People v. Lamarca CA4/1 ( 2022 )

Filed 9/15/22 P. v. Lamarca CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D079657
Plaintiff and Respondent,
v. (Super. Ct. No. JCF004354)
RICHARD LAMARCA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Imperial County,
Poli Flores, Jr., Judge. Affirmed in part, sentence vacated, and the case
remanded for a new sentencing hearing.
Laura Vavakin, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Arlene
Sevidal, Warren J. Williams, and Susan Elizabeth Miller, Deputy Attorneys
General, for Plaintiff and Respondent.
Richard Lamarca pleaded no contest to one count of felony false
imprisonment (Pen. Code,1 § 236). The remaining count was dismissed.
Lamarca also admitted a strike prior (§ 667, subds. (b)-(i)). The parties
agreed to an upper term sentence of three years, doubled due to the strike
prior, to be suspended pending a grant of probation. Lamarca was released
pending sentencing, subject to certain conditions. Lamarca violated the
terms of his release and was taken into custody. He was ultimately
sentenced to the specified six-year term.
Lamarca appeals contending the trial court erred in selecting the upper
term for the offense. He contends the trial court did not understand the
nature of its discretion in considering an upper term sentence. He also
argues the case must be remanded for a new sentencing hearing in light of
newly enacted Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill 567),
which makes material changes in the discretionary authority of trial judges
considering selection of an upper term sentence.
The Attorney General responded, conceding Lamarca is entitled to a
new sentencing hearing in light of new legislation. We agree with the parties
that Lamarca is entitled to retroactive application of Senate Bill 567 and thus
is entitled to have the matter remanded to the trial court.
DISCUSSION2
Senate Bill 567 makes significant changes to section 1170,
subdivision (b) regarding the selection of an upper terms. (Stats. 2021,
ch. 731, § 1.3.) As the parties agree, the changes apply retroactively to the
1 All further statutory references are to the Penal Code.
2 Given the limited nature of this appeal, we find it unnecessary to
discuss the facts of the underlying offense.
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current sentence. (In re Estrada (1965) 63 Cal.2d 740.) The current sentence
was imposed before the effective date of Senate Bill 567, and thus does not
utilize the procedural and substantive considerations of the new statute. We
will remand for resentencing.
Regarding Lamarca’s claim the court did not understand its
discretionary authority, we agree with the Attorney General that such issue
can be considered on remand if appropriate.
DISPOSITION
The sentence is vacated, and the matter is remanded to the superior
court with directions to conduct a new sentencing hearing consistent with the
views expressed in this opinion. In all other respects, the judgment is
affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
HALLER, J.
DO, J.
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