Opinion
E072912
12-05-2019
THE PEOPLE, Plaintiff and Respondent, v. SAUL RODRIGUEZ SANTANA, Defendant and Appellant.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. SWF021363) OPINION APPEAL from the Superior Court of Riverside County. John M. Monterosso, Judge. Affirmed. Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Defendant and appellant, Saul Rodriguez Santana, filed a petition for resentencing pursuant to Penal Code section 1170.91, which the court denied.
All further statutory references are to the Penal Code.
After defense counsel filed a notice of appeal, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the facts, a statement of the case, and three potentially arguable issues: (1) whether section 1170.91 applies to defendants who were convicted and eligible for sentencing prior to January 1, 2015, but were not sentenced prior to that date; (2) whether section 1170.91 applies to convictions which were the result of plea agreements; and (3) whether the court is required to provide a full and fair hearing to a defendant who files a petition for resentencing pursuant to section 1170.91. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Our factual recitation is from the unpublished opinion in case No. D072862, the appeal from the conviction of defendant's codefendant. The People attached the opinion to their opposition. We note the court who ruled on defendant's motion was the same court who heard defendant's codefendant's trial.
"On October 10, 2005, Julio Rosales was found dead in his Van Nuys apartment; he had sustained multiple gunshot wounds. A nine-millimeter handgun, nine-millimeter shell casings, and .45-caliber shell casings were found near his body. About one-half mile away, Marcelino Vega was found dead in the passenger seat of a minivan; he, too, had sustained multiple gunshot wounds. Based on a tip, police eventually found a nine-millimeter handgun in a hidden compartment in the minivan. Forensic analysis determined Vega had been shot by the gun found next to Rosales, and vice versa. Police surmised Vega and Rosales shot one another in the apartment during 'a drug deal that apparently went bad.'"
"In March 2007, Jose Fierro was trying to sell his house located at 1732 Virginia Drive in Colton. His brother, Armando, lived with their sister, brother-in-law, and niece in a different house on the same street. According to the relatives' testimony, on March 5, a man (later identified as [defendant]) went to the sister's house looking for Jose. [Defendant] pushed his way in, displayed a badge, and said he was a [Drug Enforcement Admnistration (DEA)] agent; he was also carrying handcuffs. He threatened to take the family away unless Jose appeared. After about 30 or 40 minutes, [defendant] answered a call on his cell phone, said, 'Stand by. I'm coming right now,' left running, and drove down the street in a black Ford Mustang."
"About two weeks later, someone reported to authorities what appeared to be a dead body in a ravine in a remote area of Riverside County. Sheriff's investigators found a body about 105 feet from a road at the reported location; the majority of the victim's skull was found about 20 feet away. A recycling receipt in the victim's pants helped investigators identify the victim as Armando, thus leading them to Virginia Drive. Witnesses there reported that they had not seen Armando since March 5, when he was apparently arrested by the DEA. An autopsy determined Armando died from multiple gunshot wounds."
"Sheriff's investigators traced the phone number used for [a] ransom call to a 'TracFone' purchased from a Walmart store. Bank records indicated [defendant] purchased the phone on February 14, 2007. Bank records also indicated [defendant] paid to have his black Ford Mustang detailed at a carwash in Long Beach. Records from a Ford dealership showed he traded in his Mustang on March 6, and purchased a pickup truck for an additional $3,700, which he paid in 'crisp hundred-dollar bills.'"
"Cell phone tower data for the TracFone and [defendant's] personal cell phone showed that on the evening of March 5, the phones traveled from his workplace in Long Beach to Virginia Drive in Colton; from there to the remote area where Armando's body was found; and from there to within one mile of [defendant's] residence."
"Sheriff's officials arrested [defendant] on May 7, 2007. Inside his home, they found a .45-caliber handgun and a magazine for a nine-millimeter handgun. In his truck, they found two badges, a pair of black handcuffs, a gun holster, and a roll of duct tape. Inside a satchel in the truck, they found a letter, on the back of which was written, 'red '98 Ford King Cab,' a license plate number, and the word, 'Memo.'" (Fn. omitted.)
"In 2008, after 10 months in custody, [defendant] initiated an interview with the sheriff's detective investigating Armando's murder. [Defendant] hoped that if he 'c[a]me clean,' the district attorney would offer him immunity and provide 'witness protection' for him and his family. At the end of the interview, the investigator concluded [defendant] had not provided any new information. [Defendant's] 2008 interview was not introduced at trial."
"About four years later, on May 24, 2012, [defendant] and his attorney met with the prosecutor and his investigator to make a proffer, hopefully in exchange for a plea deal. The prosecutor impressed upon [defendant] the importance of telling the truth: 'If you tell us anything that's not true, then we walk out of this room and we're done.' This video-recorded interview was played for the jury." (Fn. omitted.)
"[Defendant] was 39 at the time of the interview. He met Cuevas when they were teenagers, when Cuevas used the first name 'Guillermo,' and went by the nickname 'Memo.' Cuevas had been given the name 'Guillermo Pelaya' at birth in Mexico, but assumed the name 'Lupe Cuevas' as a teenager after a young relative of that name died."
"[Defendant] joined the military, but stayed in touch with Cuevas over the years. [Defendant] resigned from the military due to complications that arose from a prior felony conviction. After working various odd jobs, in early 2007, [defendant] contacted Cuevas (whom he then referred to as "Lupe"), who hired him to do sales work at a trucking company (Three Countries) Cuevas co-owned with Ponce."
"[Defendant] saw Ponce at the office a few times per week, but he did not appear to do any work; Cuevas was the knowledgeable one. Ponce's nephew, who also worked at Three Countries, told [defendant] that Ponce was involved with a Mexican drug cartel, which mainly included running guns to Mexico in exchange for drugs. The nephew recounted an occasion when he was arrested in Arizona for running guns, and Ponce bailed him out of jail and hired him an attorney." (Fn. omitted.)
"[Defendant] told the nephew he wanted to get involved in the drug trade. The nephew conferred with Ponce, and reported back that [defendant] could start with some small deals. After [defendant] completed a few small deals, Ponce told him (in Cuevas's presence) that he (Ponce) '"deals with drugs and major gun transactions."'"
"At the same time he was dealing drugs, [defendant] was trying to become a police officer. Learning this, Ponce revealed that he had contacts at the county level who might be able to make [defendant's] prior conviction '"disappear."' But upon learning that [defendant] had served his sentence in state prison, Ponce realized his county-level contact could not help. Based on his military experience and interest in law enforcement, [defendant] prepared to work as a private investigator. When Ponce learned of this, he put [defendant] to work collecting company debts."
"After [defendant] had collected a few debts, Ponce asked him to work with Cuevas to locate Jose Fierro. Using a background check website, [defendant] found an address for Jose of '1742' Virginia Drive. [Defendant] surveilled that address on February 20, 2007. He learned from a neighbor that Jose did not live at the subject house, which was for sale. [Defendant] called the listing agent a few days later looking for Jose, but when the agent said he would handle all negotiations on Jose's behalf, [defendant] hung up."
"On a second surveillance trip to Virginia Drive, [defendant] saw a 'pretty heavyset guy,' who matched the physical description of Jose that Ponce had provided, get out of a red SUV with a child. [Defendant] did not have any paper handy, so he opened his glove compartment and retrieved 'like, an envelope,' and wrote down a description of the vehicle and its license plate number. He also wrote, 'Memo,' to remind himself to report this information to Cuevas."
"[Defendant] then called the listing agent's office and tricked the receptionist into giving him Jose's phone number. [Defendant] called Jose, pretending to be a real estate agent, and set up a showing for 5:00 p.m. on March 5, 2007. [Defendant] updated Cuevas, who said they should relay the information to Ponce. The day before the appointment, Ponce told [defendant], 'I'm gonna have my compadre go down with you. My compadre and another guy are gonna confront him.'"
"On the afternoon of March 5, [defendant] prepared to depart for Virginia Drive from Three Countries. Before leaving, he met with Ponce and Cuevas in the office, at which point Ponce revealed 'the true reason' he was looking for Jose: 'they're gonna take him to Mexico and they're gonna take care of him.' Ponce explained that the Vega family wanted Jose killed because he had killed Marcelino, and Ponce wanted to oblige the Vega family. Ponce told [defendant] to lead his men to Jose, and to not get involved. Ponce added, 'specifically, "If there's any problem, get ahold of Lupe and then we'll see . . . what goes on.["] Ponce said he would pay [defendant] $20,000 if Jose ["]shows up.["]'"
"[Defendant], Ponce, and Cuevas were in the trucking company's 'yard' when Ponce's 'compadre' and a younger male drove up in a minivan. [Defendant] had seen them once before around the office, but he did not know either of their names. Ponce told his compadre that [defendant] would show them where Jose was. [Defendant] led them there in his black Mustang."
"[Defendant] parked in front of '1742' Virginia Drive, and told a man there he was supposed to meet Jose to perform a home inspection. The man said Jose was not home, but let [defendant] into the house. [Defendant] completed his fake inspection, and the man sent him next door to look for Jose. When no one answered next door, the man told [defendant] that Jose might be at his sister's house down the street. [Defendant] headed there, while the compadre and the younger male waited in their minivan."
"In the sister's front yard, [defendant] encountered Jose's brother-in-law, who said he wanted nothing to do with 'that idiot.' [Defendant] asked to speak to Jose's sister, so the brother-in-law led him inside the house. The sister claimed she had not seen Jose in several months. [Defendant] said he did not believe her, and that he was a private investigator and would report her to the DEA for drug activity. He presented her with his private investigator business card, which had an image of a badge on it. The sister insisted she did not know where Jose was. [Defendant] responded, 'Well, good enough,' at which point he received a call from the compadre advising him that Jose was outside. [Defendant] left the house, put his satchel in his Mustang, and approached the compadre's minivan."
"As [defendant] approached, he saw the compadre approach Armando Fierro, who had arrived in a truck. The compadre spoke to Armando, and then to the younger man. As [defendant] drove his car between Armando's truck and the compadre's van, the compadre handcuffed Armando and tried to put him in [defendant's] Mustang. [Defendant] would not allow it, so the compadre put Armando in the van, and drove off. [Defendant] followed."
"[Defendant] and the minivan stopped in a different residential area. [Defendant], using his personal cell phone, called Cuevas to report that (according to the compadre) they had taken the wrong person—Armando, not Jose. Cuevas told [defendant] to not get involved, and to call back. About five minutes later, [defendant] called Cuevas again and relayed the compadre's request to ask Ponce what he wanted them to do with Armando."
"Cuevas responded, 'I got Mario [Ponce] right here. Hold on.' [Defendant] could hear Cuevas relaying the query to Ponce, and Ponce's response: 'Oh, man. Hey, you tell them right now to take care of that. Do not release that guy. If they release that guy, that guy's gonna go back and tell them . . . who we are. Who just . . . picked him up. Tell them to take care of him.' The compadre spoke briefly with Cuevas, then handed the phone back to [defendant]. [Defendant] told Cuevas, 'Hey, man, I'm out of here, man.' Cuevas responded by directing [defendant] to 'make sure that these dudes do what they have to do.' [Defendant] acquiesced and hung up."
"During his interview, [Defendant] explained that at some point before Ponce gave the instruction to kill Armando, [defendant] used his TracFone to call Jose and his attorney. Jose told [defendant] he would come forward, but wanted to know his brother was all right. The compadre let Jose speak briefly with Armando. [Defendant] denied in his interview that he ever demanded $50,000 in exchange for Armando's release."
"[Defendant] also called Jose's attorney posing as a DEA agent (although he denied using the name Steve Rogers), and demanded that Jose turn himself in. The attorney seemed skeptical. When [defendant] reported to Cuevas that he had spoken with Jose's attorney, [defendant] overheard Ponce say, 'We're fucked.'"
"After this series of phone calls, the compadre kept [defendant's] TracFone and never returned it. [Defendant] acknowledged there was evidence (cell phone records) showing the phone was near his house later that evening, but he surmised the compadre had followed him home."
"Returning to the topic of dealing with Armando, [defendant] said he asked the compadre if he was going to take Armando to Mexico. The compadre said, 'No. We're gonna take care of this guy,' which [defendant] understood to mean they were going to kill him nearby. When he called Cuevas to report this understanding, Cuevas directed [defendant] to 'just make sure they take care of that and then just leave it alone.' [Defendant] again acquiesced. He followed the minivan down a road, watched the men pull Armando from the van and walk him toward a ravine, then heard three or four gunshots. The compadre returned, holding a gun."
"[Defendant] called Cuevas to give a status update. When Cuevas learned that Jose had not produced himself to save his brother, Cuevas 'cusse[d] him out.' The final instruction to [defendant] that evening was to come to work early the next morning."
"At work the next morning, Ponce's nephew told [defendant] to get rid of his Mustang 'ASAP.' Ponce told [defendant] he would still pay him $20,000 (even though Jose had not come forward), which [defendant] could use for a new car. Ponce told [defendant] more details about Jose's involvement in Marcelino Vega's death. Cuevas added that he had driven Marcelino's bloody minivan back from Van Nuys in 2005."
"[Defendant] took his Mustang to a carwash, then returned to the trucking yard. One of Marcelino's relatives was there with Ponce, Cuevas, and the compadre. [Defendant] left and traded in his Mustang for a truck."
"Later that day, Ponce delivered 'two bundles of $10,000' to [defendant] at his desk in the office. When Ponce left, Cuevas gave [defendant] two pieces of advice: don't hang out with Ponce, and 'just keep your mouth shut, man. Don't say nothing.' [Defendant] went back to doing his sales work, 'like normal.'" (Fn. omitted.)
"Despite having worked at Three Countries for only about four months before his arrest, [defendant] continued receiving his salary for two years while in custody. Bank records introduced at trial show check and cash deposits into the bank account of [defendant] and his wife. These records show Santana earned less than $7,000 before his arrest, yet received approximately $67,000 while in custody. Some of the deposits were checks from Three Countries, but others were Ponce's personal checks."
"[Defendant] was initially represented by the public defender, but 'all of a sudden' he was represented by 'a whole squad' of attorneys (including David Elden) and paralegals. Cuevas told [defendant] 'they paid $400,000 . . . for Elden.' [Defendant's] legal team 'put a lot of money'—$1,900, according to jail records—on his jail 'books.'" (Fns. omitted.)
By felony information in case No. SWF021363 on November 15, 2007, the People charged defendant with premeditated murder (count 1; § 187, subd. (a)), kidnapping (count 2; § 207, subd. (a)), felon in possession of a firearm (count 3; § 12021, subd. (c)(1)), and felon in possession of ammunition (count 4; § 12316, subd. (b)(1)). The People additionally alleged that in the count 1 offense defendant was engaged in an attempted kidnapping (§ 190.2, subd. (a)(17)) and that he had suffered a prior prison term (§ 667.5, subd. (b)). On March 8, 2013, the People filed an amended information which consolidated the case with another (case No. SWF10001358) involving other defendants (Ponce and Cuevas).
On August 23, 2013, defendant, pursuant to a negotiated plea agreement, pled guilty to kidnaping (count 3; § 207, subd. (a)), possession of ammunition by a prohibited person (count 5; § 12316, subd. (a)), voluntary manslaughter (count 6; § 192, subd. (a)), conspiracy (count 7; § 182), first degree burglary (count 8; section 459), and being an accessory (count 9; § 32). Defendant also admitted allegations he impersonated a peace officer (§ 667.17) in counts 7 and 8 and suffered a prior prison term (§ 667.5, subd. (b)). As part of the plea agreement, defendant waived his right to appeal, agreed to testify truthfully against the remaining defendants, and agreed that the aggregate sentence would be 20 years in state prison.
On December 30, 2014, the People charged defendant by felony information in case No. RIF1411865 with assault by means of force likely to cause great bodily injury (count 1; § 245, subd. (a)(4)) and alleged defendant had personally inflicted great bodily injury in his commission of the count 1 offense (§ 1192.7, subd. (c)(8)). The People additionally alleged defendant had suffered a prior prison term (§ 667.5, subd. (b)), a prior violent felony (§ 667, subd. (a)), and three prior strike convictions. (§§ 667, subds. (c), (e)(2)(A), 1170.12, subd. (c)(2)(A)).
On September 21, 2015, pursuant to the plea agreement in case No. SWF021363, the court sentenced defendant to 20 years of imprisonment. On the same day, in case No. RIF1411865, pursuant to another plea agreement, defendant pled guilty to three counts of assault by means of force likely to cause great bodily injury (counts 1-3; § 245, subd. (a)(4)). Defendant admitted the personal infliction of great bodily injury enhancement attached to the count 1 offense. (§ 1192.7, subd. (c)(8).) He additionally admitted the prior serious felony enhancement (§ 667, subd. (a)) and one prior strike conviction (§§ 667, subds. (c), (e)(2)(A), 1170.12, subd. (c)(2)(A))). The court struck one of the alleged prior prison term enhancements. On the same day, pursuant to the plea, the court sentenced defendant to an aggregate term of 11 years of imprisonment consecutive to the term imposed in case No. SWF021363. Also on the same day, the court sentenced defendant to 20 years imprisonment in case No. SWF021363.
The information was amended by interlineation.
The record does not reflect what happened to the two remaining prior strike conviction enhancements.
"In exchange for a plea deal [in SWF021363], [defendant] admitted during a recorded interview that he helped Ponce locate Jose and led two of Ponce's associates to him. [Defendant] also admitted he was present (but not an active participant) when those associates mistakenly kidnapped Armando and killed him. For reasons that are unclear in the record, the prosecution ultimately withdrew [defendant's] plea deal and he did not testify at trial. However, his entire recorded statement was played for the jury." "[T]he prosecutor eventually withdrew [defendant's] plea deal, and [defendant] was deemed an unavailable witness." (Fn. omitted.) It would appear that the reason defendant did not testify at Ponce's trial and the reason the prosecutor rescinded defendant's original plea deal, if that indeed occurred, had something to do with defendant's continued law breaking. --------
On January 22, 2019, defendant filed a petition for resentencing pursuant to section 1170.91. Defendant attached to his petition a letter from the Department of Veterans Affairs (VA) reflecting that they had assigned a 30 percent designation of entitlement to VA benefits for defendant's medical "description" for post-traumatic stress disorder: "The evidence reviewed shows that your [post-traumatic stress disorder] presently is mildly disabling and warranted a 30 percent evaluation." The People filed opposition, contending defendant was ineligible for relief pursuant to section 1170.91 because he was sentenced after January 1, 2015, and was not suitable for a reduced sentence.
At the hearing on the petition, the court, who was the same court who heard the trial of defendant's codefendant, explicated its three-part denial of defendant's motion as follows: "The fact is this particular statute does have a drop-dead date, and that is that for [defendant] to even have relief considered, he would have needed to have been sentenced prior to . . . January 1, 2015. He was sentenced September 21, 2015, almost ten months after that deadline. [¶] Quite frankly, my hands are tied. There's nothing I can do, because the Legislature writes the law. The Court cannot rewrite laws. That's a hallmark of our constitutional system that last I checked is still in place. [¶] So [defendant's] motion under . . . Section 1170.91 is denied on that basis alone."
The court continued: "In addition, I think more compelling, is the fact that this was not just a plea bargain where the lawyers have already by implicit design decided on the balancing of aggravating/mitigating factors, but . . . the People actually reduced the charge from a charge that carried a potential sentence of life without the possibility of parole or even death to one that provides for an indeterminate term. So that was the bargain that [defendant] received. And in no place does that bargain envision a Court balancing aggravating and mitigating factors with the triad sentencing system. So [defendant's] motion is trying to put a square peg into a round hole. It's not going to work." The court further noted: "But even if this were a resentencing hearing, there's no way in my mind that any rational judge would find that any legitimate diagnosis that [defendant] suffers from is so heavily weighted as mitigation that it would outweigh and tilt the scales of any measurable degree from the heinous nature of the offenses he committed."
II. DISCUSSION
We offered defendant an opportunity to file a personal supplemental brief, which he has not done. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error and find no arguable issues.
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: SLOUGH
J. MENETREZ
J.