Opinion
G047277
03-20-2017
THE PEOPLE, Plaintiff and Respondent, v. JESUS DAMIAN ZAPATA, Defendant and Appellant.
Edward J. Haggarty, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton, Heather M. Clark and Kristine A. Gutierrez, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 05WF0647) OPINION Appeal from a judgment of the Superior Court of Orange County, W. Michael Hayes, Judge. Affirmed. Edward J. Haggarty, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton, Heather M. Clark and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
The California Supreme Court has ordered us to vacate our previous opinion in this matter and reconsider it in light of People v. Conley (2016) 63 Cal.4th 646 (Conley). Having done so, we affirm the judgment in its entirety.
I
INTRODUCTION
A jury convicted defendant Jesus Damian Zapata of felony false impersonation (Pen. Code, § 529, subd. (a)(3); formerly § 529, subd. 3, hereafter former section 529(3)), but found him not guilty of carrying a concealed weapon in a vehicle, and street terrorism. The trial court thereafter found true the allegations Zapata had 11 prior serious or violent felony convictions (§§ 667, subds. (d), (e)(2), 1170.12, subds. (b), (c)(2)(A)) and had served a prior prison term (§ 667.5, subd. (b)). It dismissed the allegations of two prior serious felonies (§ 667, subd. (a)(1)) and sentenced Zapata to an indeterminate term of 25 years to life, plus a one-year term under section 667.5, subdivision (b).
All further undesignated statutory references are to the Penal Code.
Zapata challenges the sufficiency of the evidence to support his false impersonation conviction. Alternatively, he contends the prosecution should have charged him with misdemeanor section 148.9, rather than former section 529(3), because it is a more specific statute covering the same conduct. He also argues the court erred in failing to instruct sua sponte on the lesser included offense of attempted false impersonation and refusing to reduce the offense to a misdemeanor, and that the prosecution of this case, along with the case against him in Los Angeles County for attempted murder, violated the multiple prosecution bar under section 654.
In our initial opinion, we rejected these arguments, but agreed with Zapata's additional argument that based on In re Estrada (1965) 63 Cal.2d 740, he is entitled to automatic resentencing under Proposition 36, the Three Strikes Reform Act of 2012 (the Act). Conley, however, requires a different result, and we find no other error. Accordingly, we affirm the judgment.
II
FACTS
In March 2005, Police Officer Ramiro Vergara initiated a traffic stop of Zapata because he was not wearing a seat belt and failed to signal before turning. A DMV check revealed the vehicle was registered to Juan Zapata, Zapata's brother, and registration for the car had expired. Defendant identified himself as Juan Zapata, with a birth date of December 18, 1984, and told Vergara the vehicle belonged to his girlfriend. A records check showed Juan Zapata did not have a driver's license.
After backup arrived, Vergara found a pipe in defendant's pocket, plus bullets and a loaded gun in the vehicle. Zapata was arrested and taken to the police station, where he continued to claim his name was Juan Zapata.
Vergara completed a prebooking form based on the information Zapata provided. He collected evidence from Zapata's hands to test for gunshot residue (GSR) under the name of Juan Zapata and sent it to the lab for testing under that name. Zapata also provided a DNA sample and was booked under the name Juan Zapata. Fingerprints later revealed Zapata was Jesus Zapata with a birth date in 1978.
III
DISCUSSION
Although we have made some changes to our previous opinion, only section 6 of our discussion differs substantively.
A. Sufficiency of the Evidence
Under former section 529(3), "Every person who falsely personates another in either his private or official capacity, and in such assumed character . . . [¶] . . . [¶] 3. Does any other act whereby, if done by the person falsely personated, he might, in any event, become liable to any suit or prosecution, or to pay any sum of money, or to incur any charge, forfeiture, or penalty, or whereby any benefit might accrue to the party personating, or to any other person," is guilty of either a felony or a misdemeanor. "The additional act required by section 529 is something beyond, or compounding, the initial false personation . . . ; it must be more than simply providing information regarding the false identity." (People v. Stacy (2010) 183 Cal.App.4th 1229, 1235 (Stacy).) Zapata contends no substantial evidence shows he "committed the additional act necessary for a [former] section 529[(3)] violation." We disagree.
The terms "personate" and impersonate" are synonymous. (People v. Casarez (2012) 203 Cal.App.4th 1173, 1179, fn. 3. (Casarez).)
The extent of the "additional act" has been the subject of considerable case law. The statute does not require the impersonator to intend that the additional act subject another person to liability or to create a benefit to himself; it only requires that an additional act might result in that liability or benefit. (People v. Rathert (2000) 24 Cal.4th 200, 205-206 (Rathert) ["paragraph 3 is framed in language reasonably susceptible of only one interpretation: that the Legislature sought to deter and to punish all acts by an impersonator that might result in a liability or a benefit, whether or not such a consequence was intended or even foreseen. No fewer than seven times does the word 'any' appear in the statute . . . . The impersonator's act, moreover, is criminal provided it might result in any such consequence; no higher degree of probability is required"].)
In People v. Cole (1994) 23 Cal.App.4th 1672, the court held that the defendant's act of providing a false middle name and birth date to the arresting officer did not qualify as additional acts under the statute. (Id. at p. 1676.) By contrast, the defendant in People v. Robertson (1990) 223 Cal.App.3d 1277 (Robertson), abrogated on another ground in Rathert, supra, 24 Cal.4th at pp. 205-208, falsely impersonated his brother upon being arrested for stealing a truck and continued to do so at arraignment by signing his brother's name on the booking and release forms, resulting in his brother's incarceration when the defendant failed to appear at the scheduled hearing. Robertson upheld the defendant's conviction, finding the additional acts beyond the initial impersonation were sufficient to satisfy the statute. (Robertson, at pp. 1282-1283.)
Similarly, in People v. Chardon (1999) 77 Cal.App.4th 205, the court held that by signing her sister's name on a traffic citation, the defendant "exposed her sister not only to liability for the citation but also to potential criminal liability for failing to appear at the scheduled hearing." (Id. at p. 212.) And, in Stacy, supra, 183 Cal.App.4th at pp. 1232-1233, the defendant, who used her cousin's name when stopped by the police, refused to take a second mandatory breathalyzer test or provide a blood sample. The court held the defendant's refusal to complete the mandatory testing put the impersonated individual "at risk of liability for refusing to submit to and/or complete the chemical testing requirements under Vehicle Code sections 23612 and 23577. Indeed, such charges were ultimately levied against [the] defendant when her true identity was learned." (Id. at pp. 1235-1236, fn. omitted; but see People v. Guion (2013) 213 Cal.App.4th 1426, 1433 [providing driver's license in name of impersonated person did not qualify as "other act" under former section 529(3)]; Casarez, supra, 203 Cal.App.4th at pp. 1190-1191 [offering brother's birth certificate did not satisfy former section 529(3)'s requirement of another act].)
Here, the uncontroverted evidence shows defendant not only fraudulently misidentified himself to Vergara, but continued the deception during the postarrest process. This included the GSR of his hands, which was sent to the crime lab for testing under his brother's name. Like the act of signing the citation in Chardon, this placed his brother in significant legal jeopardy because, as the trial court found, his brother could have been subjected to criminal prosecution for possession of a concealed firearm in a vehicle had Zapata been released without authorities discovering his true identity.
Zapata maintains he committed no affirmative act and merely "acquiesce[d] in the booking process and the collection of evidence instigated by law enforcement" and had he not done so, he would "have committed 'additional acts' exposing his brother to potential criminal liability" for resisting an officer in the performance of his duties (§ 148) as shown by Stacy. Former section 529(3), however, does not require an "affirmative" act but only an act that might subject the person falsely personated to "become liable to any . . . prosecution . . . or to incur any charge, forfeiture, or penalty, or whereby any benefit might accrue to the party personating . . . ." Zapata's consent to the GSR test while masquerading as his brother satisfied the additional act requirement because his consent and submission to the test subjected his brother to possible criminal liability. This act was not merely part of Zapata's initial impersonation of his brother, it was an additional act that heightened his brother's criminal liability by making him potentially responsible not only for failing to wear a seat belt and signaling before turning, but also for possessing a concealed firearm in a vehicle. Under these facts, Zapata was not, as he asserts, passively maintaining his false identity, he was providing further evidence incriminating his brother. B. Preclusion of Former Section 529(3) Conviction by Section 148 .9
Because consenting and submitting to the GSR test satisfied the additional act requirement under the statute, and provided substantial evidence to support Zapata's conviction, we need not discuss his additional claim that submitting to a DNA test did not qualify as the required act because it would have "positively identif[ied] him contrary to his assertion that he was Juan Zapata."
Zapata contends we must reverse his felony false impersonation conviction because section 148.9 is a more specific statute criminalizing the same conduct. Section 148.9 makes it a misdemeanor for anyone to falsely represent or identify themselves as someone else to a police officer "upon a lawful detention or arrest of the person, either to evade the process of the court, or to evade the proper identification of the person by the investigating officer" (§ 148.9, subd. (a).) To prevail, Zapata must show the conduct proscribed in section 148.9 would necessarily or commonly violate former section 529(3). We conclude the statutes are too dissimilar to infer the Legislature intended to make section 148.9 an exception to former section 529(3).
Under the rule set forth in In re Williamson (1954) 43 Cal.2d 651 (Williamson), "if a general statute includes the same conduct as a special statute, the court infers that the Legislature intended that conduct to be prosecuted exclusively under the special statute. In effect, the special statute is interpreted as creating an exception to the general statute for conduct that otherwise could be prosecuted under either statute. [Citation.] . . . 'The doctrine that a specific statute precludes any prosecution under a general statute is a rule designed to ascertain and carry out legislative intent. The fact that the Legislature has enacted a specific statute covering much the same ground as a more general law is a powerful indication that the Legislature intended the specific provision alone to apply. Indeed, in most instances, an overlap of provisions is determinative of the issue of legislative intent and "requires us to give effect to the special provision alone in the face of the dual applicability of the general provision . . . and the special provision . . . ."'" (People v. Murphy (2011) 52 Cal.4th 81, 86 (Murphy).)
"Absent some indication of legislative intent to the contrary, the Williamson rule applies when (1) 'each element of the general statute corresponds to an element on the face of the special statute' or (2) when 'it appears from the statutory context that a violation of the special statute will necessarily or commonly result in a violation of the general statute.'" (Murphy, supra, 52 Cal.4th at p. 86.) Even if the general statute contains an element not within the special statute, "'[i]t is not correct to assume that the [Williamson] rule is inapplicable . . . . Rather, the courts must consider the context in which the statutes are placed. If it appears from the entire context that a violation of the "special" statute will necessarily or commonly result in a violation of the "general" statute, the Williamson rule may apply even though the elements of the general statute are not mirrored on the face of the special statute.'" (Id. at p. 87.)
Zapata acknowledges former section 529(3) contains elements not included in section 148.9. (See Guion, supra, 213 Cal.App.4th at p. 1436 ["statutory elements of former section 529(3)—false personation and the commission of an additional act that might expose the person who is falsely impersonated to liability or benefit the defendant—do not include all of the elements of section 148.9"]; Robertson, 223 Cal.App.3d at pp. 1279, 1281 [section 148.9 did not bar former section 529(3) prosecution where section 529 had numerous elements not in section 148.9, including "other act" element, while section 148.9 requires only "the act of impersonation before a peace officer upon a lawful detention or arrest, for the purpose of evading the process of the court or proper identification"].) Yet he argues Robertson's analysis as to the first test is not "convincing" and urges us not to follow it. His failure to provide any reasoned legal argument or citation of authorities forfeits the issue. (People v. Stanley (1995) 10 Cal.4th 764, 793.)
Zapata argues he satisfied the second Williamson test because "violation of section 148.9 will commonly result in a violation of [former] section 529[(3)]." Not so. Former section 529(3) requires the performance of an additional act not contained in section 148.9, i.e., an act that might subject the person impersonated to liability. "[I]f the more general statute contains an element that is not contained in the special statute and that element would not commonly occur in the context of a violation of the special statute, we do not assume that the Legislature intended to preclude prosecution under the general statute. In such situations, because the general statute contemplates more culpable conduct, it is reasonable to infer that the Legislature intended to punish such conduct more severely." (Murphy, supra, 52 Cal.4th at p. 87.)
According to Zapata, "[i]t is a reasonably common occurrence for people who wrongly choose to give a false name to a peace officer to engage in some other act that could potentially lead to civil or criminal liability to the person falsely impersonated." That may be true, but it does not follow that such an act commonly occurs "in the context of a violation of" section 148.9 (Murphy, supra, 52 Cal.4th at p. 87), which is complete once a lawfully detained or arrested defendant falsely represents or identifies himself to a peace officer to evade the court's process or proper identification.
The two statutes also arise in different contexts. In determining section 148.9 did not bar application of former section 529(3) under the Williamson rule, Robertson compared the two statutes and determined the essence of former section 529(3) "is to punish the type of fraud perpetrated by means of impersonation of another person," while that of section 148.9 "is to punish wrongful interference with the administration of justice." (Robertson, supra, 223 Cal.App.3d at p. 1282.)
Zapata maintains "the nature of these offenses remains very similar." He cites the observation in Lee v. Superior Court (2000) 22 Cal.4th 41, that "statutes prohibiting impersonation have two purposes. One is to prevent harm to the person falsely represented; the second is to ensure the integrity of judicial and governmental processes." (Id. at p. 45.) Zapata argues, the second purpose "clearly overlaps" with section 148.9's "purpose" to "punish wrongful interference with the administration of justice." But numerous criminal statutes share an overriding purpose; indeed, it can be said all criminal statutes share the goal of deterring socially undesirable conduct. Even if section 148.9 and former section 529 share general goals, it does not follow a violation of one would commonly result in a violation of the other. As noted, a violation of section 148.9 occurs when a person falsely impersonates another when detained or arrested, but former section 529 required additional acts beyond the initial impersonation. We therefore conclude the Williamson rule does not apply because a violation of section 148.9 would not necessarily or commonly result in a violation of former section 529(3). C. Failure to Sua Sponte Instruct on Attempted False Impersonation
Zapata asserts the court prejudicially erred in failing to instruct the jury sua sponte on the lesser included offense of attempted false personation because Vergara suspected Zapata was not who he claimed to be and ran his fingerprints, which established his true identity. The contention lacks merit.
A trial court must instruct on its own motion on any necessarily included or attempted offense sufficient evidence supports a conviction on the lesser offense; in other words, when there is evidence from which a reasonable jury could conclude that the lesser offense, but not the greater, was committed. (People v. Breverman (1998) 19 Cal.4th 142, 177.) Attempted false personation is not a lesser included offense of false personation because the attempted crime requires specific intent (People v. Bailey (2012) 54 Cal.4th 740, 752-753; People v. Jones (1999) 75 Cal.App.4th 616, 627 (Jones); People v. Strunk (1995) 31 Cal.App.4th 265, 271), whereas false personation does not (Rathert, supra, 24 Cal.4th at pp. 205-208).
Moreover, the evidence did not support an instruction on the lesser offense. "'An attempt to commit a crime consists of a specific intent to commit the crime, and a direct but ineffectual act done towards its commission.'" (Jones, supra, 75 Cal.App.4th at p. 627.) Here, neither act was ineffective. The fact Vergara suspected Zapata had falsely identified himself does not show Zapata committed an ineffectual act. Accordingly, the court did not have to instruct sua sponte on attempted false personation. D. Denial of Motion to Reduce Conviction to a Misdemeanor
Zapata contends the trial court erred in denying his motion to reduce his false personation conviction from a felony to a misdemeanor under section 17, subdivision (b). In denying the motion, the court stated it had "carefully weighed the intent of [former section] 529(3)" to determine whether "this [was] the type of conduct that should be [reduced to a misdemeanor under 17[, subd.] (b)[.] [¶] And in my humble opinion, the answer to that question is a sharp no. That if he had gotten away with the false personation . . . he would have subjected his brother to liability for the guns in the car, because everybody would have thought it was his brother driving the car. Whether or not the brother knew the guns were in the car or not, or, frankly, whether or not the brother put the guns in the car, his conduct would have subjected him to that for the defendant being in the car."
We review the court's denial of Zapata's motion for abuse of discretion. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978 (Alvarez).) In exercising its discretion, a court must consider, among other things, "'the nature and circumstances of the offense'" (id. at p. 978), and general sentencing objectives such as "[p]rotecting society" and "[p]unishing the defendant" (id. at p. 978, fn. 5). "'The 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.'" (Id. at pp. 977-978.) Zapata failed to make the requisite showing.
Zapata contends the trial court erred in denying his motion because (1) the jury's not guilty verdict on the gun possession charge suggested it did not believe he knew a gun was in the vehicle, and (2) the evidence shows there was only one gun, not multiple ones as the court believed. The record shows, however, the court considered both the nature and circumstances of Zapata's false personation conviction, which Zapata acknowledges was "serious[]," and the general objectives of sentencing, including protecting Zapata's brother and punishing Zapata. In particular, it found Zapata's brother could have been subjected to prosecution had Zapata succeeded in impersonating him. Neither Zapata's acquittal of the firearm possession charge nor the court's references to "guns," negate the fact Zapata's false impersonation of his brother could have subjected his brother to prosecution for that offense.
Zapata maintains the denial of his motion was "arbitrary and capricious" given Vergara's suspicions regarding Zapata's identity. He states he was unlikely "to . . . injure[] anyone or impede[] law enforcement" because his attempt to impersonate his "much younger brother was almost certain to fail . . . ." We decline Zapata's invitation to reweigh the evidence and substitute our judgment for that of the trial court. Zapata failed to show the court's decision to deny his motion was irrational or arbitrary. Absent such a showing, we presume the court acted to achieve legitimate sentencing objectives. (Alvarez, supra, 14 Cal.4th at pp. 977-978.) E. Impermissible Multiple Prosecutions Under Section 654
During trial, Zapata moved to dismiss the charges, arguing his prosecution violated the multiple prosecution bar under section 654 and Kellett v. Superior Court (1966) 63 Cal.2d 822 (Kellett). After Zapata was arrested and charged in this case, he was charged in Los Angeles County with attempted murder with a firearm use enhancement for an incident occurring in January 2005. He later was convicted of attempted murder and second degree robbery in the Los Angeles case. In his motion, Zapata asserted that during the Los Angeles trial, Vergara testified about the traffic stop and the recovery of the gun in the present case. Edward Buse, a forensic scientist with the Orange County crime lab, testified about the results of DNA analysis performed on the gun, which was significant because Zapata's DNA profile apparently was recovered from a wig and beanie cap worn by the shooter in the Los Angeles case. Other than confirming these two witnesses testified in the Los Angeles action, the record contains no evidence about the nature of their testimony. The court denied the motion, finding the Orange County and Los Angeles County crimes were not connected in their act or commission within the meaning of section 954 and that joinder therefore was not required.
Zapata contends the trial court erred because the gun found in the vehicle he "was driving, and for which he was charged with possession as a felon, was the same one used in the attempted murder" prosecution in Los Angeles County, plus Vergara and Buse testified at both trials. We disagree.
Section 654, subdivision (a) prohibits both multiple punishment and multiple prosecution. In Kellett, supra, 63 Cal.2d 822, the Supreme Court, construing section 654 in the context of the legislative policy of section 954, explained multiple prosecution is prohibited to avoid "needless harassment and the waste of public funds . . . ." (Kellett, at p. 827.) Where "the prosecution is or should be aware of more than one offense in which the same act or course of conduct plays a significant part, all such offenses must be prosecuted in a single proceeding unless joinder is prohibited or severance permitted for good cause. Failure to unite all such offenses will result in a bar to subsequent prosecution of any offense omitted if the initial proceedings culminate in either acquittal or conviction and sentence." (Ibid., fn. omitted.) Nevertheless, "the offenses must be transactionally related, and not just joinable, before the Kellett rule applies." (People v. Valli (2010) 187 Cal.App.4th 786, 796 (Valli).)
Whether the Kellett rule applies "must be determined on a case-by-case basis." (Valli, supra, 187 Cal.App.4th at p. 797.) "Appellate courts have adopted two different tests to determine a course of conduct for purposes of multiple prosecution." (Ibid.) "One line of cases finds Kellett not applicable where the offenses are committed at separate times and locations." (Ibid.) The other line of cases applies an "evidentiary test" requiring consideration of "the totality of the facts and whether separate proofs were required for the different offenses." (Id. at pp. 798, 799.) We review de novo the legal question of whether section 654 applies. (Id. at p. 794.)
Defendant's multiple-prosecution claim fails both tests. Because the robbery and attempted murder in Los Angeles occurred at a different time and place (January 2005 in Los Angeles) than the charges in the present case (March 2005 in Orange County) and were committed against different victims, his claim fails the "'different time/different place'" test. (Valli, supra, 187 Cal.App.4th at p. 798.) Nor did defendant satisfy the evidentiary test, given the absence of any transcript or other competent evidence to establish what Vergara and Buse testified about in the Los Angeles case.
Even if there was such evidence, "[s]imply using facts from the first prosecution in the subsequent prosecution" is not enough to pass the evidentiary test. (Valli, supra, 187 Cal.App.4th at p. 799.) Instead, "[d]ifferent evidentiary pictures are required . . . ." (Ibid.) The evidentiary picture in Valli was "one [prosecution for] a shooting at night and the other of police pursuits in the following days." (Ibid.) Here, the evidentiary picture shows one prosecution for robbery and attempted murder at one time and place with one victim and a second for false personation of a different victim, gun possession by a felon, and street terrorism at a different time and at a different place. Aside from Vergara and Buse, "[d]ifferent witnesses would testify to the events," as in Valli. (Ibid.) The evidence in the Los Angeles case showing Zapata was the robber and shooter did not supply proof Zapata committed false personation, possession of a gun by a felon, or street terrorism. (See id. at p. 800.)
In re Grossi (1967) 248 Cal.App.2d 315, on which defendant relies, does not persuade us otherwise. Grossi used a revolver to rob a gas station attendant and was apprehended with the revolver four hours later after he committed a traffic violation and attempted to elude police. He was charged with armed robbery and being a felon in possession of a firearm; the robbery charge was dismissed for lack of prosecution; and he pled guilty to and was sentenced for the other offense. After Grossi was recharged with and convicted of armed robbery, he sought a writ of habeas corpus. The Court of Appeal held the second robbery prosecution was barred because the record "fairly reek[ed] of a single course of conduct, indivisible for purpose of section 654," and "nothing in the record to support [the People's] hypothesis" that between the robbery and the arrest Grossi had "start[ed] a new course of conduct." (Id. at pp. 321-322.) Unlike Grossi, the crimes at issue here did not "'arise out of the same act, incident, or course of conduct'" and therefore the section 654 bar to multiple prosecutions did not apply. (People v. Turner (1985) 171 Cal.App.3d 116, 129.) F. Automatic Nondiscretionary Resentencing Under Proposition 36
Under the prior "Three Strikes" law, a defendant with two or more strike priors who was convicted of any new felony would receive a sentence of 25 years to life. (Former § 667, subd. (e)(2)(A).) The Act amended the Three Strikes law to allow a third strike defendant to be sentenced as though the defendant had only one strike prior, but only if the current offense is not a serious or violent felony and the defendant is not subject to certain disqualifying factors. (§ 667, subds. (d)(1), (e)(2)(C).)
The Act also allows a person who is "presently serving" a Three Strike indeterminate life sentence to petition the court to recall the sentence and resentence the petitioner as a second strike offender, if the current offense is not a serious or violent felony and the petitioner is not otherwise disqualified. (§ 1170.126.) The trial court still may deny the petition of a qualifying petition, if the court determines that resentencing would pose an unreasonable risk of danger to public safety. (§ 1170.126, subds. (a)-(g).) Accordingly, under section 1170.126, resentencing is discretionary, while sentencing under section 667, subdivision (e)(2)(C), is mandatory if the petitioner meets the objective criteria.
Zapata contends he is entitled to automatic resentencing because his judgment was not final and section 667, subdivision (e)(2)(C), presumptively applied to all criminal judgments not yet final as of its effective date. We agreed with Zapata's argument and ordered the trial court to resentence him. Conley now compels a different result. Conley held that the Act does not authorize automatic resentencing of eligible defendants whose judgments were not yet final on the effective date of the act. (Conley, supra, 63 Cal.4th at pp. 661-662.) Rather, such defendants must petition for resentencing under section 1170.126, subdivision (b). (Conley, at pp. 661-662.) In his supplemental brief, Zapata acknowledges as much.
Per Conley, Zapata may petition for resentencing under the dictates of section 1170.126, subdivision (b), which allows a defendant to "file a petition for a recall of sentence, within two years after the effective date of the act that added this section [November 7, 2012,] or at a later date upon a showing of good cause." (§ 1170.126, subd. (b).) Conley noted that "[d]efendants with nonfinal judgments who did not file petitions for recall of sentence within the mandated two-year period (see Pen. Code, § 1170.126, subd. (b)) because they were litigating the question of automatic resentencing will generally have good cause for filing late petitions [citation], and therefore they will not be deprived of the resentencing mechanism that the electorate created for them." (Conley, supra, 63 Cal.4th at p. 662, fn. 5.) We find good cause for the late filing of any resentencing petition.
IV
DISPOSITION
Pursuant to the September 14, 2016 order of the California Supreme Court, our opinion in this matter, filed September 20, 2013, is vacated.
Having reconsidered the cause in light of Conley, supra, 63 Cal.4th 646, as required by the California Supreme Court's September 14, 2016 order, we affirm the judgment without prejudice to defendant filing a petition for recall of sentence pursuant to section 1170.126, subdivision (b), in the trial court. The trial court is directed to accept for filing a petition submitted by defendant pursuant to section 1170.126 on or before one year after this opinion becomes final.
ARONSON, J. WE CONCUR: BEDSWORTH, ACTING P. J. IKOLA, J.