People v. Picasso CA5 ( 2021 )

Filed 12/30/21 P. v. Picasso 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
F082561
Plaintiff and Respondent,
(Tulare Super. Ct.
v. No. VCF288122B)
RICARDO ORACIO PICASSO,
OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Tulare County. Joseph A.
Kalashian, Judge.
Jeffrey S. Kross, 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
Matthew A. Kearney, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Poochigian, Acting P. J., Detjen, J. and Meehan, J.
This case comes to us for the third time. Defendant argues, and the Attorney
General concedes, that two enhancements imposed pursuant to Penal Code section 667.5,
subdivision (b)1 must be stricken under Senate Bill No. 136 (2019–2020 Reg. Sess.). We
accept the concession and order the judgment modified to reflect that these two
enhancements are now stricken. We further conclude that remand is unnecessary and
will affirm the modified judgment.
BACKGROUND
Defendant Ricardo Oracio Picasso was charged with the murder of Eric Reyes
(count 1; § 187, subd. (a)), the attempted murder of Juan Arredondo (count 2; §§ 664,
187, subd. (a)), shooting at an inhabited dwelling (count 3; § 246), and possessing a
firearm (count 4; § 12021, subd. (a)(1).) The information alleged defendant had suffered
a prior serious felony under section 667, subdivision (a). The information alleged the
same prior conviction also constituted a serious violent felony under sections 1170.12,
subdivisions (a) through (d) and 667, subdivisions (b) through (i).
The information also alleged that, as to counts 1, 2, and 3, a principal had
personally and intentionally discharged a firearm causing great bodily injury and death
(§ 12022.53, subds. (d) & (e)(1)), and that defendant personally used (§ 12022.53,
subd. (b)) and discharged (§ 12022.53, subd. (c)) a firearm. As to counts 1 and 2, it was
alleged defendant personally used a firearm under section 12022.5, subdivision (a). The
information also alleged each count was committed for the benefit of, at the direction of,
or in association with a criminal street gang. (§ 186.22, subd. (b).) Finally, the
information alleged defendant had suffered four prior convictions under section 667.5,
subdivision (b), for which he served a prison term and did not remain free of prison
custody for a period of five years before committing an offense resulting in a felony
conviction.
1 All further statutory references are to the Penal Code unless otherwise noted.
2.
A jury convicted defendant on counts 1, 3, and 4, and found several of the
enhancements true. The trial court found the prior conviction enhancements true.
On count 1, the court sentenced defendant to 50 years to life (§ 1170.12,
subd. (c)(1)), plus 25 years to life (§ 12022.53, subds. (d) & (e)(1)), plus five years
(§ 667, subd. (a)(1)), plus two one-year terms (§ 667.5, subd. (b)), for a total prison term
on count 1 of 75 years to life, plus seven years. On count 3, the court sentenced
defendant to 30 years to life (§ 186.22, subd. (b)(4)(b), plus 10 years (§ 12022.53,
subds. (d) & (e), plus five years (§ 667, subd. (a)(1)), plus two one-year terms (§ 667.5,
subd. (b)), for a total prison term on count 3 of 30 years to life, plus 17 years. On count
4, the court sentenced defendant to a doubled mid-term of four years, plus five years
(§ 667, subd. (a)(1)) plus one year (§ 667.5, subd. (b)), for a total prison term on count 4
of 10 years. All prison terms were to run consecutively. The remaining counts and
special allegations – which would include two of the section 667.5 enhancements – were
dismissed.
In defendant’s first appeal, this court filed an unpublished opinion, wherein we
reduced defendant’s conviction on count 1 from first degree to second degree murder,
struck the personal firearm use enhancements to counts 1 and 3, stayed defendant’s
sentence for firearm possession pursuant to section 654, and remanded for resentencing.
(People v. Picasso (Oct. 27, 2017, F071094) [nonpub. opn.] (Picasso I).)
On remand, the court resentenced defendant. On count 1, the court sentenced
defendant to 30 years to life, plus a consecutive term of 25 years to life for the firearm
enhancement (§ 12022.53, subds. (d)–(e)(1)), plus a consecutive five years for the prior
serious felony enhancement (§ 667, subd. (a)(1)), plus two years total for the prior prison
term enhancements (§ 667.5). On count 3, the court imposed an aggravated term of
seven years, plus a consecutive 25 years to life for the firearm enhancements
(§ 12022.53, subds. (d)–(e)(1)), plus a consecutive five years for the prior serious felony
enhancement (§ 667, subd. (a)(1).) On count 4, the court imposed an aggravated term of
3.
six years, plus a consecutive five years for prior serious felony enhancement (§ 667,
subd. (a)(1)), and two years total for the two prior prison term enhancements (§ 667.5,
subd. (b).)
The court decreed the sentence on count 3 was to run consecutive to count 1. The
sentence on count 4 was stayed pursuant to section 654.
Defendant again appealed, which we addressed in a nonpublished opinion. We
held that Senate Bill No. 1393 (2017–2018 Reg. Sess.) required a remand for
resentencing “to allow the trial court to determine whether to strike the section 667,
subdivision (a) enhancement.” (People v. Picasso (Sept. 27, 2019, F077662) [nonpub.
opn.] (Picasso II).)2 We expressed no opinion on how the court should exercise its
discretion on remand. (Ibid.)
At resentencing after Picasso II, the trial court observed that defendant had
committed a “heinous crime” and that he was “fortunate he’s not standing here convicted
of first degree murder.” The court declined to strike the section 667, subdivision (a)
enhancement. Defendant now appeals a third time.
FACTS3
Eric Reyes was shot and killed on October 30, 2011. Defendant was prosecuted as
an aider and abettor to Reyes’s murder. The prosecution’s theory was that another man,
Juvenal Navarro, actually fired the shots that killed Reyes.
DISCUSSION
“Senate Bill 136 amends the circumstances under which a one-year sentence
enhancement may be imposed under section 667.5, subdivision (b).” (People v. Lopez
(2019) 42 Cal.App.5th 337, 339.) “Under this amendment, a one-year prior prison term
2 Defendant requested that we take judicial notice of the records from Picasso I
and Picasso II. The Attorney General does not oppose this request, and we grant it.
3 Both parties offer very brief summaries of the underlying facts, as they are not
dispositive on appeal. We agree and do the same.
4.
enhancement will only apply if a defendant served a prior prison term for a sexually
violent offense as defined in Welfare and Institutions Code section 6600, subdivision (b).
[Citation.]” (Id. at pp. 340–341.)
The Attorney General concedes that Senate Bill 136 applies retroactively to
defendant because his sentence is not yet final. (See People v. Lopez, supra, 42
Cal.App.5th at pp. 341–342.) As explained below, applying the amended version of
section 667.5, subdivision (b) to the present case requires that the enhancements be
stricken.
Defendant’s section 667.5 enhancements as alleged in the information were based
on prior convictions for vehicle theft, possession of a controlled substance, receiving a
stolen vehicle, and petty theft with a prior. Because none of these are enumerated
sexually violent offenses under Welfare & Institutions Code section 6600, subdivision
(b), they cannot form the basis of a section 667.5, subdivision (b) enhancement. (See
§ 667.5, subd. (b).) Accordingly, we order them stricken.
Defendant suggests we should remand for resentencing. The Attorney General
notes remand is unnecessary because the trial court imposed the maximum possible
sentence. We agree with the Attorney General. “Because the trial court imposed the
maximum possible sentence, there is no need for the court to again exercise its sentencing
discretion. [Citation.]” (People v. Lopez, supra, 42 Cal.App.5th at p. 342.) Instead, we
will modify the judgment and affirm the modified judgment.
DISPOSITION
The judgment is modified as follows: the two enhancements imposed pursuant to
section 667.5, subdivision (b) are stricken. The trial court is directed to cause to be
prepared an amended abstract of judgment reflecting said modification. The court shall
forward a certified copy of the same to the appropriate authorities.
With the aforementioned modification, the judgment is affirmed.
5.