People v. Millare CA2/7 ( 2023 )

Filed 10/10/23 P. v. Millare CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B318452
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. BA135442)
MARIANO DEPORIS MILLARE,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, James R. Dabney, Judge. Sentence vacated; cause
remanded with directions.
Lenore De Vita, 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, Senior
Assistant Attorney General, Steven D. Matthews, Supervising
Deputy Attorney General, and Ryan M. Smith, Deputy Attorney
General, for Plaintiff and Respondent.
____________________
Acting on Mariano Deporis Millare’s petition for writ of
habeas corpus, the Supreme Court in October 2021 issued an
order, returnable before the Los Angeles Superior Court,
directing the Secretary of the California Department of
Corrections and Rehabilitation (CDCR) to show cause why
Millare was not entitled to relief on his claim that the 20-year
sentence imposed on his conviction for shooting at an occupied
vehicle was unauthorized. At the hearing, after appointing
counsel for Millare, the trial court vacated the erroneous sentence
it had previously imposed and resentenced Millare to a 10-year
term on that count (the middle term of five years doubled
pursuant to the three strikes law). After initially deferring the
matter for further briefing, the court denied Millare’s request to
reconsider other aspects of his sentence in light of new
ameliorative legislation, concluding it lacked jurisdiction to do so.
We reverse and remand to the trial court to conduct a full
resentencing hearing for Millare in accordance with the
principles articulated in People v. Buycks (2018) 5 Cal.5th 857(Buycks) and People v. Padilla (2022) 13 Cal.5th 152.
FACTUAL AND PROCEDURAL BACKGROUND
1. Millare’s Conviction and First Revised Sentence
As detailed in People v. Millare (Mar. 16, 2021, B305761)
[nonpub. opn.] (Millare II) dismissing Millare’s appeal from the
denial of his motion for resentencing pursuant to Penal Code
former section 1170, subdivision (d)(1) (now section 1172.1,
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subdivision (a)(1)),1 Millare was convicted by a jury in 1996 of
attempted willful, deliberate and premeditated murder (§§ 187,
subd. (a), 664), assault with a semiautomatic firearm (§ 245,
subd. (b)), attempted robbery (§§ 211, 664) and shooting into an
occupied motor vehicle (§ 246) with true findings that Millare had
personally used a firearm when committing the attempted
murder and two of the other felonies (§ 12022.5, subd. (a)) and
had suffered a prior violent or serious felony conviction within
the meaning of the three strikes law (§§ 667, subds. (b)-(i),
1170.12) and a prior serious felony conviction under section 667,
subdivision (a). We affirmed the judgment on appeal. (People v.
Millare (Feb. 10, 1998, B108492) [nonpub. opn.] (Millare I).)
In March 1998, shortly after we had affirmed Millare’s
convictions and in response to a notice from the CDCR identifying
an error in Millare’s sentence, the trial court resentenced Millare
to an aggregate indeterminate state prison term of life plus
37 years: life with the possibility of parole for attempted murder
plus 10 years for the firearm enhancement; a consecutive
upper term of nine years for assault with a semiautomatic
weapon, doubled under the three strikes law, plus four years for
the firearm enhancement; plus five years for the prior serious
felony conviction. The court imposed a term of three years
four months (one-third the middle term of five years doubled
under the three strikes law) for shooting at an occupied vehicle to
run concurrently with the term for aggravated assault and
imposed and stayed pursuant to section 654 a term of two years
four months for attempted second degree robbery.
1 Statutory references are to this code.
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2. The December 2019 Hearing To Correct Millare’s
Sentence and the Denial of Millare’s Motion for
Resentencing
On January 11, 2018 a correctional case records analyst on
behalf of the CDCR sent the trial court a letter (with a follow-up
letter from the CDCR in January 2019 to the Los Angeles County
District Attorney) indicating the court had erred in imposing a
concurrent sentence of one-third the middle term of the
applicable triad for shooting at an occupied vehicle, which is
proper only when sentencing determinate terms consecutively.
In June 2018 Millare filed a motion for recall of sentence and
resentencing under former section 1170, subdivision (d), based on
the CDCR’s January 11, 2018 letter.
On December 31, 2019, without Millare in court but with
his counsel and a prosecutor present, the trial court modified
Millare’s sentence nunc pro tunc by deleting the sentence
previously imposed for shooting at an occupied vehicle and
instead imposing “the mid-term of 10 years, doubled [as a second
strike offense], for a total of 20 years to run concurrent with
count 4.” In its minute order the court explained the CDCR’s
January 11, 2018 letter had been “placed in a box with various
other documents and found at a later date.”
Ten weeks later, on March 11, 2020, the trial court denied
Millare’s motion for resentencing, ruling the CDCR letters
seeking clarification or correction of errors in Millare’s sentence
did not trigger a right to resentencing under former section 1170,
subdivision (d)(1). Neither Millare nor his counsel was present.
Millare appealed the March 11, 2020 order denying his motion for
resentencing; he did not appeal the December 31, 2019
resentencing order.
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3. Millare II and the Supreme Court’s Order To Show
Cause
We dismissed Millare’s appeal in Millare II, supra,
B305761, explaining Millare’s June 2018 request for
resentencing, which sought an opportunity to seek dismissal of
several formerly mandatory sentencing enhancements, did not
fall within any of former section 1170, subdivision (d)(1)’s
exceptions to the trial court’s general lack of resentencing
jurisdiction. In particular, the CDCR analyst’s letter inquiring
about a possible sentencing error that prompted the
December 31, 2019 correction in Millare’s sentence was not from
the CDCR secretary, as required by former section 1170,
subdivision (d)(1), and did not, either expressly or implicitly,
recommend recalling Millare’s sentence. Accordingly, we held,
the trial court lacked jurisdiction to rule on Millare’s motion; and
the order denying the motion was not appealable.
Although dismissing Millare’s appeal, our opinion noted the
trial court, when attempting to correct its initial error in
sentencing Millare for violating section 246, made another
mistake: The sentencing triad for a felony violation of
section 246 is three, five or seven years, which, if doubled for a
second strike offense, would authorize a prison term of six, 10 or
14 years, not 20 years. However, we stated, because we lacked
jurisdiction to consider Millare’s appeal from the March 11, 2020
order (and he had not appealed the December 31, 2019
sentencing order), correction of that error needed to await a
future judicial proceeding. (Millare II, supra, B305761, fn. 4.)2
2 As our colleagues in Division Two of this court have
explained, “The unavailability of a motion procedure does not
deprive wrongfully incarcerated defendants of a remedy. A
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Millare did not seek review of Millare II in the Supreme
Court. Instead, on May 10, 2021 Millare filed a petition for writ
of habeas corpus in the Supreme Court (In re Millare, S268703),
stating as grounds for relief, “The trial court was not authorized
to impose a 20 year sentence for a second strike violation of Penal
Code section 246.” Millare’s petition asked the Supreme Court to
vacate the sentence imposed during the December 31, 2019
hearing and to direct the trial court to hold a resentencing
hearing at which he was present or validly waived his right to be
present.
On October 20, 2021 the Supreme Court issued an order to
show cause directing the Secretary of the CDCR to show cause,
returnable before the Los Angeles County Superior Court, why
Millare was not entitled to relief based on his claim that the
20-year sentence imposed on his conviction for violating
section 246 was unauthorized. (In re Millare (Oct. 20, 2021,
S268703).)
4. Proceedings in the Trial Court Following the Order To
Show Cause
At a hearing on November 19, 2021 the trial court stated on
the record that the People conceded the sentence imposed on the
section 246 count exceeded the maximum and was unlawful. The
court put the matter over for resentencing on that count only.
At the hearing on January 26, 2022 the prosecutor stated
his understanding that “it’s here only for a clerical issue.” The
defendant who is serving a longer sentence than the law allows
may challenge the sentence in a petition for a writ of habeas
corpus. Indeed, the purpose of the writ is to give summary relief
against such illegal restraints of personal liberty.” (People v.
King (2022) 77 Cal.App.5th 629, 640.)
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court initially responded, “You can call it a clerical issue, but it’s
a clerical issue that was raised on habeas relating to something
that happened in the sentence.” The court continued, “Fixing it
may be nothing more than a clerical issue,” and “corrected” count
6 “to reflect midterm of five years doubled for 10 years.” Millare’s
counsel, conceding that the hearing was not a resentencing at the
request of the district attorney or the CDCR (as authorized by
former section 1170, subdivision (d)(1)), advised the court that
Millare requested the court consider exercising its discretion to
strike the firearm enhancements that had previously been
imposed. The court indicated uncertainty whether it had
jurisdiction to consider that request when it was “a habeas as to
. . . one count, not the entire case.” The court continued the
matter to allow Millare’s counsel to address the jurisdiction issue.
The resentencing issue was apparently again discussed at
subsequent hearings, but ultimately the court on April 25, 2022
ruled it had jurisdiction only with respect to count 6: “Petitioner
has filed a second request that the court revisit his sentence on
this case because, ostensibly, the court gained jurisdiction to
resentence the defendant with[in] 120 days of his resentencing on
count 6. However, the resentencing was only as to that count and
not as to count 1 [for attempted murder]. . . . The request for
resentencing is denied.”
Millare filed separate notices of appeal from the
resentencing order on January 26, 2022 and the order denying
any further resentencing on April 25, 2022. On December 22,
2022 we granted Millare’s request to consolidate the two appeals.
DISCUSSION
Millare contends the trial court erred in failing to
reconsider his entire sentence in light of current sentencing law
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when, after the matter was returned to it following the Supreme
Court’s order to show cause and the People conceded the sentence
imposed for shooting at an occupied vehicle was unauthorized,
the trial court vacated the sentence on that count and
resentenced him. The Attorney General, in contrast, insists,
“[T]he California Supreme Court’s remittitur limited the trial
court’s jurisdiction to addressing the error as to Count 6 only.”
The Attorney General reads the Supreme Court’s order to show
cause far too narrowly and ignores the principle the Supreme
Court in Buycks, supra, 5 Cal.5th at page 893 labeled “the full
resentencing rule.”3
As discussed, the Supreme Court directed the CDCR to
address why Millare was not entitled to relief from the
unauthorized sentence imposed on his conviction for shooting at
an occupied vehicle. It did not order the trial court to “correct a
clerical error” in one portion of the judgment, and its remittitur
was not so limited or restricted. Following the People’s
concession that the sentence was, indeed, unauthorized, the trial
court granted relief, vacated the illegal part of Millare’s sentence
and resentenced him. As a consequence, under Buycks “‘a full
resentencing as to all counts [was] appropriate, so the trial court
3 In Buycks, supra, 5 Cal.5th 857 the Supreme Court held
the mandate of Proposition 47 (the Safe Neighborhoods and
Schools Act) that a felony reclassified or redesignated as a
misdemeanor be considered a misdemeanor for all purposes
permitted a defendant to challenge felony-based section 667.5
enhancements in a nonfinal judgment when the underlying
felonies had been subsequently redesignated as misdemeanors.
The Buycks Court then held, when sentencing enhancements
were stricken on review, the defendant on remand was entitled to
a full resentencing as to all counts. (Buycks, at p. 893.)
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[could] exercise its sentencing discretion in light of the changed
circumstances.’” (Buycks, supra, 5 Cal.5th at p. 893.) As
explained in People v. Walker (2021) 67 Cal.App.5th 198, 206,
“[A] criminal sentence is, like an atom, indivisible: ‘[A]n
aggregate prison term is not a series of separate independent
terms, but one term made up of interdependent components. The
invalidity of one component infects the entire scheme.’
[Citations.] The trial court has a duty never to impose an
unauthorized sentence, and a corollary of this duty is to ensure
that all components of that sentence are authorized by the law
and the facts at the time any new sentence is imposed.” (See
People v. Bell (2020) 48 Cal.App.5th 1, 24 [upon appellate court’s
striking of a section 667.5, subdivision (b), prior prison term
enhancement, “the trial court is entitled to reconsider appellant’s
entire sentence”]; People v. Acosta (2018) 29 Cal.App.5th 19, 26
[on remand for resentencing “the trial court will have
‘“jurisdiction to modify every aspect of [appellant’s] sentence”’”].)
That Millare’s unauthorized sentence had been part of a
final judgment and was vacated as a result of a petition for writ
of habeas corpus does not limit the trial court’s resentencing
authority. As the Supreme Court explained in People v. Padilla,
supra, 13 Cal.5th 153, “When a habeas corpus court vacates a
prior judgment and orders a new trial or new sentencing hearing,
the prior judgment—now ineffective—can no longer be a final
one.” (Id. at p. 164.) That is exactly what happened here,
notwithstanding the court’s mistaken view it was merely
correcting a clerical error: In response to the Supreme Court’s
order to show cause, the trial court granted Millare’s habeas
corpus petition and vacated the unauthorized sentence. The
judgment was no longer final, and under Buycks and Padilla the
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trial court was obligated to consider the full range of sentencing
options available to it when resentencing Millare.
DISPOSITION
Millare’s sentence is vacated, and the cause remanded to
the trial court with directions to resentence Millare in accordance
with all governing law, including any recently enacted
ameliorative legislation that may be applicable.
PERLUSS, P.J.
We concur:
SEGAL, J.
FEUER, J.
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