Opinion
H047865
09-25-2023
THE PEOPLE, Plaintiff and Respondent, v. JOSE LUIS SAMAYOA, Defendant and Appellant.
NOT TO BE PUBLISHED
(Santa Clara County Super. Ct. No. F1554476)
We resolve this case by memorandum opinion under California Standards of Judicial Administration, section 8.1. (See also People v. Garcia (2002) 97 Cal.App.4th 847, 853-855.)
Greenwood, P. J.
The California Supreme Court transferred this matter back to this court with directions to vacate our prior order dismissing the appeal and reconsider whether to exercise our discretion to conduct an independent review of the record or provide any other relief in light of People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo) and Assembly Bill No. 518 (Assembly Bill 518). For the reasons below, we conclude no relief is warranted, and we will affirm the judgment.
In 2016, a jury found defendant Jose Luis Samayoa guilty of first degree robbery in concert (Pen. Code, §§ 211-213, subd. (a)(1)(A)); first degree residential burglary (§§ 459-460, subd. (a)); assault with a firearm (§ 245, subd. (a)(2)); and criminal threats (§ 422). The jury also found Samayoa personally used a handgun in the commission of two of the offenses. (§ 12022.53, subd. (b).)
Undesignated statutory references are to the Penal Code.
The facts and procedural history are set forth in this court's prior unpublished opinion on direct appeal. (People v. Samayoa (Aug. 26, 2019, H044346) [nonpub. opn.].) The facts of the offenses are immaterial to our decision in this appeal, so we do not repeat them here. We granted Samayoa's request to take judicial notice of the record in that appeal.
The trial court imposed an aggregate term of 30 years four months in prison, calculated as follows: the middle term of six years doubled to 12 years for the robbery conviction; a 10-year term for the firearm enhancement; one-third the middle term of one year doubled to two years for the assault conviction; one-third the middle term of eight months doubled to 16 months for the criminal threats conviction; and five years for the prior serious felony conviction. The court ordered the terms for the assault and criminal threats convictions to run consecutively, and the court stayed the term for the burglary conviction under section 654.
On direct appeal, we remanded the matter to the trial court for the limited purpose of allowing the trial court to exercise its discretion to resentence Samayoa based on the retroactive application of ameliorative changes in the applicable sentencing laws. On remand, the trial court had the discretion to strike the firearm and the prior serious felony enhancements. At the resentencing hearing in January 2020, the court declined to exercise its discretion as to either enhancement and reinstated the original judgment.
Samayoa timely filed the appeal at issue here. We appointed counsel, who filed an opening brief stating the case and the facts but raising no specific issues. Counsel requested that we independently review the record under People v. Wende (1979) 25 Cal.3d 436. We treated counsel's filing as a brief filed under People v. Serrano (2012) 211 Cal.App.4th 496, and we notified Samayoa of his right to respond with a supplemental brief within 30 days. After Samayoa failed to respond, we dismissed the appeal as abandoned.
Samayoa then petitioned for review in the California Supreme Court, whereupon the court granted review and deferred briefing pending the resolution of Delgadillo, supra. After resolving Delgadillo, the Court transferred the matter back to us in June 2023 with directions to vacate our order of dismissal and reconsider whether to exercise our discretion to conduct an independent review of the record or provide any other relief in light of Delgadillo and Assembly Bill 518. Accordingly, we vacated our prior order of dismissal.
Appointed counsel for Samayoa then filed a supplemental brief arguing that remand is required for the trial court to exercise its discretion whether to resentence Samayoa in light of Assembly Bill 518 and Senate Bill No. 81 (Senate Bill 81). The Attorney General contends remand would be futile because the record clearly shows the court would not exercise its discretion to resentence Samayoa.
At the time of the prior sentencing hearing in January 2020, section 654 required the sentencing court to punish a defendant convicted for the same act under multiple provisions of law based on the provision of law that provided for the longest potential term of imprisonment. Consistent with the law then in effect, the trial court in January 2020 reinstated the previous judgment, imposing a 12-year term for the robbery conviction while staying an unspecified term for the burglary conviction under section 654.
Effective January 1, 2022, Assembly Bill 518 amended section 654 to give trial courts the discretion to punish such an act under either provision of law. (People v. Mani (2022) 74 Cal.App.5th 343, 350.) The Attorney General concedes that Assembly Bill 518 applies retroactively to Samayoa under the doctrine of In re Estrada (1965) 63 Cal.2d 740. Because Assembly Bill 518 constitutes an ameliorative change in the sentencing laws, and Samayoa's judgment of conviction is not yet final, this concession is well-taken. Under Assembly Bill 518, the court on remand would have the discretion to stay the term for the robbery conviction and impose a lower term for the burglary conviction instead.
However, we are persuaded by the Attorney General's argument that remand for resentencing would be futile. The trial court made numerous statements at the prior sentencing hearing clearly showing it would not exercise its discretion to impose a lesser sentence. In declining to strike either the 10-year term for the firearm enhancement or the five-year term for the prior serious felony conviction, the court cited, among other factors: the seriousness of the offense, which the court described as "horrible" and "horrifying"; the increasing seriousness of the offenses committed as part of Samayoa's criminal history; his failure to accept responsibility for his actions; the injury suffered by the victim; and the possibility that multiple deaths could have occurred during the commission of the offense. Samayoa points out that the court described the decision whether to strike the five-year term for the prior conviction as a "closer case" compared with the 10-year firearm enhancement. But in reviewing the entire record of the sentencing hearing, we are not persuaded the court would exercise its discretion to impose a lesser term for the robbery/burglary offense if we remanded for resentencing. Remand is unwarranted where "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.'" (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.)
As for resentencing under Senate Bill 81, this change in law expressly applies only to sentencings occurring after its effective date of January 1, 2022. (See Stats. 2021, ch. 721, § 1; § 1385, subd. (c)(7).) The most recent sentencing hearing in this matter was held in January 2020, and absent any subsequent remand, the changes in law effected by Senate Bill 81 are inapplicable to Samayoa's sentence.
For the reasons above, we conclude Samayoa's claims are without merit.
Disposition
The judgment is affirmed.
WE CONCUR: Grover, J. Danner, J.