Opinion
F077808
07-01-2020
THE PEOPLE, Plaintiff and Respondent, v. ESTEVEN RODRIGUEZ, Defendant and Appellant.
Elizabeth Campbell, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Catherine Chatman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. MCR046075)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Madera County. Dale J. Blea, Judge. Elizabeth Campbell, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Catherine Chatman, Deputy Attorneys General, for Plaintiff and Respondent.
Before Hill, P.J., Levy, J., and Peña, J.
-ooOoo-
Esteven Rodriguez (defendant) challenges the punishment imposed after his case was remanded for resentencing in People v. Rodriguez (Apr. 30, 2018, F071866) (nonpub. opn.) (Rodriguez I). Defendant claims the trial court erred by declining to exercise its discretion to strike a firearm enhancement. The People dispute this argument but concede a second claim regarding the amount of presentence custody credit to which defendant is entitled. We agree with the People and order the abstract of judgment corrected to reflect 1,854 days of time served through the date of resentencing. The judgment will be affirmed.
FACTUAL AND PROCEDURAL HISTORY
We take judicial notice of our opinion in Rodriguez I and incorporate by reference its summary of the factual and procedural background. (Evid. Code, §§ 452, subd. (a), 459.) In March 2013, the 18-year-old victim, Drakkar Lewis, hosted a large party in Chowchilla. The party ended in gun violence, which resulted in the death of a close friend of defendant.
Two gang members were arrested and prosecuted for the March 2013 homicide. Lewis did not associate with gangs and was not a suspect in the shooting. However, defendant apparently believed Lewis bore some degree of responsibility for his friend's death.
In April 2013, defendant and Lewis both attended a party in Madera. According to the People's evidence, defendant approached Lewis with a firearm and shot him multiple times in the head. A 16-year-old bystander sustained an injury from one of the bullets.
In March 2015, defendant was convicted of first degree murder (Pen. Code, § 187, subd. (a); count 1); assault with a firearm (§ 245, subd. (a)(2); count 2); possession of a firearm by a convicted felon (§ 29800, subd. (a)(1); count 3); and unlawful possession of ammunition (§ 30305, subd. (a)(1); count 4). Firearm enhancements were pleaded and proven under sections 12022.5, subdivision (a)(1), and 12022.53, subdivisions (b), (c), and (d). Counts 1 and 2 were found to be gang related for purposes of section 186.22, subdivision (b).
All subsequent statutory references are to the Penal Code.
In June 2015, defendant was sentenced to a prison term of 50 years to life, i.e., 25 years to life for murder plus 25 years to life pursuant to section 12022.53, subdivision (d). Defendant received an aggregate, consecutive determinate term of 14 years 8 months on the remaining counts. In April 2018, in Rodriguez I, we reversed the gang enhancements based on the holding of People v. Prunty (2015) 62 Cal.4th 59. Additionally, in light of Senate Bill No. 620 (2017-2018 Reg. Sess.) (Senate Bill 620), we remanded the matter for a new sentencing hearing.
On July 6, 2018, the trial court considered whether to exercise its discretion to strike/dismiss any of the firearm enhancements. Factors cited in defendant's favor were his age (20 years old at time of offense), his relatively minor criminal history (a prior felony conviction for receiving a stolen vehicle), and his grief from the "devastating loss of a very close friend who was murdered less than a month before [the shooting in this case]." On the other hand, both victims were innocent teenagers. Defendant was on probation when he committed the offense, and evidence of his subsequent behavior demonstrated "a callousness and a lack of remorse," which the trial court found to be "really shocking."
The trial court declined to strike any of the firearm enhancements. Despite the reversal of the gang enhancements, it restructured defendant's sentence to match the exact same punishment it had originally imposed. Defendant filed a timely notice of appeal.
DISCUSSION
I. Sentencing Discretion
Effective January 1, 2018, Senate Bill 620 amended sections 12022.5 and 12022.53. (Stats. 2017, ch. 682, §§ 1, 2.) As a result, trial courts may, "in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss [a firearm] enhancement otherwise required to be imposed ...." (§§ 12022.5, subd. (c), 12022.53, subd. (h).) "The factors that the trial court must consider when determining whether to strike a firearm enhancement ... are the same factors the trial court must consider when handing down a sentence in the first instance." (People v. Pearson (2019) 38 Cal.App.5th 112, 117.) "'[U]nless the record affirmatively reflects otherwise,' the trial court is deemed to have considered the factors enumerated in the California Rules of Court." (Ibid., quoting Cal. Rules of Court, rule 4.409.)
A trial court's unwillingness to grant leniency pursuant to section 1385 is reviewed for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 371, 373-374.)
"In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, '"[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review."' [Citation.] Second, a '"decision will not be reversed merely because reasonable people might disagree...."' Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Id. at pp. 376-377.)
Defendant first contends the trial court's selection of the same punishment as originally imposed "surely suggests that the court abused its discretion." No authority is cited for this proposition, and we disagree with it. A trial court is permitted to restructure its sentence "to compensate for the loss of one of the enhancements," which is what happened in this instance. (People v. Le (2015) 61 Cal.4th 416, 428; see People v. Buycks (2018) 5 Cal.5th 857, 893 [explaining "the 'full resentencing rule'"].)
Next, defendant argues he "was twenty years old at the time of the offense, and will not be eligible for parole until he is over 70 years old." Again, we are unpersuaded. The trial court expressly considered defendant's age and weighed the circumstance against competing factors. Defendant's calculation of his parole eligibility date is also incorrect. Pursuant to section 3051, he will be "eligible for release on parole at a youth offender parole hearing during [his] 25th year of incarceration." (Id., subd. (b)(3).)
In his principal argument, defendant alleges the trial court did not realize it had the authority to "'impose an enhancement under section 12022.53, subdivision (b) or (c) as a middle ground to a lifetime enhancement under section 12022.53, subdivision (d).'" Defendant purports to rely on People v. Morrison (2019) 34 Cal.App.5th 217, but he makes the same mistake as the appellant in People v. Wang (2020) 46 Cal.App.5th 1055. The Wang opinion explains:
"... Morrison concluded that remand was necessary because the record did not reveal whether the trial court had understood its discretion to impose a lesser uncharged enhancement under section 12022.53, subdivision (b) or (c) if it were to strike the subdivision (d) enhancement. [Citation.]
"By contrast, in this case the lesser enhancements under section 12022.53, subdivisions (b) and (c) were charged and were also found true by the jury. Moreover, the trial court expressly chose to impose the greater enhancement while staying the lesser ones. Because 'we presume that the trial court knew and applied the governing law' in the absence of any evidence to the contrary (People v. Gutierrez (2014) 58 Cal.4th 1354, 1390), we must conclude that the trial court was aware that striking the enhancement under section 12022.53, subdivision (d) 'would leave intact the remaining findings, and an enhancement under the greatest of those provisions would be mandatory unless those findings were also stricken in the interests of justice' (Morrison, supra, 34 Cal.App.5th at p. 222). Accordingly, a remand for resentencing on the firearm enhancements is unwarranted in this case." (People v. Wang, supra, 46 Cal.App.5th at pp. 1090-1091, italics added.)
Undeterred, defendant argues in his reply that, "[a]t the time of resentencing in this case, no published authority had considered whether such action was available to the court," i.e., whether "a lesser firearm enhancement could be imposed in lieu of an enhancement under section 12022.53, subdivision (d), in connection with striking the greater enhancement." The assertion is not accurate. In People v. McDaniels (2018) 22 Cal.App.5th 420, published more than two months prior to the date of resentencing in this case, the appellate court gave an example of how Senate Bill 620 could be applied on remand. The opinion states, in relevant part, "[N]othing in the record rules out the possibility that the court would exercise its discretion to strike the firearm enhancement under section 12022.53, subdivision (d), which doubled [the appellant's] total sentence, and then either impose time for one of the stayed lesser firearm enhancements or strike them as well." (Id. at p. 428.)
In summary, defendant has failed to demonstrate the trial court lacked awareness of the scope of its discretion or exercised its discretion in an arbitrary, capricious, and/or irrational manner.
II. Custody Credits
A defendant is entitled to credit against his or her sentence for all days spent in custody while awaiting trial and sentencing, up to and including the date when the sentence is imposed. (§ 2900.5, subd. (a); People v. Rajanayagam (2012) 211 Cal.App.4th 42, 48.) "When, as here, an appellate remand results in modification of a felony sentence during the term of imprisonment, the trial court must calculate the actual time the defendant has already served and credit that time against the 'subsequent sentence.'" (People v. Buckhalter (2001) 26 Cal.4th 20, 23, citing § 2900.1.) However, the current abstract of judgment shows no credit for time served.
Presentence credits begin to accrue on the first day of custody, which in many cases is the date of the defendant's arrest. (§ 2900.5, subd. (a); People v. Rajanayagam, supra, 211 Cal.App.4th at p. 48.) The parties agree defendant was arrested on June 9, 2013, and resentenced on July 6, 2018, which covers a period of 1,854 days (inclusive of the resentencing date). Therefore, we will order the abstract of judgment be corrected to reflect 1,854 days of time served through the date of resentencing. (See People v. Mitchell (2001) 26 Cal.4th 181, 186-187 [appellate court may correct clerical errors "'on its own motion or upon the application of the parties'"].)
DISPOSITION
The judgment is affirmed. The clerk of the superior court is directed to prepare an amended abstract of judgment reflecting 1,854 days of time served through the date of resentencing. A certified copy of the amended abstract shall be forwarded to the Department of Corrections and Rehabilitation.