People v. Baltazar ( 2020 )

Filed 11/12/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F078219
Plaintiff and Respondent,
(Super. Ct. Nos. MF49001,
v. CRM015874, SUF29682,
SUF29697)
SURGIO VALENCIA BALTAZAR,
Defendant and Appellant. OPINION
APPEAL from a judgment of the Superior Court of Merced County. Mark V.
Bacciarini, Judge.
Elizabeth M. Campbell, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General,
Clara Levers and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-
Effective January 1, 2018, Senate Bill No. 620 (2017-2018 Reg. Sess.) (Senate
Bill No. 620) gave trial courts previously unavailable discretion to strike or dismiss
firearm enhancements otherwise required to be imposed by Penal Code sections 12022.5
and 12022.53.1 (§ 12022.5, subd. (c), as amended by Stats. 2017, ch. 682, § 1;
§ 12022.53, subd. (h), as amended by Stats. 2017, ch. 682, § 2.) There is no dispute that
these statutory amendments apply retroactively to cases in which the judgment was not
yet final when Senate Bill No. 620 went into effect. (See, e.g., People v. Almanza (2018)
24 Cal.App.5th 1104, 1105-1106, 1109; People v. Arredondo (2018) 21 Cal.App.5th 493,
506-507; People v. Woods (2018) 19 Cal.App.5th 1080, 1090-1091; People v. Robbins
(2018) 19 Cal.App.5th 660, 678-679.)
Surgio Valencia Baltazar (defendant) claims the superior court erred by denying
his application to strike the firearm enhancements found true by the jury and added to his
sentence. He agrees his judgment of conviction became final long before Senate Bill No.
620 went into effect. Nevertheless, he claims (1) Senate Bill No. 620 was intended by
the Legislature to apply to final judgments, and (2) application to final judgments is
required under both the federal and state equal protection guarantees. We disagree with
both contentions and dismiss his appeal.
PROCEDURAL HISTORY
By information filed November 7, 2008, in Merced County Superior Court case
No. MF49001, defendant was charged with two counts of carjacking in which he was
alleged to have personally used a firearm (§§ 215, subd. (a), 12022.53, subd. (b); counts 1
& 3), two counts of possession of a firearm by a felon (former § 12021, subd. (a)(1);
counts 2 & 4), and one count of falsely identifying himself to a peace officer (§ 148.9,
1 All statutory references are to the Penal Code.
2.
subd. (a); count 5).2 On January 15, 2009, a jury convicted him of all charges and found
the firearm enhancements to be true.
On or about March 20, 2009, while defendant was in custody awaiting sentencing,
he escaped from jail. On April 8, 2011, following his reapprehension, he pled no contest
to escape without force (§ 4532, subd. (b)) in Merced County Superior Court case
No. CRM015874, and admitted violations of probation in Merced County Superior Court
cases Nos. SUF29682 and SUF29697.
On May 9, 2011, defendant was sentenced, in case No. MF49001, to a total of 18
years in prison, of which 13 years 4 months was attributable to the firearm enhancements.
In addition, he received a consecutive term of three years in case No. CRM015874, plus
eight-month consecutive terms in each of the probation violation cases. His total prison
term was 22 years 4 months. Although neither the opinion nor the remittitur are
contained in the record of the current appeal, defendant acknowledges that as to case
No. MF49001, this court affirmed the judgment, which became final on January 9, 2013.
At the time defendant was sentenced and his judgment became final, section
12022.53, subdivision (h) provided: “Notwithstanding Section 1385 or any other
provision of law, the court shall not strike an allegation under this section or a finding
bringing a person within the provisions of this section.” As previously noted, Senate Bill
No. 620 went into effect on January 1, 2018. As amended by that legislation, section
12022.53, subdivision (h) now provides: “The court may, in the interest of justice
pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement
otherwise required to be imposed by this section. The authority provided by this
subdivision applies to any resentencing that may occur pursuant to any other law.”3
2 The circumstances of the offenses are not relevant to the issue raised on appeal.
3 Subdivision (c) of section 12022.5 contained the same language originally and was
similarly amended by Senate Bill No. 620. Since defendant’s firearm enhancements were
imposed pursuant to section 12022.53, we do not further reference section 12022.5.
3.
On or about August 3, 2018, defendant submitted an “APPLICATION TO
STRIKE [THE] FIREA[R]M ALLEGATION[S] PURSUANT TO SENATE BILL [NO.]
620.” On September 5, 2018, the application was denied. The superior court observed
defendant’s case had been final since 2013, and ruled: “The new discretionary
sentencing provisions of [Senate Bill No. ]620 and section 12022.53[, subdivision ](h) do
not apply retroactively to final cases except in cases where a defendant is being
resentenced pursuant to any other law. Petitioner is not being resentenced pursuant to
any other law.” Defendant appealed from the ruling.
DISCUSSION
“ ‘ “It is settled that the right of appeal is statutory and that a judgment or order is
not appealable unless expressly made so by statute.” [Citations.]’ [Citation.]” (Teal v.
Superior Court (2014) 60 Cal.4th 595, 598.) Section 1237, subdivision (b) permits a
defendant to appeal “[f]rom any order made after judgment, affecting the substantial
rights of the party.”
The Attorney General agrees the superior court’s ruling constituted an order made
after judgment, but says that because the discretion granted by Senate Bill No. 620 can
only be exercised upon sentencing or resentencing — neither of which was pending in
this case — the court lacked jurisdiction to grant the motion, and so its denial thereof did
not affect defendant’s substantial rights. That means the order is nonappealable, and we
in turn lack jurisdiction to consider it and so must dismiss the appeal.
Defendant responds that this reasoning is “circular” and should be rejected,
although he acknowledges it has been accepted by several other Courts of Appeal. (See,
e.g., People v. Hernandez (2019) 34 Cal.App.5th 323, 326; People v. Johnson (2019) 32
Cal.App.5th 938, 941; People v. Fuimaono (2019) 32 Cal.App.5th 132, 135; see also
People v. Turrin (2009) 176 Cal.App.4th 1200, 1208.) He says denying full retroactivity
4.
violates equal protection, which means denial of a motion to strike the enhancements
necessarily affects a substantial right.4
Defendant’s judgment became final in 2013 (see People v. Vieira (2005) 35
Cal.4th 264, 306), well before the effective date of Senate Bill No. 620. In People v.
Hargis (2019) 33 Cal.App.5th 199 (Hargis), we relied in part on People v. Brown (2012)
54 Cal.4th 314, 323 and In re Estrada (1965) 63 Cal.2d 740, 745, and held that “Senate
Bill No. 620 and the associated amendment to section 12022.53 apply retroactively to
nonfinal cases” (Hargis, supra, at p. 209), and not “to persons whose sentences have
become final, except insofar as such a person may be resentenced under some other law”
(id. at p. 210).5 Other appellate courts are in accord. (See, e.g., People v. Hernandez,
supra, 34 Cal.App.5th at p. 326; People v. Harris (2018) 22 Cal.App.5th 657, 661-662.)
4 Defendant seems to labor under the misapprehension that fully retroactive
application of Senate Bill No. 620 would result in the striking of his firearm
enhancements. It would not. At most, it would result in a remand to permit the trial
court to exercise its discretion, pursuant to section 12022.53, subdivision (h), whether to
strike the enhancements.
5 In Estrada, the California Supreme Court explained: “When the Legislature
amends a statute so as to lessen the punishment it has obviously expressly determined
that its former penalty was too severe and that a lighter punishment is proper as
punishment for the commission of the prohibited act. It is an inevitable inference that the
Legislature must have intended that the new statute imposing the new lighter penalty now
deemed to be sufficient should apply to every case to which it constitutionally could
apply. The amendatory act imposing the lighter punishment can be applied
constitutionally to acts committed before its passage provided the judgment convicting
the defendant of the act is not final.” (In re Estrada, supra, 63 Cal.2d at p. 745.) Thus,
“[w]hen the Legislature has amended a statute to reduce the punishment for a particular
criminal offense, we will assume, absent evidence to the contrary, that the Legislature
intended the amended statute to apply to all defendants whose judgments are not yet final
on the statute’s operative date. [Citation.]” (People v. Brown, supra, 54 Cal.4th at
p. 323, fn. omitted.)
5.
Defendant says the Legislature intended full retroactivity. We recognize Estrada
and its progeny do not prohibit the application of revised sentencing provisions to
persons whose sentences are final “ ‘if that is what the Legislature intended or what the
Constitution requires.’ [Citation.]” (Hargis, supra, 33 Cal.App.5th at p. 210.)
Nevertheless, “ ‘in the absence of an express retroactivity provision . . . [or] unless it is
very clear from extrinsic sources that the Legislature . . . must have intended a retroactive
application,’ ameliorative legislation does not affect convictions that have become final.
[Citation.]” (People v. Martinez (2018) 4 Cal.5th 647, 655; accord, Hargis, supra, at
p. 210.)
“ ‘In construing a statute, our role is to ascertain the Legislature’s intent so as to
effectuate the purpose of the law. [Citation.] In determining intent, we must look first to
the words of the statute because they are the most reliable indicator of legislative intent.
[Citation.] If the statutory language is clear and unambiguous, the plain meaning of the
statute governs. [Citation.]’ [Citation.] In other words, if there is ‘no ambiguity or
uncertainty in the language, the Legislature is presumed to have meant what it said,’ and
it is not necessary to ‘resort to legislative history to determine the statute’s true meaning.’
[Citation.]” (People v. Licas (2007) 41 Cal.4th 362, 367.)
The pertinent portion of section 12022.53, subdivision (h) as amended by Senate
Bill No. 620 provides: “The court may, . . . at the time of sentencing, strike or dismiss an
enhancement . . . . The authority provided by this subdivision applies to any resentencing
that may occur pursuant to any other law.” This language is clear and unambiguous. It is
not “susceptible of more than one reasonable interpretation . . . .” (People v. Flores
(2003) 30 Cal.4th 1059, 1063.) The only reasonable interpretation is that the authority to
strike or dismiss a firearm enhancement applies only to nonfinal judgments or to final
judgments where the defendant is being resentenced under some other law. (See Hargis,
6.
supra, 33 Cal.App.5th at p. 210.)6 Defendant’s case presents neither situation. “ ‘[I]f the
Legislature wanted to provide a specific procedure via petition or motion to reopen final
cases for resentencing, it could have done so. (See, e.g., §§ 1170.126, 1170.18.) It did
not.’ [Citations.]” (Hargis, supra, at p. 210; accord, People v. Harris, supra, 22
Cal.App.5th at p. 662; see People v. Fuimaono, supra, 32 Cal.App.5th at p. 135.)
Nor do the equal protection guarantees of the federal and state Constitutions
require full retroactive application. “The right to equal protection of the law generally
does not prevent the state from setting a starting point for a change in the law. ‘[T]he
Fourteenth Amendment does not forbid statutes and statutory changes to have a
beginning and thus to discriminate between the rights of an earlier and later time.’
[Citation.] The same rule applies to changes in sentencing law that benefit defendants.”
(People v. Lynch (2012) 209 Cal.App.4th 353, 359; accord, People v. Floyd (2003) 31
Cal.4th 179, 188; see In re Kapperman (1974) 11 Cal.3d 542, 546; In re Estrada, supra,
63 Cal.2d at p. 744.)
“A criminal defendant has no vested interest ‘ “in a specific term of
imprisonment . . . .” ’ ” (People v. Turnage (2012) 55 Cal.4th 62, 74.) “[E]qual
protection of the law is denied only where there is no ‘rational relationship between the
disparity of treatment and some legitimate governmental purpose.’ [Citation.] In other
words, the legislation survives constitutional scrutiny as long as there is ‘ “any reasonably
conceivable state of facts that could provide a rational basis for the classification.” ’
[Citation.] This standard of rationality does not depend upon whether lawmakers ever
actually articulated the purpose they sought to achieve. Nor must the underlying
rationale be empirically substantiated. [Citation.] While the realities of the subject
matter cannot be completely ignored [citation], a court may engage in ‘ “rational
6 An examination of the legislative history of Senate Bill No. 620 does not alter this
conclusion.
7.
speculation” ’ as to the justifications for the legislative choice [citation].” (Id. at pp. 74-
75.)
A remand for the trial court to exercise its discretion whether to strike a firearm
enhancement requires the expenditure of significant judicial, prosecutorial, and defense
resources, in terms of both time and money. “Preserving the government’s financial
integrity and resources is a legitimate state interest. [Citations.]” (People v. Chatman
(2018) 4 Cal.5th 277, 290.) Purposes of Senate Bill No. 620 include providing relief to
deserving defendants and lowering the prison population. (Sen. Rules Com., Off. of Sen.
Floor Analyses, analysis of Sen. Bill No. 620 (2017-2018 Reg. Sess.) as amended
June 15, 2017, pp. 4-5, at [as of Nov. 12, 2020].) Because the
Legislature could have rationally concluded it could sufficiently achieve these purposes,
without unduly overburdening court and related resources, by limiting the applicability of
Senate Bill No. 620 to nonfinal judgments and to final judgments where the defendant
was already returning to a lower court for resentencing under some other law, the law
does not violate equal protection.
Senate Bill No. 620’s amendment to section 12022.53, subdivision (h) applies to
nonfinal judgments and, by its plain language, “ ‘extends the [bill’s] benefits . . . to
defendants who have exhausted their rights to appeal and for whom a judgment of
conviction has been entered but who have obtained collateral relief by way of a state or
federal habeas corpus proceeding.’ [Citation.]” (People v. Johnson, supra, 32
Cal.App.5th at p. 942.) Because neither scenario includes defendant, the trial court
lacked jurisdiction to modify his sentence; hence, denial of defendant’s motion could not
have affected his substantial rights. (People v. Hernandez, supra, 34 Cal.App.5th at
p. 327; People v. Fuimaono, supra, 32 Cal.App.5th at p. 135.) As a result, the trial
court’s ruling is not an appealable postjudgment order, and the appeal must be dismissed.
8.
(Hernandez, supra, at p. 327; Fuimaono, supra, at p. 135; see People v. Turrin, supra,
176 Cal.App.4th at p. 1208.)
DISPOSITION
The appeal is dismissed.
DETJEN, J.
WE CONCUR:
LEVY, Acting P.J.
SMITH, J.
9.