Opinion
B297172
02-07-2020
THE PEOPLE, Plaintiff and Respondent, v. MANUEL TREJO, Defendant and Appellant.
Susan Morrow Maxwell, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Zee Rodriguez and Noah P. Hill, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA420112) APPEAL from a judgment of the Superior Court of Los Angeles County, Frederick N. Wapner, Judge. Judgment of conviction affirmed; sentence vacated and remanded for further proceedings. Susan Morrow Maxwell, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Zee Rodriguez and Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant and appellant Manuel Trejo was convicted of second degree robbery with a firearm use allegation, and evading an officer. He contends the matter should be remanded to allow the trial court to exercise its discretion under Senate Bill No. 1393 to strike or dismiss two serious felony enhancements. We agree. We order Trejo's sentence vacated and the matter remanded for resentencing, and otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
We derive the facts from our unpublished opinions in case no. B271528.
Ana Cisneros worked at the Family Dollar Store. At approximately 6:15 p.m. on December 15, 2013, Trejo, wearing a scarf over his mouth and nose, was in the store. It being cold outside, Cisneros initially thought nothing of Trejo's attire. But, as Cisneros walked toward the cash registers, Trejo told Cisneros to "listen." He showed Cisneros something wrapped in a black stocking. Although Cisneros could see only a metal handle, it appeared to be a gun. Another witness saw Trejo lift his shirt to reveal a gun. Trejo took $108 from a cash register. When Cisneros told Trejo she could not open another cash register without the code, he "backed away." Trejo took a handful of beef jerky before leaving.
Almost two hours later, Deputy Sheriff Eva Robles saw Trejo driving a car that had been connected to a domestic violence investigation. Robles activated her car's lights and sirens, but Trejo did not yield. Instead, Trejo's car continued through intersections and stop signs at approximately 40 miles per hour. Trejo's car crashed into a parked vehicle, but he continued on, eventually stopping. Robles found Jack Link's beef sticks in Trejo's car.
Trejo pled guilty to second degree robbery (Pen. Code, § 211) with a firearm use allegation (§ 12022.53, subd. (b)), and evading an officer (Veh. Code, § 2800.2, subd. (a)). He admitted two prior convictions for robbery, which were "strikes" under sections 667 and 1170.12 and serious felonies under section 667, subdivision (a)(1). He further admitted serving three prior prison terms within the meaning of section 667.5, subdivision (b).
All further undesignated statutory references are to the Penal Code.
At an April 2016 sentencing hearing, defense counsel asked the trial court to strike one or both priors. The court noted that Trejo seemed like a "decent enough guy" and had done exceptionally well on parole. The court said it "would like to do something for him, but I have to follow the law which says that I have to look at the nature and circumstances of the present offense, the nature and circumstances of the strikes, and his background, character, and prospects and make a determination as to whether he falls partially or wholly outside the scope of the Three-Strikes law. [¶] And I don't think he does." Despite the age of one of the strike offenses, the circumstances of the prior crimes and the fact the instant offense was committed less than a year after his release from prison mitigated against striking the strike priors. The court acknowledged that Trejo had a history of mental illness, which was likely a contributing factor to his criminal activities. Further, his propensity to use a firearm presented a danger to the public. The court noted it could not take its personal "view of what might be enough and substitute it for my judgment about whether he falls" outside the scope of the Three Strikes law. It continued, "And so the only thing that I can do for him is almost nothing which is to strike one one-year prior. [¶] And I understand that's kind of a meaningless act [in] the overall scheme of things, but I can't strike the five-year priors. I can't strike the gun allegation."
Accordingly, the court denied Trejo's Romero motion insofar as it applied to the robbery count. It sentenced Trejo to 25 years to life on the robbery count, plus 10 years for the section 12022.53, subdivision (b) enhancement, two five-year terms pursuant to section 667, subdivision (a)(1), and a consecutive 16-month term for the evading count. The court stayed two of the section 667.5, subdivision (b) enhancements and struck the third.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
Trejo appealed, arguing that the trial court had misunderstood the scope of its discretion when considering his Romero motion. In an unpublished opinion filed on September 11, 2017, we rejected this contention and affirmed the judgment. (People v. Trejo (Sep. 11, 2017, B271528) [nonpub. opn.].)
As Trejo requests, we take judicial notice of the record in case no. B271528. (Evid. Code, §§ 452, 459.)
Thereafter, the Legislature enacted Senate Bill No. 620, which took effect on January 1, 2018. (Stats. 2017, ch. 682, § 2.) That legislation amended section 12022.53, subdivision (h) to give trial courts authority to strike or dismiss firearm enhancements in the interest of justice. Prior to Senate Bill No. 620's enactment, imposition of section 12022.53 firearm enhancements was mandatory, and trial courts lacked discretion to strike them. (See People v. Franklin (2016) 63 Cal.4th 261, 273.)
Our Supreme Court granted Trejo's petition for review and transferred the matter back to us, with instructions to vacate our opinion and reconsider the cause in light of Senate Bill No. 620. We did so. In a second unpublished opinion filed on March 19, 2018, we again concluded the trial court did not err in regard to the Romero motion, but we vacated Trejo's sentence and remanded for resentencing. (People v. Trejo (March 19, 2018, B271528 [nonpub. opn.].)
On March 4, 2019, the trial court resentenced Trejo. As Trejo requested, it struck the 10-year, section 12022.53, subdivision (b) firearm enhancement. It explained: "The court had said at the time of the initial sentencing that if I could have done something for Mr. Trejo, I would. [¶] What I could have done was to strike the strikes, and it just—there was no way to bend the meaning of Romero to get around the fact that he deserved the third-strike sentence. So that was a 25-to-life sentence. [¶] And then it was enhanced by two five-year priors which I could not strike at that time and still can't because the judgment has become final; and the gun allegation which is another ten years. [¶] So looking at it just in the abstract and saying, well, I shouldn't; he used a gun, and he deserves the ten years, that's probably true. [¶] On the other hand, if I could have stricken the five-year priors at the time, I would have." (Italics added.)
The court then discussed the circumstances of the instant offense, which it described as "an unusual case." It observed that Trejo was 43 years old; held the door open for a female customer when he went into the store he intended to rob; and did not hurt the cashier when she was unable to open a second register. The court explained, "So he's an armed robber; but he's a nice armed robber, and he was polite. And he was nice in court. And he had been doing well on parole for the short time. And so even though his record is terrible, he's going to get, in any event, a severe sentence." Accordingly, the court exercised its discretion to strike the section 12022.53, subdivision (b) enhancement, and imposed a sentence of 36 years four months to life in prison. Defense counsel did not request, either in his written motion or orally at the resentencing hearing, that the court also strike the section 667, subdivision (a)(1) serious felony enhancements in light of the then-recent enactment of Senate Bill No. 1393.
Again, Trejo timely appealed the judgment.
DISCUSSION
The matter must be remanded for resentencing in light of Senate Bill No. 1393
Trejo contends his sentence must be vacated and the matter again remanded to allow the trial court to exercise its discretion to strike or dismiss the section 667, subdivision (a)(1) enhancements in light of Senate Bill No. 1393, which became effective approximately two months before he was resentenced. We agree.
The appellate courts are divided over whether a defendant, who was sentenced pursuant to a plea agreement, must obtain a certificate of probable cause before seeking a remand for resentencing pursuant to Senate Bill Nos. 620 or 1393, and our Supreme Court is currently considering the question. (People v. Wilson (2019) 42 Cal.App.5th 408, 412, and cases cited therein; e.g., People v. Stamps (2019) 34 Cal.App.5th 117, review granted June 12, 2019, S255843; People v. Kelly (2019) 32 Cal.App.5th 1013, review granted June 12, 2019, S255145.) The People properly accept that no certificate of probable cause was required here because Trejo entered an open plea to all counts, and did not condition his plea on a specific sentence. (See People v. Buttram (2003) 30 Cal.4th 773, 783-785 [no certificate required where the terms of the plea agreement leave issues open for resolution by litigation].) We agree.
When Trejo was originally sentenced in 2016, imposition of section 667, subdivision (a)(1) serious felony enhancements was mandatory. (People v. Wilson, supra, 42 Cal.App.5th at p. 411; People v. Garcia (2018) 28 Cal.App.5th 961, 971.) Effective January 1, 2019, Senate Bill No. 1393 amended sections 667 and 1385 to give a court discretion to strike or dismiss such prior serious felony convictions for sentencing purposes. (Stats. 2018, ch. 1013, §§ 1, 2; Wilson, at pp. 411-412; Garcia, at p. 971.) It is settled that Senate Bill No. 1393 applies retroactively to cases that were not final when it took effect. (Garcia, at p. 973; Wilson, at p. 412; People v. Zamora (2019) 35 Cal.App.5th 200, 208; People v. Dearborne (2019) 34 Cal.App.5th 250, 268.)
As noted, Trejo was resentenced on March 4, 2019, approximately two months after Senate Bill No. 1393 took effect. Without expressly mentioning the new law, the trial court concluded it could not strike the section 667, subdivision (a)(1) priors "because the judgment has become final." On this point, the trial court was mistaken. Our March 19, 2018 opinion vacated Trejo's sentence and remanded for resentencing; the judgment, as to the sentence, was therefore not final. (See People v. Vieira (2005) 35 Cal.4th 264, 306 [judgment is not final until the time for petitioning for a writ of certiorari in the United States Supreme Court has passed]; cf. People v. Burbine (2003) 106 Cal.App.4th 1250, 1257 [trial court regained jurisdiction over sentence when appellate court remanded the matter for resentencing].) Thus, the trial court had discretion to strike or dismiss the section 667, subdivision (a)(1) enhancements.
When a trial court is unaware it has the discretion to reduce a sentence, remand "is required unless the record reveals a clear indication that the trial court would not have reduced the sentence even if at the time of sentencing it had the discretion to do so. [Citation.] Without such a clear indication of a trial court's intent, remand is required when the trial court is unaware of its sentencing choices." (People v. Almanza (2018) 24 Cal.App.5th 1104, 1110; People v. Koback (2019) 36 Cal.App.5th 912, 928 [" '[W]hen the record indicates the court misunderstood or was unaware of the scope of its discretionary powers, we should remand to allow the court to properly exercise its discretion' "].) " ' "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.]" (People v. Billingsley (2018) 22 Cal.App.5th 1076, 1081 [remanding for resentencing pursuant to Senate Bill No. 620].) And, when a trial court's ruling is based on an erroneous understanding of the law, remand is required. (People v. Downey (2000) 82 Cal.App.4th 899, 912.)
The People do not dispute that Senate Bill No. 1393 applies retroactively to nonfinal cases. Nor do they contest that the trial court was unaware of its discretion to strike or dismiss the serious felony enhancements due to its erroneous belief that the judgment was final. But, they argue that Trejo forfeited his claim on appeal because his counsel failed, at resentencing, to request that the court strike the serious felony enhancements. (See People v. Carmony (2004) 33 Cal.4th 367, 375-376 [defendant's failure to invite the court to dismiss prior strike allegations under section 1385 forfeits his right to raise the issue on appeal]; cf. People v. Scott (1994) 9 Cal.4th 331, 356 ["complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal"]; but see In re Sean W. (2005) 127 Cal.App.4th 1177, 1182 [no waiver where juvenile court believed it lacked discretion regarding issue].)
Of course, we may reach the merits of Trejo's argument even if it has been forfeited. (People v. Williams (1998) 17 Cal.4th 148, 161-162, fn. 6 ["An appellate court is generally not prohibited from reaching a question that has not been preserved for review by a party. [Citations.] Indeed, it has the authority to do so"].) In any event, if we were to find forfeiture, we would also conclude defense counsel provided ineffective assistance by failing to request application of Senate Bill No. 1393. " 'In order to establish a claim of ineffective assistance of counsel, defendant bears the burden of demonstrating, first, that counsel's performance was deficient because it "fell below an objective standard of reasonableness [¶] . . . under prevailing professional norms." [Citations.] Unless a defendant establishes the contrary, we shall presume that "counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy." [Citation.] If the record "sheds no light on why counsel acted or failed to act in the manner challenged," an appellate claim of ineffective assistance of counsel must be rejected "unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation." [Citations.] If a defendant meets the burden of establishing that counsel's performance was deficient, he or she also must show that counsel's deficiencies resulted in prejudice, that is, a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." ' [Citations.]" (People v. Bell (2019) 7 Cal.5th 70, 125-126.)
Here, no satisfactory explanation for counsel's failure to request that the court strike the section 667, subdivision (a)(1) enhancements pursuant to Senate Bill No. 1393 is apparent. In light of the change in the law and the trial court's comments at both the initial sentencing and resentencing, there could be no conceivable strategic or tactical reason for counsel's omission. The record also establishes prejudice. The trial court expressly stated it would have dismissed the serious felony enhancements had it possessed the ability to do so. Thus, there is a reasonable probability that, had counsel explained that the judgment was not final and requested that the enhancements be stricken, the trial court would have granted the request. The People argue that the court demonstrated willingness to strike either the 10-year firearm enhancement, or the two five-year serious felony enhancements, but not both. Simply put, we do not agree with this characterization of the record.
Accordingly, Trejo's sentence is vacated and the matter is remanded for resentencing to allow the trial court to exercise its discretion and determine whether to strike or dismiss one or both of the section 667, subdivision (a)(1) serious felony enhancements pursuant to Senate Bill No. 1393. We offer no opinion on how the court's discretion should be exercised, and nothing in this opinion should be construed otherwise.
DISPOSITION
Trejo's sentence is vacated and the matter is remanded to allow the trial court to exercise its discretion and determine whether to strike or dismiss the section 667, subdivision (a)(1) serious felony enhancements. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EDMON, P. J. We concur:
LAVIN, J.
DHANIDINA, J.