exercise of discretion, the appellate court may modify the judgment appropriately and affirm it as modified. [Citations.]" (People v. Haskin (1992) 4 Cal.App.4th 1434, 1441.) Given that the sentencing error in the present case does not require further fact finding or the further exercise of discretion by the trial court, we will modify the judgment and affirm the judgment as modified.
We grant defendant's unopposed request for judicial notice of the legislative history of Senate Bill No. 136 (2019-2020 Reg. Sess.). (Evid. Code, §§ 452, subds. (b) & (c); 459, subd. (b).)
III. Disposition
We modify the judgment to strike the one-year prior prison term enhancement. The trial court is directed to prepare an amended abstract of judgment that reflects this modification, and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
/s/_________
Mihara, J. WE CONCUR: /s/_________
Premo, Acting P. J. /s/_________
Bamattre-Manoukian, J.