People v. Godinez CA2/6 ( 2021 )

Filed 9/16/21 P. v. Godinez CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B308086
(Super. Ct. No. 1353476)
Plaintiff and Respondent, (Santa Barbara County)
v.
FRANK ADAM LIENDO
GODINEZ,
Defendant and Appellant.
The California Department of Corrections and
Rehabilitation (CDCR) exercised its authority under Penal Code
section 1170, subdivision (d)(1)1 to request that the superior court
recall Frank Adam Liendo Godinez’s sentence and resentence
him. Specially, the CDCR recommended the trial court consider
striking a five-year prior felony conviction enhancement imposed
under section 667, subbdivision (a)(1). The trial court denied the
All subsequent statutory references are to the Penal Code,
1
unless otherwise noted.
request, concluding it lacked discretion to recall appellant’s
sentence because the sentence was part of a plea bargain.
Appellant contends the trial court erred because section 1170,
subdivision (d)(1) expressly grants authority to recall a plea-
bargained sentence. Respondent concedes the matter must be
remanded and requests that we provide the trial court with
direction concerning which aspects of appellant’s sentence are
eligible for resentencing.
FACTS
In 2014, appellant pleaded guilty to voluntary
manslaughter. (§ 192, subd. (a).) He also admitted several
enhancement allegations: the crime was committed for the
benefit of a criminal street gang (§ 186.22, subd (b)(1)), appellant
personally used a firearm (§ 12022.53, subd (d)), appellant had a
prior serious felony conviction (§ 667, subd. (a)(1)), and appellant
had served a prior prison term. (§667.5, subd. (b).) The trial
court sentenced him to an agreed-upon term of 26 years in state
prison.
In July 2019, the CDCR wrote to the superior court,
“to provide the court with authority to resentence [appellant]
pursuant to Penal Code section 1170, subdivision (d).” The letter
explained that 2018 amendments to the Penal Code provided
sentencing courts, for the first time, with discretion under section
1385 to strike enhancements imposed for prior serious felony
convictions.
Appellant filed a brief in support of resentencing. He
informed the trial court that he had not been subject to
disciplinary proceedings while incarcerated and had taken
advantage of work and rehabilitation programs, including college
classes. Appellant asked the trial court to consider striking his
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five-year prior felony conviction enhancement in the interests of
justice. The prosecution opposed resentencing. Its written
opposition is not included in the record. Following a hearing, the
trial court declined to recall appellant’s sentence on the ground
that it lacked discretion to alter a plea-bargained sentence.
DISCUSSION
Section 1170, subdivision (d)(1) provides that the
trial court may “at any time upon the recommendation of the
[CDCR] . . . recall the sentence and commitment previously
ordered and resentence the defendant in the same manner as if
they had not previously been sentenced, provided the new
sentence, if any, is no greater than the initial sentence.” The
statute further provides, “The court resentencing under this
paragraph may reduce a defendant’s term of imprisonment and
modify the judgment, including a judgment entered after a plea
agreement, if it is in the interest of justice.” (Ibid.)
The trial court declined to recall appellant’s sentence
because it concluded it lacked discretion to reduce a sentence that
was part of a plea bargain. As the parties agree, this was error.
The statute expressly permits a trial court to reduce a term of
imprisonment or modify a judgment, “including a judgment
entered after a plea agreement . . . .” (§ 1170, subd. (d)(1).)
Because the trial court misunderstood its discretion under section
1170, the matter must be remanded.
On remand, the trial court may decide to recall
appellant’s sentence “for any reason rationally related to a lawful
sentencing. The court may then impose any otherwise lawful
resentence suggested by the facts available at the time of
resentencing.” (Dix v. Superior Court (1991) 53 Cal.3d 442, 456
(Dix).) At resentencing, the trial court may also “consider
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postconviction factors, including, but not limited to, the inmate’s
disciplinary record and record of rehabilitation while
incarcerated . . . .” (§ 1170, subd. (d)(1).)
Respondent urges us to provide the trial court with
direction concerning which sentence enhancements it has
discretion to strike, should it decide to resentence appellant.
Appellant’s sentence became final in 2014. A number of changes
have been made to the trial court’s sentencing discretion in the
intervening years. For example, in 2014, the trial court lacked
discretion to strike the firearm use enhancement (§ 12022.53),
the five-year prior serious felony conviction enhancement (§ 667),
and the one-year prior prison term enhancement (§ 667.5). By
January 1, 2020, each of these statutes had been amended to
grant the trial court discretion to strike the enhancement in the
interest of justice. (See, e.g., Senate Bill No. 620 (2017-2018 Reg.
Sess.) (discretion to strike firearm use enhancement); Senate Bill
No. 1393 (2017-2018 Reg. Sess.) (discretion to strike five-year
prior serious felony conviction enhancement); Senate Bill No. 136
(2019-2020 Reg. Sess.) (discretion to strike one year prior prison
term enhancement).)
Our Supreme Court is presently considering which of
these statutory amendments applies to the resentencing of a
person whose judgment was final before the amendments were
adopted. (See, e.g., People v. Padilla (Aug. 26, 2020, S263375)
___ Cal.5th ___ [2020 Cal. LEXIS 5962]; People v. Federico (Aug.
26, 2020, S263082) ___ Cal.5th ___ [2020 Cal. LEXIS 5958].)2
2 In Padilla, No. S263375, our Supreme Court granted
review on the following question: “When a judgment becomes
final, but is later vacated, altered, or amended and a new
4
Pending those decisions, we rely on the longstanding general rule
that changes in the law apply prospectively, unless the
Legislature expressly provides to the contrary. (§ 3 [“No part of
[the Penal Code] is retroactive, unless expressly so declared”].)
The rule in California has long been that “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.) In re Estrada (1965)
63 Cal.2d 740, established a presumption that, when the
Legislature lessens the punishment for a crime, “it 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.” (Id. at p. 745.) Estrada
instructs us to presume that, “in the absence of a savings clause
providing only prospective relief or other clear intention
concerning any retroactive effect, ‘a legislative body ordinarily
intends for ameliorative changes to the criminal law to extend as
broadly as possible, distinguishing only as necessary between
sentence imposed, is the case no longer final for the purpose of
applying an intervening ameliorative change in the law?” In
Federico, No. S263082, our Supreme Court granted review on this
question: “Did defendant’s resentencing pursuant to Penal Code
section 1170, subdivision (d)(1) ‘reopen’ the finality of his
sentence, such that he was entitled to the retroactive application
of Proposition 57 and Senate Bill No. 1391 on an otherwise long-
final conviction?”
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sentences that are final and sentences that are not.’” (People v.
Buycks (2018) 5 Cal.5th 857, 881, quoting People v. Conley (2016)
63 Cal.4th 646, 657.)
Appellant was originally sentenced in October 2014.
We affirmed the judgment following a review under People v.
Wende (1979) 25 Cal.3d 436 and our remittitur issued in October
2015. The judgment was final at that point. (Cal. Rules of Court,
rule 8.104.) All of the statutory amendments at issue here were
enacted after appellant’s sentence became final. Unless the new
statutes expressly operate retroactively, we conclude they do not
apply to appellant.
Senate Bill No. 620 (2017-2018 Reg. Sess.), amended
sections 12022.5 and 12022.53 to grant the trial court discretion
to strike a firearm use enhancement. The amended statute now
expressly states, “The court may, in the interest of justice
pursuant to Section 1385 and at the time of sentencing, strike or
dismiss an enhancement otherwise required to be imposed by this
section. The authority provided by this subdivision applies to any
resentencing that may occur pursuant to any other law.”
(§ 12022.53, subd. (h); Stats. 2017, ch. 682, § 2.) Respondent
correctly concedes the reference to “resentencing . . . pursuant to
any other law” permits it to be applied retroactively.
The same cannot be said for recent amendments to
section 667 (five-year prior serious felony enhancement) and
section 667.5 (one-year prior prison term enhancement). Senate
Bill No. 1393 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1013, § 1)
amended section 667 to remove a phrase that prohibited the trial
court from striking the enhancement term in the interest of
justice. Senate Bill No. 136 (2019-2020 Reg. Sess.) (Stats. 2019,
ch. 590, § 1) amended section 667.5 to specify that the one-year
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enhancement term applied only to a prior prison term “for a
sexually violent offense . . . .” Neither amendment expressly
authorized its application to a final judgment.
Finally, our Supreme Court has not previously
construed section 1170, subdivision (d)(1) to authorize the
retroactive application of new sentencing laws at resentencing.
In People v. Johnson (2004) 32 Cal.4th 260, a defendant whose
sentence was recalled to correct an error contended he was
entitled to presentence custody credits for time served between
the original sentencing and the resentencing hearing, because the
recall voided his original sentence. (Id at p. 265.) The Supreme
Court disagreed. Although section 1170, subdivision (d) permits
the trial court to resentence a defendant “‘as if he or she had not
previously been sentenced,’” the recall does not restore a
defendant to presentence status or remove the defendant from
the custody of the CDCR. (Johnson, supra, at p. 267.) Instead,
the “as if” language “allows the trial court to reconsider its
original sentence and impose any new sentence that would be
permissible under the Determinate Sentencing Act if the
resentence were the original sentence so long as the new aggregate
sentence does not exceed the original sentence.” (Id. at p. 265,
emphasis in original.) The trial court’s discretion on resentencing
after a recall is “‘as broad as that possessed by the court when the
original sentence was pronounced.’” (Id. at p. 266, quoting Dix,
supra, 53 Cal.3d at p. 456.)
As we have noted, when appellant was originally
sentenced, the trial court lacked discretion to strike the section
667 and 667.5 enhancements. Although section 1170, subdivision
(d)(1) permits the trial court to recall his sentence, it does not
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expand the trial court’s sentencing discretion or authorize the
retroactive application of newly enacted sentencing laws.
DISPOSITION
The order denying petition for resentencing is
reversed. The matter is remanded to the trial court with
instruction to consider whether to recall appellant’s sentence
pursuant to section 1170, subdivision (d)(1).
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
PERREN, J.
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James F. Rigali, Judge
Superior Court County of Santa Barbara
______________________________
Richard B. Lennon, 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, Senior
Assistant Attorney General, Michael R. Johnsen, Supervising
Deputy Attorney General, Peggy Z. Huang, Deputy Attorney
General, for Plaintiff and Respondent.