People v. Sanchez CA5 ( 2021 )

Filed 12/16/21 P. v. Sanchez CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F081163
Plaintiff and Respondent,
(Super. Ct. No. BF048598A)
v.
PABLO SANCHEZ, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. John D.
Oglesby, Judge.
Laura P. Gordon, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jeffrey
D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Levy, Acting P.J., Poochigian, J. and Snauffer, J.
Defendant Pablo Sanchez was convicted of first degree murder and three counts of
attempted murder. As to each count, defendant was found to have personally used a
firearm. The trial court imposed an aggregate term of 74 years to life, including
four consecutive 10-year enhancements. Defendant contends on appeal that the trial
court’s imposition of the consecutive 10-year terms for each firearm enhancement
violated the ex post facto clauses of the United States and California Constitutions. The
People agree. We modify the firearm enhancements to two-year terms on each count. As
modified, we affirm.
PROCEDURAL SUMMARY
On March 10, 2020,1 the Kern County District Attorney filed a second amended
information charging defendant with the May 21, 1988 murder of Alfredo
Quinones-Burciaga (Pen. Code, § 187;2 count 1) and three counts of attempted murder on
the same date (§§ 187, subd. (a), 664; counts 2 through 4). As to each count, the
second amended information alleged defendant personally used a firearm (§ 12022.5,
subd. (a)). As to counts 2 through 4, the second amended information alleged defendant
inflicted great bodily injury (§ 12022.7, subd. (a)).
On March 17, the jury found defendant guilty on all counts and found all special
allegations true.
On May 13, the trial court sentence defendant to a term of 74 years to life as
follows: on count 1, 25 years to life, plus a 10-year firearm enhancement; on counts 2
through 4, consecutive terms of life with minimum parole eligibility in seven years, plus
10-year firearm enhancements, plus three-year great bodily injury enhancements.
On May 13, defendant filed a notice of appeal.
1 All further dates refer to the year 2020 unless otherwise stated.
2 All further statutory references are to the Penal Code unless otherwise stated.
2.
FACTUAL SUMMARY
On May 21, 1988, Brigido Pena, Alfredo Quinones, Armando Avalos, Miguel
Avalos, and Ramon Reyes Esparza drank beer and played cards under a tree in front of
Brigido’s home in Wasco. A white car approached; defendant was the passenger and
another man was the driver (“the driver”). Both men exited the vehicle, approached
Brigido, Alfredo, Armando, Miguel and Ramon, and started drinking beer with them. 3
Defendant and Alfredo argued and then fought. Defendant had a five- or six-inch knife
that he swung at Alfredo; Alfredo had no weapon. The driver moved toward defendant
and Alfredo to assist defendant in the fight. Ramon picked up a wooden stick4 and
prevented the driver from joining the fight.5 The fight broke up6 and defendant and the
driver left the area in the vehicle. As they left, defendant said he was going to go get a
gun. Ramon lived nearby and went home after the fight.
About 10 minutes after the fight ended, police officers arrived. They searched
Brigido, Alfredo, Armando, and Miguel for weapons. When they found no weapons,
they left the area.
About 10 minutes after the police officers left the area, defendant and the driver
returned to the area. Defendant exited the passenger side of the vehicle with a
.22-caliber rifle.7 Alfredo walked toward defendant and defendant fired the rifle, hitting
3 Brigido testified that he was not outside when defendant and the driver of the
white car first interacted with the group.
4 The witnesses refer to the weapon intermittently as a “stick,” “wooden post,”
“wooden panel,” “wooden board” and “two-by-four.”
5 Ramon’s ex-wife testified that she did not see Ramon with a stick, but defendant
picked up a “two-by-four” and hit Ramon with it.
6 Miguel testified that Alfredo ran away from the fight and went home because he
was “tired from fighting.” When Alfredo ran away, the driver told defendant that they
should leave because Alfredo was going to get a gun.
7 On the same date, defendant retrieved a .22-caliber rifle that he had previously lent
to a friend or acquaintance.
3.
Alfredo repeatedly. Alfredo died as a result of the gunshots. Defendant then shot
Brigido, Armando, and Miguel. Brigido, Armando, and Miguel survived.
DISCUSSION8
Defendant argues that the consecutive 10-year firearm enhancements imposed on
each count must be stricken because, at the time of the offense, the firearm enhancements
carried a two-year maximum term. By imposing consecutive 10-year enhancements,
defendant argues, the trial court violated the ex post facto clauses of the United States and
California Constitutions. The People agree, as do we.
“Both the California and United States Constitutions proscribe ex post facto laws.
(U.S. Const., art. I, § 10; Cal. Const., art. I, § 9.)” (People v. Alvarez (2002)
100 Cal.App.4th 1170, 1178.) As relevant here, an application of a “statute violates the
prohibition against ex post facto laws if it … increases the punishment for a crime after it
is committed.” (People v. White (2017) 2 Cal.5th 349, 351; accord, Collins v.
Youngblood (1990) 497 U.S. 37, 41–42.) If a change in law that takes place after an
offense was committed would result in a more severe penalty, the sentencing court must
apply the law as it existed when the criminal conduct was committed. (People v.
Trujeque (2015) 61 Cal.4th 227, 256; People v. McVickers (1992) 4 Cal.4th 81, 83–84.)
At the time the offenses were committed, May 21, 1988, former section 12022.5,
subdivision (a), provided as follows: “[a]ny person who personally uses a firearm in the
commission or attempted commission of a felony shall … be punished by an additional
term of imprisonment in the state prison for two years ….” (Former § 12022.5, subd. (a),
as amended by Stats. 1987, ch. 1159, § 1.) On the date of defendant’s sentencing,
section 12022.5, subdivision (a) required punishment by “an additional and consecutive
term of imprisonment in the state prison for [three], [four], or 10 years ….” (§ 12022.5,
8 Because defendant raises only legal issues, the facts underlying the offenses are
not relevant and are omitted from this opinion.
4.
subd. (a), as amended by Stats. 2017, ch. 682, § 1.) As the parties agree, the trial court
should have applied the law as it existed on the date of the offense to avoid violating the
prohibition on ex post facto application of law. The sentence imposed was therefore
unauthorized and must be modified.9
Where an appellate court strikes a portion of a sentence, remand for “ ‘a full
resentencing as to all counts is [generally] appropriate, so the trial court can exercise its
sentencing discretion in light of the changed circumstances.’ ” (People v. Buycks (2018)
5 Cal.5th 857, 893.) However, remand is unnecessary where the trial court has imposed
the maximum possible sentence. (People v. Lopez (2019) 42 Cal.App.5th 337, 342.)
Here, the trial court imposed the maximum possible sentence on all counts and
enhancements. Remand is therefore unnecessary. We modify the four consecutive
10-year terms imposed pursuant to section 12022.5, subdivision (a), to consecutive
two-year terms pursuant to former section 12022.5, subdivision (a), as it existed on
May 21, 1988.
DISPOSITION
The firearm enhancements (§ 12022.5, subd. (a)) imposed on counts 1 through 4
are modified to consecutive two-year terms as to each count. As modified, the judgment
is affirmed. The trial court is directed to prepare an amended abstract of judgment
reflecting our modification and forward a copy to the appropriate entities.
9 Although defendant did not object to the error below, the erroneous application of
law resulted in an unauthorized sentence. An unauthorized sentence can be corrected at
any time. (People v. Rivera (2019) 7 Cal.5th 306, 348–349; People v. Scott (1994)
9 Cal.4th 331, 354–355.)
5.