Opinion
F086772
08-12-2024
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL VINCENT VILLAREAL, Defendant and Appellant.
Lindsey M. Ball, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Ivan P. Mars, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F20902274 Francine Zepeda, Judge.
Lindsey M. Ball, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Ivan P. Mars, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
INTRODUCTION
Appellant Michael Vincent Villareal plead no contest to leaving the scene of an accident (Veh. Code, § 20001, subd. (a), count 1); felony driving under the influence (Veh. Code, § 23153, subd. (b), count 2); and driving under the influence with prior convictions (Veh. Code, § 23153, subd. (a), count 3). In addition, Villareal admitted to causing great bodily injury in the commission of counts 2 and 3 (Pen. Code, § 12022.7, subd. (a)), and that he suffered a prior conviction within the meaning of the three strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and a prior serious felony conviction (§ 667, subd. (a)(1)). Villareal further admitted multiple aggravating factors, including: the fact that the crime involved great violence or great bodily injury (Cal. Rules of Court, rule 4.421(a)(1), the victim was particularly vulnerable (id. at rule 4.421(a)(3), his prior convictions were numerous or of an increasingly serious nature (id. at rule 4.421(b)(2)), he had served a prior term in prison (id. at rule 4.421(b)(3)), and he was on parole or probation when the instant offense was committed (id. at rule 4.421(b)(4)).
All further undefined statutory citations are to the Penal Code unless otherwise indicated.
On appeal, appellate counsel for Villareal filed an opening brief summarizing the pertinent facts and raising no issues but asking this court to review the record independently. (See People v. Wende (1979) 25 Cal.3d 436.) The opening brief contains a declaration by appellate counsel stating that Villareal was advised of his right to file a brief of his own with this court. By letter dated April 17, 2024, we also invited Villareal to submit additional briefing.
Villareal filed a supplemental brief, raising the following claims: (1) the trial court abused its discretion by declining to strike his five-year prior serious felony enhancement (§ 667, subd. (a)(1)); (2) the trial court failed to strike punishment on or impose a three-year sentence for the great bodily injury enhancement on count 2; and (3) Villareal claims he is entitled to withdraw from his plea, or alternatively, to a full resentencing based upon these errors, as well as section 1172.75 and section 1172.1, which was recently amended by Assembly Bill No. 600 (2023-2024 Reg. Sess.) (AB 600).
Based upon the sentencing error identified by Villareal, we requested supplemental briefing from the parties. Appellant's counsel agrees that sentencing error occurred because of the court's failure to impose or strike the sentence on the great bodily injury enhancement on count 2. Appellant's counsel asks this court to strike the enhancement on appeal. In his supplemental letter brief, the Attorney General counters that remand is necessary to allow the trial court to exercise its sentencing discretion on this enhancement. We agree with the Attorney General.
We will remand the matter back to the lower court so that it may exercise its discretion to strike or impose the sentence on the great bodily injury enhancement applied to count 2. Further, we will order the lower court to correct the minute order and abstract of judgment from Villareal's sentencing hearing, which incorrectly reflect that this enhancement was stricken or stayed. We otherwise affirm.
FACTUAL AND PROCEDURAL HISTORY
The Prosecution's Case
On March 30, 2020, Fresno Police Officer Derrick Johnson responded to a report of a traffic collision at approximately 5:46 p.m. in the city of Fresno. The accident involved a grey Scion and a grey Nissan Sentra; the drivers collided while driving through an intersection. The driver of the Nissan Sentra, R.M. broke her left arm. The driver of the Scion, Villareal, fled on foot.
Witnesses directed Officer Johnson to a nearby residence. When Officer Johnson arrived at the home, a woman walked outside and directed Officer Johnson to Villareal, who was inside of the bathroom. Villareal's eyes appeared bloodshot, red, and watery, and he was omitting the odor of alcohol. A preliminary alcohol screening test indicated that he had a blood alcohol concentration of .264 percent.
Villareal's Plea and the Trial Court's Sentencing Decision
On May 1, 2023, Villareal entered a plea of no contest to counts 1 through 3, and admitted aggravating factors, his prior serious felony conviction, and the enhancements alleged. The trial court indicted it would impose a sentence of 12 years in state prison.
On June 13, 2023, the trial court held Villareal's sentencing hearing. At the hearing, the prosecutor argued that the appropriate sentence would be a maximum prison term of 17 years four months. According to the prosecutor, striking the enhancements applied to Villareal's sentence would represent a danger to the public safety. The prosecutor specifically represented that Villareal's prior convictions for felony sex offenses demonstrated that he is a danger to the community.
The trial court denied Villareal's Romero motion and sentenced him to 12 years four months in state prison. On count 2, the court imposed a prison term of 11 years, representing the middle term of three years, doubled to six years for Villareal's prior strike conviction, plus five years for the prior serious felony enhancement (§ 667, subd. (a)(1)). The court imposed a stayed term of three years for Villareal's prior prison term enhancement. (See § 667.5, subd. (a).)
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
As to count 1, the court imposed a consecutive term of 16 months, representing one-third of the middle term. With respect to count 3, the court imposed a concurrent term of six years, representing the middle term of three years, doubled for Villareal's prior strike conviction. As to this count, the court further imposed a stayed term of three years for the great bodily injury enhancement (§ 12022.7, subd. (a)).
DISCUSSION
I. Failure to Strike the Five-Year Prior Serious Felony Enhancement
Villareal initially contends the trial court abused its discretion by declining to strike a prior serious felony conviction that resulted in the application of a five-year enhancement to his sentence and a strike. The decision of whether to dismiss a prior strike is governed by the three strikes law. The decision of whether to dismiss or strike a prior serious felony conviction is governed by section 1385, subdivision (c). (See People v. Burke (2023) 89 Cal.App.5th 237, 243-244 [section 1385, subdivision (c) only applies to enhancements, but the three strikes law is an alternative sentencing scheme, not an enhancement].)
Because Villareal specifically contends that the enhancement should have been dismissed under one or more factors enumerated under section 1385, we interpret his argument to be that the trial court erred by failing to strike the prior serious felony enhancement (§ 667, subd. (a)(1)). To that end, we conclude that Villareal has failed to demonstrate that the trial court abused its discretion by declining to do so.
A. Legal Principles
Effective January 1, 2022, Senate Bill No. 81 (2021-2022 Reg. Sess.) amended section 1385 to guide trial courts in deciding whether and when to dismiss sentencing enhancements. (Stats. 2021, ch. 721, § 1.) As amended, section 1385 grants trial courts the authority and a simultaneous duty "to strike or dismiss a[ sentencing] enhancement" (or, if they prefer, the "additional punishment for that enhancement" if doing so is "in the furtherance of justice"). (§ 1385, subds. (b) &(c)(1).) Although this provision makes clear that whether dismissal of an enhancement is "in the furtherance of justice" is a "discretion[ary]" call for the trial court to make (id., subds. (c)(1), (c)(2), (c)(3)), the provision also directs that the existence of any of nine enumerated "mitigating circumstances" "weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety." (Id., subd. (c)(2).)
B. Analysis
Villareal's claim is predicated upon the fact that his prior serious felony enhancement is based upon a conviction that is over five years old. While this is a mitigating circumstance that "weighs greatly in favor of dismissing the enhancement" (see § 1385, subd. (c)(2)(H)), dismissal of the enhancement was not compelled. (See generally, People v. Dain (2024) 99 Cal.App.5th 399, 417, review granted May 29, 2024, S283924 [finding that the remoteness of a prior conviction underlying a prior serious felony conviction alone does not, alone, demonstrate an abuse of discretion].)
Villareal's probation report bears out a lengthy criminal history, spanning from juvenile adjudications for vandalism, causing fire to property, and domestic violence, to adult convictions for statutory rape causing great bodily injury, domestic violence, and pimping a minor. Including his convictions for the instant crimes, Villareal has accrued ten felony convictions. He has never gone a significant period of time without reoffending. Indeed, his commitment offenses occurred while he was on a grant of early release from prison for his prior strike offense.
While the trial court observed the presence of at least two mitigating factors which supported dismissal of the enhancement under section 1385, including the age of Villareal's prior conviction (§ 1385, subd. (c)(2)(H)) and the fact that "[t]he current offense is connected to ... childhood trauma," (id., subd. (c)(2)(E)), it implicitly concluded that dismissal would endanger the public safety. Based upon the instant record, we cannot say that the trial court abused its discretion by declining to dismiss the five-year prior serious felony enhancement.
Although the trial court did not explicitly mention that the presence of multiple enhancements in a single case as a mitigating factor, the prosecutor acknowledged the existence of this factor. We therefore presume that the trial court considered it in its sentencing decision.
II. The Trial Court's Failure to Impose a Sentence on the Great Bodily Injury Enhancement Applied to Count 2
At his change of plea hearing, Villareal admitted the great bodily injury enhancement allegations applied to counts 2 and 3. Section 12022.7, subdivision (a) empowers a trial court to impose "an additional and consecutive" three-year prison term if a defendant "personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony." (§ 12022.7, subd. (a).) With respect to count 2, the trial court's oral pronouncement of judgment fails to reflect that the court imposed a sentence on this enhancement, or exercised its discretion to strike the enhancement or punishment on the enhancement. We will therefore remand this matter back to the lower court for this purpose.
A. Background
Prior to Villareal's change of plea hearing, the trial court represented that it would "take the plea to the sheet," that the indicated sentence was "12 years" and that it would figure out how to arrive at that term. The prosecutor represented that some of the terms on the other counts may have to be imposed consecutively, if the court determined that the hit-and-run conduct arose out of the same operative facts or occurred on the same occasion.
After the trial court had accepted Villareal's no contest plea but prior to his sentencing hearing, Villareal filed motions to dismiss his enhancements, to strike his prior strike, and to withdraw his plea. The court declined Villareal's motion to strike or stay his enhancements pursuant to section 1385 and denied his Romero motion.
Villareal was sentenced as follows: on count 2, the trial court imposed a total term of 11 years, representing the middle term of three years, doubled for Villareal's prior strike conviction, plus five years for the prior serious felony conviction enhancement (§ 667, subd. (a)). The court imposed a stayed term of three years for the section 667.5, subdivision (a) enhancement.
As to count 1, the court imposed a consecutive term of 16 months, representing one-third of the midterm sentence. As to count 3, the court imposed a stayed term of nine years. Villareal's total prison sentence was 12 years four months.
The abstract of judgment shows that a three-year term for the great bodily injury enhancement was imposed and stayed as to count 2. In contrast, the minute order for Villareal's sentencing hearing, dated June 13, 2023, indicates that punishment on this enhancement was stricken. However, the oral pronouncement of judgment fails to show that the trial court in fact addressed this enhancement.
While the oral pronouncement of the trial court is generally presumed correct (see People v. Thompson (2009) 180 Cal.App.4th 974, 978), under certain circumstances, the minute order and abstract of judgment may prevail over contrary statements in the reporter's transcript. (See People v. Cleveland (2004) 32 Cal.4th 704, 768; People v. Smith (1983) 33 Cal.3d 596, 599, quoting In re Evans (1945) 70 Cal.App.2d 213, 216 [" 'whether the recitals in the clerk's minutes should prevail as against contrary statements in the reporter's transcript, must depend upon the circumstances of each particular case"].) But there are no contrary statements here. Rather, it appears that the great bodily injury enhancement applied to count 2 was not actually addressed by the trial court at Villareal's sentencing hearing. If the trial court had intended to strike the enhancement, section 1385 required the court to state its reasons orally on the record. (§ 1385, subd. (a).) This did not occur.
"It is well established in California by a long line of decisional authority ... that a trial court's failure to either (1) to pronounce sentence on a statutory sentenceenhancement allegation based upon a finding by the trier of fact or an admission by the defendant that the allegation is true, or (2) to exercise its discretion to the extent imposition of the enhancement is discretionary-to either strike the enhancement allegation or impose the enhancement, results in an unauthorized sentence." (People v. Vizcarra (2015) 236 Cal.App.4th 422, 432.) We may correct this error "whenever the error comes to the attention of the court, even if the correction creates the possibility of a more severe punishment." (Ibid., citing In re Ricky H. (1981) 30 Cal.3d 176, 191.)
Based on the sentencing error described herein, we will remand the instant matter back to the lower court for the court to exercise its discretion to strike or impose the great bodily injury enhancement applied to count 2. If the trial court elects to strike the enhancement, the court's reasons for the dismissal must be set forth upon the record. (See § 1385, subd. (a).)
Villareal asserts that if the trial court imposes a sentence on the great bodily injury enhancement following remand, he should be permitted to withdraw his plea. However, Villareal's plea was an open plea following an indicated sentence, rather than a stipulated sentence.
"When a trial court properly indicates a sentence, it has made no promise that the sentence will be imposed. Rather, the court has merely disclosed to the parties at an early stage-and to the extent possible-what the court views, on the record then available, as the appropriate sentence so that each party may make an informed decision." (People v. Clancey (2013) 56 Cal.4th 562, 575.) An indicated sentence "does [not] divest a trial court of its ability to exercise its discretion at the sentencing hearing, whether based on the evidence and argument presented by the parties or on a more careful and refined judgment as to the appropriate sentence." (Id. at p. 576.) "The development of new information at sentencing may persuade the trial court that the sentence previously indicated is no longer appropriate for this defendant or these offenses. Or, after considering the available information more carefully, the trial court may likewise conclude that the indicated sentence is not appropriate. Thus, even when the trial court has indicated its sentence, the court retains its full discretion at the sentencing hearing to select a fair and just punishment." (Ibid.)
Villareal has presented no authority supporting his claim that withdrawal from his plea agreement is the appropriate remedy here, nor have we found any support for his assertion. Critically, he has failed to demonstrate that the integrity of his plea was compromised by the trial court's sentencing error, or that he otherwise entered his plea based upon mistake, ignorance, or duress. (See People v. Breslin (2012) 205 Cal.App.4th 1409, 1416 ["To establish good cause to withdraw a guilty plea, the defendant must show by clear and convincing evidence that he or she was operating under mistake, ignorance, or any other factor overcoming the exercise of his or her free judgment, including ... duress. [Citation.] The defendant must also show prejudice in that he or she would not have accepted the plea bargain had it not been for the mistake."].)
Villareal additionally asserts that on remand, he is entitled to a full resentencing hearing. We disagree that a full resentencing is required. No portion of the judgment of conviction has been vacated or stricken, requiring reconsideration of the entire sentencing structure. (See People v. Vizcarra, supra, 236 Cal.App.4th at p. 442.)
In his supplemental letter brief, Villareal requests that this court strike the great bodily injury enhancement at issue. Villareal directs this court to the trial court's clear indication that a sentence of 12 years was appropriate. Although we agree that the trial court manifested a clear intention to impose a sentence of 12 years, correction of the June 13, 2023 minute order from Villareal's sentencing hearing and the abstract of judgment are required. Because this matter must already be returned to the lower court for correction of these documents, we decline to strike the great bodily injury enhancement.
III. Villareal's Entitlement to Relief under Section 1172.75, Assembly Bill No. 600, and Section 1172.1
Villareal further contends that he is entitled to resentencing under section 1172.75, subdivision (d)(1), AB 600, and section 1172.1. However, none of the authorities upon which he relies support the conclusion that resentencing is required.
Section 1172.75 establishes a mechanism to provide affected defendants an avenue for relief from now invalid prior prison term enhancements. Subdivision (b) of section 1172.75 directs the Secretary of the Department of Corrections and Rehabilitation (CDCR) and the correctional administrator of each county to "identify those persons in their custody currently serving a term for a judgment" that includes a now legally invalid prior prison enhancement, and to provide the names of such persons, their dates of birth, and the relevant case numbers or docket numbers to the sentencing court that imposed the enhancement. (§ 1172.75, subd. (b).) After the court receives from the CDCR and county correctional administrator the information included in subdivision (b) of section 1172.75, "the court shall review the judgment and verify that the current judgment includes a sentencing enhancement described in subdivision (a)," and if so, "recall the sentence and resentence the defendant." (§ 1172.75, subd. (c).)
Nothing upon this record demonstrates that Villareal's prior convictions are invalid, such that he is entitled to resentencing under section 1172.75. Indeed, section 1172.75 applies to enhancements under section 667.5, subdivision (b) that were imposed prior to January 1, 2020. (§ 1170.75, subd. (a).) Villareal's prior prison term enhancement was imposed under section 667.5, subdivision (a) in 2023.
Nor is Villareal necessarily entitled to relief under AB 600. "A.B. 600 amended section 1172.1 to allow a trial court, on its own motion, to recall a sentence and resentence a defendant when 'applicable sentencing laws at the time of the original sentencing are subsequently changed by new statutory authority or case law.'" (People v. Dain (2024) 99 Cal.App.5th 399, 815.) Villareal failed to demonstrate that any new applicable sentencing laws support recall of his sentence. Further, the trial court's duty to act is discretionary, not mandatory.
IV. The Low Term Presumptive Sentence
On January 1, 2022, several amendments to section 1170 went into effect. (Sen. Bill No. 567 (2021-2022); Stats. 2021, ch. 731, § 1.3.) One change was the addition of subdivision (b)(6) to section 1170.
While the midterm is the presumptive term of imprisonment (see § 1170, subd. (b)(1)), subdivision (b)(6) provides: "[U]nless the court finds that the aggravating circumstances outweigh the mitigating circumstances that imposition of the lower term would be contrary to the interests ofjustice, the court shall order imposition of the lower term if [among other factors] the following was a contributing factor in the commission of the offense: [¶] The person "has experienced psychological, physical, or childhood trauma, including ... abuse, neglect, exploitation, or sexual violence." (§ 1170, subd. (b)(6)(A).)
In Villareal's sentencing motion and at the sentencing hearing, he argued the court should consider the trauma he suffered as a youth when the court made its sentencing decisions. Although Villareal argued that his childhood trauma weighed greatly in favor of dismissing the five-year prior serious felony enhancement applied to his sentence, he did not reference section 1170, subdivision (b)(6) specifically, nor did argue that his past trauma required imposition of the lower term.
Villareal also argued that his history of addiction to illicit substances constitutes a mental illness, which he asserted was a mitigating factor under section 1385. One of the mitigating circumstances identified in the subparagraphs under section 1385 is that "[t]he current offense is connected to mental illness." (§ 1385, subd. (c)(2)(D).) With respect to section 1170, subdivision (b)(6), however, assuming that drug addiction is a mental illness, this court has declined to hold that "mental illness alone qualifies for the lower term presumption." (People v. Banner (2022) 77 Cal.App.5th 226, 241.) Rather, "[p]sychological trauma must attend the illness, and that trauma must contribute to the crime under section 1170, subdivision (b)(6)."
Nonetheless, the trial court concluded that Villareal had, in fact, suffered childhood trauma, and although there is some ambiguity in the record, it implicitly acknowledged that his trauma was connected to the current offense. As our Supreme Court has explained, the low term presumption will be triggered so long as the record discloses the defendant may have suffered a qualifying trauma and that such trauma may have been a contributing factor to the offense. (See People v. Salazar (2023) 15 Cal.5th 416, 419.)
The low term presumptive sentence, under subdivision (b)(6) of section 1170, was in effect 17 months prior to Villareal's sentencing hearing. We presume that the court was aware of the existing law and applied it correctly. (See People v. Gutierrez (2014) 58 Cal.4th 1354, 1390; See also, Cal. Rules of Court, rule 4.409 ["[r]elevant factors enumerated in these rules must be considered by the sentencing judge, and will be deemed to have been considered unless the record affirmatively reflects otherwise"].)
Moreover, the record contains strong evidence supporting the conclusion that the trial court implicitly found imposition of the low term sentence would be "contrary to the interests of justice" (§ 1170, subd. (b)(6)). (People v. Salazar, supra, 15 Cal.5th at p. 425 [generally, "when ... a sentencing court was not fully aware of the scope of its discretionary powers, '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"' "].) Notably, Villareal admitted the presence of five aggravating factors, including: the fact that the crime involved great violence or great bodily injury (Cal. Rules of Court, rule 4.421(a)(1), the victim was particularly vulnerable (id. at rule(a)(3), his prior convictions were numerous or of an increasingly serious nature (id. at rule(b)(2)), he had served a prior term in prison (id. at rule(b)(3)), and he was on parole or probation when the instant offense was committed (id. at rule(b)(4)).
The existing record does not support that the trial court abused its discretion by implicitly concluding that the low term presumptive sentence did not apply. Villareal does not claim otherwise on appeal. We therefore conclude that a full resentencing hearing is not required on remand.
DISPOSITION
The matter is remanded back to the lower court for the limited purpose of allowing the trial court to exercise its sentencing discretion to strike or impose the great bodily injury enhancement (§ 12022.7, subd. (a)) applied to count 2. The trial court is further ordered to correct the minute order dated June 13, 2023, which erroneously reflects that a three-year prison term was imposed on count 2 for the great bodily injury enhancement and that punishment was stricken, as well as the abstract of judgment, which reflects that punishment was stayed on this enhancement. Following the conclusion of further proceedings, the superior court is directed to forward a certified copy of the abstract of judgment to the Department of Corrections. In all other respects, the judgment is affirmed.
[*] Before Poochigian, Acting P. J., Franson, J. and Smith, J.