People v. Cervantes ( 2021 )

Filed 12/1/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B308616
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA083959)
v.
GINO CERVANTES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County. Thomas Rubinson, Judge. Affirmed.
Maggie Shrout, 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, Michael R. Johnsen and David E. Madeo,
Deputy Attorneys General, for Plaintiff and Respondent.
___________________________________
Gino Cervantes appeals from a decision of the trial court
not to strike a firearm enhancement pursuant to our limited
remand based on the retroactive application of Senate Bill
No. 620 (SB 620) (2017–2018 Reg. Sess.).1 Appellant claims the
trial court “failed to exercise its informed discretion in not
reconsidering Mr. Cervantes’s entire sentence and in not
considering the triad of possible terms for the Penal Code section
12022.5, subdivision (a) firearm enhancement.”2 We affirm.
FACTS AND PROCEDURAL HISTORY
The Incidents and the Jury Trial
Appellant was charged in a six count information stemming
from two separate shooting incidents that occurred about six
months apart.3 In both incidents, appellant’s motive for the
shooting appeared to be over the victims’ alleged romantic
pursuit of a woman appellant had dated.
The jury ultimately convicted appellant for three of the
charged counts and acquitted on the rest. He was convicted for
assault with a semi-automatic firearm (§ 245, subd. (b) on count
2), possession of a firearm by a felon (§ 29800, subd. (a)(1) on
count 4), and assault with a firearm (§ 245, subd. (a)(2) on count
5)—along with true findings on special enhancements for
personal use of a firearm (§ 12022.5, subd. (a) attached to counts
1 SB 620 applies retroactively to convictions that are not
final. (People v. K.P. (2018) 30 Cal.App.5th 331, 339.)
2 All undesignated statutory references are to the Penal
Code.
3 We abbreviate the facts concerning appellant’s crimes as
they are not pertinent to this appeal.
2
2 and 5) and personal infliction of great bodily injury (§ 12022.7,
subd. (a) on counts 2 and 5). The jury acquitted appellant on
willful, deliberate, premeditated attempted murder (§§ 664/187,
subd. (a) on count 1), and assault with a stun gun or taser
(§ 244.5 subd. (b) on counts 3 and 6). The appellant admitted his
strike prior.
The trial court sentenced appellant to an aggregate term of
29 years and four months, including an imposition of 10 years for
the gun enhancement on count 2.
Initial Appeal
We filed our unpublished opinion on October 29, 2018.
(People v. Cervantes (Oct. 29, 2018, B283528) [nonpub. opn.].)
Appellant raised three major contentions: (1) juror misconduct,
(2) ineffective assistance of trial counsel, and (3) retroactive
application of SB 620. We rejected the first two contentions but
found merit on the SB 620 claim. We noted that on remand, “the
trial court may strike the firearm enhancements or strike only
the punishment for the enhancements.” We instructed in the
disposition that “[t]he matter is remanded to allow the trial court
to exercise its discretion to strike the firearm enhancements
under section 12022.5, subdivision (c).”
Hearing on the Limited Remand
After our remittitur issued, the trial court took up the
limited remand on October 7, 2020. Several weeks before the
hearing, appellant’s trial counsel filed a motion asking the trial
court to strike the firearm enhancement. The motion did not
3
request the trial court to impose a lesser triad on the section
12022.5, subdivision (a) enhancement.4
At the hearing, the trial court denied the request to strike
the enhancement by ruling as follows:
“All right. I am not going to exercise my discretion to strike
the firearm allegation in this matter. Mr. Cervantes chose
to initiate gun-related violence against multiple people in
this case resulting in more than one person getting shot.
At least one with quite serious medical consequences. You
know, this should have not happened. He should have
never been there. He should have thought about clearly in
advance in approaching these people and knew where they
were going to be. His record is lengthy and serious. He
presents a very clear danger to our community by his
willingness to lash out with the use of firearms when he’s
unhappy about something or not getting what he wants or
someone disrespects him, or whatever the terminology you
want to use, and these statutes were enacted by our
Legislature for purposes of insuring longer sentences when
people use guns than when they don’t use guns to try to
dissuade the use of firearms in the commission of crimes in
our community. And while I’m aware, I do have the
discretion to strike it in a given case, and I would in a given
case, and I just don’t think it’s appropriate to do so in this
case.”
4 The triad for the firearm enhancement is provided in
section 12022.5, subdivision (a), which states, “Except as
provided in subdivision (b), any person who personally uses a
firearm in the commission of a felony or attempted felony shall be
punished by an additional and consecutive term of imprisonment
in the state prison for 3, 4, or 10 years, unless use of a firearm is
an element of that offense.”
4
Appellant’s trial counsel also asked the trial court to
reconsider dismissing appellant’s strike prior pursuant to section
1385, subdivision (a). The trial court noted:
“I do see that here. You are quite correct Mr. Darden, on
May 24th, which was the day of the sentencing, the motion
to strike the strike was filed and denied. So I have already
made the ruling on that motion and my ruling on it, even if
I have discretion at this point, which I’m not sure I do,
I would not be inclined to strike the strike at this point.”
DISCUSSION
Appellant contends the trial court “failed to exercise its
informed discretion” in not reconsidering his entire sentence.
He also contends the trial court erred by not considering the triad
of possible terms under section 12022.5, subdivision (a). We find
no error and affirm.
I. Legal Principles
SB 620 took effect on January 1, 2018. (Stats. 2017,
ch. 682.) Thereafter, under what criminal law practitioners call
the Estrada rule,5 various courts of appeal have held SB 620
applies retroactively to all judgments not yet final. (See People v.
Woods (2018) 19 Cal.App.5th 1080, 1090–1091; People v. Robbins
(2018) 19 Cal.App.5th 660, 678–679; People v. McDaniels (2018)
22 Cal.App.5th 420, 423; People v. Billingsley (2018) 22
Cal.App.5th 1076, 1080.) Our limited remand to the trial court
was based on the same Estrada rule.
5 The Estrada rule states, “If the amendatory statute
lessening punishment becomes effective prior to the date the
judgment of conviction becomes final then, in our opinion, it, and
not the old statute in effect when the prohibited act was
committed, applies.” (In re Estrada (1965) 63 Cal.2d 740, 744.)
5
Remand, however, is not required in every instance where
a trial court imposed a firearm enhancement before SB 620’s
effective date. If “ ‘the record shows that the trial court would not
have exercised its discretion even if it believed it could do so, then
remand would be an idle act and is not required.’ ” (People v.
Gamble (2008) 164 Cal.App.4th 891, 901.)
For ease of reference, we refer to this as the “No Remand”
rule. Under this rule, appellate courts look to the record to
determine whether it contains “clear indication that the trial
court will not exercise its discretion to reduce [appellant’s]
sentence.” (People v. McDaniels, supra, 22 Cal.App.5th at p. 423.)
The No Remand rule is premised on the ground the trial
court has committed no legal error—for, if the trial court had
committed error, remand would be necessary to correct the error
and conduct resentencing. Instead, the remand is triggered by a
change in either statutory or decisional law that grants authority
to trial courts to strike or dismiss a sentencing enhancement
where none existed prior to the effective date of such change.6
In this scenario, remand is necessary only where the record is
6 The No Remand rule dates back at least to the Three
Strikes law when trial courts struggled over whether they had
the discretion to dismiss strike prior allegations under section
1385. After People v. Superior Court (Romero) (1996) 13 Cal.4th
497 clarified the application of section 1385 to dismiss strike
priors, courts of appeal were faced with the question whether or
not to remand judgments that were not yet final for consideration
of this power to dismiss. In this context, People v. Gutierrez
(1996) 48 Cal.App.4th 1894, held “no purpose would be served in
remanding for reconsideration” where a trial court “indicated
that it would not . . . have exercised its discretion to lessen the
sentence.” (Id. at p. 1896.)
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unclear whether the trial court would not use the discretion to
sentence the defendant differently.
II. Analysis
Appellant asks us to remand this case for another
resentencing hearing because the trial court failed to exercise its
full sentencing discretion. We disagree.
Appellant’s arguments are based on what he coins the “full
sentencing rule”: that when an appellate court remands a case
for resentencing, the trial court may consider the entire sentence.
He cites People v. Garner (2016) 244 Cal.App.4th 1113, 1118
(Garner), and People v. Hubbard (2018) 27 Cal.App.5th 9, 13
(Hubbard) for this rule. Neither of these cases dealt with SB 620.
Both Garner and Hubbard concerned resentencing under
Proposition 36, which amended the application of California’s
Three Strikes law. Under section 1170.126, inmates serving a
“third strike” sentence, if he or she qualifies, may petition the
trial court for a recall of sentence, and obtain resentencing to a
“second strike” sentence. (See § 1170.126, subd. (e).)
We did not remand this case to recall and resentence as
under section 1170.126, subdivision (b), nor did we remand
because the trial court committed legal error in sentencing.
Instead, our disposition was clear—“The matter is remanded to
allow the trial court to exercise its discretion to strike the firearm
enhancements under section 12022.5, subdivision (c).” We did
not vacate the sentence in any way—resentencing was ultimately
not required.
“The issues a trial court may address in remand
proceedings are therefore limited to those specified in the
reviewing court’s directions, and if the reviewing court does not
direct the trial court to take a particular action or make a
7
particular determination, the trial court is not authorized to do
so. [Citations.]” (Ayrad v. Sprint Spectrum, L.P. (2012) 210
Cal.App.4th 851, 859–860.)
Based on our remittitur, the trial court properly focused on
whether or not to dismiss the firearm enhancement as directed in
the remittitur. Indeed, the motion appellant filed for the remand
proceeding asked for just that—for the trial court to exercise its
discretion to dismiss the firearm enhancement. In ultimately
denying appellant’s specific request to strike the firearm
enhancement, the trial court considered four separate grounds for
denying the request: (1) the serious nature of appellant’s two
separate acts of violence against two different victims,
(2) appellant’s numerous and lengthy criminal history,
(3) appellant’s potential danger to the community, and
(4) appellant’s failure to consider the consequences of his actions.
The trial court clearly and thoughtfully considered the request to
dismiss the firearm enhancements.
Despite this, appellant contends the trial court
misunderstood its authority to consider the full sentence when
appellant’s trial counsel asked the trial court to dismiss the
strike prior. He also claims the trial court failed to recognize its
ability to impose the lesser triad for section 12022.5, subdivision
(a).7 This, however, puts the cart before the horse. Again, we did
not vacate any portion of the sentence. Instead, we directed the
trial court to consider its discretion to dismiss the firearm
enhancement under section 12022.5, subdivision (c)—not whether
7 The trial court imposed the upper term of 10 years on
count 2. The triad under section 12022.5, subdivision (a) is 3, 4,
or 10 years in prison.
8
or not to dismiss the strike priors in the first instance. Also, the
trial court’s imposition of the upper term for the firearm
enhancement was not challenged in the initial appeal as
unauthorized or excessive. We did not remand the case because
the trial court erroneously imposed the upper term. As such, the
trial court’s action in the remand proceeding, based on our
remittitur, was proper. As such, we find no error.
DISPOSITION
The judgment is affirmed.
CERTIFIED FOR PUBLICATION
OHTA, J.*
We concur:
GRIMES, Acting P. J.
WILEY, J.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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