Opinion
H048049
07-15-2022
THE PEOPLE, Plaintiff and Respondent, v. RICHARD CORTEZ, Defendant and Appellant.
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. C1359060
LIE, J.Appellant Richard Cortez was convicted by a jury of attempted murder (Pen. Code, §§ 664, 187) and was sentenced to a term in prison of 27 years to life, consecutive to a determinate term of 14 years that included two five-year terms for serious felony convictions under section 667, subdivision (a) (section 667(a) enhancement). In his first appeal, we remanded the matter for resentencing in light of Senate Bill No. 1393 (2017-2018 Reg. Sess.), which amended section 1385 to give trial courts the discretion to dismiss section 667(a) enhancements. Upon resentencing, the trial court declined to strike the section 667(a) enhancements and reimposed the original sentence. In this second appeal, Cortez argues that he is now entitled to resentencing in light of Senate Bill No. 567 (2021-2022 Reg. Sess.) and that the trial court abused its discretion when it declined to strike the section 667(a) enhancements. We agree that remand for resentencing is required under Senate Bill No. 567 and reverse the judgment.
Unspecified statutory references are to the Penal Code.
I. BACKGROUND
A. Cortez's Conviction and His First Appeal
We previously granted Cortez's request for judicial notice of our unpublished opinion and the record in his prior appeal, People v. Cortez (Sep. 10, 2019, H042811) [nonpub. opn.]. We derive the facts and procedural history from our prior opinion.
In June 2013, Cortez stabbed his friend multiple times, including once in his back as his friend tried to flee. His friend testified at trial that Cortez was accompanied by his girlfriend and another accomplice during the commission of the crime.
In February 2015, a jury convicted Cortez of attempted murder (§§ 664, 187) and found true the allegations that he personally used a deadly weapon (§ 12022, subd. (b)(1)) and personally inflicted great bodily injury (§ 12022.7, subd. (a)). The trial court also held a court trial on Cortez's three prior strike convictions (§§ 667, subds. (b)-(i), 1170.12). After admitting certified conviction records for Cortez's prior strikes, the trial court found the prior strike conviction allegations to be true.
Cortez subsequently filed a motion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, requesting that the trial court dismiss one or more of his prior strike convictions. After a hearing, the trial court denied the motion. The trial court observed that Cortez's prior strikes were 19 and 15 years old, but the present offense and his prior strikes were all "very violent and serious" and involved "stabbing situations." The trial court also found that Cortez's current offense showed "a lot [of] planning and sophistication" because he, his girlfriend, and another accomplice drove together to the location to commit the crime. The trial court stated that Cortez's offense also involved "violence and viciousness," and Cortez ultimately fled to avoid detection. Considered together, the trial court stated that these factors "justifie[d] the aggravated term in this matter."
The trial court then sentenced Cortez to a total term of 27 years to life for attempted murder, consecutive to one year for the deadly weapon enhancement, consecutive to three years for the great bodily injury enhancement, and consecutive to 10 years (five years each) for the two section 667(a) enhancements.
Cortez appealed. On appeal, we rejected Cortez's claims of trial error but reversed and remanded the matter for resentencing in light of Senate Bill No. 1393, which amended section 1385 to grant trial courts the discretion to strike section 667(a) enhancements. In part, we observed that the trial court's denial of Cortez's Romero motion did not clearly indicate that it would not have exercised its discretion to strike the section 667(a) enhancements because its Romero decision was focused on whether Cortez fell outside the purview of the "Three Strikes" law, which required a different analysis. Moreover, we concluded that the trial court's statement that it believed that the "aggravated term" was justified did not conclusively demonstrate that it intended to impose the maximum sentence permissible under the law.
B. Resentencing
In March 2020, the trial court held a resentencing hearing to consider striking Cortez's section 667(a) enhancements. At the hearing, defense counsel argued that the trial court should strike the enhancements because of the age of the serious felony convictions-one was from 1985 and the other from 1993. Additionally, defense counsel argued that Cortez had "zero write-ups" since his incarceration in 2013, was now "unvalidated" as a gang member, and would be 83 years old before he would be eligible for parole if the two enhancements were stricken.
In response, the People argued that "it was very clear at the time of the initial sentencing" that the trial court intended to sentence Cortez to the maximum term available at the time. The People also insisted that Cortez's acts of violence had not abated with age.
Defense counsel argued at the hearing that Cortez was 57 years old when he was initially incarcerated for his offense.
After considering the parties' arguments, the trial court declined to exercise its discretion under section 1385 to strike the section 667(a) enhancements. The trial court stated that it "remember[ed]" its prior sentencing decisions and that it still "view[ed] this as a very violent case" and believed that Cortez was "a very violent individual based on his past history." The trial court also stated: "The fact that he could be in his 80s when he's eligible for parole if I struck these Prop 8 priors to me is not a consideration that I would entertain in this matter." Thereafter, the trial court concluded that Cortez deserved "the maximum sentence allowed by law" and reinstated the sentence as originally imposed.
II. DISCUSSION
A. Senate Bill No. 567
Cortez argues that he is entitled to a remand for resentencing under Senate Bill No. 567, which amended section 1170. The Attorney General agrees that Senate Bill No. 567 applies to Cortez's case as his judgment is not yet final but argues that remand is not required because it would be an idle act. We agree with Cortez that remand is required under Senate Bill No. 567.
Senate Bill No. 567 amended section 1170 to make the middle term the presumptive sentence. (§ 1170, subd. (b)(1).) Section 1170, subdivision (b)(2) now states in pertinent part: "The court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term exceeding the middle term, and the facts underlying those circumstances have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at a trial by the jury or by the judge in a court trial. Except where evidence supporting an aggravating circumstance is admissible to prove or defend against the charged offense or enhancement at trial, or it is otherwise authorized by law, upon request of a defendant, trial on the circumstances in aggravation alleged in the indictment or information shall be bifurcated from the trial of charges and enhancements. The jury shall not be informed of the bifurcated allegations until there has been a conviction of a felony offense." Section 1170, subdivision (b)(3), however, provides that "[t]he court may consider the defendant's prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury."
Here, the trial court sentenced Cortez to a term of 27 years to life. We infer from the record that the trial court imposed this sentence after it selected the upper term of nine years for attempted murder (§ 664, subd. (a)) and tripled it to set the minimum term for the indeterminate life sentence under the Three Strikes law. (§§ 667, subd. (e)(2)(A)(i); 1170.12, subd. (c)(2)(A)(i).) When calculating the minimum term in this fashion, "the trial court selects the upper, middle, or lower term in accordance with section 1170, subdivision (b) just as it would if there were no three strikes law. The court then triples the selected term." (People v. Keelen (1998) 62 Cal.App.4th 813, 820.) Thus, when the trial court selected a tripled upper term as the minimum term in this case, it was choosing between a lower, middle, and upper term as described under section 1170, subdivision (b).
Under the Three Strikes law, the trial court must sentence a defendant with two or more prior serious or violent felony convictions to an indeterminate term of life in prison with a minimum term of the indeterminate sentence calculated as the greatest sentence out of three specified options. One of the options is that the minimum term will be set at "three times the term otherwise provided as punishment for each felony conviction." (§§ 667, subd. (e)(2)(A)(i); 1170.12, subd. (c)(2)(A)(i).)
Accordingly, as Cortez's case was not yet final when the amendments to section 1170 that were effectuated by Senate Bill No. 567 took effect, we agree with the parties that he is entitled to retroactive application of the amended statute because it is an ameliorative change in the law and there is nothing to indicate that the Legislature intended the change to apply prospectively. (People v. Flores (2022) 73 Cal.App.5th 1032, 1039; In re Estrada (1965) 63 Cal.2d 740.)
The Attorney General argues that remand is not required because the trial court necessarily relied on Cortez's prior convictions-documented by certified records-in selecting the upper term. The trial court's reliance on the prior convictions, however, does not entitle us to disregard its express reliance on specific circumstances of the instant offense and Cortez's character that were neither admitted by Cortez nor found true by the jury. As to the offense, the trial court relied upon "the violence and viciousness of the crime and Mr. Cortez fleeing to avoid detection." The court further found that the offense involved "planning and sophistication" in that Cortez recruited two other individuals to join him in seeking out the victim. The trial court further noted in the underlying circumstances of the prior strikes "a pattern that when Mr. Cortez gets mad about anything, he becomes very violent." The facts underlying these circumstances were neither found true by a jury nor stipulated to by Cortez as required under section 1170, subdivision (b)(2). And at resentencing, the trial court merely reimposed its original sentence without making additional findings.
While here, the fact of Cortez's prior strikes was supported by his prior conviction records, "the court may not rely on its own independent review of record evidence to determine what conduct 'realistically' led to the defendant's conviction." (People v. Gallardo (2017) 4 Cal.5th 120, 124; Descamps v. United States (2013) 570 U.S. 254, 269.)
We acknowledge that at the trial court expressly stated at the resentencing hearing that it believed that Cortez deserved "the maximum sentence allowed by law." But the Legislature in enacting Senate Bill No. 567 has now constrained the universe of factors on which a trial court may determine that maximum sentence. Accordingly, we cannot presume that the trial court would have departed from the middle term based solely on the fact of Cortez's prior convictions to the exclusion of the other factors it found relevant. Here, "the records do not clearly indicate that [the trial court] would have imposed the same sentence" had it been aware of the lawful scope of its discretion. (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391; People v. Lopez (2022) 78 Cal.App.5th 459 [remand for resentencing required under Senate Bill No. 567 when trial court relied on both permissible and impermissible factors in selecting upper term].)
We therefore reverse the judgment and remand the matter for resentencing under the amended version of section 1170.
As Cortez acknowledges, if the trial court ultimately selects a middle term of seven years for attempted murder that is tripled to 21 years, the trial court will be instead required to impose a 25-year-to-life sentence under sections 667, subdivision (c)(2)(A)(ii) and 1170.12, subdivision (c)(2)(A)(ii). Under the Three Strikes law, the trial court is required to impose the "greatest" of the three options when setting the minimum term as described under sections 667, subdivision (e)(2)(A) and 1170.12, subdivision (c)(2)(A), and one option is a sentence of 25 years to life.
B. Section 667(a) Enhancements
Our remand for resentencing in light of Senate Bill No. 567 makes it unnecessary to reach Cortez's further claim that the trial court abused its discretion in declining to dismiss his section 667(a) enhancements. We agree with both parties that upon remand, Cortez will be entitled to resentencing under the amendments made to section 1385 by Senate Bill No. 81, which became effective January 1, 2022. (People v. Sek (2022) 74 Cal.App.5th 657, 674 (Sek); People v. Walker (2021) 67 Cal.App.5th 198, 205.) Senate Bill No. 81 amended section 1385 "to specify factors that the trial court must consider when deciding whether to strike enhancements from a defendant's sentence in the interest of justice." (Sek, supra, at p. 674.) As is pertinent here, section 1385, subdivision (c)(2)(C) now provides that if "[t]he application of an enhancement could result in a sentence of over 20 years[,] . . . the enhancement shall be dismissed."
Because the trial court on remand will apply this newly amended version of section 1385, the propriety of the trial court's exercise of discretion under the former version of section 1385 is immaterial.
III. DISPOSITION
The judgment is reversed and remanded for resentencing under Penal Code section 1170, subdivision (b), as amended by Senate Bill No. 567. On remand, the trial court must apply the applicable laws that are now in effect, including the version of Penal Code section 1385 as amended by Senate Bill No. 81.
WE CONCUR: GREENWOOD, P.J., GROVER, J.