People v. Simental CA4/3 ( 2023 )

Filed 8/29/23 P. v. Simental 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G061471
v. (Super. Ct. No. 11NF2782)
CARLOS ARMANDO SIMENTAL, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Michael
J. Cassidy, Judge. Reversed and remanded.
Jason L. Jones, 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, A. Natasha Cortina, Warren
Williams and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and
Respondent.
Defendant Carlos Armando Simental was convicted of multiple offenses
based on his participation in an in-home robbery and sentenced to life plus 34 years. In
Simental’s first appeal, a prior panel of this court reversed one of his convictions and
remanded for further proceedings on that count. The panel also directed the trial court to
stay the sentence on another count under Penal Code section 654 and to comply with
1
section 1170.91 at Simental’s resentencing hearing. (People v. Perez et al. (Oct. 20,
2020, G056047) [nonpub. opn.] (Perez I).) On remand, in June 2022, the trial court
resentenced Simental, this time imposing a life sentence plus 10 years.
Simental raises two contentions in this appeal from the judgment entered
following remand and resentencing. First, he contends the trial court erred by not
applying the amendment to section 1385 that went into effect on January 1, 2022. (Stats.
2021, ch. 721, § 1.) With this amendment to section 1385, the Legislature sought to
provide guidance to trial courts on the exercise of their discretion to dismiss sentence
enhancements. “[S]ection 1385 now provides that the presence of one of nine
enumerated ‘mitigating circumstances’ ‘weighs greatly in favor of dismissing the
enhancement . . . unless the court finds that dismissal of the enhancement would
endanger public safety.’” (People v. Walker (2022) 86 Cal.App.5th 386, 391, review
granted March 22, 2023, S278309 (Walker).) At Simental’s resentencing, the court and
the parties were focused on complying with the remittitur issued in Perez I and it appears
the presence of two mitigating circumstances under section 1385, subdivision (c)(2) were
overlooked. Because the record is ambiguous as to whether the trial court made an
informed sentencing decision to not dismiss one or more of Simental’s firearm
enhancements under amended section 1385, we must remand for resentencing again.
Simental’s second contention is the amended abstract of judgment prepared
after his resentencing must be corrected to reflect the nature of his kidnapping conviction.
1
Further statutory references are to the Penal Code unless otherwise stated.
2
We agree and direct the trial court to ensure the amended abstract of judgment prepared
after this resentencing accurately reflects the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
I.
2
FACTUAL BACKGROUND
Simental along with Cristian Perez, Ivan Valenzuela Perez, and Oscar
Valenzuela broke into an Anaheim home in the middle of the night in September 2011,
3
believing F.M., who lived in the house with his family, had a stash of drugs and money.
Simental and the Valenzuela brothers were armed with AR-15 rifles. They forced
members of F.M.’s family, including his two young daughters and his sister, into the
master bedroom with F.M. and his wife. They bound the adults with zip ties and
Simental ushered the children (B.M. and her sister) into the bedroom closet. Ivan
demanded F.M. give them his money and drugs. After F.M. gave them about four
pounds of methamphetamine, Ivan demanded F.M. give them the rest of his drugs. When
he did not immediately do so, he was beaten and stabbed, and his family was threatened.
Eventually, F.M. told them he had cocaine hidden in a truck parked in his
driveway. The Valenzuela brothers escorted F.M. outside and pulled the truck into the
garage, where they forced him to retrieve the hidden cocaine. While the Valenzuela
2
Because Simental’s appellate contentions do not require a full recitation of the facts, we
provide a short summary, which is taken from the unpublished opinion in Perez I, supra,
G056047 at pages 5–9. We granted Simental’s unopposed request for judicial notice of
the appellate record in his prior appeal in case No. G056047. (Evid. Code, §§ 452,
subd. (d)(1), 459.)
3
Ivan Valenzuela Perez and Oscar Valenzuela are brothers. We refer to them jointly as
the Valenzuela brothers and individually by their first names to avoid confusion; we
intend no disrespect.
3
brothers were in the garage with F.M., Simental replaced one of the victim’s zip ties
because she said it was too tight. He also checked on the children in the closet and
assured the women and children it was going to be okay and no one was going to die.
When the Valenzuela brothers returned from the garage with F.M., the torment
continued. Demanding more drugs from F.M., Ivan continued to beat F.M., cut both of
F.M.’s ears, and threatened his family. Finally convinced F.M. had nothing more to give
them, they decided to leave. They fled on foot when they saw a police car outside, and
Simental was apprehended later that day. (Perez I, supra, G056047 at pp. 5–9.)
II.
SIMENTAL’S CONVICTIONS AND INITIAL SENTENCE
In 2015, Simental was convicted of the following offenses: kidnapping
F.M. to commit robbery (§ 209, subd. (b)(1) (count 4)); first degree robbery in concert
(§§ 211, 212.5, subd. (a), 213, subd. (a)(1)(A) (count 5)); kidnapping B.M. (§ 207,
subd. (a) (count 6)); two counts of making criminal threats (§ 422 (counts 7 & 8)); and
4
first degree residential burglary (§§ 459, 460, subd. (a) (count 9)). The jury found
Simental personally used a firearm in each offense. (§§ 12022.53, subd. (b) (counts 4–6);
12022.5, subd. (a) (counts 7–9).)
Simental received a life sentence for his kidnapping to commit robbery
conviction (count 4) plus 10 years for the firearm enhancement on this count. The trial
court imposed a consecutive nine-year term for the robbery conviction (count 5) plus 10
years for its firearm enhancement. The court imposed a consecutive sentence of one year
and eight months for the kidnapping of B.M. conviction (count 6) plus three years and
four months for the firearm enhancement on this count. The court ordered the sentences
4
Simental was also convicted of three counts of kidnapping for extortion (§ 209,
subd. (a) (counts 1–3)), but the trial court, in granting Simental’s motion for a new trial,
set aside the guilty verdicts on these counts and dismissed them and their attending
firearm enhancements.
4
on the remaining counts to be served concurrently, imposing three-year upper terms for
the criminal threat convictions (counts 7 & 8), a six-year upper term for the burglary
conviction, and a 10-year firearm enhancement on each. In total, the trial court imposed
a life sentence plus an aggregate determinate term of 34 years.
III.
PRIOR APPEAL
Simental and his codefendants appealed from the judgment. In Perez I, a
prior panel of this court reversed the kidnapping convictions in count 6 for instructional
error and remanded for the prosecution to retry the charge if it chose to do so and if not,
for the court to resentence the defendants. (Perez I, supra, G056047 at pp. 35–40, 55.)
The panel directed the trial court to stay the defendants’ sentences for robbery (count 5)
under section 654 and to consider the application of section 1170.91 as to Simental at the
resentencing hearing. (Perez I, at pp. 47–48, 52–56.) The trial court was also directed to
correct clerical errors in Perez’s abstract of judgment, including to accurately state the
nature of his conviction in count 4 as “kidnapping to commit robbery.” (Id. at p. 55.)
IV.
THE RESENTENCING
Upon remand, the prosecution elected not to retry count 6 and the trial court
dismissed the charge. Simental filed a sentencing brief, arguing the trial court should
consider his military service-connected disability of post-traumatic stress disorder
(PTSD) under section 1170.91 when resentencing him on the counts with determinate
5
terms. He further asserted application of section 1170.91 to the determinate terms did
5
Section 1170.91, subdivision (a), directs a trial court to consider a military veteran’s
trauma and substance abuse resulting from his or her military service as a mitigating
factor at sentencing. At the time of Simental’s resentencing hearing, section 1170.91 did
not apply to indeterminate sentences. (§ 1170.91, former subd. (a); People v. Stewart
(2021) 66 Cal.App.5th 416, 423.)
5
not prohibit the court from considering “other sentencing issues, such as the striking of
the gun [enhancements].” But he did not specifically refer to section 1385. He attached
to his motion a decision from the Department of Veterans Affairs, which stated his PTSD
“and major depressive disorder with alcohol use disorder, cannabis use disorder, cocaine
use disorder and other stimulant use disorder (in remission)” was “directly related to [his]
6
military service. [Citations.]” While acknowledging the serious and violent nature of
his crimes, he asserted the trial court should consider information about his character
apart from his participation in the offenses; with his motion, he supplied numerous
documents showing his accomplishments and commendations in prison.
At the resentencing hearing in June 2022, consistent with our directions in
Perez I, the trial court considered the application of section 1170.91 to Simental. The
prosecutor asserted section 1170.91 applied only to the counts with determinate terms,
and the prosecutor requested the court impose the same sentence as before. The trial
court found Simental was a member of the United States military and suffers from
service-related illnesses. The court indicated it would consider these circumstances as
mitigating factors for the counts with determinate sentences. Neither the trial court nor
the parties addressed the recent amendments to section 1385 at the resentencing hearing.
The trial court imposed a life sentence for the kidnapping to commit
robbery conviction (count 4) and 10 years for its firearm enhancement. As for the
robbery conviction (count 5), the court imposed the low term of three years and 10 years
for its firearm enhancement but stayed the punishment under section 654. On the
remaining convictions, the court imposed low-term concurrent sentences and a 10-year
firearm enhancement on each count: 16 months for making criminal threats (counts 7 &
6
According to the documentation from the Department of Veterans Affairs, Simental
joined the Marine Corps less than a month after the terrorist attacks on September 11,
2001 and served for four years before receiving an honorable discharge.
6
8) and two years for first degree residential burglary (count 9). Simental received a total
sentence of life plus 10 years. He timely appealed.
DISCUSSION
I.
THE MATTER MUST BE REMANDED FOR THE TRIAL COURT TO CONSIDER WHETHER TO
EXERCISE ITS DISCRETION UNDER SECTION 1385
Simental contends the matter must be remanded for another resentencing
hearing because the trial court did not apply recently amended section 1385 at his
previous resentencing hearing. He asserts the trial court was required under the amended
statute to dismiss all but one of his firearm enhancements and when the court was
exercising its discretion as to the remaining enhancement, there was a rebuttable
presumption in favor of its dismissal based on his mental illness. (§ 1385, subd. (c)(2)(B)
& (D).) Simental’s appellate argument is nuanced. He does not assert the trial court
abused its discretion by making a discretionary sentencing choice and deciding not to
dismiss the firearm enhancements. Instead, he argues the record shows the trial court did
not exercise its discretion because the court was either unaware amended section 1385
applied at his resentencing or the court misunderstood the scope of its discretion under
the amended statute.
As we explain, under amended section 1385, a trial court is obligated to
consider certain factors when exercising its sentencing discretion—the furtherance of
justice, the presence of mitigating circumstances, and danger to public safety. Neither the
trial court nor the parties referenced section 1385 or these factors at Simental’s
resentencing. Based on the record before us, we are unable to presume the trial court
performed the analysis required by amended section 1385. Therefore, we must vacate
Simental’s sentence and remand the matter for resentencing.
7
A. Section 1385
Under section 1385, a trial court may dismiss an action or sentence
enhancement or strike the enhancement or its punishment “in furtherance of justice.”
(§ 1385, subds. (a) & (b).) Recognizing the requirement the court’s action be “‘“in
furtherance of justice”’” is an “‘amorphous concept,’” the California Supreme Court has
sought to elucidate general principles to guide a trial court in exercising its sentencing
discretion. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530–531; People
v. Williams (1998) 17 Cal.4th 148, 160–161.) Recently, the Legislature similarly sought
to provide the trial courts with “clear guidance on . . . when” to dismiss sentencing
enhancements or other allegations under section 1385 by specifying circumstances for
courts to consider in their determinations. (Sen. Rules Com., Off. of Sen. Floor
Analyses, Sen. Bill No. 81 (2021–2022 Reg. Sess.) as amended Aug. 30, 2021, p. 5.) “In
October 2021[,] the Legislature passed and the Governor signed Senate Bill No. 81
(2021–2022 Reg. Sess.) (Senate Bill 81) (Stats. 2021, ch. 721, § 1), which, effective
January 1, 2022, amended section 1385 . . . .” (People v. Anderson (2023) 88
Cal.App.5th 233, 238, review granted Apr. 19, 2023, S278786 (Anderson).)
Senate Bill 81 amended section 1385 by adding subdivision (c). (Stats.
2021, ch. 721; People v. Mendoza (2023) 88 Cal.App.5th 287, 295.) Section 1385,
subdivision (c) states in part: “(1) Notwithstanding any other law, the court shall dismiss
an enhancement if it is in the furtherance of justice to do so, except if dismissal of that
enhancement is prohibited by any initiative statute. [¶] (2) In exercising its discretion
under this subdivision, the court shall consider and afford great weight to evidence
offered by the defendant to prove that any of the mitigating circumstances in
subparagraphs (A) to (I) are present. Proof of the presence of one or more of these
circumstances weighs greatly in favor of dismissing the enhancement, unless the court
finds that dismissal of the enhancement would endanger public safety. ‘Endanger public
8
safety’ means there is a likelihood that the dismissal of the enhancement would result in
7
physical injury or other serious danger to others.”
Simental argues two mitigating circumstances in the subparagraphs of
section 1385, subdivision (c)(2), are present in his case. They are: 1) multiple
enhancements were alleged (id., subd. (c)(2)(B)); and 2) the offense was connected to
mental illness (id., subd. (c)(2)(D)).
The multiple enhancements mitigating circumstance, section 1385,
subdivision (c)(2)(B) states: “Multiple enhancements are alleged in a single case. In this
instance, all enhancements beyond a single enhancement shall be dismissed.” Simental
asserts because multiple firearm enhancements were alleged, the trial court was required
under section 1385, subdivision (c)(2)(B) to dismiss all but one enhancement if the court
found dismissal would not endanger public safety or was in the interest of justice.
Simental contends after dismissing all but one firearm enhancement, the
trial court was then required to consider his PTSD in deciding whether to dismiss the
remaining enhancement. Under section 1385, subdivision (c)(2)(D), proof “[t]he current
offense is connected to mental illness” is a mitigating circumstance. The statute defines
mental illness as a mental disorder “identified in the most recent edition of the Diagnostic
and Statistical Manual of Mental Disorders, including . . . post-traumatic stress
disorder . . . .” (Id., subd. (c)(5).) At his resentencing, Simental presented undisputed
evidence he has PTSD and he argued his offenses were connected to his mental disorder.
He asserts the court erred by failing to take his PTSD into account in deciding whether to
strike or dismiss the firearm enhancements under amended section 1385.
7
Originally, when subdivision (c) was added to section 1385 (and at the time of
Simental’s resentencing), the mitigating circumstances in subparagraphs (A) through (I)
were within subdivision (c)(3). (Stats. 2021, ch. 721, § 1.) This appeared to be a
typographical error (see People v. Sek (2022) 74 Cal.App.5th 657, 674, fn. 7), and the
mitigating circumstances were moved to subdivision (c)(2) effective June 30, 2022.
(Stats. 2022, ch. 58, § 15.) We refer to the statute’s current version.
9
B. Cases Interpreting Amended Section 1385
Several recent cases have interpreted the amendment to section 1385 under
Senate Bill 81. One of the first to do so was Walker, supra, 86 Cal.App.5th 386, review
8
granted, a case upon which Simental relies. In Walker, the Court of Appeal concluded
when there are multiple enhancements in a single case, a trial court is not required to
dismiss all but one enhancement under section 1385, subdivision (c)(2)(B) if dismissal
would endanger public safety. (Walker, at pp. 391, 396–398.) Other courts have reached
the same or similar conclusion that a trial court is not required to dismiss an enhancement
based on the mitigating circumstances in section 1385, subdivision (c)(2) if such
dismissal would endanger public safety. (See People v. Mendoza, supra, 88
Cal.App.5th at pp. 295–297 [interpreting § 1385, subd. (c)(2)(C) and holding
consideration of mitigating factors is not required if court finds dismissal would endanger
public safety]; Anderson, supra, 88 Cal.App.5th at pp. 238–240, rev. granted [addressing
§ 1385, subd. (c)(2)(B) & (C) and concluding “a finding of danger to public safety can
overcome the circumstances in favor of dismissal”]; People v. Lipscomb (2022) 87
Cal.App.5th 9, 17–19 [where court finds striking the enhancement would endanger public
safety, court need not consider mitigating circumstance in § 1385, subd. (c)(2)(C)].)
In Walker, the Court of Appeal also addressed the interplay of the language
in subdivisions (c)(1) and (c)(2) of section 1385. (Walker, supra, 86 Cal.App.5th at
pp. 398–399, rev. granted.) Specifically, the court considered “what does it mean to
‘greatly weigh’ a mitigating circumstance in deciding whether to dismiss an
enhancement[.]” (Id. at p. 391.) The Walker court concluded “section 1385’s mandate to
8
After Simental filed his appellate briefs, the California Supreme Court granted review
in Walker on the following issue: “Does the amendment to Penal Code section 1385,
subdivision (c) that requires trial courts to ‘afford great weight’ to enumerated mitigating
circumstances (Stats. 2021, ch. 721) create a rebuttable presumption in favor of
dismissing an enhancement unless the trial court finds dismissal would endanger public
safety?” (Walker, S278309, Supreme Ct. Mins., Mar. 22, 2023, p. 338.)
10
‘afford great weight’ to mitigating circumstances erects a rebuttable presumption that
obligates a court to dismiss the enhancement unless the court finds that dismissal of that
enhancement—with the resultingly shorter sentence—would endanger public safety.”
(Ibid., italics added.)
At least one appellate court has disagreed with Walker’s conclusion the
mitigating circumstances in section 1385, subdivision (c)(2) create a rebuttable
presumption in favor of dismissal of a sentencing enhancement unless the court finds
dismissal would endanger public safety. In People v. Ortiz (2023) 87 Cal.App.5th 1087,
review granted April 12, 2023, S278894 (Ortiz), the Court of Appeal declined to follow
Walker’s reading of section 1385. (Ortiz, at p. 1098.) The Ortiz court explained “the
ultimate question before the trial court remains whether it is in the furtherance of justice
to dismiss an enhancement.” (Ibid.) “Interpreting the statute, as the Walker court does
[citation], to require the trial court to dismiss an enhancement absent a finding that
dismissal would endanger public safety would divest the trial court of its ultimate
discretion under the statute to determine what is in furtherance of justice, considering all
relevant factors.” (Ibid.) After reviewing the legislative history of Senate Bill 81, the
Ortiz court concluded, “[t]he language of section 1385[, subdivision] (c)(2) as ultimately
enacted also reflects a legislative recognition that a trial court’s exercise of sentencing
discretion involves more than a strictly binary weighing of mitigation against public
safety.” (Ortiz, at p. 1097.) Similarly, after reviewing the language in section 1385,
subdivision (c)(1) and (c)(2), the Court of Appeal in Anderson, supra,
88 Cal.App.5th 233, concluded these subdivisions, when read together, establish
“dismissal shall occur but only if, in exercising its discretion and giving great weight to
certain factors, the court finds dismissal is in the interests of justice or would not
endanger public safety.” (Anderson, at p. 240.)
The California Supreme Court will ultimately decide the breadth of a trial
court’s discretion under amended section 1385, and it is not necessary for us to resolve
11
the issue here. But what we can take away from the plain language of section 1385 and
the cases interpreting it is when one or more mitigating circumstances are present, the
record should reflect the sentencing court was aware of its discretionary powers under the
amended statute. (See People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 [“court which is
unaware of the scope of its discretionary powers” cannot exercise “‘informed
discretion’”].)
C. The Appellate Record is Ambiguous as to Whether the Trial Court Considered
Dismissal of any Enhancements Under Amended Section 1385
Here, despite the presence of two mitigating circumstances under
section 1385, subdivision (c)(2), the trial court did not indicate it had analyzed whether
dismissal of one or more of Simental’s firearm enhancements would danger public safety
or whether dismissal was in the furtherance of justice. On appeal, both parties agree
amended section 1385 applied at the resentencing hearing, but they disagree as to
whether the trial court considered the amended statute. Simental argues the trial court’s
imposition of the firearm enhancements in the absence of a finding their dismissal would
endanger public safety evidences the court either did not understand the amended version
of section 1385 applied at the resentencing hearing or did not understand the scope of its
discretion under the amended statute. He requests we remand the matter to the trial court
so it can exercise its discretion under the amended statute.
The Attorney General argues remand is unnecessary because we must
presume the trial court knew and correctly applied statutory and case law at Simental’s
resentencing and error cannot be assumed from a “silent record.” (People v. Gutierrez
(2009) 174 Cal.App.4th 515, 527.) In response to the Attorney General’s argument,
Simental contends the record is not silent but instead affirmatively shows the trial court
failed to apply section 1385 as amended.
12
The record of the resentencing hearing shows the trial court and the parties
were focused on application of section 1170.91, based on the Perez I remittitur. The
parties did not address section 1385, despite the presence of two mitigating circumstances
listed in section 1385, subdivision (c)(2). In his sentencing brief, Simental presented
evidence and argument his current offenses were connected to his PTSD. While he
argued this evidence was a mitigating factor under section 1170.91, he made no reference
to section 1385. At the resentencing hearing, the prosecutor focused on how
section 1170.91 applied to the court’s sentencing discretion on the substantive counts
with determinate terms. The prosecutor did not refer to section 1385 and did not argue
dismissal of one or more of the firearm enhancements would endanger public safety. The
trial court found Simental suffered from PTSD but only took it into account as a
mitigating factor under section 1170.91, specifically limiting its application to the
determinate counts. The trial court made no reference to section 1385.
Nothing in our record supports an inference the trial court realized the
relevance of Simental’s PTSD to its sentencing discretion under the newly amended
section 1385 or that the court undertook any analysis section 1385 now requires. Thus,
“the record is at the very least ambiguous as to whether the court understood its
obligation to consider” the mitigating circumstances identified in section 1385,
subdivision (c)(2), before making the discretionary sentencing decision as to whether to
dismiss or strike one or more of Simental’s firearm enhancements. (People v. Ochoa
(2020) 53 Cal.App.5th 841 [addressing § 190.5, subd. (b)].)
We find People v. Panozo (2021) 59 Cal.App.5th 825 (Panozo) instructive.
In Panozo, the defendant filed a sentencing memorandum requesting the court grant him
probation and claiming his military service-related PTSD “‘partially led him to where he
[was.]’” (Id. at p. 829.) At sentencing, defendant’s counsel argued his crimes were
connected to his military service and warranted probation or imposition of a low-term
sentence. (Id. at pp. 837–838.) However, defense counsel did not reference section
13
1170.9 or 1170.91 and did not suggest the court was obligated to consider the defendant’s
service-related PTSD as a mitigating factor under these statutes. (Id. at p. 838.) Nor did
the prosecutor reference these statutes in the prosecution’s sentencing brief. Instead, the
prosecutor argued the defendant was presumptively ineligible for probation. (Id. at
pp. 830, 838.) The trial court denied probation and imposed the middle term after finding
the aggravating circumstances outweighed the mitigating ones. (Id. at p. 831.) The
court’s comments at sentencing did not reveal an awareness of its obligations under
sections 1170.9 and 1170.91. (Id. at p. 838.)
In Panozo, the Court of Appeal found the record was, at a minimum,
ambiguous as to whether the trial court was aware of its obligations under these statutes
in exercising its sentencing discretion and therefore remand was required. (Panozo,
supra, 59 Cal.App.5th at pp. 837, 840.) The trial court had been presented with
uncontested evidence of the defendant’s service-related PTSD, but the record did not
show “the court appreciated it was required to consider his service-related PTSD as a
mitigating factor” at sentencing. (Id. at p. 838.) Given the record before it, the Court of
Appeal was unable to rely on the presumption the sentencing court had “acted in
accordance with legitimate sentencing objectives [citations].” (Id. at p. 839.)
We are similarly constrained by our appellate record here. We recognize as
an appellate court, “we presume that the trial court followed established law and thus
properly exercised its discretion in sentencing a criminal defendant.” (People v.
Weddington (2016) 246 Cal.App.4th 468, 492.) But based on our record, we cannot rely
on this presumption. Our appellate record is devoid of evidence the trial court considered
public safety or furtherance of justice under recently amended section 1385. On this
record, we cannot say it is clear the trial court recognized the new parameters on its
discretion under subdivision (c) of section 1385 and declined to exercise its discretion to
dismiss one or more of the firearm enhancements. “In the face of such an ambiguous
record, it is appropriate to remand the matter to the trial court to consider the matter
14
under the correct standard, to the extent it has not already done so.” (People v. Lua
9
(2017) 10 Cal.App.5th 1004, 1021.)
II.
THE AMENDED ABSTRACT OF JUDGMENT MUST BE CORRECTED
Simental contends the amended abstract of judgment for his indeterminate
prison commitment erroneously states he was convicted in count 4 of “Kidnapping to
commit robbery, rape, oral copulation” and must be corrected to reflect he was convicted
of “kidnapping to commit robbery.” The Attorney General does not object to correction
of the amended abstract of judgment. We agree the amended abstract of judgment must
be corrected to conform to the judgment.
We note this has been a reoccurring issue in this case. In Perez I, we
directed the trial court to correct the same error in a codefendant’s abstract of judgment.
(Perez I, supra, G056047 at p. 56.) At resentencing, the trial court stated the abstracts of
judgment for Simental and his co-defendants should reflect convictions for kidnapping to
commit robbery and should not include the “‘rape or oral copulation’” language. Despite
the trial court’s clear directives, the amended abstract of judgment still misstates the
nature of Simental’s conviction in count 4. We direct the trial court to correct the
amended abstract of judgment for Simental’s indeterminate prison commitment to
describe his conviction in count 4 as “kidnapping to commit robbery.” (See People v.
Mitchell (2001) 26 Cal.4th 181, 185 [appellate court has inherent authority to order
correction of abstract of judgment that does not accurately reflect the judgment]; People
v. Phung (2018) 25 Cal.App.5th 741, 761 [ordering correction of defendant’s abstract of
judgment to accurately reflect his conviction].)
9
We express no opinion as to how the trial court should exercise its discretion under
amended section 1385.
15
In reviewing Simental’s amended abstracts of judgment, we noted
additional clerical errors that must be corrected. First, the trial court imposed the low
term of three years on Simental’s robbery conviction in count 5 and stayed this
punishment under section 654. The amended abstract of judgment for Simental’s
determinate prison commitment inaccurately states the court imposed the upper term on
this count. Thus, the amended abstract of judgment for Simental’s determinate prison
commitment must be corrected to reflect imposition of the low term on count 5.
Second, the record shows the trial court waived the $40 court operations
assessment (§ 1465.8) and the $30 criminal conviction assessment (Gov. Code, § 70373)
per convicted count. However, both the indeterminate and determinate abstracts of
judgment state the court imposed these assessments. Therefore, the amended abstracts of
judgment must be corrected to accurately reflect the court waived these assessments.
Thus, the trial court is directed to prepare amended abstracts of judgment
reflecting: (1) Simental was convicted of kidnapping to commit robbery in count 4;
(2) the low term was imposed on count 5; and (3) the court waived the $40 court
operations assessment (§ 1465.8) and the $30 criminal conviction assessment (Gov.
Code, § 70373). Given the several errors in the preparation of the abstracts of judgment,
we request the trial court personally ensure the abstracts of judgment are amended to
accurately reflect the judgment. (People v. Acosta (2002) 29 Cal.4th 105, 109, fn. 2.)
DISPOSITION
The matter is remanded for resentencing to allow the trial court to exercise
its discretion under all relevant sentencing statutes, including amended section 1385.
Upon resentencing Simental, the trial court is directed to prepare amended abstracts of
judgment accurately reflecting the court’s judgment. The trial court is further directed to
16
forward certified copies of the amended abstracts of judgment to the Department of
Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
MOTOIKE, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
GOETHALS, J.
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