Opinion
H045538
11-25-2019
THE PEOPLE, Plaintiff and Respondent, v. IVAN VARGASARELLANO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1481473)
After a remand for resentencing, the trial court sentenced defendant Ivan Vargasarellano to an aggregate term of 14 years.
On appeal, Vargasarellano argues the trial court erred in denying his request for a continuance of the sentencing hearing and erred in imposing an enhanced sentence on his vandalism conviction (Pen. Code, § 594, subd. (b)(2)(A)). He further argues that the abstract of judgment must be amended to reflect the trial court's oral proclamation at sentencing that victim restitution was a joint and several liability with Vargasarellano's codefendants. In a supplemental brief, Vargasarellano contends the matter must again be remanded so that the trial court can exercise its discretion as to whether to strike a prior serious felony conviction for purposes of the five-year sentencing enhancement provided under section 667, subdivision (a)(1). After oral argument was scheduled, we granted Vargasarellano's request to submit an additional supplemental brief in which he argues that the trial court erred in imposing various fines and fees without first determining his ability to pay, citing People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).
Unspecified statutory references are to the Penal Code.
Finally, at oral argument, Vargasarellano advised the court that the Legislature had recently enacted Senate Bill No. 136, which amended section 667.5, subdivision (b) to eliminate the one-year sentence enhancement for prior prison terms other than those imposed for sexually violent offenses. The measure was then awaiting the Governor's signature and we delayed submission of the matter. The Governor has since signed the legislation and the parties filed supplemental briefs.
We reject Vargasarellano's claims of error relating to his request for a continuance and the imposition of an enhanced sentence on his vandalism conviction. However, we agree, and the Attorney General has conceded, that the abstract of judgment must be modified regarding the victim restitution order and that the trial court must be given an opportunity to consider whether it is appropriate to strike the prior serious felony conviction, potentially eliminating the five-year sentencing enhancement. As to the issue of fines and fees, we agree that Vargasarellano should be allowed the opportunity to present evidence regarding his ability to pay certain fines and fees, as discussed more fully below. Lastly, based on the recent enactment of Senate Bill No. 136, we agree the trial court should consider whether to strike the one-year prison prior enhancement imposed under former section 667.5, subdivision (b). Accordingly, we will reverse and remand the matter for those limited purposes. I. FACTUAL AND PROCEDURAL BACKGROUND
Vargasarellano's counsel has filed a petition for writ of habeas corpus, which this court ordered considered with the appeal. After oral argument was scheduled, we granted Vargasarellano's request to supplement his petition. We have disposed of the habeas corpus petition by separate order filed this day. (See Cal. Rules of Court, rule 8.387(b)(2)(B).)
Having granted Vargasarellano's request for judicial notice by separate order dated June 21, 2018, we derive certain background facts and procedure from the records on appeal in case Nos. H041706 and H042828.
A. Appeal from 2015 order denying Proposition 47 petition
In 2009, in Santa Clara County Superior Court No. BB944536, Vargasarellano pleaded no contest to, inter alia, one felony count of selling stolen property, specifically a Toyota Camry. (People v. Vargas (Jan. 3, 2017, H042828) [nonpub. opn.].) In August 2015, Vargasarellano filed a petition under section 1170.18 requesting that the trial court reduce his 2009 felony conviction to a misdemeanor because the " 'value of the property . . . taken did not exceed $950.' " The trial court denied the petition finding that Vargasarellano had " 'not established a prima facie case of eligibility for the requested relief.' "
The record in case No. H042828 does not include the year or condition of the vehicle.
In Vargasarellano's prior appeals, H041706 and H042828, we referred to him as "Vargas" as that was the surname used in the briefing associated with those proceedings. The parties do not explain the change in surname, but we will use that which appears in the briefing filed in connection with this appeal.
On appeal, this court noted that a defendant seeking redesignation under Proposition 47 bears "the burden of establishing his or her eligibility," and Vargasarellano failed to provide any evidence to the trial court supporting his conclusory allegation as to the value of the stolen vehicle. Accordingly, this court affirmed the order denying the petition, "without prejudice to subsequent consideration of a petition that demonstrates that the stolen property was valued at $950 or less." Remittitur issued in that case on March 7, 2017.
B. Appeal from 2014 sentence on burglary and assault charges
Vargasarellano was convicted in 2014 on burglary and assault charges in Santa Clara County Superior Court No. C1481473. He was originally sentenced to an aggregate term of 16 years in state prison. On appeal, Vargasarellano argued there was insufficient evidence to support his burglary conviction, that the trial court erred in failing to stay a two-year consecutive sentence pursuant to section 654, and that a one-year sentence enhancement based on a 2009 conviction should have been stricken because the underlying crime was reducible to a misdemeanor under Proposition 47.
In an unpublished opinion, this court rejected his sufficiency of the evidence challenge, but agreed that the trial court should have stayed his two-year consecutive sentence under section 654. (People v. Vargas (May 19, 2017, H041706) [nonpub. opn.].) As to his Proposition 47 argument, we declined to strike the enhancement but rather indicated that the trial court could, on remand for resentencing to correct the section 654 error, "consider[] . . . any subsequent petition filed by Vargas seeking redesignation of his 2009 conviction . . . pursuant to Penal Code section 1170.18, subdivision (k)." We further instructed the trial court that "[i]f no such petition is filed or the petition is denied," the trial court was to impose the same sentence as before, with the exception of staying the sentence on one of the assault convictions pursuant to section 654. Remittitur issued in that case on August 17, 2017.
C. Resentencing in 2014 burglary and assault
Vargasarellano's resentencing hearing was initially set for September 22, 2017, but Vargasarellano was not present on that date. The hearing was rescheduled to January 19, 2018, and the trial court ordered the California Department of Corrections and Rehabilitation (CDCR) and the Santa Clara County Sheriff to produce Vargasarellano at the rescheduled hearing.
A few days before the rescheduled hearing, defense counsel filed a motion for a continuance because he was scheduled to be in jury trial on another case beginning January 16, 2018. The hearing was not continued, however, and when the case was called on January 19, 2018, defense counsel confirmed that he was withdrawing his motion to continue the hearing. However, he then advised the trial court that "Vargas informs me that he believes a petition was filed in regards to his case that could have been reduced under Prop 47. [¶] And he wishes a continuance today to allow that petition to move through the courts. He believes that should have been done at some point in time in November." The trial court responded that it had reviewed the "entire database while you [defense counsel] were present in chambers," Vargasarellano did not have a Proposition 47 petition pending in his case, and "the last petition that was received in this matter was in 2015."
The trial court proceeded to resentence Vargasarellano to an aggregate term of 14 years, consisting of eight years (the middle term of four years doubled pursuant to section 667) on count 2, along with a five-year prior serious felony enhancement (§ 667, subd. (a)) and a one-year prison prior enhancement (§ 667.5, subd. (b)). The court imposed but stayed a middle term of six years on count 3 and a middle term of two years on count 5 pursuant to section 654, as well as a concurrent middle term of four years on count 6. The 10-year gang enhancements were stricken, and Vargasarellano was awarded his original presentence credits of 193 days of custody credits and 28 days of conduct credits plus additional custody credits of 1,177 days as well as an unspecified number of conduct credits to be calculated by the CDCR.
The trial court mistakenly referred to this as "Count 1," but the jury acquitted Vargasarellano on that particular charge. (People v. Vargas (May 19, 2017, H041706) [nonpub. opn.].)
Vargasarellano was ordered to pay $3,782 in victim restitution to Grajeda and Montes, the victims in Santa Clara County Superior Court No. C1481473. He was further ordered to pay a restitution fund fine of $8,400 (§ 1202.4, subd. (b)), a $8,400 parole revocation fine (suspended) (§ 1202.45), a $41 crime prevention fine (including penalty assessments (§ 1202.5)), a $60 criminal conviction assessment (Gov. Code, § 70373), a court security fee of $80 (§ 1465.8), and a $129.75 criminal justice administration fee payable to the City of San Jose (Gov. Code, § 29550.1).
The trial court reiterated that restitution was joint and several with "the codefendants."
Vargasarellano timely appealed.
II. DISCUSSION
A. Denial of request for continuance
Vargasarellano argues the trial court abused its discretion in denying his request for a continuance to "pursue a Proposition 47 petition." We disagree.
A continuance may be granted only for good cause, and trial courts have broad discretion to determine whether good cause exists. (§ 1050, subd. (e); People v. Alexander (2010) 49 Cal.4th 846, 934.) The denial of a motion for continuance is reviewed for abuse of discretion. (People v. Mungia (2008) 44 Cal.4th 1101, 1118.) The party challenging the denial of a continuance bears the burden of establishing that the court's discretion was abused, and that requires a showing that the "court exceed[ed] the bounds of reason, all circumstances being considered." (People v. Beames (2007) 40 Cal.4th 907, 920.)
In this case, Vargasarellano unsuccessfully appealed from the denial of his August 2015 Proposition 47 petition. This court affirmed, without prejudice, the trial court's order denying the petition because Vargasarellano had failed to present any evidence to support his assertion that "the stolen property was valued at $950 or less." It was implicit in that disposition that Vargasarellano would need to submit a new petition with supporting evidence for the trial court to consider. There is no evidence in the record that he did so.
Vargasarellano also raised the issue of his entitlement to Proposition 47 relief in his direct appeal from his 2014 conviction on burglary and assault charges. In a nonpublished opinion, this court referenced Vargasarellano's prior appeal in H042828, expressly noting that Vargasarellano "has not (yet) obtained redesignation of his 2009 conviction." Recognizing that such a petition may have been or could soon be filed, the disposition indicated that the matter was remanded to the trial court "pending its consideration of any subsequent petition filed by Vargas[arellano] seeking redesignation of his 2009 conviction." (Italics added.) However, we expressly instructed the trial court that "[i]f no such petition is filed or the petition is denied," the trial court should proceed with sentencing as indicated in the disposition. Again, there is no evidence in the record that Vargasarellano filed any such petition.
At no point, in either of the prior appeals, did this court suggest that Vargasarellano was not obligated to present a new Proposition 47 petition in order to obtain the relief he seeks. Vargasarellano knew as of January 3, 2017, when the opinion in H042828 was filed, that he could file a new Proposition 47 petition, supported by evidence as to the value of the stolen vehicle, and perhaps have his 2009 felony conviction redesignated as a misdemeanor. As there is no indication that Vargasarellano filed any such petition before his resentencing hearing nor did he express any intent to do so at the hearing itself, the trial court was not obliged to grant his request for a continuance and it did not abuse its discretion in refusing to do so.
B. Sentence on count 6
Vargasarellano next argues that the four-year sentence imposed on his conviction for misdemeanor vandalism is unauthorized because the trial court, at his initial sentencing in 2014 improperly enhanced his sentence twice under section 186.22—once to elevate the misdemeanor conviction to a felony under section 186.22, subdivision (d), then again to double the two-year term to four years under section 186.22, subdivision (b)(1). Vargasarellano contends the trial court repeated that error when it resentenced him on remand. We disagree.
Vargasarellano was convicted of vandalism, an offense which is normally a misdemeanor punishable by a county jail term of no more than a year, a fine, or both a jail term and a fine. (§ 594, subd. (b)(2).) "[S]ection 186.22[, subdivision] (d) prescribes an alternate penalty when the underlying offense is committed under specified circumstances." (Robert L. v. Superior Court (2003) 30 Cal.4th 894, 900.) "Any person who is convicted of a public offense punishable as a felony or a misdemeanor, which is committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall be punished by imprisonment in a county jail not to exceed one year, or by imprisonment in a state prison for one, two, or three years . . . ." (§ 186.22, subd. (d).) Section 186.22, subdivision (b)(1)(A) also provides enhanced punishment for defendants who are convicted of felonies which are found to have been committed for the benefit of a criminal street gang.
However, as made clear by People v. Arroyas (2002) 96 Cal.App.4th 1439, it is improper for a sentencing court to elevate a misdemeanor to a felony under section 186.22, subdivision (d), and further enhance that felony sentence by imposing an additional term of imprisonment under section 186.22, subdivision (b)(1). In Arroyas, the court examined the legislative history of section 186.22, and concluded that "[a]lthough subdivision (d) allows the court to impose felony punishment for a misdemeanor committed with a gang-related purpose, nothing in the statute or in its stated purposes suggests an intention of the people of this state to bootstrap subdivision (d) misdemeanors into subdivision (b)(1) felonies as a means of applying a double dose of harsher punishment." (Arroyas, supra, at p. 1445.)
In this case, the trial court did not rely on section 186.22, subdivision (b)(1) to enhance Vargasarellano's sentence on count 6; rather, it imposed a two-year midterm sentence, as permitted by section 186.22, subdivision (d), and doubled that sentence based on Vargasarellano's prior strike conviction, as permitted under section 667, subdivision (e)(1). The trial court made that clear during the resentencing hearing when it stated, "The defendant is being sentenced under Penal Code Section 667 and 1170.12. And then he has suffered a strike prior conviction in this matter, which serves to double the term that would otherwise be imposed on those state prison terms, only one of which is actually going to be imposed at this time. [¶] . . . [¶] Finally, Count 6, a felony violation of 594(a) and (b)(2), the midterm doubled under Penal Code Section 665 is two years doubled to four, total term of four years in that count. And that's to run concurrent with the term in Count 1."
We agree with the Attorney General that the trial court misspoke, and intended to reference section 667, as it did previously. Section 665 deals with punishment for those who, in unsuccessfully attempting to commit a crime, end up committing a different crime.
See footnote 5, ante.
In People v. Rocco (2012) 209 Cal.App.4th 1571, the Court of Appeal examined whether a defendant who has been convicted of a misdemeanor which is sentenced as a felony under section 186.22, subdivision (d) can be further subjected to the sentencing enhancements provided under the Three Strikes law. The court held that, unlike the situation presented in Arroyas, this was permissible because "the two alternative penalty provisions the trial court applied to [the defendant] are not found in the same statute, and do not target the same conduct." (Rocco, supra, at p. 1579.) Instead, "Section 186.22[,] [subdivision] (d) targets crimes committed for the benefit of a gang, while the Three Strikes sentencing provisions target recidivist conduct and would not be triggered had [the defendant] not suffered a previous conviction for a serious felony. . . . We thus hold that a defendant who is convicted of a misdemeanor offense that is sentenced as a felony under section 186.22[,] [subdivision] (d), 'has been convicted of a felony' within the meaning of the Three Strikes law and is subject to its sentencing scheme if he has one or more prior strike convictions." (Ibid.)
Following his trial, Vargasarellano was convicted of misdemeanor vandalism (§ 594, subds. (a), (b)(2)(A); count 6)—elevated to a felony under section 186.22, subdivision (d)—and the trial court found that he had prior strike and prior serious felony convictions (§§ 667, subds. (a), (b)-(i), 667.5, subd. (b), 1170.12). The trial court properly applied the Three Strikes sentencing provisions to increase his sentence on count 6.
C. Resentencing on prior serious felony enhancement
In a supplemental opening brief, Vargasarellano argues that the matter should be remanded to the trial court in order for it to exercise its discretion as to whether to impose the five-year serious felony enhancement under section 667, subdivision (a). At the time of his original sentencing (as well as his resentencing), California law prohibited a trial court from striking this enhancement, but effective January 1, 2019, trial courts now have the discretion to decide whether to impose it. The Attorney General concedes the question, and we agree the concession is appropriate.
After the trial court found in a bifurcated proceeding that Vargasarellano had suffered a prior serious felony conviction, it imposed a consecutive five-year term under section 667, subdivision (a)(1), as it was statutorily required to do at the time of his sentencing. (Former § 667, subd. (a)(1) ["In compliance with subdivision (b) of Section 1385, any person convicted of a serious felony who previously has been convicted of a serious felony in this state or of any offense committed in another jurisdiction which includes all of the elements of any serious felony, shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately. The terms of the present offense and each enhancement shall run consecutively."]; former § 1385, subd. (b) ["This section does not authorize a judge to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667."].) "On September 30, 2018, the Governor signed Senate Bill [No.] 1393 which, effective January 1, 2019, amends sections 667[,] [subdivision] (a) and 1385[,] [subdivision] (b) to allow a court to exercise its discretion to strike or dismiss a prior serious felony conviction for sentencing purposes. (Stats. 2018, ch. 1013, §§ 1-2.)" (People v. Garcia (2018) 28 Cal.App.5th 961, 971 (Garcia).)
As the parties agree, the amendments to sections 667, subdivision (a) and 1385, subdivision (b) apply retroactively to Vargasarellano because his case was not final at the time they took effect. (Garcia, supra, 28 Cal.App.5th at p. 973; People v. Jones (2019) 32 Cal.App.5th 267, 272; see In re Estrada (1965) 63 Cal.2d 740, 744 ["If the amendatory statute lessening punishment becomes effective prior to the date the judgment of conviction becomes final then, in our opinion, it, and not the old statute in effect when the prohibited act was committed, applies."].)
The parties further agree that remand is appropriate in this case, as do we. " '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.' [Citation.] In such circumstances, [our Supreme Court has] held that the appropriate remedy is to remand for resentencing unless 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.) In our view, the record does not clearly indicate that the trial court would have declined to strike defendant's prior serious felony conviction for sentencing purposes if it had had the discretion to do so. (Cf. People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 [declining to remand for resentencing because "the trial court indicated that it would not, in any event, have exercised its discretion to lessen the sentence" and describing the defendant as " 'the kind of individual the law was intended to keep off the street as long as possible' "].)
Accordingly, remand is appropriate in this case to allow the trial court to exercise its discretion as to whether to strike Vargasarellano's prior serious felony conviction for sentencing purposes.
D. Senate Bill No. 136 and one-year prison prior
Senate Bill No. 136, signed by the Governor on October 8, 2019, amended section 667.5, subdivision (b) to provide, as follows: "Except where subdivision (a) applies, where the new offense is any felony for which a prison sentence or a sentence of imprisonment in a county jail . . . is imposed or is not suspended, in addition and consecutive to any other sentence therefor, the court shall impose a one-year term for each prior separate prison term for a sexually violent offense." (Italics added.) When Vargasarellano was originally sentenced, former section 667.5, subdivision (b) provided for an additional one-year term for prior prison terms, regardless of the underlying offense.
In their supplemental briefing, the parties agree that the amendment to section 667.5, subdivision (b) is retroactive to all cases not yet final on appeal. The Attorney General, however, argues that, because the amendments are not effective until January 1, 2020, the matter is not yet ripe.
We need not decide the ripeness question. Given that Vargasarellano is entitled to remand for the trial court to exercise its sentencing discretion on the prior serious felony enhancement, the trial court can consider at that time whether Vargasarellano will also have his one-year prison prior sentence stricken under section 667.5, subdivision (b), as amended.
E. Joint and several victim restitution
Vargasarellano notes that, during both his original sentencing hearing and his resentencing hearing, he was ordered to pay victim restitution in the amount of $3,782 and that obligation was "joint and several with the codefendants." However, neither the minute order nor the abstract of judgment from the January 19, 2018 resentencing hearing reflects that the restitution order is joint and several. The Attorney General concedes the issue and we agree that the concession is appropriate. Because the matter is being remanded for resentencing, as discussed above, we encourage the trial court to ensure that the minute order and abstract of judgment prepared in connection with that resentencing reflect that the restitution order is joint and several.
F. Ability to pay
In further supplemental briefing, Vargasarellano argues, citing Dueñas, supra, 30 Cal.App.5th 1157 that the trial court erred in imposing fines and fees, including victim restitution, without first determining that he had the ability to pay the amounts imposed.
Since Dueñas was decided, this court along with the other Courts of Appeal in this state have wrestled with the implications of its sweeping analysis. (See, e.g., People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1038 (conc. opn. of Benke, Acting P.J.) [analysis in Dueñas is incorrect and "fundamentally flawed"]; People v. Kopp (2019) 38 Cal.App.5th 47, 94 [appellate court did "not reject Dueñas outright"]; id. at p. 96 [but also was "not wholly endorsing" it, review granted Nov. 13, 2019, S257844].) Given the procedural posture of this case, we need not wade too deeply into this thicket. The record contains little to no evidence relating to Vargasarellano's financial condition and, given that the matter is being returned to the trial court already, allowing Vargasarellano an opportunity for a hearing on his ability to pay does not impose an undue burden on the court or the parties.
The California Supreme Court has limited review in People v. Kopp to the following questions: "Must a court consider a defendant's inability to pay before imposing or executing fines, fees and assessment? If so, which party bears the burden of proof regarding defendant's inability to pay? (People v. Kopp, S257844.)
III. DISPOSITION
The judgment is reversed and the matter is remanded for resentencing to: (1) allow the trial court to exercise its discretion pursuant to Penal Code section 1385 to strike Vargasarellano's serious felony conviction for the purposes of sentencing him under Penal Code section 667, subdivision (a); and (2) consider whether to strike the one-year prison prior under Penal Code section 667.5, subdivision (b). Vargasarellano may request a hearing on his ability to pay the fines and fees imposed, excluding his joint and several obligation to pay victim restitution pursuant to Penal Code section 1202.4, subdivision (f).
/s/_________
Premo, J. WE CONCUR: /s/_________
Greenwood, P.J. /s/_________
Danner, J.