People v. Moralez CA3 ( 2024 )

Filed 5/21/24 P. v. Moralez CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent, C099390
v. (Super. Ct. No. 13F06775)
FIDEL MORALEZ,
Defendant and Appellant.
In 2014, a jury found defendant Fidel Moralez guilty of second degree robbery
and assault with a deadly weapon. The trial court found true allegations of prior strike
convictions, prior prison terms, and other enhancements, and sentenced defendant
to 27 years in state prison. This court affirmed the judgment. (People v. Moralez
(Mar. 16, 2015, C076091) [nonpub. opn.] (Moralez).)
Based on retroactive changes in the law, in 2023 the trial court recalled
defendant’s sentence, struck the no longer valid prior prison term enhancements, and
reduced the upper term sentence to a middle term, imposing an aggregate 20 years in
prison. Defendant appeals from that postconviction order.
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Appointed counsel for defendant asked this court to review the record and
determine whether there are any arguable issues on appeal. (People v. Wende (1979)
25 Cal.3d 436 (Wende); see also People v. Delgadillo (2022) 14 Cal.5th 216, 226.)
Defendant was advised by counsel of the right to file a supplemental brief within 30 days
of the date of filing the opening brief. More than 30 days elapsed and we received no
communication from defendant. Although this is not defendant’s first appeal as of right,
we nevertheless exercise our discretion to review the record because defendant was not
notified that his failure to file a supplemental brief may result in dismissal of the appeal.
(Delgadillo, at p. 233.) Finding no arguable error that would result in a disposition more
favorable to defendant, we will affirm the judgment.
I
In 2013, defendant took bananas, a sandwich, and water from a grocery store
without paying. As he left the store, defendant stabbed the victim in the arm, leaving
him with a permanent injury. The jury found defendant guilty of second degree robbery
(Pen. Code, § 211)1 and assault with a deadly weapon (§ 245, subd. (a)(1)). The trial
court found true allegations that defendant used a dangerous and deadly weapon
(§ 12022, subd. (b)(1)), caused great bodily injury (§ 12022.7, subd. (a)), had three
prior strike convictions (§§ 667, 1170.12), and served four prior prison terms (§ 667.5,
subd. (b)). The trial court dismissed one prior strike conviction allegation but denied
defendant’s request to dismiss the other two. The trial court sentenced defendant to an
aggregate 27 years in state prison. In an unpublished opinion, this court affirmed
the judgment. (Moralez, supra, C076091.)
Effective January 1, 2020, Senate Bill No. 136 (2019-2020 Reg. Sess.)
(Stats. 2019, ch. 590, § 1) amended section 667.5 “by limiting the prior prison term
1 Undesignated statutory references are to the Penal Code.
2
enhancement to only prior terms for sexually violent offenses.” (People v. Burgess
(2022) 86 Cal.App.5th 375, 380 (Burgess).)
Effective January 1, 2022, Senate Bill No. 483 (2021-2022 Reg. Sess.) made the
change fully retroactive (Stats. 2021, ch. 728, § 1) and added former section 1171.1, now
section 1172.75, to the Penal Code. (Stats. 2021, ch. 728, § 3; Stats. 2022, ch. 58, § 12.)
The provision states that “[a]ny sentence enhancement that was imposed prior to
January 1, 2020, pursuant to subdivision (b) of [s]ection 667.5, except for any
enhancement imposed for a prior conviction for a sexually violent offense . . . is legally
invalid.” (§ 1172.75, subd. (a).) “The statute further establishes a mechanism to provide
affected defendants a remedy for those legally invalid enhancements . . . [,] direct[ing]
the Secretary of the California Department of Corrections and Rehabilitation . . . to
‘identify those persons in their custody currently serving a term for a judgment that
includes an enhancement described in subdivision (a) and . . . provide the name of each
person, along with the person’s date of birth and the relevant case number or docket
number, to the sentencing court that imposed the enhancement.’ (§ 1172.75, subd. (b).)”
(Burgess, supra, 86 Cal.App.5th at p. 380.) The statute then directs the trial court to
review the judgment, verify that it includes such an enhancement, “and if so, ‘recall the
sentence and resentence the defendant.’ (§ 1172.75, subd. (c).)” (Burgess, at p. 380.)
In June 2023, the trial court determined defendant’s judgment included one-year
prior prison term enhancements, appointed counsel for defendant, and placed the matter
on calendar for resentencing. Defendant’s counsel asked the trial court to remove not
only the one-year prior prison term enhancements, but also the prior strike convictions
under Romero and the five-year serious felony conviction enhancements (§ 667,
subd. (a)). The People argued that reducing defendant’s sentence beyond dismissing
the one-year prior prison term enhancements would endanger public safety.
At resentencing, the trial court recalled defendant’s sentence, struck the prior
prison term enhancements, and reduced the upper term to the middle term, for an
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aggregate sentence of 20 years. The trial court acknowledged its discretion to strike
the prior strike offense, as well as the great bodily injury and prior serious felony
enhancements. But the trial court concluded it would be contrary to the interests of
justice to reduce defendant’s sentence beyond striking the prison priors and reducing the
upper term sentence. In reaching its decision, the trial court noted defendant’s ongoing
criminal conduct spanning decades, extending into his time in prison.
II
Having undertaken an examination of the entire record, we find no arguable error
that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
/S/
MAURO, J.
We concur:
/S/
HULL, Acting P. J.
/S/
WISEMAN, J.*
* Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned
by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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