Opinion
F068737
10-10-2018
THE PEOPLE, Plaintiff and Respondent, v. FELIX CORRAL RUIZ II, Defendant and Appellant.
Elizabeth Campbell, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Peter H. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. VCF241607J)
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. Joseph A. Kalashian, Judge. Elizabeth Campbell, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Peter H. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
In 2013, appellant Felix Corral Ruiz II was tried before a jury with his codefendant, Joe Valdez Dominguez. Before the trial completed, appellant negotiated a plea agreement for a sentence of 35 years in state prison. The parties agreed he would waive his right to appeal. No agreement or discussion occurred on the record regarding how the 35 years would be calculated.
Dominguez is not a party to this appeal.
To resolve the matter, appellant pleaded no contest to two counts of attempted murder (Pen. Code, §§ 664/187; counts 2 & 3). Regarding both counts, and as part of the plea agreement, he pleaded no contest that (1) a handgun was personally and intentionally discharged by a principal in the commission of the offenses (§ 12022.53, subd. (c)); and (2) the crimes were committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)(C)). He also pleaded no contest to a charge of conspiracy to transport a controlled substance (§ 182, subd. (a)(1); Health & Saf. Code, § 11379; count 5). The four remaining counts against him were dismissed.
All future statutory references are to the Penal Code unless otherwise noted.
Appellant was charged by information with seven counts: conspiracy (§ 182, subd. (a)(1); counts 1, 5 & 6); attempted murder (§§ 664/187, subd. (a); counts 2 & 3); shooting at an inhabited dwelling (§ 246; count 4); and participation in a criminal street gang (§ 186.22, subd. (a); count 7).
The following special allegations were alleged: appellant had a prior felony conviction (§ 667.5, subd. (b); counts 17); a principal personally and intentionally discharged a firearm at two victims (§ 12022.53, subds. (d) & (e)(1); counts 14); and the crime was punishable in the state prison for life and was committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subds. (b)(5), (b)(1)(C) & (b)(1)(A); counts 13, 5 & 6).
At the change of plea hearing, the court advised appellant of his various rights, but the court never asked appellant if he understood he was waiving his right to appeal. For count 2 (attempted murder), appellant was sentenced to state prison for a total of 35 years consisting of five years for the attempted murder, plus an additional and consecutive 20 years for the firearm enhancement and an additional and consecutive 10 years for the gang enhancement. Count 3 (attempted murder) was sentenced identically as count 2, which was to run concurrently. For count 5 (conspiracy to transport a controlled substance), he was sentenced concurrently to state prison for three years. Various fees and fines were imposed.
In our unpublished opinion in People v. Ruiz (May 19, 2016, F068737), we determined appellant's appeal was not barred, in part, because a valid waiver of appeal did not appear in the record. However, we rejected appellant's claim that he was entitled to withdraw his plea. We reached this conclusion despite agreeing with the parties that the trial court had imposed an unauthorized sentence. A sentence enhancement for participation in a criminal street gang may not be imposed on a person in addition to a firearm enhancement under section 12022.53, "unless the person personally used or personally discharged a firearm in the commission of the offense." (§ 12022.53, subd. (e)(2).) Appellant had only admitted that a principal personally discharged a firearm. Thus, we agreed with the parties that the court had imposed an unauthorized 10-year term for the gang enhancement pursuant to section 186.22, subdivision (b)(1)(C).
However, because appellant had received the benefit of his bargain, we agreed with respondent that appellant was estopped from challenging the sentence despite the sentencing error. We also rejected appellant's contentions that certain fees and assessments imposed under Health and Safety Code sections 11372.5 and 11372.7 were unauthorized and should have been stricken. We ordered certain clerical errors to be corrected in the abstract of judgment but we otherwise affirmed the judgment.
In the disposition of this present opinion, we again set forth how the trial court shall correct the abstract of judgment upon remand.
Appellant appealed our opinion to the California Supreme Court, which granted review "to determine whether imposing a criminal laboratory analysis fee (Health & Saf. Code, § 11372.5, subd. (a)) and a drug program fee (Health & Saf. Code, § 11372.7, subd. (a)) is appropriate for a conviction of conspiracy to transport a controlled substance in violation of Health and Safety Code section 11379, subdivision (a)." (People v. Ruiz (2018) 4 Cal.5th 1100, 1103.) Shortly before oral argument occurred in the Supreme Court, appellant filed a request to submit supplemental briefing on two additional issues, one of which was whether his sentence was affected by the recent amendment to section 12022.53. This granted courts sentencing discretion to strike or dismiss firearm enhancements. The high court denied his request but left it to this court to decide that issue on remand if appellant elected to pursue it. (People v. Ruiz, supra, 4 Cal.5th at p. 1122.) The Supreme Court affirmed our decision that the criminal laboratory analysis fee (Health & Saf. Code, § 11372.5, subd. (a)) and a drug program fee (Health & Saf. Code, § 11372.7, subd. (a)) were properly imposed in this matter. (People v. Ruiz, supra, 4 Cal.5th at p. 1122.) The case was remanded to us "for further proceedings consistent with this opinion." (Ibid.)
On June 27, 2018, following remittitur to this court, appellant requested leave to file supplemental briefing regarding the impact on his sentence from the recent legislative change to section 12022.53. That same day, this court granted appellant's request and issued a briefing schedule to the parties.
Appellant's other supplemental issue raised with the Supreme Court was whether the criminal laboratory analysis fee and the drug program fee are subject to penalty assessments. (People v. Ruiz, supra, 4 Cal.5th at p. 1122.) Appellant did not seek leave to file supplemental briefing in this court regarding that issue.
Via the supplemental briefing, the parties disagree whether this matter must be remanded so the trial court may exercise its new sentencing discretion regarding the firearm enhancement. We agree with respondent that remand is not warranted for this issue. We direct the trial court to correct the clerical errors appearing in the abstract of judgment but we otherwise affirm.
DISCUSSION
I. Remand Is Not Warranted For The Trial Court To Reconsider The Firearm Enhancement.
At the time of appellant's 2013 sentencing, the trial court was required to impose an additional prison sentence of 20 years for the firearm enhancement under section 12022.53. (Former § 12022.53, subds. (a)(1) & (18); (c); (e)(1)(A) & (B); & (h).) On October 11, 2017, however, the Governor approved Senate Bill No. 620 (2017-2018 Reg. Sess.) (Stats. 2017, ch. 682, § 2), which amended, in part, section 12022.53. Under the amendment, a trial court now has discretion to strike or dismiss this firearm enhancement. (§ 12022.53, subd. (h).)
In the supplemental briefing, the parties agree, as do we, that this amendment applies retroactively to appellant because his case is not yet final. (See People v. Woods (2018) 19 Cal.App.5th 1080, 1090; People v. Robbins (2018) 19 Cal.App.5th 660, 678-679.) The parties, however, disagree whether remand is appropriate because this case was resolved by a plea that included an indicated sentence. Appellant primarily relies upon People v. Hurlic (2018) 25 Cal.App.5th 50 (Hurlic) and Doe v. Harris (2013) 57 Cal.4th 64 (Harris). He contends he is "entitled to be sentenced by a judge who is fully apprised of the discretion afforded by the amended statute." We find appellant's contention and his cited authorities unpersuasive.
In Hurlic, the defendant accepted the People's offer of a 25-year prison sentence. He entered a no contest plea to a single count of attempted murder (the People struck a premeditation allegation). He also admitted a firearm enhancement under section 12022.53, subdivision (c), which imposed a 20-year term. The defendant did not waive his right to appeal. At sentencing, the trial court imposed the agreed-upon sentence of 25 years in prison and dismissed two remaining counts of attempted premeditated murder. (Hurlic, supra, 25 Cal.App.5th at pp. 53-54.) As occurred in the present matter, the Legislature subsequently amended section 12022.53, granting trial courts the discretion to strike firearm enhancements. (Hurlic, at p. 54.)
On appeal, the defendant argued he was entitled to ask the trial court to exercise its new discretion to strike the 20-year firearm enhancement. The People objected, contending the defendant had not obtained a certificate of probable cause and that a remand for resentencing would be futile. (Hurlic, supra, 25 Cal.App.5th at p. 54.) In the published portion of its opinion, Hurlic concluded that the defendant was not required to obtain a certificate of probable cause to appeal. (Hurlic, supra, 25 Cal.App.5th at p. 59.) Although the general rule is that a defendant must have such a certificate following a negotiated plea agreement, Hurlic determined that rule did not apply. The defendant's appeal was based on a legislative enactment that retroactively granted the trial court the discretion to waive the sentencing enhancement that was previously mandatory. (Id. at p. 53.) As such, the appellate court reviewed the merits of the appeal.
In the published portion of its opinion, Hurlic determined that remand was appropriate. (Hurlic, supra, 25 Cal.App.5th at p. 59.) The appellate court was "unable to say that there is 'no reasonable possibility' that the trial court would decline to exercise its newfound sentencing discretion," so it vacated the judgment and remanded for a new sentencing hearing. (Id. at p. 53.) The appellate court's reasoning and analysis for the remand, however, appeared in the unpublished portion of its opinion. Absent exceptions not present here, unpublished opinions may not be used as authority. (Cal. Rules of Court, rule 8.1115; Rubio v. Superior Court (2016) 244 Cal.App.4th 459, 470, fn. 2.) Thus, we will not consider Hurlic's unpublished portion in resolving this issue.
In Harris, supra, 57 Cal.4th 64, the California Supreme Court answered, at the request of the Ninth Circuit Court of Appeals, the following question: "'Under California law of contract interpretation as applicable to the interpretation of plea agreements, does the law in effect at the time of a plea agreement bind the parties or can the terms of a plea agreement be affected by changes in the law?'" (Id. at p. 66.) The court held that, under the general rule in California, a plea agreement incorporates and contemplates not only existing law but the state's "'"reserve power"'" to enact additional laws or amend the law. (Id. at p. 73.) Requiring the parties to comply with retroactive changes in the law does not violate the terms of the plea agreement. (Ibid.) Likewise, the failure of a plea agreement to reference possible changes in the law does not "translate into an implied promise the defendant will be unaffected by a change in the statutory consequences attending his or her conviction. To that extent, then, the terms of the plea agreement can be affected by changes in the law." (Id. at pp. 73-74.)
We disagree that either Hurlic or Harris dictate a remand for resentencing. It is undisputed that, under Harris, the terms of appellant's plea agreement were amended by the subsequent change to section 12022.53. (Harris, supra, 57 Cal.4th at pp. 73-74.) The issue, however, is whether remand is warranted. Under certain circumstances, appellate courts have denied a remand when it would serve no purpose to have a trial court exercise newly enacted discretionary authority. (See People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 [denying remand after sentencing court indicated it would not have exercised its discretion to strike a Three Strikes prior even if it had believed it could have done so]; People v. Fuhrman (1997) 16 Cal.4th 930, 944; People v. Gamble (2008) 164 Cal.App.4th 891, 901 [if "'the record shows that the trial court would not have exercised its discretion even if it believed it could do so, then remand would be an idle act and is not required'"].)
We agree with respondent that a remand in this situation would serve no purpose. The trial court accepted the plea agreement and imposed a 35-year aggregate term. We have already held that appellant received the benefit of his negotiated plea bargain. He avoided a potentially harsher sentence. To implement the parties' agreement, the court imposed 20 years based on the firearm enhancement. There is no reason to believe the trial court would have exercised its discretion to strike the firearm enhancement if it had such authority. A remand for resentencing under these circumstances would be an idle act and would serve no purpose. (See People v. Fuhrman, supra, 16 Cal.4th at p. 946; see also People v. Gutierrez, supra, 48 Cal.App.4th at p. 1896; cf. People v. McDaniels (2018) 22 Cal.App.5th 420, 423 [remand proper where record contains no clear indication of trial court's intent not to strike firearm enhancement].)
The dissent emphasizes that this matter should be remanded because the trial court at sentencing "did not express an intent to impose the maximum possible sentence." The dissent also argues that the trial court did not make an informed decision. (Dis. opn., post, at p. 2.) We disagree with these assertions. In accepting the plea bargain, and sentencing appellant accordingly, the record rules out the possibility that the court would strike the firearm enhancement even if it had known of its sentencing discretion. As such, the sentencing record does "'clearly indicate' the court would not have exercised discretion to strike the firearm allegations had the court known it had that discretion." (People v. Billingsley (2018) 22 Cal.App.5th 1076, 1081.) --------
Based on this record, and unlike in Hurlic, we can declare there is "no reasonable possibility" the trial court would exercise its sentencing discretion under these circumstances. Accordingly, appellant's request for remand is denied for the trial court to exercise its discretion regarding the firearm enhancement.
DISPOSITION
This matter is remanded to the trial court to correct the abstract of judgment as follows: the court shall strike (1) the two stayed enhancements pursuant to Penal Code section 12022.53, subdivision (c); (2) the two stayed enhancements pursuant to Penal Code section 667.5, subdivision (b); (3) the stayed enhancement pursuant to Penal Code section 12022, subdivision (c); and (4) the stayed enhancement pursuant to Health and Safety Code section 11370.2, subdivision (c). The trial court shall then forward the amended abstract of judgment to the appropriate authorities. The judgment is otherwise affirmed.
/s/_________
LEVY, Acting P.J. I CONCUR: /s/_________
DETJEN, J. FRANSON, J., Concurring and Dissenting
I respectfully disagree with the conclusion that remand is not required by the provisions of Senate Bill No. 620 (2017-2018 Reg. Sess.).
The majority states remand would serve no purpose and would be an "idle act", thereby concluding "there is 'no reasonable possibility' the trial court would exercise its [new] sentencing discretion under these circumstances." (Maj. opn., ante, at p. 8.) The majority applied the wrong legal standard to reach this conclusion.
Case law does not support the majority's statement that remand is appropriate only when there is a reasonable probability of a better outcome. In People v. McDaniels (2018) 22 Cal.App.5th 420 (McDaniels), a case presenting the same resentencing issue we face here, the Court of Appeal cited People v. Gutierrez (1996) 48 Cal.App.4th 1894 (Gutierrez). In Gutierrez, the Court of Appeal considered a remand for resentencing after People v. Superior Court (Romero) (1996) 13 Cal.4th 497 gave trial courts discretion to strike prior strikes. The Gutierrez court stated that remand was necessary "unless the record shows that the sentencing court clearly indicated that it would not, in any event, have exercised its discretion to strike the allegations." (Gutierrez, supra, 48 Cal.App.4th at p. 1896, italics added.) Observing that the trial court had exercised its discretion not to strike a different enhancement and commented that it did not believe the sentence should be shortened, the Court of Appeal concluded that the necessary clear indication was present, so it declined to remand. (Ibid.) Applying the same standard, the McDaniels court remanded for resentencing, finding that "the record contains no clear indication of an intent by the trial court not to strike one or more of the firearm enhancements." (McDaniels, supra, at pp. 427-428.)
And in People v. Billingsley (2018) 22 Cal.App.5th 1076, 1081 (Billingsley), the Attorney General made the same argument respondent makes here—that remand for resentencing due to the enactment of Senate Bill No. 620 would be futile because no reasonable court would strike the firearm enhancement. The Billingsley court rejected that argument, concluding that remand is required unless the record from the initial sentencing "'clearly indicate[s]' the [trial] court would not have exercised its discretion to strike the firearm allegations had the court known it had the discretion." (Billingsley, supra, at p. 1081.) While the trial court in Billingsley had suggested it would not strike the firearm allegation even if it had the discretion to do so, the court held such a statement was not determinative because "the court was not aware of the full scope of the discretion it now has under the amended statute. '"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."'" (Ibid.)
In each of the cases discussed above, remand was required absent a clear indication in the record that the sentencing court would not have exercised its discretion to the defendant's benefit had it known of that discretion. A review of the entire sentencing hearing transcript confirms the trial court's lack of any indication or mention of whether it might strike the firearm enhancement, if it had the discretion to do so.
For these reasons, I would find remand for resentencing necessary here. The trial court in this case did not "clearly indicate" it would not have stricken the firearm enhancement if it had the discretion to do so. The court did not express an intent to impose the maximum possible sentence. In fact, the record on sentencing is devoid of any indication of any intent on the part of the trial court, only that it accepted the terms of the plea agreement. In the absence of any clear indication the court would not have stricken the firearm enhancement, remand is necessary. (See Billingsley, supra, 22 Cal.App.5th at p. 1082; McDaniels, supra, 22 Cal.App.5th at pp. 427-428; cf. People v. McVey (2018) 24 Cal.App.5th 405 [holding remand futile when trial court applied high term to sentence for firearm enhancement citing several aggravating factors that far outweighed mitigating factors, its pointed comments on the record and stated high term was the "only appropriate sentence"].)
I respectfully dissent from the majority's refusal to order a remand based on this issue. I concur in the remainder of the opinion.
/s/_________
FRANSON, J.