Opinion
D075871
04-23-2020
THE PEOPLE, Plaintiff and Respondent, v. SHELDON ALFREDO AUCLAIR, JR., Defendant and Appellant.
Christian C. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Felicity Senoski, Deputy Attorneys General, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. INF1401094) APPEAL from a judgment of the Superior Court of Riverside County, Burke E. Strunsky, Judge. Affirmed as modified. Christian C. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
This is the second appeal of defendant Sheldon Alfredo Auclair, Jr. In a prior appeal (D073726), we affirmed Auclair's judgment following a jury trial, but vacated the sentence and remanded for resentencing for the trial court to determine whether to exercise its new discretion to strike gun-related sentencing enhancements. On remand, the trial court declined to strike the enhancements, imposed the same sentence, and imposed various fines and fees.
We take judicial notice of Auclair's prior appeal. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)
Auclair appeals, contending (1) the trial court erred at resentencing by failing to consider Auclair's behavior while in prison, (2) remand is warranted for "clarification" of his restitution and parole revocation fines; (3) remand is warranted to calculate and award his sentencing credits; and (4) his abstract of judgment and sentencing minute order must be corrected. We conclude the judgment should be modified to reflect imposition of fines and fees as described post, and further conclude the abstract of judgment and sentencing minutes require correction. However, we find Auclair's other contentions lack merit. We therefore modify the judgment to reflect the appropriate fines, fees, and custody credits, and affirm the judgment as modified.
FACTS
We repeat the facts of Auclair's offense from his prior appeal:
"On April 17, 2014, Auclair met his cousin and several other individuals at a nightclub in Palm Springs, California. Auclair exchanged words and a few shoves with a woman inside the club. He was subsequently thrown out by Rodney C., one of the club's owners. Rodney walked Auclair out the back door. Another man, who was at the club with Auclair, finished his drink and left as well.
"Rodney went to the front door to tell two security personnel, Cody K. and E.B., that Auclair had been thrown out. Approximately
10 minutes later, someone told Cody that several people were having an argument in the parking lot. Cody and E.B. went over to investigate.
"As they got closer, they noticed two groups of people, one group of four individuals and another group consisting of Auclair and another man. Auclair was acting aggressively toward the other group. Cody and E.B. told everyone to calm down and go home. Auclair responded, 'We want to shoot these guys.' E.B. said, 'It's not going to happen here. You guys need to leave.' The group of four individuals got in their car and left.
"After the other group left, the man with Auclair told him it was time to go. Auclair was silent for a moment, but then he began to tell Cody and E.B. that he had been jumped inside the club. He appeared very upset. Cody and E.B. looked but did not see any injuries on Auclair. Cody told Auclair there was nothing that could be done and he should go home.
"Auclair was silent again, and it seemed like both men would leave. But Auclair turned back, called E.B. a 'bitch,' and became aggressive again. Cody reiterated that Auclair and the other man should leave. When Cody took a step toward Auclair, he pulled out a handgun and pointed it at Cody's face. Cody told Auclair again that he should leave. E.B. told Auclair he should leave or he would go to jail. Auclair shifted his aim to E.B. and then back to Cody again. He told Cody, 'Fuck you,' turned to E.B., and fired one shot into E.B.'s stomach. Auclair and the other man ran away.
"Cody drove E.B. to a hospital. E.B. had suffered a single gunshot wound. The bullet travelled through his body and exited out his back. E.B. spent 45 days in the hospital and underwent three separate surgeries. Police identified Auclair as a suspect and eventually arrested him."
After trial, a jury convicted Auclair of premeditated attempted murder (Pen. Code, §§ 187, subd. (a), 664, subd. (a)) and assault with a firearm (§ 245, subd. (a)(2)). As to the charge of premeditated attempted murder, the jury found that Auclair intentionally discharged a firearm causing great bodily injury. (§ 12022.53, subd. (d).) As to both charges, it found that Auclair personally used the firearm. (§ 12022.5, subd. (a).) The trial court sentenced Auclair to a total indeterminate term of 32 years to life imprisonment, consisting of seven years to life imprisonment for premeditated attempted murder and 25 years to life imprisonment for the great bodily injury firearm enhancement. The court imposed a sentence of four years for the assault conviction, which it stayed under section 654. The court also imposed and stayed sentences of 10 years each for the remaining firearm enhancements.
Statutory references are to the Penal Code unless otherwise specified.
In Auclair's prior appeal, we affirmed the judgment against him but vacated the sentence and remanded for resentencing to allow the trial court to exercise its newly effective discretion under section 12022.5, subdivision (c) and 12022.53, subdivision (h), which became effective after Auclair was sentenced, and which allow a trial court to exercise its discretion under section 1385 to strike the firearm enhancements in the interest of justice. (§§ 12022.5, subd. (c), as amended by Stats. 2017, ch. 682, § 1; 12022.53, subd. (h), as amended by Stats. 2017, ch. 682, § 2.)
On resentencing, the court declined to strike the enhancements and imposed the same term of seven years to life imprisonment for premeditated attempted murder and 25 years to life imprisonment for the great bodily injury firearm enhancement. The court imposed a sentence of four years for the assault conviction, which it stayed under section 654. The court also imposed and stayed sentences of 10 years each for the remaining firearm enhancements.
DISCUSSION
I.
Trial Court's Exercise of Discretion Declining to Strike or Reduce Enhancements
Auclair contends the trial court abused its discretion by failing to consider Auclair's behavior while in prison as an appropriate mitigating factor—both in declining to dismiss or strike the firearm enhancements, and in failing to impose a lesser enhancement. We conclude Auclair has failed to establish an abuse of discretion.
Because the trial judge who presided over Auclair's original sentencing in 2016 was no longer available, Auclair's resentencing hearing on remand occurred before a different trial judge. The prosecutor argued the sentencing enhancements should remain in place. Auclair's counsel emphasized that Auclair continued to maintain his innocence in the crime, and argued that mitigating factors were present at the time of the crime (because there was evidence the shooter was intoxicated) and additional mitigating factors have taken place since sentencing. Specifically, counsel emphasized that, since the prior sentencing, Auclair had graduated with a GED, worked a job while in prison, and decreased his close-custody status to a lower security level.
The court declined to strike or dismiss the firearm enhancements. The trial court found, "[a]fter reviewing the transcripts, the papers filed by both parties, and hearing arguments today," that there was "no significant mitigation in the crimes and no other reasonable basis to dismiss and strike the gun allegation. Nothing in the record shows self-defense, heat of passion, or any kind of overriding intoxication to provide this court with any credible, nonarbitrary justification to strike or dismiss the gun allegation." The trial court expressly noted that it considered "facts related to the defendant" and found and agreed with the "probation[] [officer's] conclusion [Auclair's] prior performance on probation or parole was satisfactory." However, the trial court stated, it was "brutal . . . to shoot somebody in the stomach," and it was "only by the pure luck or the grace of God" that the victim did not die. The trial court noted the section 12022.53, subdivision (d) enhancement was designed to "punish those who commit just such crimes as you have here."
Section 12022.53, subdivision (h) provides that "[t]he court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section." Section 1385 states that a judge or magistrate may, "in [the] furtherance of justice, order an action to be dismissed." (§ 1385, subd. (a).) Where the court has the authority to strike or dismiss an enhancement, "the court may instead strike the additional punishment for that enhancement . . . ." (§ 1385, subd. (b)(1).) A trial court's discretionary decision to dismiss or strike a sentencing allegation is reviewed under the deferential abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 374-376 (Carmony).) The burden is on the party attacking the sentence " 'to clearly show that the sentencing decision was irrational or arbitrary.' " (Id. at p. 376.) "[A] ' "decision will not be reversed merely because reasonable people might disagree." ' " (Id. at p. 377.) Accordingly, "a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Ibid.)
Section 12022.53, subdivision (d) provides in part that "any person who, in the commission of a [specified] felony . . . personally and intentionally discharges a firearm and proximately causes great bodily injury . . . , shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life."
We conclude the trial court here did not abuse its discretion in declining to strike or dismiss Auclair's firearm enhancements. The court listened to arguments of counsel, reviewed transcripts and the probation officer's 2016 report, considered relevant factors, and declined to exercise its discretion to strike or dismiss the firearm enhancements. The court noted that Auclair's crime, shooting the victim in the stomach, and causing him to be hospitalized for an extended period of time, was particularly "brutal," and noted the enhancement was specifically fashioned for crimes like Auclair's, where discharging a firearm caused great bodily injury. The record demonstrates the trial court considered the appropriate circumstances and exercised its sentencing discretion in a reasonable manner. (Carmony, supra, 33 Cal.4th at p. 377 ["a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it"]; see People v. Pearson (2019) 38 Cal.App.5th 112, 118 (Pearson) [where trial court "considered the factors it was required to consider when sentencing a felony defendant," its decision "denying [defendant's] request to strike the firearm enhancement [after the matter was remanded for resentencing] was squarely within the bounds of the trial court's discretion"].)
Auclair contends the record is "clear that the court did not consider [his] conduct while in prison custody as available mitigation," but the record does not support this contention. The court did not expressly find this conduct amounted to a factor in mitigation, but it was not required to explicitly address each argument advanced by Auclair during the sentencing hearing. (See People v. Myers (1999) 69 Cal.App.4th 305, 310 ["the fact that the court focused its explanatory comments on the violence and potential violence of appellant's crimes does not mean that it considered only that factor"].) Moreover, the court stated it had considered counsel's arguments, which included a plea for leniency based on Auclair's behavior while incarcerated—i.e., graduating with his GED, maintaining a job in prison, and obtaining a lowered security level. Auclair has not established that the court's decision—ultimately rejecting counsel's mitigation arguments—was irrational or arbitrary. (Carmony, supra, 33 Cal.4th at pp. 376-377; see Pearson, supra, 38 Cal.App.5th at p. 117 ["nothing in the record affirmatively establishes that the trial court did not consider other relevant factors it was required to consider"].)
See California Rules of Court, rule 4.423 [circumstances in mitigation]; People v. Bullock (1994) 26 Cal.App.4th 985, 990 ["The defendant's postconviction behavior and other possible developments remain relevant to the trial court's consideration upon resentencing."]; People v. Foley (1985) 170 Cal.App.3d 1039, 1047 ["If a defendant's postconviction behavior in prison is relevant to setting his term at his original sentencing, we can see no reason why it would not be relevant to the setting of his term upon resentencing."].
Auclair further contends that, even if his postconviction conduct was not sufficient to warrant striking the firearm enhancements in their entirety, his conduct "could have justified a lesser included enhancement . . . if properly considered." To support this argument, Auclair cites People v. Morrison (2019) 34 Cal.App.5th 217. In Morrison, the appellate court held that trial courts have the authority to impose a lesser, uncharged 10- or 20-year enhancement under section 12022.53, subdivisions (b) or (c), rather than a charged 25 years to life enhancement under subdivision (d), when doing so is in the interests of justice under section 1385. (Id. at pp. 222-223.) Whether such a reduction is within the trial court's discretion is an issue currently on review before our Supreme Court. (People v. Tirado (2019) 38 Cal.App.5th 637, 645, review granted Nov. 13, 2019, S257658 [disagreeing with Morrison, and concluding the trial court has discretion to strike and dismiss the enhancement but is not authorized to substitute one enhancement for another].) We need not address whether Morrison was correctly decided, however, because the record clearly shows the trial court was aware of that ruling, but nonetheless declined to exercise any discretion to impose a lesser enhancement. Even assuming the trial court had the authority to impose a lesser enhancement, for the same reasons discussed ante, the court did not abuse its discretion in declining to do so. The trial court properly considered relevant sentencing factors, including counsel's arguments regarding Auclair's postconviction mitigation conduct, and concluded the firearm enhancements should remain in place. Its decision was neither irrational nor arbitrary. (Carmony, supra, 33 Cal.4th at p. 377; Pearson, supra, 38 Cal.App.5th at p. 118.)
The trial court expressly stated it "considered the Morrison case and notes that it fully understands that it has discretion to sentence the defendant on lesser-included, gun-related allegations."
II.
Fines and Fees
Auclair contends remand is warranted for "clarification" of his restitution and parole revocation fines. We agree the record is unclear with respect to these fines, but disagree that remand is warranted. Instead, both fines must be set at zero.
Auclair's 2016 probation officer's report, prepared for his original sentencing, recommended imposing a $10,000 restitution fine (§ 1202.4). At Auclair's original sentencing, Auclair's counsel requested that the court strike the restitution fine "in light of the fact that we do know that there's going to be some restitution [requested] by both [victims]." The trial court agreed and ordered the restitution fine to be stricken. (§ 1202.4, subd. (b) ["the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record"].) The prosecutor did not object. Auclair's original abstract of judgment properly reflected the stricken restitution fine; however, it also reflected a parole revocation restitution fine of $10,000. Because the restitution fine was set at zero, the parole revocation fine must also have been zero. (§§ 1202.4, subd. (b); 1202.45, subd. (a); see People v. Tillman (2000) 22 Cal.4th 300, 302 (Tillman).) The original abstract of judgment's reflection of a $10,000 parole revocation restitution fine was clerical error. (See People v. Mitchell (2001) 26 Cal.4th 181, 185-186 [the oral pronouncement of judgment controls].)
Upon resentencing, the trial court stated: "Defendant must also pay a $300 restitution fine; $300 parole revocation fine . . . . [¶] . . . [¶] Parole revocation restitution fine as indicated in the probation report is $10,000. It is suspended unless parole is revoked. [The original sentencing court] struck the restitution fine of $10,000; court will do the same."
It is unclear from the record whether the court intended to impose a $300 restitution fine or to strike the restitution fine. However, because a restitution fine is inherently punitive, principles of double jeopardy preclude a trial court, on remand for resentencing after an appeal, from imposing a restitution fine greater than that imposed in the original judgment. (Cal. Const., art. I, § 15; People v. Daniels (2012) 208 Cal.App.4th 29, 31-32 (Daniels); People v. Hanson (2000) 23 Cal.4th 355, 361 (Hanson).) Auclair's restitution fine and parole revocation restitution fine therefore must be set at zero.
The Attorney General contends double jeopardy does not apply here because Auclair forfeited this argument, and the trial court's original sentence was unauthorized. We disagree. We have the discretion to consider a constitutional issue on appeal that is a pure question of law even when there was no objection in the trial court. (In re Sheena K. (2007) 40 Cal.4th 875, 888-889.) Addressing Auclair's constitutional double jeopardy claim forestalls a claim of ineffective assistance of counsel. (See Daniels, supra, 208 Cal.App.4th at p. 31.) In Hanson, our Supreme Court explained that "[w]hen a defendant successfully appeals a criminal conviction, California's constitutional prohibition against double jeopardy precludes the imposition of more severe punishment on resentencing." (Hanson, supra, 23 Cal.4th at p. 357.) This rule applies to restitution fines (ibid.), but the rule is subject to an exception for unauthorized sentences. (Id. at p. 360, fn. 3.) An unauthorized sentence " 'is subject to being set aside judicially and is no bar to the imposition of a proper judgment thereafter, even though it is more severe than the original unauthorized pronouncement.' " (Ibid.) In this case, however, the trial court's initial sentence declining to impose a restitution fine was not unauthorized (§ 1202.4, subd. (b)), and the People did not appeal that ruling, thereby forfeiting any challenge based on the court's failure to articulate the basis for its decision. (Tillman, supra, 22 Cal.4th at pp. 302-303.)
On remand, the trial court also imposed a "$40 court assessment fee," a "$30 criminal conviction fee" and a "$30 conviction assessment fee." The Attorney General contends, and we agree, that the trial court was required to impose a $30 criminal conviction assessment for each conviction ($60 total) (Gov. Code, § 70373, subd. (a)(1); People v. Castillo (2010) 182 Cal.App.4th 1410, 1415, fn. 3 (Castillo)) as well as a $40 court operations assessment for each conviction ($80 total) (Pen. Code, § 1465.8, subd. (a); People v. Schoeb (2005) 132 Cal.App.4th 861, 865). Auclair does not dispute this but contends the case should be remanded. Remand is not warranted; we direct the judgment to be modified to correct these clerical errors. (People v. Talibdeen (2002) 27 Cal.4th 1151, 1157 [appellate court may correct trial court's omission of state and county penalties even when People raise the issue for the first time on appeal]; People v. Woods (2010) 191 Cal.App.4th 269, 271-273 [failure to impose required fees is unauthorized sentence, correctable on appeal].)
Because these fees do not constitute punishment, their imposition on remand does not violate the double jeopardy clause of the California Constitution. (See People v. Alford (2007) 42 Cal.4th 749, 755-759 [Pen. Code, § 1465.8 is not punitive]; Castillo, supra, 182 Cal.App.4th at p. 1413 [Gov. Code, § 70373 is not punitive]; Hanson, supra, 23 Cal.4th at p. 357 ["When a defendant successfully appeals a criminal conviction, California's constitutional prohibition against double jeopardy precludes the imposition of more severe punishment on resentencing."], italics added.)
III.
Custody Credits
Upon resentencing, the trial court did not calculate Auclair's custody credits and omitted credit tallies from the abstract of judgment. Auclair contends, and the Attorney General agrees, the sentencing court should have calculated custody credits. "Where a defendant has served any portion of his sentence under a commitment based upon a judgment which judgment is subsequently declared invalid or which is modified during the term of imprisonment, such time shall be credited upon any subsequent sentence he may receive upon a new commitment for the same criminal act or acts." (§ 2900.1.) "[T]he trial court, having modified defendant's sentence on remand, was obliged, in its new abstract of judgment, to credit him with all actual days he had spent in custody, whether in jail or prison, up to that time." (People v. Buckhalter (2001) 26 Cal.4th 20, 37.)
The parties agree on the appropriate custody credits through the date of the remand hearing (April 19, 2019): 747 days of actual presentence credits, plus 112 days of presentence conduct credits (§ 2933.1 [15% conduct credit]), for a total of 859 days of presentence credits; plus 949 days of actual postsentence credits (for the time from his original sentencing hearing to the resentencing hearing), for a total of 1,808 days of credits. However, we conclude the calculation is off by six days and the appropriate calculation is as follows: 744 days of actual presentence credits, plus 112 days of presentence conduct credits (§ 2933.1 [15% conduct credit]), for a total of 856 days of presentence credits; plus 946 days of actual postsentence credits (for the time from his original sentencing hearing to the resentencing hearing), for a total of 1,802 days of credits. We direct modification of the judgment to reflect the award of these custody credits. (§ 1260 [authorizing appellate court to "modify a judgment . . . appealed from"].)
"[U]nder section 2933.1, if a person is convicted of a violent felony listed in section 667.5, subdivision (c) and is sentenced to state prison, the person's presentence conduct credits and postsentence worktime credits are both limited to 15 percent." (In re Mallard (2017) 7 Cal.App.5th 1220, 1225; § 2933.1, subd. (c).)
IV.
The Abstract of Judgment and Sentencing Minute Order Require Correction
Both parties acknowledge, and we agree, the abstract of judgment and minute order require correction. (People v. Thomas (2012) 211 Cal.App.4th 987, 1016.)
The clerk's minutes do not reflect what occurred at the resentencing hearing, but rather indicate that Auclair entered a guilty plea and admitted the alleged enhancements. We direct the minute order to be corrected by deleting these references.
The abstract of judgment reflects the trial judge, date of hearing, department, clerk and reporter from the original sentencing hearing and fails to reflect the appropriate details from the remand hearing, which occurred on April 19, 2019, before Judge Burke E. Strunsky, in Department 3N, before clerk Y. Rodriguez and court reporter J. Giminez. The abstract of judgment should be corrected to reflect these details.
We also direct the trial court to prepare an amended abstract of judgment consistent with this opinion, as specified below.
DISPOSITION
We modify the judgment to impose a $0 restitution fine (Pen. Code, § 1202.4); $0 parole revocation restitution fine (Pen. Code, § 1202.45); $60 total criminal conviction assessment (Gov. Code, § 70373, subd. (a)(1)); and $80 total court operations assessment (Pen. Code, § 1465.8, subd. (a)).
We modify the judgment to reflect custody credits through the date of the remand hearing (April 19, 2019) of 744 days of actual presentence credits, plus 112 days of presentence conduct credits, for a total of 856 days of presentence credits; plus 946 days of actual postsentence credits; for a total of 1,802 days of credits.
We direct the minute order to be corrected by striking erroneous references to the entry of a guilty plea and admission of the alleged enhancements. We direct the abstract of judgment to be corrected to reflect the appropriate details from the remand hearing, which occurred on April 19, 2019, before Judge Burke E. Strunsky, in Department 3N, before clerk Y. Rodriguez and court reporter J. Giminez.
We direct the trial court to prepare an amended abstract of judgment consistent with this opinion, and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
As modified, the judgment is affirmed.
GUERRERO, J. WE CONCUR: HALLER, Acting P. J. IRION, J.