People v. Guerrero CA2/8 ( 2023 )

Filed 7/28/23 P. v. Guerrero CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B321032
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA126680)
v.
DAVID PAUL GUERRERO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Eleanor J. Hunter, Judge. Affirmed.
James Koester, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Idan Ivri and David A. Wildman, Deputy
Attorneys General, for Plaintiff and Respondent.
**********
In 2017, defendant and appellant David Paul Guerrero
was convicted of two counts of murder with special circumstances
and sentenced to two terms of life without the possibility of
parole, plus consecutive terms of 25 years to life as to each
murder count pursuant to Penal Code section 12022.53,
subdivisions (d) and (e)(1). While defendant’s direct appeal was
pending, Senate Bill 620 (2017–2018 Reg. Sess.) went into effect,
amending section 12022.53 to grant discretion to trial courts to
strike or dismiss a firearm use enhancement in the interest of
justice (Stats. 2017, ch. 682, § 2).
In 2019, we affirmed defendant’s conviction. (People v.
Guerrero (July 23, 2019, B284001) [nonpub. opn.].) Because of
the passage of Senate Bill 620, we granted a limited remand to
give the trial court the opportunity to exercise its newly granted
discretion to strike or dismiss the firearm use enhancements. At
a hearing on April 22, 2022, the court elected not to strike or
dismiss the firearm use allegations and did not resentence
defendant.
Defendant now appeals from the court’s April 22, 2022
order. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
We do not recite all the facts of the underlying murders as
they are not relevant to our disposition. However, we briefly
summarize the material facts for context, drawing on our 2019
opinion in defendant’s direct appeal. (People v. Guerrero, supra,
B284001.)
Defendant is a member of a criminal street gang called
Compton Varrio Setentas, otherwise known as CV-70, a primarily
Hispanic gang in east Compton. CV-70’s main rivals are the
eastside Piru gangs, which are predominantly African-American
street gangs associated with the Bloods. Natural Born Players or
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NBP is a clique of the Piru gangs made up mostly of members of
one extended family. (People v. Guerrero, supra, B284001.)
Defendant, known by the street moniker “Evil,” is in a CV-
70 clique called the Chicos. In 2001, the sister of another
longtime Chicos member was shot and killed. The Chicos
believed NBP was responsible, and the two rival cliques became
entangled in a long-running violent feud. (People v. Guerrero,
supra, B284001.)
In 2004, Questshawn Irving, a Piru gang member and one
of the murder victims in this case, was shot and killed in an area
claimed by both CV-70 and the Piru gangs. In 2012, Corey
Ferguson, the other murder victim in this case, was shot and
killed in the front yard of his family home in Compton.
Numerous members of the Ferguson family were members of
NBP. (People v. Guerrero, supra, B284001.)
In 2014, defendant was charged with the murder of Corey
Ferguson, and charges were refiled against him for the murder of
Questshawn Irving (a previous charge had been dismissed due to
the inability to locate a key witness). In addition to gang and
multiple murder special circumstance allegations, it was also
alleged that Ferguson was murdered because he was a witness to
a crime (the 2002 murder of Darryl White). Gang and firearm
use allegations were alleged as to both counts. (People v.
Guerrero, supra, B284001.)
In 2017, a jury found defendant guilty as charged. The
court sentenced defendant to two life terms without the
possibility of parole, plus two consecutive terms of 25 years to life
for the firearm use enhancements. The court stayed the gang
enhancements. (People v. Guerrero, supra, B284001.)
In July 2019, we affirmed defendant’s conviction. We did
not reverse, strike or vacate any portion of the judgment, but
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remanded for the limited purpose of giving the trial court the
opportunity to consider striking or dismissing the firearm use
enhancements in light of the passage of Senate Bill 620. (People
v. Guerrero, supra, B284001.)
Defendant petitioned the California Supreme Court for
review. The Supreme Court denied review on October 30, 2019,
and the remittitur issued November 4, 2019. Nothing in the
record indicates defendant sought review in the United States
Supreme Court.
Due to delays related to the COVID-19 pandemic and the
retirement of defendant’s counsel, the postremand hearing was
not held in the superior court until April 22, 2022. Defendant
was present with counsel. The hearing was held before the same
judge who presided over the trial. After entertaining argument,
the court denied defendant’s request to strike or dismiss the
firearm use allegations and left defendant’s original sentence
intact.
This appeal followed. We grant defendant’s request to take
judicial notice of our 2019 opinion in his direct appeal and the
record in that appeal (People v. Guerrero, supra, B284001).
DISCUSSION
Defendant does not raise any claim the trial court abused
its discretion or committed prejudicial error in declining to strike
or dismiss the firearm use enhancements. Rather, defendant’s
only contentions are based on the passage of new legislation in
2021 concerning the gang enhancement statute and the collection
of administrative fees from criminal defendants, i.e., Assembly
Bill 333 (2021–2022 Reg. Sess.; Stats. 2021, ch. 699, § 3) and
Assembly Bill 177 (2021–2022 Reg. Sess.; Stats. 2021, ch. 257,
§ 20).
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1. Assembly Bill 333
Defendant contends the retroactivity rule of In re Estrada
(1965) 63 Cal.2d 740 applies here with respect to Assembly Bill
333. Defendant says that when we remanded this matter in 2019
to allow the trial court the opportunity to exercise its newly
granted discretion under Senate Bill 620 with respect to the
firearm use enhancements, we “conditionally vacated” his
sentence and “constructively reset the finality determination”
under both federal and state law. Defendant argues he is
therefore entitled to the benefit of the amendments enacted by
Assembly Bill 333. He says the jury’s true findings on the gang
allegation and the gang special circumstance allegation must be
reversed and the matter remanded for a retrial on those
allegations, or if the prosecution declines to retry them, then a
full resentencing. We disagree.
The relevant question here is not whether Assembly
Bill 333 applies retroactively to nonfinal judgments, but whether
defendant’s judgment was final before Assembly Bill 333 was
enacted. “[F]or the purpose of determining retroactive
application of an amendment to a criminal statute, a judgment is
not final until the time for petitioning for a writ of certiorari in
the United States Supreme Court has passed.” (People v. Vieira
(2005) 35 Cal.4th 264, 306; id. at p. 305 [discussing Estrada
rule].)
In July 2019, we affirmed defendant’s conviction in its
entirety. Despite defendant’s assertion to the contrary, we did
not reverse, strike or vacate, conditionally or otherwise, any
portion of the judgment. We remanded only for the limited
purpose of giving the trial court the opportunity to consider
striking or dismissing the firearm use enhancements in light of
the passage of Senate Bill 620 during the pendency of that
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appeal. In so ordering, we said: “While it may seem unlikely the
trial court would strike the firearm enhancement given the
special circumstance findings and the imposition of an
indeterminate term, we cannot say the record reflects
unequivocally how the court would proceed.” (People v. Guerrero,
supra, B284001.) Without any finding of legal error, we
remanded only because of the passage of new legislation. Our
limited remand did not implicate the full resentencing rule. (See,
e.g., People v. Cervantes (2021) 72 Cal.App.5th 326, 330–332.)
Following our decision, defendant petitioned the California
Supreme Court for review. On October 30, 2019, the Supreme
Court denied review and the remittitur issued on November 4,
2019. Rule 13 of the United States Supreme Court Rules
provides that a petition for writ of certiorari is timely if filed
within 90 days after entry of judgment of a state court of last
resort. Nothing in the record indicates defendant sought review
in the United States Supreme Court.
Defendant’s judgment of conviction was therefore final in
early 2020, long before Assembly Bill 333 was passed in the
Legislature in October 2021 and went into effect on January 1,
2022. Because his judgment was final, Estrada retroactivity does
not apply. Defendant is not entitled to a reversal of the jury’s
true findings on the gang allegations.
That the postremand hearing did not occur until April 22,
2022, several months after Assembly Bill 333 went into effect,
does not change the analysis. Not only was our remand limited
in scope, the trial court declined to exercise its discretion and did
not strike or dismiss the firearm use enhancements. Defendant’s
original sentence remained intact. No new abstract of judgment
issued because there was no resentencing. “If the appellate
court’s order upon remand grants the trial court discretion
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whether to resentence and the court elects not to do so and leaves
the prior sentence intact, there is no resentencing at all.” (People
v. Walker (2021) 67 Cal.App.5th 198, 204; accord, Peracchi v.
Superior Court (2003) 30 Cal.4th 1245, 1255 [“if, after a limited
remand involving the sentence, ‘the trial court decide[s] not to
exercise its discretion to modify the original sentence, that
sentence would remain in effect, and the defendant need not be
resentenced but should be remanded to continue serving the term
previously imposed’ ”]; People v. Ramirez (2019) 35 Cal.App.5th
55, 63.)
The majority in People v. Lopez recently concluded the trial
court was without jurisdiction to consider the defendant’s
Assembly Bill 333 argument because the case had been
remanded solely for reconsideration of the prior serious felony
and firearm use enhancements. “ ‘When there has been a
decision upon appeal, the trial court is reinvested with
jurisdiction of the cause, but only such jurisdiction as is defined
by the terms of the remittitur. The trial court is empowered to
act only in accordance with the direction of the reviewing court;
action which does not conform to those directions is void.’ ”
(People v. Lopez (July 25, 2023, E080032) __ Cal.App.5th __
[2023 Cal.App.Lexis 565, p. *12].)
2. Assembly Bill 177
In his opening brief, defendant briefly argues that any fees
repealed by Assembly Bill 177 must be vacated. Defendant
concedes he did not raise this argument below. Even assuming
defendant was entitled to pursue this argument, he does not
identify any fees imposed by the court of the type properly
stricken under the new statutory language—a point raised in
respondent’s brief to which defendant did not reply. And,
according to our review, the record does not indicate imposition of
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any of such fees (e.g., administrative costs for collection of the
restitution fee).
DISPOSITION
The order of April 22, 2022 is affirmed.
GRIMES, J.
WE CONCUR:
STRATTON, P. J.
VIRAMONTES, J.
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