Opinion
H050468
08-18-2023
THE PEOPLE, Plaintiff and Respondent, v. RANDOLPH SANDOVAL, Defendant and Appellant.
NOT TO BE PUBLISHED
(Santa Clara County Super. Ct. No. C1649948)
BAMATTRE-MANOUKIAN, ACTING P.J.
I. INTRODUCTION
Defendant Randolph Sandoval was convicted by jury of attempting to dissuade a witness (Pen. Code, § 136.1, subd. (b)(2)), and he pleaded no contest to assault with force likely to cause great bodily injury (§ 245, subd. (a)(4)). The trial court sentenced defendant to prison for four years eight months.
The record on appeal includes documents referring to defendant's first name as Randolph and Randy.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant's appointed counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) that states the case and facts but raises no issue. We notified defendant of his right to submit written argument on his own behalf within 30 days. That period has elapsed, and we have received no response from defendant.
Following the California Supreme Court's direction in People v. Kelly (2006) 40 Cal.4th 106 (Kelly) at page 110, we provide a brief description of the facts and the procedural history of the case.
We have taken judicial notice of defendant's prior appeal (People v. Sandoval (Dec. 27, 2021, H047410) [nonpub. opn.]). Our summary of the factual and procedural background includes information that we have taken from this court's prior opinion.
A. Factual Background
In 2016, defendant allowed the victim to borrow his car. Although the victim was only supposed to be gone an hour, he still had the car three days later. Defendant's neighbor, Roman Alvarado, happened to see the victim with defendant's car. Alvarado drove the car to defendant, with the victim in the passenger seat. Defendant punched or slapped the victim in the face and then removed all of the victim's belongings from the car and threw them on the ground. The victim left in a cab and was dropped off at Ridder Park Drive.
Defendant and Alvarado subsequently drank alcohol to the point of intoxication. They were enraged and stated that they wanted to teach the victim a lesson. Before they left the house, Alvarado told defendant's girlfriend, Margaret Z., that they were going to take care of the victim. When they returned about an hour later, Alvarado told the girlfriend that the victim would not be bothering her anymore and that he (Alvarado) had stabbed the victim in the chest and arm.
Defendant's girlfriend testified at trial.
The victim was found dead on Ridder Park Drive. He had suffered a puncture wound to the chest. Defendant and Alvarado were arrested less than a month later. Alvarado told the police that he and defendant confronted the victim and that he (Alvarado) stabbed the victim. Defendant told the police that Alvarado killed the victim. While defendant was in custody, he sought to have Margaret Z. retract statements that she had made to the police.
B. Procedural Background
Defendant and Alvarado were charged with murder (§ 187; count 1). The information also alleged that Alvarado had personally used a deadly and dangerous weapon in the commission of the crime (§ 12022, subd. (b)(1)). Defendant was also charged with attempting to dissuade a witness, Margaret Z. (§ 136.1, subd. (b)(2); count 2).
The defendants were tried jointly to separate juries in 2018. The prosecutor argued that defendant, though not the actual killer, was criminally liable for the victim's murder as a direct aider and abettor, as a member of a conspiracy to kill the victim, or under the natural and probable consequences doctrine. With respect to the natural and probable consequences doctrine, the prosecutor's theory was that the murder was a natural and probable consequence of the crime of assault with a deadly weapon or the crime of assault by force likely to produce great bodily injury, which defendant either aided and abetted or conspired to commit.
On June 15, 2018, defendant was found not guilty of first degree murder but guilty of second degree murder and guilty of attempting to dissuade a witness. Alvarado was likewise found not guilty of first degree murder but guilty of second degree murder. The jury further found true the allegation that Alvarado had personally used a deadly and dangerous weapon in the commission of the crime. The court sentenced defendant to a term of 15 years to life on count 1 and the midterm of two years on count 2, to be served concurrently.
Defendant appealed, contending that the trial court prejudicially erred in instructing the jury on a natural and probable consequences theory of liability in view of the change in the law that went into effect after his trial. This court agreed, reversed defendant's murder conviction, and remanded the matter to the trial court to allow the prosecutor to retry defendant on the murder count.
On remand, on August 8, 2022, the parties reached a negotiated disposition as follows. On motion of the prosecutor, the information was amended to add count 3, assault with force likely to cause great bodily injury (§ 245, subd. (a)(4)). Defendant pleaded no contest to count 3, with the understanding that he would receive, together with his conviction on count 2 (attempting to dissuade a witness), a sentence of four years eight months in prison, and that he would be subject to a 10-year criminal protective order regarding Margaret Z., the victim in count 2 (attempting to dissuade a witness). Count 1 for murder was submitted for dismissal at the time of sentencing.
At the sentencing hearing on August 30, 2022, the trial court sentenced defendant to prison for four years eight months. Regarding defendant's custody credits through the original sentencing date, the court granted defendant 1,032 actual days plus 1,032 days of conduct credit for a total of 2,064 days. For the period of time since the original sentencing date, the court granted defendant 1,096 actual days, with the Department of Corrections and Rehabilitation to calculate prison "good time/work time" credits. The court expressed its "understand[ing] that [the Department of Corrections and Rehabilitation] is to apply excess credit to the parole period." The court made a general order of restitution and imposed, and then stayed or waived, various fines and fees. The court issued a 10-year criminal protective order regarding Margaret Z. Count 1 was dismissed.
C. Appeal
Defendant filed a timely notice of appeal specifying that his appeal is based on "the sentence or other matters occurring after the plea that do not affect the validity of the plea." We appointed counsel to represent defendant in this court.
III. DISCUSSION
While this appeal was pending, defendant's appellate counsel asked the trial court to correct a clerical error in the abstract of judgment regarding custody credits. The trial court filed an amended abstract of judgment on May 17, 2023. On our own motion, we augment the record to include the May 17, 2023 amended abstract of judgment.
Although the trial court corrected the clerical error regarding custody credits as requested by defendant's appellate counsel, there are two additional clerical errors in the amended abstract of judgment that require correction.
First, the amended abstract of judgment indicates that defendant was convicted on count 2, attempting to dissuade a witness (§ 136.1, subd. (b)(2)), by plea on August 8, 2022. However, defendant was convicted on this count by jury on June 15, 2018. We will order the amended abstract of judgment corrected.
Second, the amended abstract of judgment classifies defendant's conviction on count 2, attempting to dissuade a witness (§ 136.1, subd. (b)(2)), as a violent felony. The record, however, does not support this classification. "Under section 1192.7, subdivision (c)(37), a section 136.1 violation of making threats to victims or witnesses is classified a' "serious felony."' [Citations.] [¶] Under section 667.5, . . . a violation of section 136.1 becomes 'a "violent felony"' when the offense is committed for the benefit of a criminal street gang under the section 186.22, subdivision (b)(1) gang enhancement. (§ 667.5, subd. (c)(20); . . .) A violation of section 136.1 also becomes a violent felony if it has been charged and proved that the defendant inflicted great bodily injury on any person other than an accomplice, or if it has been charged and proved that the defendant used a firearm in the commission of the offense. (§ 667.5, subd. (c)(8).)" (People v. Johnson (2022) 79 Cal.App.5th 1093, 1115.) In the present case, as these situations do not apply to defendant's conviction, his "conviction in count 2 should not be classified a violent felony within the meaning of section 667.5, and the abstract of judgment should be corrected to reflect this." (Ibid.)
Pursuant to Wende, supra, 25 Cal.3d 436, and Kelly, supra, 40 Cal.4th 106, we have carefully reviewed the entire record. Other than the correction of clerical errors, we conclude that there is no arguable issue on appeal. (Wende, supra, 25 Cal.3d at pp. 441-443.)
IV. DISPOSITION
The judgment is affirmed. The May 17, 2023 amended abstract of judgment is ordered corrected as follows:
(1) on count 2 (Pen. Code, § 136.1, subd. (b)(2)), defendant was convicted by jury on June 15, 2018; and
(2) on count 2, the box classifying the offense as a violent felony shall be unmarked.
The trial court is directed to send a copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.
WE CONCUR: DANNER, J. BROMBERG, J.