Opinion
F084387
11-07-2023
THE PEOPLE, Plaintiff and Respondent, v. PEDRO SANCHEZ, Defendant and Appellant.
Sara E. Coppin, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kimberley A. Donohue and Chelsea Zaragoza, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County, No. BF188016A Michael G. Bush, Judge.
Sara E. Coppin, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kimberley A. Donohue and Chelsea Zaragoza, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
DETJEN, J.
INTRODUCTION
After stipulating to a prior felony conviction at trial, defendant Pedro Sanchez was convicted by jury of possessing a firearm (Pen. Code, § 29800, subd. (a)(1); count 4) and ammunition (§ 30305, subd. (a)(1); count 5) as a convicted felon. He was sentenced to two years of formal probation to include one year in the county jail, with imposition of sentence suspended.
Undesignated statutory references are to the Penal Code.
Approximately one month later, the parties discovered that defendant's prior felony conviction had been reduced to a misdemeanor several years prior. Defendant asked that he be acquitted of the charges of which he was convicted based on his undisputed factual innocence. On its own motion, and over defense objection, the court granted a new trial. The court then granted, again over defense objection, the district attorney's motion to amend the information to add a new count, possession of a firearm as someone with a specified conviction (§ 29805; count 6). The prior sentence was vacated and counts 4 and 5 were dismissed. Defendant pled no contest to count 6 and was sentenced to 332 days in custody with credit for time served and two years of felony probation.
Defendant contends the court erred in ordering a new trial and in permitting the prosecution to amend the information at this stage of the proceedings. He contends the prosecution is now barred from charging the section 29805 violation.
We agree the court erred in ordering a new trial and reverse. We do not address defendant's remaining contentions, which are rendered moot by our disposition.
We dispense with a statement of facts, as the facts underlying the offenses are not pertinent to the issues raised on appeal.
The Kern County District Attorney charged defendant with attempted murder (§§ 187, subd. (a), 664; count 1), assault with a semiautomatic firearm (§ 245, subd. (b); count 2), assault with a deadly weapon (§ 245, subd. (a)(1); count 3), felon in possession of a firearm (§ 29800, subd. (a)(1); count 4), and felon in possession of ammunition (§ 30305, subd. (a)(1); count 5). As to counts 1 through 3, the information further alleged that defendant personally inflicted great bodily injury upon the victim (§ 12022.7), and as to count 1, that defendant personally used a deadly weapon, a knife (§ 12022, subd. (b)(1)). The information further alleged defendant had been convicted in 2013 of a felony violation of section 245, subdivision (a)(1) in Kern County Superior Court case No. AF009280 (No. AF009280), which violation constituted a strike. (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)).
The matter proceeded to trial. During motions in limine, defendant stipulated and admitted, for purposes of counts 4 and 5, that he had been convicted of a felony violation of section 245, subdivision (a)(1) on January 10, 2013, in case No. AF009280. Prior to the close of the People's case-in-chief, the jury was informed that the parties had stipulated that, on the date of the offenses at issue, defendant had previously been convicted of a felony.
The jury found defendant not guilty on counts 1 through 3 and guilty on counts 4 and 5. In a bifurcated trial, the court found true the allegation that defendant sustained a prior strike arising from his 2013 conviction for violation of section 245, subdivision (a)(1).
Prior to sentencing, the probation department prepared a probation report, which noted the following with regard to defendant's prior felony conviction:
"According to [California Justice Information Services (CJIS)], the defendant's records have been sealed pursuant to [section] 851.90, and cannot be accessed. However, the [c]ourt's file has the order but for a sealing pursuant to [section] 851.91[.] [Section] 851.90 is for someone on diversion and would not be applicable to the defendant and likely an error in CJIS. However, a [section] 851.91 is for someone whose arrest did not result in conviction, which the defendant's arrest did result in conviction. Therefore, it is uncertain how the defendant was eligible for a [section] 851.91 sealing. This is not without consequence. The presentence report from that case, along with minutes, show that the defendant pled for a [section] 245[, subdivision] (a)(1) as a non-strike. It is noted, the law had already changed regarding the [section] 245[, subdivision] (a)(1) being only for assault with a deadly weapon when the defendant committed his offense. While speculative as it relates to the defendant's case, a nonstrike felony assault with a deadly weapon conviction would only be possible under an accomplice liability theory."
Effective January 1, 2012, section 245 was amended to move the "force likely" means of violating the statute from subdivision (a)(1) to subdivision (a)(4). (See Stats. 2011, ch. 183, § 1.)
At the sentencing hearing, the court directed the parties' attention to the probation officer's report. Upon stipulation of the parties, the court also reviewed the court file from defendant's prior case, which reflected defendant had pled guilty to a violation of section 245, subdivision (a)(1), "force likely," as a "non-strike." During the change-of-plea hearing in the prior case, the court had stated, "[I]f you want a non-strike, it's an (a)(4)," to which the prosecutor responded, "[T]hat's correct." However, the prosecutor went on to state, "It's an (a)(1), but we all understand it to be the force likely, therefore, not a strike. Force likely has always been a non-strike. If for some reason someone . . . has a different opinion, we'll agree to substitute a felony charge as a non-strike and a motion to withdraw a plea and substitute a charge."
Based on this information, the parties and the court in the instant case agreed that defendant had "functionally" pled guilty to a violation of section 245, subdivision (a)(4), which all parties agreed was a non-strike offense. The court granted defendant's motion for a new trial as to the prior strike, then vacated the prior strike finding. The court then granted the People's motion to dismiss the prior strike allegation. The court sentenced defendant on count 4 to two years of formal probation with the first year in custody, and with credit for time served and imposition of the sentence suspended. Sentence on count 5 was imposed and stayed.
The parties appeared again before the court approximately one month later. At the outset of the hearing, the court explained it had been determined that defendant's prior felony conviction had been reduced to a misdemeanor on February 20, 2019, pursuant to section 1203.4. The court stated that the record in the prior case had erroneously been sealed pursuant to section 851.90, thus preventing the parties from learning sooner of the reduction of the offense. The court stated, "He obviously cannot stand convicted of these two felonies [on counts 4 and 5] because he didn't have a felony conviction."
The People proposed amending the information to add a violation of section 29805, which would have prohibited defendant's firearm possession irrespective of whether the prior violation of section 245 was a misdemeanor or a felony. Defendant objected to that proposed course but acknowledged he could have been convicted of violating section 29805 if that offense had been charged in the original information. Defendant stated: "The issue, of course, is that we are past verdict and past sentencing, and I believe double jeopardy attaches, and I'm not making a motion for new trial, and I will be objecting to an amendment of the [i]nformation at this stage. I'm simply asking that my client be acquitted of the charges that were put before the jury, given that we now know that he's factually innocent of the two charges he was convicted of." Defendant continued, "I think double jeopardy attaches, and I wouldn't be consenting to the amending of any new felony charges at this point." He further stated he did not believe the People could move for a new trial "given the jeopardy issues."
The court noted that the parties were in this position because defendant had moved to seal the record in his prior case, which prevented the parties from learning of the status of his prior felony. The court explained, "I don't know that he should be able to take advantage of the situation when he filed the motion that was improperly granted, but I get it. [¶] On the other hand, he cannot stand convicted to [c]ounts 4 and 5 because he is factually innocent. So the question is . . . can the [c]ourt then just . . . grant a new trial on those and then allow the People to amend and just start all over, or is the [c]ourt bound simply to . . . find him not guilty."
The prosecutor proposed that the court grant a motion for new trial and permit the prosecutor to amend to add a violation of section 29805, at which point the People would submit to dismissal of counts 4 and 5. Alternatively, defendant could agree to a motion to amend the information and enter a plea to violation of section 29805. Defense counsel disagreed, stating: "I think that these things sometimes happen where defendants do get a win full [sic] benefit from simple errors in the system and that's just where we are. He was acquitted of four charges and he's factually innocent of the other two charges. We're past verdict and sentencing. Double jeopardy attaches. I believe the record should reflect a full acquittal and I don't think that based on double jeopardy principles the [i]nformation can be added or amended at this point. If it's done over objection, I would just want the [section] 29805 for the same sentence, obviously, but it is over objection. I think he is entitled to a full acquittal, given his innocence or the a[t] least not guilty finding and factual innocence of each of the charges that were put in the [i]nformation at this point. And I do agree that no one is acting in bad faith."
The court explained, "I'm just trying to find out how to get there from here. I mean, technically, do we have to file a writ of some sort? Do we have to go through all this work to get to the same place?" The court further explained, "[W]hat you are basically finding is new evidence after a guilty verdict. I think that's a writ situation." The court continued, "And then we would look at that and grant him a new trial based on those charges and then the People would amend."
The court then announced that it would grant a new trial on counts 4 and 5, "technically" over defendant's objection. The court also granted the People's motion to amend to add a new count for violation of section 29805. The court also vacated the prior sentencing. The court stated the record was "very clear" that it had granted the new trial and the motion to amend over defendant's objection.
Thereafter, defendant pled no contest to count 6 and counts 4 and 5 were dismissed. Appellant was sentenced to two years of formal probation, to include 332 days in custody with credit for time served.
Appellant timely filed a notice of appeal, and the court granted his request for a certificate of probable cause.
DISCUSSION
I. The Court Erred in Ordering a New Trial Sua Sponte
Defendant contends the trial court had no authority to grant a new trial on its own motion. We agree the court exceeded its authority in ordering a new trial.
Section 1181 vests the trial court with the authority to grant a new trial under limited circumstances. It provides, in relevant part: "When a verdict has been rendered or a finding made against the defendant, the court may, upon his application, grant a new trial, in the following cases only: [¶] . . . [¶] 6. When the verdict or finding is contrary to law or evidence, but if the evidence shows the defendant to be not guilty of the degree of the crime of which he was convicted, but guilty of a lesser degree thereof, or of a lesser crime included therein, the court may modify the verdict, finding or judgment accordingly without granting or ordering a new trial, and this power shall extend to any court to which the cause may be appealed; [¶] . . . [¶] 8. When new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial...." (Italics added.)
The parties agree that section 29805 is not a lesser included offense of section 29800, and thus section 1181, subdivision 6 does not apply. Moreover, the court did not modify the verdict in lieu of granting a new trial. It therefore is apparent the court relied on subdivision 8 in granting defendant a new trial.
It is well settled that a trial court cannot grant a new trial on its own motion. (People v. Clark (2011) 52 Cal.4th 856, 979, fn. 36.) The court is without authority to grant a new trial if the defendant has not moved for such relief. (People v. Sanders (1990) 221 Cal.App.3d 350, 363; People v. Skoff (1933) 131 Cal.App. 235, 240 ["The court is without authority to grant a new trial except upon the application of the defendant."]; see § 1181.) The People concede as much.
Here, defendant did not move for a new trial. To the contrary, he objected to the court granting a new trial. However, as the People point out, defense counsel asked that his client be acquitted based on his factual innocence of the charges, which the People suggest is properly characterized as a motion for judgment of acquittal or a motion for judgment notwithstanding the verdict. Relying on People v. Morgan (1977) 75 Cal.App.3d 32 (Morgan), the People contend this request was properly construed by the trial court as a motion for new trial.
In Morgan, the defendant was charged with murder but was convicted by jury on the lesser included offense of involuntary manslaughter. At sentencing, the defendant made a motion for judgment notwithstanding the verdict on the basis that the statute of limitations barred his conviction. The trial court denied the motion but dismissed the defendant from custody on the ground the statute of limitations had run. (Morgan, supra, 75 Cal.App.3d at p. 35.) On appeal, the appellate court noted that "[a] motion for a judgment notwithstanding the verdict is unknown in criminal law proceedings. The motion must necessarily be recharacterized to permit an appropriate disposition. The motion may properly have been treated as a motion for a new trial." (Id. at p. 39.) The appellate court further noted that the defendant "may properly have moved for a new trial on the basis that he was convicted of involuntary manslaughter contrary to law." (Ibid.) Thus, "the motion for judgment notwithstanding the verdict could properly have been treated as a motion for a new trial and . . . the trial court would have been correct in granting such motion." (Morgan, at p. 39.)
The appellate court noted, however, that the trial court treated the motion as a motion in arrest of judgment, which course also was proper under the circumstances. (Morgan, supra, 75 Cal.App.3d at pp. 39-40.)
We agree that defendant in the instant case may properly have moved for a new trial. We also agree with the general proposition that a defendant's motion for judgment of acquittal or judgment notwithstanding the verdict may be construed as a motion for new trial in appropriate circumstances. Here, however, defendant did not move for a new trial, and instead vigorously and repeatedly opposed the court granting a new trial. Morgan has no applicability in these circumstances. To permit the court to construe defendant's request as a motion for new trial over his objection would be contrary to the clear intent of section 1181, which affords only the defendant the opportunity to seek a new trial.
Accordingly, the order granting a new trial must be reversed.
II. Appropriate Remedy and Further Proceedings
Our reversal of the trial court's order granting a new trial necessarily reinstates the parties to the position they were in before the court ordered a new trial. As the parties agree, upon reversal, "all of the proceedings which followed [the] erroneous order are invalid." Accordingly, the judgment must be reversed, and the convictions and sentence on counts 4 and 5 must be reinstated.
Defendant contends we should "vacate the judgment and sentence entirely or, in the alternative, remand with orders for the trial court to consider - either on its own motion or by a motion from the defense - dismissal of counts [4] and [5] pursuant to section 1385." The People contend that any further relief "depends upon the remedy [defendant] seeks [on remand], including, for example, writ relief."
We agree with the People that it is for defendant to determine how to proceed on remand. Upon remand, he will stand convicted and sentenced on counts 4 and 5. He may seek to vacate these convictions through a motion for new trial or any other motions or writs available to him. We take no position on the merits of any such requests.
In light of this posture, we decline to address whether section 654 prohibited the prosecution from amending the information to add a new count. This issue was not argued below and is moot in light of our reversal of the order granting a new trial. In the event the People again seek to amend, defendant may bring these arguments in the trial court.
In addition, as defendant suggests, the trial court may consider dismissal of counts 4 and 5 pursuant to section 1385. Section 1385 provides, in pertinent part: "The judge or magistrate may, either on motion of the court or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed." (§ 1385, subd. (a).) Absent a specific statutory prohibition, courts have declined to hold that section 1385 categorially bars dismissal in particular circumstances. (People v. Chavez (2016) 5 Cal.App.5th 110, 117.) "The judicial authority to dismiss a criminal action or allegation in furtherance of justice is statutory and may be withdrawn by the Legislature. [Citation.] A court may exercise such authority unless, in a given context, the Legislature has clearly evidenced a contrary intent. [Citations.] Courts will not interpret another statute as eliminating the power to dismiss under section 1385 unless there is clear legislative direction to that effect." (Ibid.) Neither party points us to statutory law prohibiting dismissal pursuant to section 1385 based on newly discovered evidence. Thus, just as section 1385 permits a court to dismiss an action for insufficient evidence (People v. Hatch (2000) 22 Cal.4th 260, 268, 273; People v. Pedroza (2014) 231 Cal.App.4th 635, 646-647; People v. Salgado (2001) 88 Cal.App.4th 5, 9), section 1385 generally permits dismissal based on newly discovered evidence, so long as the court determines doing so is in the furtherance of justice.
Despite the foregoing, we decline to order the trial court to consider dismissal of the action pursuant to section 1385. We reiterate that dismissal of an action is a discretionary decision by the trial court, made in the furtherance of justice. The court's authority to dismiss an action or part thereof under section 1385 is broad, but not unlimited. (Wheeler v. Appellate Division of Superior Court (2021) 72 Cal.App.5th 824, 842; accord, People v. Williams (1998) 17 Cal.4th 148, 158.) Rather, the court's power is limited"' "by the amorphous concept which requires that the dismissal be 'in furtherance of justice.'" '" (Williams, at pp. 158-159.) Determining whether dismissal is in furtherance of justice" '" 'requires consideration both of the constitutional rights of the defendant, and the interests of society represented by the People.'" '" (Id. at p. 159, italics omitted.) Additionally," '[a]t the very least, the reason for dismissal must be "that which would motivate a reasonable judge." '" (People v. Hatch, supra, 22 Cal.4th at p. 268.) While we do not attempt to predict how the trial court would weigh defendant's constitutional rights and the interests of society in determining whether dismissal of counts 4 and 5 is warranted, we note the court has already stated its view that the windfall of complete dismissal of the action would be an inappropriate remedy. We also reiterate that defendant may avail himself of other remedies, including a motion for new trial. We will not order the court to consider dismissal pursuant to section 1385 simply to accommodate defendant's preferences.
DISPOSITION
The judgment is reversed. The court's order granting a new trial also is reversed and the matter is remanded for further proceedings.
WE CONCUR: POOCHIGIAN, Acting P. J. SNAUFFER, J.