People v. Sek ( 2022 )

Filed 2/22/22 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B309003
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA087661)
v.
ORDER MODIFYING
SAMNANG SEK, OPINION AND DENYING
PETITION FOR REHEARING
Defendant and Appellant. (NO CHANGE IN JUDGMENT)
THE COURT:
The opinion in the above-entitled matter filed on February
1, 2022 is modified as follows:
1. On page 17, the following paragraph is deleted:
“Sek and the Attorney General agree, as do we, that, under
the principles of Estrada described above (Discussion part A.1,
ante), the law applies retroactively to defendants like Sek whose
convictions were not yet final when the law became effective
January 1, 2022.”
The deleted paragraph is replaced with the following:
Sek and the Attorney General agree, as do we, that, under the
principles of Estrada described above (Discussion part A.1, ante),
Assembly Bill No. 518 applies retroactively to defendants like Sek
whose convictions were not yet final when the law became effective
January 1, 2022.
2. On page 18, the following two sentences are deleted:
“We agree with Sek that this law, as an ameliorative statute
that reduces potential sentences for criminal defendants, applies
retroactively under Estrada principles to defendants like Sek whose
cases were not yet final when the law became effective. The court
must apply the new law in any resentencing proceedings in this
case.”
The deleted sentences are replaced with the following:
These requirements “shall apply to sentencings occurring
after the effective date of ” Senate Bill No. 81. (Stats. 2021, ch. 721,
§ 1, enacting § 1385, subd. (c)(7).) Because any resentencing in this
case will take place after Senate Bill No. 81 became effective on
January 1, 2022, we agree with Sek that the court must apply the
new law in any such proceeding.
This modification does not constitute a change in the
judgment.
Respondent’s petition for rehearing filed on February 14, 2022
is denied.
____________________________________________________________
ROTHSCHILD, P. J. CHANEY, J. BENDIX, J.
2
Filed 2/1/22 (unmodified version)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B309003
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA087661)
v.
SAMNANG SEK,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles
County, Gary J. Ferrari, Judge. Affirmed in part, reversed in part.
____________________________
Joshua L. Siegel, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Stephanie C. Santoro, Deputy
Attorneys General, for Plaintiff and Respondent.
____________________________
The Legislature recently enacted Assembly Bill No. 333
(2021−2022 Reg. Sess.) (Assembly Bill No. 333), which altered both
the substantive and procedural law regarding gang enhancements
under Penal Code1 section 186.22. Under the new law, in order
to prove that the defendant committed a crime for the benefit of a
criminal street gang, the prosecution must show that the benefit
to the gang was “more than reputational.” (Stats. 2021, ch. 699, § 3,
enacting § 186.22, subd. (g).)
Defendant and appellant Samnang Sek, who was convicted of
attempted murder and other offenses for his role in a gang shooting,
contends that this law applies retroactively to him. He argues that
because the jury instructions did not reflect this change in the law,
the jury’s findings on the gang enhancements in his case must be
reversed. We agree.
FACTS AND PROCEEDINGS BELOW
In 2012, a jury convicted Sek of (counts 1 and 5) attempted
murder (§§ 187, 664), (count 2) shooting at an occupied vehicle
(§ 246), (count 3) assault with a semiautomatic firearm (§ 245,
subd. (b)), and (count 4) being an accessory after the fact (§ 32).
The jury found that Sek committed all these crimes for the benefit
of a criminal street gang (§ 186.22, subd. (b)) and found that
both counts of attempted murder were willful, deliberate, and
premeditated (§ 664, subd. (a)), and that a principal discharged
a firearm in committing the crimes (§ 12022.53, subds. (c) & (e)).
As we explained in more detail in our prior opinion in
this case (People v. Sek et al. (Apr. 17, 2015, B251196, B254949,
1 Unless otherwise specified, subsequent statutory references
are to the Penal Code.
2
B254954) [nonpub. opn.]),2 Sek drove in pursuit of the victim,
allowing his passenger, codefendant and fellow gang member Terry
My, to fire several shots at the victim’s car. We reversed one count
of attempted murder because the trial court erroneously instructed
the jury on a “kill zone” theory, and we vacated the jury’s finding
that the second count of attempted murder was committed willfully,
deliberately, and with premeditation because the information did
not include this allegation. (See ibid.) We otherwise affirmed the
judgment and remanded the case for further proceedings. (Ibid.)
On remand, the trial court sentenced Sek to 15 years to life
in prison for count 2, firing at an occupied motor vehicle for the
benefit of a criminal street gang. (§§ 246, 186.22, subd. (b)(4)(B).)
The court imposed a concurrent sentence of 16 months in prison
for count 4, being an accessory (§ 32), along with a three-year
gang enhancement (§ 186.22, subd. (b)(1)(A)). The court stayed
under section 654 the sentences for (count 1) attempted murder
and (count 3) assault with a semiautomatic firearm. The stayed
sentence for attempted murder consisted of a base term of
nine years (§ 664, subd. (a)), plus a 10-year gang enhancement
(§ 186.22, subd. (b)(1)(C)), plus 20 years for discharging a firearm
(§ 12022.53, subds. (c) & (e)). The stayed sentence for assault with
a semiautomatic firearm consisted of a base term of nine years
(§ 245, subd. (b)), plus 10 years for a gang enhancement. (§ 186.22,
subd. (b)(1)(C).)
2 The Supreme Court granted review of the opinion pending
its decision in People v. Canizales (2019) 7 Cal.5th 591, then
subsequently dismissed review. (People v. Sek (Sept. 11, 2019,
S226721).)
3
DISCUSSION
A. Assembly Bill No. 333
A defendant who commits a felony “for the benefit of, at the
direction of, or in association with a criminal street gang, with the
specific intent to promote, further, or assist in criminal conduct by
gang members” is subject to increased punishment upon conviction.
(§ 186.22, subd. (b)(1).) As noted above, Sek’s sentence included
enhancements under this provision. It also included a 20-year
firearm enhancement for discharging a firearm that applied
only because Sek acted for the benefit of a gang. (See § 12022.53,
subds. (c) & (e)).3 In addition, because the jury convicted him of
firing into an occupied vehicle for the benefit of a street gang, he
was subject to a sentence of 15 years to life under section 186.22,
subdivision (b)(4)(B). Without the gang finding, the maximum
sentence for this offense would have been seven years. (See § 246.)
After the court imposed sentence and while his appeal was
pending, the Legislature enacted Assembly Bill No. 333, which
amended section 186.22 to impose new substantive and procedural
requirements for gang allegations. Most notably, the law defined
“to benefit, promote, further, or assist” as “to provide a common
benefit to members of a gang where the common benefit is more
than reputational. Examples of a common benefit that are more
than reputational may include, but are not limited to, financial
gain or motivation, retaliation, targeting a perceived or actual gang
rival, or intimidation or silencing of a potential current or previous
witness or informant.” (§ 186.22, subd. (g).) In addition, the law
created a stricter requirement for proof of “a pattern of criminal
gang activity,” which is necessary to prove that the group with
3The trial court stayed the sentence on the enhancements for
attempted murder and assault with a firearm under section 654.
4
which the defendant is associated is indeed a criminal street gang.
(See § 186.22, subd. (f).) Previously, the prosecution needed to
prove only that those associated with the gang had committed
at least two offenses from a list of predicate crimes on separate
occasions within three years of one another. (See former § 186.22,
subd. (e).) Under the newly amended law, the offense with which
the defendant is currently charged cannot be used as one of the
two predicate offenses. (§ 186.22, subd. (e)(2).) In addition, both
predicate offenses must have been committed “within three years of
the date the current offense is alleged to have been committed,” by
gang “members,” and must have been for the “common[ ] benefit[ ]
[of] a criminal street gang.” (§ 186.22, subd. (e)(1).) Finally, under
Assembly Bill No. 333, the defendant may request a bifurcated
trial, in which the defendant is first tried for the underlying offense,
and only upon conviction is tried for any gang enhancements.
(§ 1109, subd. (a).)
Sek contends that the amendments changing the definition
of “benefit of a criminal street gang” apply retroactively to his
case, and that, because the jury convicted him under the prior
version of the law, we must reverse the convictions on the gang
enhancements. The Attorney General agrees that the amendments
apply retroactively but argues that we should affirm the conviction
because the error was harmless beyond a reasonable doubt. We
agree with Sek and reverse the gang enhancements.
1. Retroactivity of the new law
Ordinarily, “a new statute is presumed to operate
prospectively absent an express declaration of retrospectivity or
a clear indication that the electorate, or the Legislature, intended
otherwise.” (Tapia v. Superior Court (1991) 53 Cal.3d 282, 287
(Tapia).) In In re Estrada (1965) 63 Cal.2d 740 (Estrada), however,
5
our Supreme Court recognized an exception to this rule. The court
explained that “[w]hen the Legislature amends a statute so as to
lessen the punishment it has obviously expressly determined that
its former penalty was too severe and that a lighter punishment
is proper as punishment for the commission of the prohibited
act. It is an inevitable inference that the Legislature must have
intended that the new statute imposing the new lighter penalty
now deemed to be sufficient should apply to every case to which
it constitutionally could apply. The amendatory act imposing
the lighter punishment can be applied constitutionally to acts
committed before its passage provided the judgment convicting the
defendant of the act is not final. This intent seems obvious, because
to hold otherwise would be to conclude that the Legislature was
motivated by a desire for vengeance, a conclusion not permitted in
view of modern theories of penology.” (Id. at p. 745.)
In subsequent years, the court has expanded the application
of this doctrine broadly “to statutes changing the law to the
benefit of defendants.” (Tapia, supra, 53 Cal.3d at p. 301.) Thus,
the retroactivity principle applies to ameliorative changes in
enhancements as well as to substantive offenses (People v. Nasalga
(1996) 12 Cal.4th 784, 792), and to changes in the law that merely
allow for a possibility of reduced punishment (People v. Francis
(1969) 71 Cal.2d 66, 76). It also applies where a new law
decriminalizes the defendant’s conduct entirely. (People v. Rossi
(1976) 18 Cal.3d 295, 302.)
Most relevant to this case, the Supreme Court in Tapia
held that the presumption of retroactivity applies to laws that
change the substantive requirements for an enhancement in the
defendant’s favor. (Tapia, supra, 53 Cal.3d at pp. 300–301.) In
Tapia, the electorate had recently passed an initiative requiring
proof of intent to kill for certain special circumstance allegations.
6
Because the initiative “redefine[d], to the benefit of defendants,
conduct subject to criminal sanctions” (id. at p. 301), the court held
that it applied retroactively.
Appellate courts have applied this principle widely. For
example, in 2010, the Legislature enacted a law limiting felony
petty theft to defendants with three prior theft convictions rather
than only one. (Assembly Bill No. 1844 (Reg. Sess. 2009−2010)
Stats. 2010, ch. 219, § 15.) In People v. Vinson (2011) 193
Cal.App.4th 1190 (Vinson), the court held that the law applied
retroactively because “akin to adding an element to a crime or an
enhancement,” the amendment “benefits a defendant by making it
less likely that he or she will qualify for felony-level punishment.”
(Id. at p. 1197.) Similarly, in 1992, the Legislature enacted a law
limiting the application of a sentence enhancement based on the
amount of property loss. Previously, the enhancement applied if a
defendant committed a felony causing a loss in excess of $25,000;
under the new law, a $50,000 loss was required. (People v. Roberts
(1994) 24 Cal.App.4th 1462, 1465.) In Roberts, the court held
that because the law effectively reduced the punishment to which
the defendants in the case were subject, it applied retroactively
under Estrada. (Id. at p. 1466.) In People v. Figueroa (1993)
20 Cal.App.4th 65, the court held that a statute redefining an
enhancement for committing drug offenses near a school applied
retroactively. Under the statute in effect when the defendant
committed the crime, the prosecution was required to prove only
that the offense was committed within 1,000 feet of a school. The
statute was later amended to add a requirement that school be in
session or minors nearby at the time of the offense. (Id. at p. 69.)
At least one of the amendments in Assembly Bill No. 333
clearly meets the requirements for retroactivity as outlined by these
cases: To prove that a defendant committed a felony “for the benefit
7
of, at the direction of, or in association with a criminal street gang,”
(§ 186.22, subd. (b)(1)) the new law requires the prosecution to show
that “the common benefit [to the gang] is more than reputational.”
(§ 186.22, subd. (g), enacted by Assembly Bill No. 333 (Stats. 2021,
ch. 699, § 3).) The law thus redefines the enhancement for the
benefit of the defendant. Previously, a defendant who had
committed an offense to benefit the reputation of a criminal street
gang, but with no other benefit, was subject to the enhancement.
(See People v. Albillar (2010) 51 Cal.4th 47, 63 [under former
section 186.22, subd. (b)(1), “[e]xpert opinion that particular
criminal conduct benefited a gang by enhancing its reputation for
viciousness can be sufficient to raise the inference that the conduct
was ‘committed for the benefit of . . . a[ ] criminal street gang’ ”].)
Now, he cannot be. The law has “redefine[d], to the benefit of
defendants, conduct subject to criminal sanctions” (Tapia, supra,
53 Cal.3d at p. 301), and it therefore applies retroactively under
Estrada.4
2. Harmless error
The Attorney General concedes that Assembly Bill No. 333
applies retroactively, but contends that reversal is not required
because the error was harmless. We disagree.
By requiring proof for a gang enhancement that the benefit
to the gang was more than reputational, Assembly Bill No. 333
essentially adds a new element to the enhancement. When jury
instructions are deficient for omitting an element of an offense,
they implicate the defendant’s federal constitutional rights, and we
review for harmless error under the strict standard of Chapman v.
4 Because we reverse the gang enhancement findings on the
basis of this change alone, we need not and do not decide whether
the other portions of Assembly Bill No. 333 also apply retroactively.
8
California (1967) 386 U.S. 18 (Chapman). (People v. Flood (1998)
18 Cal.4th 470, 502–503; People v. Lewis (2006) 139 Cal.App.4th
874, 884.) The Attorney General concedes that this standard
applies here, where the new element to the offense is introduced
through the retroactive application of a new law, and we see
no reason to disagree. Under the Chapman standard, reversal
is required unless “it appears beyond a reasonable doubt that the
error did not contribute to th[e] jury’s verdict.” (People v. Flood,
supra, 18 Cal.4th at p. 504.)
The Attorney General argues that the error was harmless
under this standard, noting that the prosecution’s expert witness
testified about benefits to the gang that were not merely
reputational. The expert testified that gang members may commit
crimes to retaliate against rival gangs, to defend and to try to
expand their territory. In addition, according to the expert, gang
shootings instill fear in the community, giving the gang “free [rein]
to commit crimes in that area without any . . . repercussions of
their criminal acts,” diminishing the gang members’ “chance of
them getting caught by the police because of the community’s fear
of retaliation . . . by the gang.” If community members are afraid,
they will be “less likely to report crimes committed by gang
members.”
But in order to prove harmless error under the Chapman
standard, it is not enough to show that substantial or strong
evidence existed to support a conviction under the correct
instructions. As the United States Supreme Court explained in
Sullivan v. Louisiana (1993) 508 U.S. 275, “the question . . . is not
what effect the constitutional error might generally be expected to
have upon a reasonable jury, but rather what effect it had upon the
guilty verdict in the case at hand. . . . The inquiry, in other words,
is not whether, in a trial that occurred without the error, a guilty
9
verdict would surely have been rendered, but whether the guilty
verdict actually rendered in this trial was surely unattributable to
the error.” (Id. at p. 279.)
Courts have found harmless error under this standard where
the missing element from an instruction was uncontested or proved
as a matter of law. For example, in People v. Merritt (2017) 2
Cal.5th 819, the trial court omitted the elements of robbery from
the jury instructions, but the court held that the error was harmless
because the only contested issue at trial was the identity of the
defendant. (Id. at p. 832.) “Defendant knew what the elements of
robbery were, and he had the opportunity to present any evidence
he wished on the subject. ‘[W]here a reviewing court concludes
beyond a reasonable doubt that the omitted element was
uncontested and supported by overwhelming evidence, such that
the jury verdict would have been the same absent the error, the
erroneous instruction is properly found to be harmless.’ ” (Ibid.,
quoting Neder v. United States (1999) 527 U.S. 1, 17.) Similarly, in
Vinson, the court affirmed the defendant’s conviction of petty theft
with a prior theft conviction even though the law had changed after
trial to require the proof of three prior convictions, rather than one.
(See Vinson, supra, 193 Cal.App.4th at p. 1200.) The defendant
conceded that he had suffered two prior convictions, and his
attorney stipulated at trial to a third conviction. Thus, there was
no dispute as to whether the new element in the law was proved.
(See ibid.)
In this case, the basis of the jury’s verdict is not so clear.
The prosecution’s expert testified about several ways in which
a crime could benefit a criminal street gang, but one of these was
reputational. When asked whether a hypothetical crime similar
to the one Sek committed could “enhance the reputation” of a gang,
the expert answered, “Yes.” The expert went on to state that this
10
type of crime “enhances not only the individual gang members . . .
but enhances the status and their reputation of the . . . gang as
a whole.” In closing arguments, the prosecutor argued that Sek’s
crime benefits the gang because “[t]hey want you to know who
they are.” Although there was a great deal of evidence of benefits
to the gang that went beyond reputational, we cannot rule out
the possibility that the jury relied on reputational benefit to the
gang as its basis for finding the enhancements true. Thus, the
instructional error on this question was not harmless under the
Chapman standard.
Our decision does not bar the prosecution from retrying
Sek on the gang enhancements upon remand. “Because we do not
reverse based on the insufficiency of the evidence required to prove
a violation of the statute as it read at the time of trial, the double
jeopardy clause of the Constitution will not bar a retrial. (People v.
Figueroa[, supra,] 20 Cal.App.4th [at p.] 72, fn. 2 . . . ; see Burks v.
United States (1978) 437 U.S. 1, 18 . . . .) ‘ “Where, as here,
evidence is not introduced at trial because the law at that time
would have rendered it irrelevant, the remand to prove that
element is proper and the reviewing court does not treat the issue
as one of sufficiency of the evidence.” [Citation.]’ (People v. Ramos
(2016) 244 Cal.App.4th 99, 103 . . . .)” (People v. Monk (2018) 21
Cal.App.5th Supp. 1, 7−8; accord, People v. Figueroa, supra, 20
Cal.App.4th at pp. 71–72.)
B. Other Allegations of Error
Sek alleges several other errors in sentencing, some that
he claims the trial court committed when imposing sentence, and
others that result from the retroactive application of new law.
Although our resolution of the gang enhancement issue requires
reversing Sek’s sentence and resentencing him (after a possible new
11
trial on the gang enhancements), we discuss these issues briefly in
the interest of clarity and of forestalling future disputes.
1. Imposition of both firearm and gang
enhancements
If a defendant commits a felony for the benefit of a
criminal street gang, the defendant may be subject to a firearm
enhancement under section 12022.53 if any principal to the crime
used a firearm. (See § 12022.53, subd. (e)(1).) In cases where
the defendant did not personally use a firearm, however, the
court may not impose a gang enhancement under section 186.22,
subdivision (b) in addition to the firearm enhancement. (See
§ 12022.53, subd. (e)(2).) In this case, the trial court imposed
both a firearm enhancement (§ 12022.53, subds. (c) & (e)(1)) and a
gang enhancement (§ 186.22, subd. (b)(1)(C)) in Sek’s sentence for
attempted murder. But as all parties agree, Sek did not personally
use the gun. Instead, his codefendant My was the shooter. Thus,
the trial court erred by including a gang enhancement in the
sentence for attempted murder.
The trial court also included a 10-year gang enhancement
under section 186.22, subdivision (b)(1)(C) for Sek’s conviction
of assault with a semiautomatic firearm (§ 245, subd. (b)).
But as Sek points out, an enhancement under section 186.22,
subdivision (b)(1)(C) applies only if the substantive offense is
a violent felony as defined under section 667.5, subdivision (c).
Assault with a semiautomatic firearm is not so defined.5 (See
§ 667.5, subd. (c).) The offense is defined as a serious felony,
however (see § 1192.7, subd. (c)(31)), and as a result, the trial court
5 If Sek had personally used a firearm in the offense,
the crime would have been a violent felony under section 667.5,
subdivision (c)(8).
12
should have imposed a five-year enhancement under section 186.22,
subdivision (b)(1)(B) instead of the 10-year enhancement.
2. Restitution and parole revocation fines
The trial court imposed a restitution fine of $4,500 under
section 1202.4, subdivision (b), and a parole revocation fine of
$4,500 under section 1202.45, subdivision (a). The latter fine was
suspended pending the revocation of Sek’s parole. Sek contends
that the court abused its discretion in imposing these fines because
the court calculated the amount of the fine according to a formula
applicable at the time of sentencing, rather than the formula that
applied at the time he committed the crimes. We conclude that Sek
forfeited the issue, and that his attorney did not provide ineffective
assistance of counsel by not objecting to the fine.
Because “the imposition of restitution fines constitutes
punishment, . . . [it] is subject to the proscriptions of the ex post
facto clause and other constitutional provisions.” (People v. Souza
(2012) 54 Cal.4th 90, 143.) Thus, the court was required to apply
the law in effect when Sek committed the offenses in 2011, without
subsequent amendments, in determining Sek’s restitution fine.
(See ibid.)
In most relevant respects, the restitution fine statute is
substantially the same now as it was in 2011. Then as now, except
where there are “compelling and extraordinary reasons for not
doing so,” the trial court must impose a restitution fine in all cases
where the defendant is convicted of a crime. (§ 1202.4, subd. (b);
Stats. 2010, ch. 351, § 9 [enacting version of § 1202.4 in effect
in 2011].) The court has discretion to set the amount of the
fine “commensurate with the seriousness of the offense,” up to
a maximum of $10,000 in felony cases. (§ 1202.4, subd. (b)(1);
Stats. 2010, ch. 351, § 9.) The statute also provides a formula that
13
the court may (but is not required to) use in calculating the amount
of the fine, consisting of the minimum fine “multiplied by the
number of years of imprisonment the defendant is ordered to serve,
multiplied by the number of felony counts of which the defendant
is convicted.” (Stats. 2010, ch. 351, § 9; § 1202.4, subd. (b)(2).) In
performing this calculation, the court may not include felony counts
for which punishment is stayed pursuant to section 654. (People v.
Le (2006) 136 Cal.App.4th 925, 934 (Le).) The court must impose
a parole revocation fine equal to the amount of the restitution
fine, suspended pending the possible revocation of the defendant’s
parole. (§ 1202.45, subd. (a).)
The statute has changed in one important way since 2011,
however. At the time Sek committed the offense, the minimum
fine was $200. (See Stats. 2010, ch. 351, § 9.) The Legislature
subsequently amended Section 1202.4 to increase that amount
to $240 in 2012, $280 in 2013, and to the current amount of $300
beginning in 2014. (Stats. 2011, ch. 358, § 1.)
Sek contends that the trial court meant to apply the formula
in section 1202.4, subdivision (b)(2) to determine the amount of the
fine, but erred by using $300 as the minimum amount rather than
$200. At the sentencing hearing, the court imposed a “$300 per
year restitution fine.”
Sek forfeited this claim by failing to object to the amount of
the fine in the trial court: “[T]he rule of forfeiture is applicable to
ex post facto claims [citation], particularly where any error could
easily have been corrected if the issue had been raised at the
sentencing hearing.” (People v. Martinez (2014) 226 Cal.App.4th
1169, 1189 (Martinez).)
14
Sek also contends that his attorney rendered ineffective
assistance by failing to call attention to the change in the
minimum fine. In similar cases, appellate courts have indeed
reduced fines where an attorney failed to object to the incorrect
application of the formula for restitution fines. (See, e.g., Le, supra,
136 Cal.App.4th at pp. 935–936; Martinez, supra, 226 Cal.App.4th
at pp. 1188–1190.)
But in order to prevail on a claim of ineffective assistance
of counsel, a defendant must show not only that his attorney’s
performance was defective, but also that he suffered prejudice as
a result. (Le, supra, 136 Cal.App.4th at p. 935.) Sek cannot make
such a showing. The formula in section 1202.4, subdivision (b)(2)
calls for the court to calculate the minimum fine, “multiplied by the
number of years of imprisonment the defendant is ordered to serve,
multiplied by the number of felony counts of which the defendant is
convicted.” The trial court appears to have multiplied $300 by the
minimum number of years Sek was ordered to serve, 15, to arrive
at a fine of $4,500. But the court did not multiply the fine by two to
account for the number of felony counts of which Sek was convicted.
In addition to his conviction of firing into an occupied vehicle for
which the court imposed the 15-year minimum sentence, Sek was
also convicted of being an accessory after the fact. 6
If the court had correctly applied the formula, it would
have multiplied $200 (the minimum fine as of 2011) by 15 for
the minimum number of years Sek was ordered to serve, and by
two for the number of felony counts of which he was convicted, and
arrived at a total fine of $6,000. Sek’s attorney did not prejudice
6 Sek’s convictions of attempted murder and assault
with a semiautomatic firearm are not included in the calculation
because the trial court stayed the sentence on those offenses under
section 654. (See Le, supra, 136 Cal.App.4th at p. 934.)
15
him by failing to object to a $4,500 fine. This is not the same
situation as in Martinez, where the court stated that “[w]e cannot
conceive of any tactical reason for counsel’s failure to object.”
(Martinez, supra, 226 Cal.App.4th at p. 1190.)
3. Errors in Presentence Credits and Abstract
of Judgment
Sek contends that the trial court erred by failing to award a
sufficient number of credits for time served prior to sentencing. The
Attorney General agrees, as do we.
“[W]hen a prison term already in progress is modified as the
result of an appellate sentence remand, the sentencing court must
recalculate and credit against the modified sentence all actual time
the defendant has already served, whether in jail or prison, and
whether before or since he was originally committed and delivered
to prison custody.” (People v. Buckhalter (2001) 26 Cal.4th 20, 29.)
The court must also calculate conduct credits for the period before
the original sentencing hearing. (Id. at p. 30.) The agency to
which the defendant is committed—in this case the Department
of Corrections and Rehabilitation—calculates and applies conduct
credit for time following the original sentencing hearing. (Id. at
pp. 30–31, 37.)
In this case, the trial court did not update the defendant’s
credits for actual time served between the original sentencing
hearing and the resentencing hearing.
Sek also notes that the record includes several clerical errors.
A minute order incorrectly deleted the trial court’s order staying the
sentence for attempted murder pursuant to section 654. The same
minute order misstated the length of the firearm enhancement for
attempted murder and misreported the name of the attorney who
represented Sek at the sentencing hearing.
16
4. Amendment to sentencing under section 654
Section 654 prohibits multiple punishment for any single act
or omission. If a single action or course of conduct by a defendant
violates multiple laws, “the distinct crimes may be charged in
separate counts and may result in multiple verdicts of guilt, [but]
the trial court may impose sentence for only one offense.” (People v.
Liu (1996) 46 Cal.App.4th 1119, 1135.) Until recently, the law
required trial courts to impose sentence “under the provision that
provides for the longest potential term of imprisonment.” (Former
§ 654.) In 2021, however, the Legislature enacted Assembly Bill
No. 518 (Stats. 2021, ch. 441), which removes the requirement
to impose the longest prison term. As the preamble to the bill
explains, it allows “an act or omission that is punishable in different
ways by different laws to be punished under either of those
provisions.” (Ibid.)
Sek and the Attorney General agree, as do we, that, under
the principles of Estrada described above (Discussion part A.1,
ante), the law applies retroactively to defendants like Sek whose
convictions were not yet final when the law became effective
January 1, 2022.
In this case, the jury convicted Sek of firing into an occupied
vehicle (§ 246) and attempted murder (§§ 187, 664), two crimes
based on a single course of conduct. Because the former crime
carried a longer potential sentence than the latter, the trial
court stayed the sentence for attempted murder. In any future
sentencing hearing, the trial court will have discretion under the
new version of section 654 to sentence Sek under either provision.
5. Senate Bill No. 81
In 2021, the Legislature enacted Senate Bill No. 81, which
amended section 1385 to specify factors that the trial court must
17
consider when deciding whether to strike enhancements from a
defendant’s sentence in the interest of justice. (Stats. 2021, ch. 721,
§ 1.) Most notably, under the newly enacted subdivision (c)(2)(C)
of section 1385,7 if “[t]he application of an enhancement could result
in a sentence of over 20 years,” the trial court “shall . . . dismiss[ ]”
the enhancement. (Stats. 2021, ch. 721, § 1.) We agree with Sek
that this law, as an ameliorative statute that reduces potential
sentences for criminal defendants, applies retroactively under
Estrada principles to defendants like Sek whose cases were not yet
final when the law became effective. The court must apply the new
law in any resentencing proceedings in this case.
7 Senate Bill No. 81 appears to include a clerical error.
The text of the law refers to certain subparagraphs (A) to (I)
as part of subdivision (c)(2) of section 1385, but the text of the
bill lists these subparagraphs under subdivision (c)(3). (Stats.
2021, ch. 721, § 1.) We describe the provision at issue here
as subdivision (c)(2)(C) because that appears to be where the
Legislature intended to codify it.
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DISPOSITION
The gang and firearm enhancements in all counts are
stricken. In addition, the finding in count 2 that the offense of
shooting at an occupied vehicle was committed for the benefit
of a criminal street gang is reversed. In all other respects, the
judgment is affirmed. On remand, the prosecution shall have the
option to retry the defendant on the gang allegations. The trial
court shall resentence the defendant and correct the clerical errors
described in Discussion part B.3.
CERTIFIED FOR PUBLICATION.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
BENDIX, J.
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