People v. Fuentes CA1/2 ( 2023 )

Filed 5/16/23 P. v. Fuentes CA1/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A163734
v.
FRANCISCO MANOLO FUENTES, (City and County of San
Francisco Super. Ct.
Defendant and Appellant.
Nos. 231588, 19008963)
INTRODUCTION
Defendant Francisco Manolo Fuentes seeks a new sentencing hearing
based on recent amendments to section 1170, subdivision (b) of the Penal
Code. The trial court had placed Fuentes on probation for multiple prior
crimes, including falsely imprisoning a domestic partner (Penal Code, § 236).1
After Fuentes violated his probation the trial court revoked it, sentenced him
instead to three years’ imprisonment—the upper of three possible sentencing
terms.
The Legislature recently amended section 1170, subdivision (b) to
modify the rules for criminal sentencing. Where a statute specifies three
possible sentencing terms—a low, middle, and upper term—the general rule
1Undesignated statutory references are to the Penal Code.
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now is that the trial court should impose the middle term. The court may
only impose a “sentence exceeding the middle term . . . where there are
aggravating circumstances in the crime and the defendant has either
stipulated to the facts underlying those circumstances or they have been
found true beyond a reasonable doubt.” (People v. Flores (2022) 75
Cal.App.5th 495, 500 (Flores), citing § 1170, subd. (b)(3).) For defendants
under age 26, “unless the court finds that the aggravating circumstances
outweigh the mitigating circumstances that imposition of the lower term
would be contrary to the interests of justice, the court shall order imposition
of the lower term” if youth “was a contributing factor in the commission of the
offense.” (§ 1170, subd. (b)(6)(B).)
Fuentes challenges his upper-term three-year sentence as inconsistent
with amended section 1170, and argues that the lower term is the most
appropriate due to mitigating factors (he was 25 years old at sentencing).
The Attorney General agrees the amendments to section 1170 apply
retroactively, but argues we should not remand the case for resentencing
because: (1) the trial court properly considered the factors in aggravation and
mitigation when sentencing Fuentes to the upper term; and (2) any error was
harmless.
There are too many open questions for us to agree with the Attorney
General. The evidence included several aggravating factors: “multiple
firearm offenses, multiple domestic violence offenses,” and a prior conviction
for fencing stolen property. Those aggravating factors were all proved beyond
a reasonable doubt. Since 2017, Fuentes was repeatedly placed on probation
after committing a range of crimes only to re-offend, have probation revoked,
and then be placed back on probation.
2
Under amended section 1170, however, the trial court also needed to
make a finding concerning whether Fuentes’s age was a contributing factor in
the offense. If age was a contributing factor, then the trial court needed to
assess whether the lower term would not be in the interests of justice. Then,
the trial court would need to further determine whether to depart from the
presumption that a middle term sentence is typically most appropriate. This
case therefore does not meet the standard for assessing resentencing appeals
under the new section 1170, subdivision (b), set out in People v. Wandrey
(2022) 80 Cal.App.5th 962, 982 (Wandrey). Previously, Fuentes had been
returned to probation even when he re-offended, and here the trial court
rejected the request to again place Fuentes on probation. But, the trial court
did not make findings concerning whether youth was a “contributing factor”
in his latest probation violations, and so we cannot conclude “the trial court
would have exercised its discretion in the same way with regard to
incarceration if it had been aware” of the new statutory presumptions set out
in the amended statute.
BACKGROUND
A. The 2018 Gun Case/Unsuccessful Termination of Probation in
2017 Gun Case
On January 3, 2018, in case No. 17019316 (the 2018 gun case), the
San Francisco County District Attorney’s Office charged Fuentes in a
complaint with second degree robbery (§ 211; count 1) and carrying a loaded
firearm when not the registered owner (§ 25850, subd. (a); count 2.) The
prosecution also alleged enhancements related to count 1 for use of a deadly
weapon (§ 12022, subd. (b)(1)) and personal use of a firearm (§ 12022.5, subd.
(b).)
On February 23, 2018, Fuentes pled no contest to count 2 in exchange
for dismissal of count 1 and placement on probation. On March 29, 2018, the
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court suspended imposition of sentence and placed Fuentes on probation for
three years. At the same time, the trial court terminated as unsuccessful
Fuentes’s probation in an earlier (2017) gun case (case No. 17005188).
B. The Domestic Violence Case/Admission of Probation Violation in
2018 Gun Case
On June 12, 2019, in case No. 19008963 (the domestic violence case),
the prosecution charged Fuentes with assault with a deadly weapon (§ 245,
subd. (a)(1); count 1), domestic violence (§ 273.5, subd. (a); count 2), first
degree residential robbery (§ 211; count 3), unlawful taking or driving of a
vehicle (Veh. Code, § 10851, subd. (a); count 4), and receiving stolen property
(§ 496d, subd. (a); count 5.) As to the domestic violence count, the prosecution
alleged an enhancement for use of a deadly weapon. (§ 12022, subd. (b)(1).)
On July 10, 2019, Fuentes pled guilty to false imprisonment (§ 236) in
the domestic violence case. In exchange, Fuentes would receive three years of
probation, dismissal of the five remaining counts and allegations, release
from presentence custody on his own recognizance, and a stipulation that
specified facts of the case would not violate his probation in the 2018 gun
case.
On August 28, 2019, the probation department filed a motion to revoke
Fuentes’s probation in the 2018 gun case. On September 3, 2019, the court
suspended imposition of sentence in the domestic violence case and placed
Fuentes on probation for three years. At the same hearing, Fuentes admitted
violating probation in the 2018 gun case and the court reinstated his
probation.
C. The 2019 Gun Case
On October 18, 2019, in case No. 19014851 (the 2019 gun case), the
prosecution charged Fuentes by information with illegal possession of a
firearm (§ 29800, subd. (a)(1); count 1) and hit and run causing property
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damage (Veh. Code, § 20002, subd. (a); counts 2 & 3, misdemeanors). The
prosecution alleged an on-bail enhancement (§ 12022.1, subd. (b)) as to count
1.
On December 2, 2019, Fuentes pled guilty to count 1 in exchange for
three years of probation and dismissal of remaining counts and the on-bail
enhancement. On December 23, 2019, the court suspended imposition of
sentence and placed Fuentes on probation for three years.
D. Admission of Probation Violation in Domestic Violence and 2019
Gun Cases
In early 2020, law enforcement arrested Fuentes again, this time in
East Palo Alto, for charges including multiple counts of burglary (§ 459), drug
possession (Health & Safety Code § 29800, subd. (a)(1)), possession of a
loaded firearm with a large-capacity magazine as a felon (including §§ 29800,
subd. (a)(1), 32310, 182, subd. (a)(1), 496, subd. (a)), and multiple counts of
receiving stolen property (§ 30305, subd. (a)(1)). On February 21, 2020, in
the aftermath of the arrest, the probation department filed motions to revoke
Fuentes’s probation in the domestic violence and 2019 gun cases.
On October 22, 2020, Fuentes admitted violating probation in the
domestic violence and 2019 gun cases. The court reinstated probation in the
domestic violence case. In the 2019 gun case, the court sentenced Fuentes to
two years in prison with credit for time served and placed him on post-release
community supervision (PRCS).
E. Second Admission of Probation Violation in Domestic Violence
Case and PRCS Violation in 2019 Gun Case/Termination of
Probation in 2018 Gun Case
On January 22, 2021, the probation department filed a motion to
revoke probation in the domestic violence case and a motion to revoke PRCS
in the 2019 gun case. On February 16, 2021, Fuentes admitted a second
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probation violation in the domestic violence case and the court reinstated him
to probation. Fuentes also admitted violating PRCS in the 2019 gun case and
the court reinstated him on PRCS.
F. Motions to Revoke Probation in Domestic Violence Case and
PRCS in 2019 Gun Case
On May 19, 2021, law enforcement again arrested Fuentes—this time
in Stanislaus County. The charges included domestic violence, assault with
force likely to cause great bodily injury, and violation of a restraining order
against him. The probation department filed motions to revoke probation in
the domestic violence case and PRCS in the 2019 gun case.
G. Contested Revocation Hearing and Sentencing
On September 7, 2021, at the contested hearing regarding Fuentes’s
third probation violation in the domestic violence case (and PRCS violation in
the 2019 case), Megan Hayashi, an investigator for the district attorney,
testified that she had retrieved a report from the California Law Enforcement
Telecommunications System (CLETS) detailing Fuentes’s criminal history.
The trial court marked the CLETS report as Exhibit 1 and Ms. Hayashi
testified she “certified it and signed it” as “a document that [she] personally
received.” The court admitted the CLETS report into evidence without
objection.
The prosecutor also sought to admit a certified court record from
Stanislaus County Superior Court showing that on April 14, 2021, Fuentes
pleaded no contest to felony domestic violence. The court admitted it into
evidence (also without objection).
Using the CLETS report and Fuentes’s April 2021 plea, the trial court
found that because Fuentes had been convicted of felony domestic violence in
Stanislaus County on April 14, 2021, against the same victim he had
assaulted in the domestic violence case, Fuentes had violated the probation
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conditions of obeying all laws and staying away from the victim. Fuentes had
also violated his PRCS.
The parties argued the issue of sentencing. The prosecutor argued for
the upper term of three years based on Fuentes’s multiple violations of
probation and PRCS and for continuing to be violent in the community.2
Counsel for Fuentes argued that the recommended sentence was excessive
because Fuentes was then 25 years old and it was premature to find that the
only option for him was state prison for three years. Defense counsel also
argued that the prosecution’s sentence recommendation had increased from
an earlier offer, which counsel attributed to Fuentes “exercise[ing] his right
to due process, which is not allowed.” The prosecutor explained that the
earlier offer was before the arraignment on the most-recent probation
violation. After “looking through the entire file” and considering Fuentes’s
prior criminal history, however, the prosecutor was “convinced that the
aggravated term [wa]s more appropriate.” The court commented, “Fair
enough,” and noted that it was “not going to penalize somebody for going to
hearing, but I am going to reward somebody for an early admission of
wrongdoing, which has not happened in this particular case.”
The court discussed Fuentes’s extensive criminal history. It took
judicial notice of the 2017 gun case, in which Fuentes pleaded guilty to a
2 The underlying negotiated plea in the domestic violence case had been
to a charge of false imprisonment under section 236. Rules for sentencing a
defendant for false imprisonment are set out in section 237, which explains,
“If the false imprisonment be effected by violence, menace, fraud, or deceit, it
shall be punishable by imprisonment pursuant to subdivision (h) of section
1170.” Section 1170, subdivision (h), in turn, provides: “a felony punishable
pursuant to this subdivision where the term is not specified in the underlying
offense shall be punishable by a term of imprisonment in a county jail for 16
months, or two or three years.”
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misdemeanor violation of section 25850 and his probation was terminated
unsuccessfully because he was convicted in the 2018 gun case; the 2018 gun
case, in which his probation was terminated unsuccessfully because he was
convicted in the 2019 gun case; and the 2019 gun case. The court also
referenced the probation report filed in the 2019 gun case for a summary of
Fuentes’s criminal history and various probation violations. The court noted
Fuentes had committed the felony that was the subject of the probation
revocation hearing, and had a 2017 misdemeanor conviction under section
273.6 for violating a domestic violence court order. Of course, Fuentes also
pled guilty in the original domestic violence case, for which he had violated
probation at least three times.
The court explained, “[t]he gentleman is just never—and I don’t use
that word lightly—but he has never followed through with the terms and
conditions of his probation. He is constantly put on probation, I’m sure, for
the reasons stated by [defense counsel], his young age at the time.” The court
found Fuentes was not amenable to further probation and revoked his
probation.
The court noted that the probation report in the 2019 gun case had
listed three circumstances in aggravation and two in mitigation. The court
then ruled, “When the court looks at [Fuentes’s] overall record, which
includes, based upon his new California rap sheet, a felony conviction out of
Santa Clara County for a violation of Penal Code Section 496, I considered
the new conviction out of Stanislaus County, felony Penal Code Section 273.5,
and when I consider his prior convictions that I’ve already mentioned—
multiple firearm offenses, multiple domestic violence offenses—the Court
finds that the circumstances in aggravation outweigh those in mitigation;
therefore the Court is going to sentence [Fuentes] to the upper term of three
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years. [¶] The reason for the selection of the upper term of three years is
that based on the California Rules of Court, as well as the other things the
Court has stated on the record.”
On October 21, 2021, Fuentes filed a Notice of Appeal. The amended
section 1170 took effect on January 1, 2022.
DISCUSSION
I.
Changes to the Determinate Sentencing Law
When the trial court sentenced Fuentes, section 1170 gave it broad
authority to select from the applicable triads of statutory punishments for the
principal term and enhancements that “in the court’s discretion, best serve[d]
the interests of justice.” (Former § 1170, subd. (b), as amended by Stats.
2020, ch. 29, § 15 [“When a judgment of imprisonment is to be imposed and
the statute specifies three possible terms, the choice of the appropriate term
shall rest within the sound discretion of the court”].) That discretion has
been replaced with a different set of considerations. Now, a “trial court may
impose an upper term sentence only where there are aggravating
circumstances in the crime and the defendant has either stipulated to the
facts underlying those circumstances or they have been found true beyond a
reasonable doubt. (§ 1170, subd. (b)(1)–(2).)” (Flores, supra, 75 Cal.App.5th
at p. 500.) The sentencing court may rely on certified records of conviction
without having to submit the prior convictions to a jury. (Ibid.; § 1170, subd.
(b)(3).)
Additionally, section 1170, subdivision (b)(6)(B), now provides that “the
court shall order imposition of the lower term” if the defendant is a “youth”
and that fact “was a contributing factor in the commission of the offense”
“unless the court finds that the aggravating circumstances outweigh the
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mitigating circumstances that imposition of the lower term would be contrary
to the interests of justice.” (§ 1170, subd. (b)(6) (§ 1170(b)(6)(B).) A “youth”
for purposes of the statute is “any person under 26 years of age on the date
the offense was committed.” (§§ 1016.7, subd. (b); 1170, subd. (b)(6)(B).)
The parties agree that section 1170 as amended applies retroactively to
Fuentes’s case. (See Flores, supra, 73 Cal.App.5th at p. 1039 [S.B. 567’s
amendments to section 1170 are “an ameliorative change in the law
applicable to all nonfinal convictions on appeal”].) Fuentes asks that we
vacate the sentence and remand the matter for the trial court to resentence
under the amended version of section 1170. (E.g., id. at pp. 1034–1035.)
The Attorney General, however, argues remand is not necessary
because the trial court properly considered the circumstances in aggravation
and mitigation, and any error (or rather, noncompliance with 1170,
subdivisions (b)(2) and (b)(6)(B) which were not in effect at the time of
sentencing) is harmless.
II.
Aggravating Factors
As mentioned, Senate Bill No. 567 requires trial courts, in imposing the
upper term, to rely only on aggravating circumstances found true beyond a
reasonable doubt by the trier of fact or stipulated to by the defendant.
(§ 1170, subd. (b)(2).) An exception to those requirements is that a
sentencing court may rely on prior convictions when supported by certified
records of conviction. (§ 1170, subd. (b)(3).)
In selecting the upper term, the trial court noted that there were three
aggravating circumstances, referencing the probation report in the 2019 gun
case. The report noted Fuentes’s numerous prior convictions (Cal. Rules of
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Court,3 rule 4.421(b)(2)); Fuentes was on probation when he committed the
new crime (rule 4.21(b)(4)); and Fuentes’s prior performance on probation
was unsatisfactory (rule 4.21(b)(5)).
Fuentes concedes that his admission of probation violations were
sufficient to prove his failure to follow the terms and conditions of his
probation in the past. (See People v. Dunn (2022) 81 Cal.App.5th 394, 404
[defendant’s stipulations to probation violations meet requirements of section
1170, subd. (b)(2)] (Dunn), review granted Oct. 12, 2022, S275655.) The
aggravating circumstance relied upon by the trial court—that Fuentes’s prior
probation performance was unsatisfactory (rule 4.21(b)(5))—meets the
requirements of section 1170, subdivision (b)(2) because Fuentes stipulated to
the facts of the aggravating circumstances. (§ 1170, subd. (b)(2).)
Fuentes argues that the other two circumstances in aggravation—
numerous prior convictions and being on probation at the time of the
offense—did not meet the requirements of amended section 1170 because
neither the probation report nor the CLETS report constitutes a certified
record of conviction. We disagree.
While a probation report is not a certified record of conviction (Dunn,
supra, 81 Cal.App.5th at pp. 403–404), a CLETS report has long been
admissible to prove a prior conviction. (See People v. Martinez (2000)
22 Cal.4th 106, 116; People v. Dunlap (1993) 18 Cal.App.4th 1468, 1471–
1481.) Recently, in Dunn, the court held that a certified copy of a defendant’s
criminal history report met the requirements of section 1170, subdivision
(b)(3). (Dunn, at pp. 403–404.) Fuentes argues we should not follow Dunn
because, in other contexts, CLETS reports have not been included in the
certified record of conviction. (See People v. Matthews (1991) 229 Cal.App.3d
3 All further references to rules are to the California Rules of Court.
11
930, 936 [“ ‘record of conviction’ included all relevant documents in the court
of the prior conviction’”]; see also Evid. Code, §§ 452.5, subd. (b)(1) [criminal
conviction records], 1530, subd. (a)(2) [copy of writing in official custody].)
We do not find Fuentes’s argument persuasive, and we need not reach a
conclusion about what constitutes a “record of conviction.” Even assuming,
for the sake of argument, that the certified records introduced at the
contested hearing would not qualify as “a certified record of conviction”
within the meaning of section 1170, subdivision (b)(3), a jury
“‘unquestionably’” would have found those circumstances true beyond a
reasonable doubt. (Wandrey, supra, 80 Cal.App.5th at p. 982; Chapman v.
California (1967) 386 U.S 18 (Chapman)).
The fact that Fuentes has been repeatedly convicted of a range of
criminal offenses and had been on probation when he committed the crimes
that triggered the probation violation hearing, are based on “readily
available” information from “official records.” (Flores, supra, 75 Cal.App.5th
at p. 501.) The aggravating circumstances caused by Fuentes did not require
the trial court to perform “an imprecise or comparative evaluation of the
facts.” (People v. Sandoval (2007) 41 Cal.4th 825, 840 (Sandoval).)
Proof of aggravating factors here does not require reliance on a potential
aggravating circumstance that “rests on a somewhat vague or subjective
standard” that makes it “difficult for a reviewing court to conclude with
confidence that, had the issue been submitted to the jury, the jury would
have assessed the facts in the same manner as did the trial court.”
(Sandoval, at p. 840.)
While the evidence supporting the aggravating factors considered by
the trial court could have been sufficient to support the trial court’s
conclusion if Fuentes had been age 26 or older, we cannot affirm the
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judgment. The new requirements set out in the amended statute concerning
the defendant’s “youth,” which we discuss below, require a new sentencing
hearing.
III.
Consideration of “Youth” Under Section 1170
Despite being 25 years old at the time of the hearing, Fuentes qualifies
as a “youth” under section 1170, subdivision (b)(6)(B). The Attorney General
argues that the trial court did consider Fuentes’s age at the time of
sentencing and, in any event, Fuentes failed to argue that the court should
have given more weight to his age. Fuentes concedes that the trial court
acknowledged his age, but argues it did not do so in light of the presumption
in amended section 1170 favoring a lower term.
“As noted, if a defendant’s youth . . . contributed to the commission of
the present offense, the court must impose the lower term ‘unless the court
finds that the aggravating circumstances outweigh the mitigating
circumstances [so] that imposition of the lower term would be contrary to the
interests of justice.’ (§ 1170, subd. (b)(6).) If this ‘interests of justice’
exception to the lower term applies (and if the prerequisites for imposing an
upper term set forth in subdivision (b)(1)–(3) have not been met), the court
may impose the middle term.” (People v. Bautista-Castanon (2023) 89
Cal.App.5th 922, 929.)
The record reflects that the trial court noted Fuentes’s age as a
mitigating factor in connection with the decision not to simply reinstate his
probation. The court expressed its concern that age had been used on
multiple previous occasions to re-impose probation rather than move to
incarceration. The court observed, however, that Fuentes had “just never—
and I don’t use that word lightly—but he has never followed through with the
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terms and conditions of his probation. He is constantly put on probation, I’m
sure, for the reasons stated by [defense counsel], his young age at the time.
But two firearm offenses, two domestic violence offenses, and now we know in
April 2021 he was convicted yet again of a felony Penal Code section 273.5
against the same woman he has been ordered to stay away from.” After its
discussion, the court noted it was balancing the aggravating and mitigating
factors it had discussed and was imposing the upper term.
We understand the trial court’s conclusion that Fuentes’s age ought not
be a reason to maintain probation given his repeated failures to abide by the
terms of his probation. The problem is that, without knowing that section
1170 was about to be amended and that subdivision (b)(6)(B) would change
the required analysis, the court examined Fuentes’s age only in connection
with the question of whether or not to maintain probation rather than with
the appropriate term of incarceration. Consequently, the trial court did not
make any findings concerning whether Fuentes’s age was a “contributing
factor” in imposing the sentence. When balancing the aggravating and
mitigating factors, the court also did not start out with the presumption that
a low term sentence will apply absent further findings.
We cannot say beyond a reasonable doubt that the trial court would
have reached the same conclusion and imposed the upper term had the court
known of the changes in the statute. A court that is not aware of the scope of
its discretionary powers cannot exercise that “informed discretion” any more
than a court whose sentence may have been based on misinformation
regarding a material aspect of the defendant’s record. (People v. Gutierrez
(2014) 58 Cal.4th 1354, 1391.) It is unclear whether the trial court would
have exercised its sentencing discretion in the same way if it had taken
amended section 1170 into account. (See Wandrey, supra, 80 Cal.App.5th at
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p. 983.) Although nothing in the record on appeal suggests that Fuentes’s
youth was “a contributing factor” in the underlying offenses, defense counsel
did not know that section 1170 would soon be amended and so would have
had no incentive to argue about Fuentes’s “youth” in the framework
suggested by subdivision (b)(6)(B).
DISPOSITION
The judgment is vacated and the case remanded for resentencing
pursuant to section 1170, as amended.
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_________________________
Markman, J.*
WE CONCUR:
_________________________
Stewart, P. J.
_________________________
Miller, J.
A163734
*Judge of the Superior Court of California, County of Alameda,
assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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