People v. Clavano CA4/2 ( 2024 )

Filed 2/27/24 P. v. Clavano CA4/2
Opinion following rehearing
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E079869
v. (Super.Ct.No. FVA174302)
AMANDO ZOSA CLAVANO, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Daniel W.
Detienne, Judge. Reversed.
Arthur Martin, 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, Alan L. Amann and Heather
B. Arambarri, Deputy Attorney Generals, for Plaintiff and Respondent.
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On remand from a prior appeal (People v. Clavano (July 2, 2021, E074133)
[modified July 30, 2021] [nonpub. opn.] [2021 WL 2766896] (Clavano II))1, the trial
court reconsidered the resentencing petition of defendant and appellant Amando Zosa
Clavano. (Pen. Code, § 1172.6.)2 The trial court reduced defendant’s first degree
murder conviction to second degree murder. Correspondingly, the trial court reduced
the indeterminate portion of defendant’s sentence from 25 years to life to 15 years to
life.
Defendant raises three issues on appeal. First, defendant contends the trial court
lacked authority to reduce his conviction to second degree murder, so he should be
resentenced for aiding and abetting assault with a firearm. Second, in the alternative,
defendant contends substantial evidence does not support the finding that he aided and
abetted second degree murder. Third, defendant asserts the abstract of judgment needs
to be corrected. We reverse.
FACTS
A. FIRST RULING ON DEFENDANT’S PETITION
In 2019, defendant petitioned the trial court for resentencing on the basis that he
had been convicted under a natural and probable consequence theory and, under
changes to section 188, he could no longer be convicted of murder. (§ 1172.6.) The
1 An unpublished case may be cited for the purpose of providing background
information. (Pacific Gas & Electric Co. v. City and County of San Francisco (2012)
206 Cal.App.4th 897, 907, fn. 10.)
2 All further statutory references are to the Penal Code unless otherwise
indicated.
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trial court denied defendant’s petition because defendant was a major participant in the
offense and acted with reckless indifference. (Clavano II, supra, E074133 at p. *1.)
Defendant appealed, and we reversed with directions for the trial court to
reconsider defendant’s petition. (Clavano II, supra, E074133 at p. *8.) In our opinion,
we explained that whether defendant was a major participant in a murder and acted with
reckless indifference are only relevant in a felony murder analysis. (§ 189, subd.
(e)(3).) In the instant case, the jury was not instructed on felony murder, so the trial
court erred by analyzing the issues as if it were a felony murder case. (Clavano II,
supra, E074133 at p. *5.)
B. SECOND RULING ON DEFENDANT’S PETITION
On remand, during a hearing on September 2, 2022, the trial court asked if it
could “re-sentence defendant to an implied malice second degree murder.” The trial
attorneys agreed that the court could change defendant’s murder conviction from first
degree to second degree. Nevertheless, defendant’s trial attorney argued that the intent
evidence supported, at most, a conviction for assault with a firearm. Meanwhile, the
People argued the evidence supported a finding of either first degree or second degree
murder.
After taking the matter under submission, on September 16, 2022, during a
hearing, the trial court found that defendant directly aided and abetted an implied malice
second degree murder. The trial court resentenced defendant for second degree murder,
imposing a determinate prison term of three years and an indeterminate term of 15 years
to life.
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DISCUSSION
A. SECOND DEGREE MURDER
Defendant and the People agree that the trial court did not have the authority to
reduce defendant’s conviction to second degree murder.
The resentencing statute “does not contain a mechanism for a trial court to
reduce a first degree murder conviction to second degree murder.” (People v. Gonzalez
(2023) 87 Cal.App.5th 869, 880.) Rather, the statute provides a trial court with two
options: (1) Deny the petition in its entirety, leaving the first degree murder conviction
in place; or (2) grant the petition in its entirety and vacate the murder conviction. (Id. at
p. 881.) In the instant case, the trial court reduced defendant’s first degree murder
conviction to second degree murder when there was no legal authority for that action.
Therefore, the trial court erred.
“ ‘[W]e deem an error harmless unless it is “reasonably probable” the outcome
would have been different in the absence of the error.’ ” (People v. Schuller (2023) 15
Cal.5th 237, 251.) If the trial court had not erred, then defendant would be convicted of
either first degree murder or assault. Under no legal authority would defendant be
convicted of second degree murder. Thus, the trial court’s error was prejudicial because
the outcome would necessarily have been different in the absence of the error. We will
reverse so the trial court may once again reconsider defendant’s petition.
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Defendant contends that, because the People failed to convince the trial court that
defendant committed first degree murder, we should direct the trial court to reduce
defendant’s conviction to assault. We will not direct a particular ruling when (1) the
trial court has not yet had a chance to rule on the petition with a clear understanding of
the law (See People v. Rodriguez (1998) 17 Cal.4th 253, 257); and (2) in this ongoing
case, the trial court has yet to consider defendant’s petition in light of the Supreme
Court’s clarification of the law regarding directly aiding and abetting a murder (People
v. Reyes (2023) 14 Cal.5th 981, 991-992). We will give the trial court the opportunity
to rule on the petition with an understanding of its options under section 1172.6 and the
law set forth in Reyes.
B. PETITION FOR REHEARING
1. CENTRAL ARGUMENT
In a petition for rehearing, defendant asserts that we have ignored his central
argument: After the trial court found the crime did not meet the criteria of first degree
murder, the trial court was required to reduce defendant’s conviction to assault with a
firearm. Defendant asserts that, if we decide this issue in his favor, then we should
reverse with directions for the trial court to reduce defendant’s conviction to assault
with a firearm and resentence defendant.
If we determined that defendant’s legal argument were correct—that a finding of
second degree murder results in an assault conviction under section 1172.6—then we
would not direct the trial court to reduce defendant’s conviction to assault. Rather, the
disposition would be an unqualified reversal (People v. Boyer (2006) 38 Cal.4th 412,
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442 [unqualified reversal sets the matter at large]; People v. Martinez (2017) 10
Cal.App.5th 686, 718 [same]), in order to give the trial court the opportunity to consider
the petition with a clear understanding of the law (see People v. Downey (2000) 82
Cal.App.4th 899, 912 [“Where, as here, a sentence choice is based on an erroneous
understanding of the law, the matter must be remanded for an informed
determination”]). Therefore, we need not address the substance of this issue because, if
defendant’s legal argument were correct, it would have no impact on the disposition
being an unqualified reversal.
2. AFFIRMING REASONING
In a petition for rehearing, defendant asserts, “[T]here is no reason to reverse the
trial court’s factual findings and no basis for a new hearing on the petition.” An
appellate court reverses and affirms judgments and orders—not reasoning. (People v.
Chism (2014) 58 Cal.4th 1266, 1295, fn. 12; People v. Palacios (2021) 67 Cal.App.5th
184, 192-193.) We will not affirm the reasoning that led to the trial court erroneously
changing defendant’s conviction to second degree murder. Instead, we will reverse the
trial court’s order (§ 1260), which sets the petition at large in the trial court (People v.
Boyer, supra, 38 Cal.4th at p. 442; People v. Martinez, supra, 10 Cal.App.5th at p. 718).
3. REVERSAL
Defendant contends that, because the People did not appeal, we “cannot reverse
the portion of the trial court’s order reducing [defendant’s] conviction to second degree
murder.” In defendant’s notice of appeal, he appealed from the order that reduced his
conviction to second degree murder. Accordingly, that order is the focus of this
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opinion. At oral argument in this court, we asked if defendant wanted to proceed with
the appeal given the risk that he could once again have a first degree murder conviction
and sentence, and defendant confirmed that he wanted to proceed with the appeal.
Therefore, defendant understood, before the appeal was final, that we were considering
reversing his second degree murder conviction due to his appeal from the trial court’s
order.
Next, in his petition for rehearing, defendant asserts that neither party advocated
for complete reversal or briefed the issue of a complete reversal. Defendant is mistaken.
In the People’s respondent’s brief, they wrote, “[T]he judgment reducing [defendant’s]
conviction should be reversed and the matter should be remanded.” The People then
repeated themselves by writing, “[T]he judgment reducing [defendant’s] conviction and
sentence should be reversed and the matter remanded for further proceedings in
accordance with section 1172.6, subdivision (d)(3).” In defendant’s appellant’s reply
brief, he wrote, “Accordingly, due process compels the conviction be reversed.” At oral
argument in this court, we asked defendant’s counsel if he was aware of the risk to
defendant if we returned the case to the trial court, i.e., defendant again receiving a first
degree murder sentence. Defendant’s counsel stated that he and defendant understood
and accepted the risk. Also at oral argument, the People discussed the case returning to
the trial court and the risk of defendant “ending up with a first degree murder
conviction.” In defendant’s petition for rehearing, he reaffirms his acceptance of the
risk. Thus, the topic of a complete reversal was briefed and argued.
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B. SUBSTANTIAL EVIDENCE
In his appellant’s opening brief, in an alternative contention, defendant asserts
that substantial evidence does not support the trial court’s finding of second degree
murder. We have accepted defendant’s primary assertion that “[s]ection 1172.6,
subdivision (d)(3), does not provide a way to reduce a first degree murder conviction to
second degree murder.” Therefore, we need not address defendant’s alternative
substantial evidence contention.
In a petition for rehearing, defendant faults this court for failing to address his
substantial evidence contention. We have concluded the order must be reversed, so the
alternative substantial evidence issue is moot. Moreover, if we were to address the
substantial evidence contention, then we would foreclose the trial court’s ability to
consider the petition anew. Accordingly, we will not address this issue at this stage.
C. ABSTRACT OF JUDGMENT
Defendant contends his abstract of judgment should be corrected to reflect 7,791
days of custody credits. Because we are reversing the order reducing defendant’s
conviction to second degree murder, we will also reverse the sentence and vacate the
abstract of judgment. Therefore, this issue is moot.
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DISPOSITION
The September 16, 2022, order on defendant’s section 1170.95/1172.6 petition is
reversed. The sentence imposed on September 16, 2022, is reversed. The abstract of
judgment filed in the trial court on September 19, 2022, is vacated.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
RAMIREZ
P. J.
RAPHAEL
J.
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