People v. Salgado CA4/3 ( 2022 )

Filed 7/26/22 P. v. Salgado CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G060656
v. (Super. Ct. No. 99NF0291)
VICTOR HUGO SALGADO, OPI NION
Defendant and Appellant.
Appeal from a judgment order of the Superior Court of Orange County,
Elizabeth G. Macias, Judge. Reversed and remanded with directions. Request for
judicial notice. Grant.
Cynthia M. Jones, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Daniel Rogers and Christopher P. Beesley, Deputy Attorneys General, for
Plaintiff and Respondent.
* * *
Victor Hugo Salgado appeals from a recall and resentencing under former
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Penal Code section 1170, subdivision (d)(1). Salgado argues the trial court erred in
imposing a one-year determinate sentence on a gang enhancement, improperly calculated
his custody credit, and requests this court correct clerical errors in the sentencing minute
order and the abstract of judgment. The Attorney General concedes these errors, but
argues the sentencing court should have imposed higher, statutorily prescribed terms on
the enhancements.
While this appeal was pending, Assembly Bill No. 333 (2021-2022 Reg.
Sess.) (Stats. 2021, ch. 699, § 3) came into effect on January 1, 2022. Assem. Bill 333
“amended section 186.22 to impose new substantive and procedural requirements for
gang allegations.” (People v. Sek (2022) 74 Cal.App.5th 657, 665 (Sek).) Additionally,
on the same day, Assembly Bill No. 1540 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 719,
§§ 1-7) (Assem. Bill 1540) came into effect, and moved the recall and resentencing
provisions of former section 1170, subdivision (d), to new section 1170.03. Assem. Bill
1540 also clarified the Legislature’s intent that the resentencing court would “apply
ameliorative laws . . . that reduce sentences or provide for judicial discretion, regardless
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of the date of the offense of conviction.” (Stats. 2021, ch. 719, § 1(i).)
Subsequently, Salgado moved for permission to file supplemental briefing
to address the effect of the recent amendments to the law, including Assem. Bill 333, on
this case. We granted the motion, accepted for filing his supplemental opening brief, and
invited the Attorney General to file a supplemental respondent’s brief, which he did.
We conclude Salgado is entitled to the benefit of Assem. Bill 333 because
his criminal judgment is no longer final following the recall and resentencing.
Accordingly, we reverse the gang offense conviction and vacate the jury’s true findings
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All further statutory references are to the Penal Code.
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The Legislature later renumbered section 1170.03 to section 1172.1, but made no substantive
changes. (See Stats.2022, c. 58 (Assem. Bill. 200), § 9, eff. June 30, 2022.)
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on the gang enhancement allegations. We will remand the matter to afford the
prosecution an opportunity to retry the gang crime and related enhancements. Following
any retrial, the trial court shall resentence Salgado pursuant to section 1172.1.
I
FACTUAL AND PROCEDURAL BACKGROUND
A. Jury Findings, Verdict, and Sentence
After Salgado shot at a rival gang member but killed another, he was
charged with one count of first degree murder (§ 187, subd. (a); count 1), one count of
attempted premeditated murder (§§ 187, subd. (a), 664; count 2), two counts of assault
with a semiautomatic firearm (§ 245, subd. (b); counts 3 & 4); one count of possession of
a firearm while on probation (§ 12021, subd. (d); count 5), and one count of street
terrorism (active gang participation) (§ 186.22, subd. (a); count 6). As to counts 1
through 5, it was further alleged that the offenses were committed for the benefit of, at
the direction of, and in association with a criminal street gang (§ 186.22, subdivision
(b)(1)). As to count 1, it was alleged Salgado personally discharged a firearm causing
death (§ 12022.53, subdivision (d)), and as to all counts, it was alleged that defendant
personally used a firearm to commit or attempt to commit the offense (§ 12022.5, subd.
(a)). Finally, a great bodily injury (GBI) enhancement (§ 12022.7) was alleged as to
counts 3 and 4.
On January 6, 2005, a jury acquitted Salgado of first degree murder in
count 1, but convicted him of second degree murder; it convicted him of attempted
murder in count 2, but found not true the premeditation allegation. The jury also
convicted Salgado on counts 3 through 6. It found true all firearm, gang and GBI
allegations. Salgado was sentenced to a total term of 63 years to life. After Salgado
appealed, this court affirmed his convictions and sentence in an unpublished opinion.
(See People v. Salgado (April 23, 2007, G035261) [nonpub. opn.].)
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B. Recall and Resentencing
On July 26, 2018, the Secretary of the California Department of
Corrections and Rehabilitation sent a letter to the superior court noting imposition of both
a gang enhancement and a firearm enhancement on the aggravated assault convictions
was contrary to recent case law, and recommended resentencing under former section
1170, subdivision (d)(1). On August 20, 2021, the trial court resentenced Salgado to a
new term of 41 years to life, consisting of 15 years to life on count 1, plus 25 years to life
for the personal firearm discharge causing death enhancement (§ 12022.53, subd. (d)),
plus one year for the gang enhancement (§ 186.22, subd. (b)(1)). The court imposed low
terms on counts 2 through 4 and ran them concurrently to count 1. It imposed the low
terms on counts 5 and 6, but stayed the sentence pursuant to section 654.
II
DISCUSSION
Salgado was convicted of active participation in a criminal street gang and
the jury made true findings on five gang enhancements. Salgado argues Assem. Bill 333
applies retroactively to his case. He thus contends his conviction on the substantive gang
offense must be reversed and the jury’s true findings on the gang enhancements be
vacated because the jury was not asked and thus did not make the newly required factual
determinations under Assem. Bill 333. (See Sek, supra, 74 Cal.App.5th at p. 665
[Assem. Bill 333 modified the elements required to prove a gang offense and related
enhancements].)
The Attorney General does not dispute that if Assem. Bill 333 applies, the
gang offense conviction and enhancements must be reversed. He also does not dispute
that Assem. Bill 333 applies retroactively where a defendant’s judgment was not final
before the amendments took effect. (See In re Estrada (1965) 63 Cal.2d 740, 748
(Estrada) [statutory changes that reduce punishment for a crime apply retroactively to all
judgments not yet final on statute’s effective date].) Courts of Appeal that have
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addressed this issue have so concluded, and we agree with their reasoning. (See, e.g.,
Sek, supra, 74 Cal.App.5th at p. 667 [Assem. Bill 333 applies retroactively under
Estrada]; People v. Lopez (2021) 73 Cal.App.5th 327, 344 (Lopez) [same].) The
Attorney General, however, argues Assem. Bill 333 does not apply in this case because
Salgado’s conviction and enhancements findings were final long before the enactment of
Assem. Bill 333. We are not persuaded.
The California Supreme Court has recently held that “once a court has
determined that a defendant is entitled to resentencing, the result is vacatur of the original
sentence, whereupon the trial court may impose any appropriate sentence.” (People v.
Padilla (2022) 13 Cal.5th 152, 163.) Accordingly, when Salgado was resentenced under
former section 1170, subdivision (d), his criminal judgment was “no longer final.”
(People v. Montes (2021) 70 Cal.App.5th 35, 47-48 (Montes) [“[R]esentencing pursuant
to section 1170, subdivision (d), effectively vacated the earlier judgment.”].)
The Attorney General further argues that if we conclude Assem. Bill 333
applies, we should remand the matter to provide the prosecution an opportunity to prove
the gang offense and enhancements under the newly amended gang statute. The Attorney
General’s argument is well taken. As the Sek court stated: “‘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. [Citations.] “‘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.]” [Citations.]’” (Sek, supra, 74 Cal.App.5th at pp. 669-670.) We agree with
the Sek court and conclude the prosecution can retry Salgado on the gang offense and
enhancements. (See also Lopez, supra, 73 Cal.App.5th at p. 346 [“conclud[ing] that the
gang-related enhancement findings must be vacated and the matter remanded to give the
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People the opportunity to prove the applicability of the enhancements under the
amendments to section 186.22”].)
On remand, following any limited retrial on the gang allegations, the trial
court shall conduct a full resentencing pursuant to section 1172.1. (See People v.
McMurray (2022) 76 Cal.App.5th 1035, 1038 [where a case involving former section
1170, subd. (d)(1) was on appeal at the time Assem. Bill 1540 went into effect, the
appropriate remedy is to reverse and remand so that the trial court can consider the
clarified procedure and guidelines of section 1170.03 [now section 1172.1]].) Section
1172.1, subdivision (a)(2), provides that “[t]he court, in recalling and resentencing under
this subdivision, shall apply the sentencing rules of the Judicial Council and apply any
changes in law that reduce sentences or provide for judicial discretion.” In light of the
possibility of future amendments or case law that reduce sentences or provide for judicial
discretion, or expand or restrict eligibility to such remedies, we decline to address
Salgado’s various sentencing claims. We reiterate that the trial court must apply all
“changes in law that reduce sentences or provide for judicial discretion” in effect at the
time of the sentencing hearing. We also note that the sentencing court must recalculate
the custody credits. (See People v. Buckhalter (2001) 26 Cal.4th 20, 29 [“[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”].)
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III
DISPOSITION
The conviction for the gang offense (§ 186.22, subd. (a)) is reversed, and
the jury’s true findings on the gang enhancement allegations are vacated. The matter is
remanded to the trial court for further proceedings consistent with this opinion.
BEDSWORTH, ACTING P. J.
WE CONCUR:
MOORE, J.
GOETHALS, J.
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