People v. Gonzalez CA4/1 ( 2024 )

Filed 10/24/24 P. v. Gonzalez CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D083016
Plaintiff and Respondent,
v. (Super. Ct. No. CR136721)
ERNESTO GONZALEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Lisa R. Rodriguez, Judge. Affirmed.
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, Robin
Urbanski and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff
and Respondent.
MEMORANDUM OPINION
For the reasons that follow, we decline Ernesto Gonzalez’s request to
remand this matter to the trial court for further resentencing and affirm.
I.
Background
Gonzalez shot a man in the head, at close range, with a revolver loaded
with a hollow point bullet. This was after his two codefendants had stabbed
the man three times in the chest. In 1993 a jury convicted Gonzalez of first
degree murder (Pen. Code,1 § 187, subd. (a)) and found true he personally
used a gun (former § 12022.5, subd. (a)) and had served a prior prison term
(§ 667.5, subd. (b)). He was sentenced to serve 30 years to life, which
included consecutive terms of four years on the gun enhancement and one
year for the prison prior.2 This court affirmed the judgment in 1996.
In August 2023, upon recommendation by the Secretary of the
California Department of Corrections and Rehabilitation (CDCR), the trial
court recalled Gonzalez’s sentence pursuant to section 1172.75 to strike the
now legally invalid one-year prison prior term enhancement. In a full
resentencing at which Gonzalez was represented by counsel, the court also
struck the punishment for the gun use enhancement, reducing the sentence
by a total of five years.
At the resentencing hearing, Gonzalez’s attorney requested the trial
court to “reduce” his conviction for first degree murder to a voluntary
manslaughter. The prosecutor responded this was “not … the appropriate
time or venue” for such a request. The court declined to consider the request,
stating it had “absolutely no authority to change the conviction” from murder
1 All further undesignated statutory references are to the Penal Code.
2 The 30-years-to-life term was run consecutive to a six-year term
imposed in a different case arising from Gonzalez’s commission of voluntary
manslaughter the same year.
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to voluntary manslaughter. Noting further that it had just denied Gonzalez’s
petition for vacatur of the murder conviction and resentencing under section
1172.6,3 the court observed “[t]his is not a motion under which [it] might find
that it was not a homicide” and it did not have jurisdiction to “substitut[e]”
one charge for another at a resentencing under section 1172.75.
II.
Remand for Further Resentencing Is Not Warranted
Gonzalez does not contend the trial court erred in any aspect of its
resentencing decisions. To the contrary, he concedes: “At the time of the
[re]sentencing hearing, the court was correct. It did not have the authority to
reduce [his] conviction from murder to manslaughter. While section 1172.75
required the court to apply all new laws since the date of the original
sentencing that increased judicial sentencing discretion, there were no laws
authorizing the court to reduce [his] conviction on the court’s own motion.”
However, he seeks remand to the trial court for further resentencing under
section 1172.75 so that the court can apply recent amendments to section
1172.1, enacted during the pendency of his appeal. We conclude remand for
further resentencing is not warranted here.
A. Recall and Resentencing Under Section 1172.75
Section 1172.75 permits the trial court to recall a sentence and fully
resentence a defendant whose original sentence included a now-invalid one-
year enhancement for a prior prison term pursuant to section 667.5,
3 In February 2023, the trial court denied Gonzalez’s section 1172.6
petition at the prima facie stage because the record showed conclusively that
he was an actual killer and the jury was not instructed on either felony
murder or the natural and probable consequences doctrine for first degree
murder.
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subdivision (b). (§ 1172.75, subds. (c) and (d).) “[S]ection 1172.75 does not
authorize a defendant to seek resentencing on his or her own motion or
petition. Rather the process is triggered by the [CDCR or county correctional
administrator] identifying a defendant as a person serving a sentence that
includes a prior prison term enhancement.” (People v. Cota (2023) 97
Cal.App.5th 318, 332; see § 1172.75, subds. (b) and (c).)
When a sentence is recalled under section 1172.75, the statute
mandates “a lesser sentence than the one originally imposed as a result of the
elimination of the repealed enhancement, unless the court finds by clear and
convincing evidence that imposing a lesser sentence would endanger public
safety. Resentencing pursuant to this section shall not result in a longer
sentence than the one originally imposed.” (§ 1172.75, subd. (d)(1).) Relevant
here, section 1172.75 provides that the resentencing “court shall apply the
sentencing rules of the Judicial Council and apply any other changes in law
that reduce sentences or provide for judicial discretion so as to eliminate
disparity of sentences and to promote uniformity of sentencing.” (§ 1172.75,
subd. (d)(2), italics added.)
B. Recall and Resentencing Under Section 1172.1
Section 1172.1 authorizes the trial court to recall a previously imposed
sentence and resentence the defendant as an exception to the common law
rule that the court loses resentencing jurisdiction once execution of sentence
has begun. (§ 1172.1, subd. (a)(1); see People v. McCallum (2020) 55
Cal.App.5th 202, 205–206, 210.) Section 1172.1 has been codified in different
Penal Code provisions. It was first section 1170 (Stats. 2017, ch. 561, § 188);
amended and moved to section 1170.03 (Stats. 2021, ch. 719, §§ 1–7, eff. Jan.
1, 2022); and then renumbered as section 1172.1 (Stats. 2022, ch. 58, § 9, eff.
June 30, 2022).
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At the time of Gonzalez’s resentencing hearing in August 2023, a court
recalling and resentencing under section 1172.1 could only do so on its own
motion within 120 days of the date of commitment or upon a request by the
CDCR or district attorney, among other governmental entities. (§ 1172.1,
former subd. (a)(1).) Once the court recalled a sentence, the “court may, in
the interest of justice and regardless of whether the original sentence was
imposed after a trial or plea agreement” reduce a defendant’s term of
imprisonment by modifying the sentence or “[v]acate the defendant’s
conviction and impose judgment on any necessarily included lesser offense or
lesser related offense, whether or not that offense was charged in the original
pleading, and then resentence the defendant to a reduced term of
imprisonment, with the concurrence of both the defendant and the district
attorney.” (§ 1172.1, former subd. (a)(3), italics added.)
Effective January 1, 2024, while this appeal was pending, the
Legislature amended section 1172.1 to (1) allow a trial court, on its own
motion, to recall a sentence and resentence “at any time if the applicable
sentencing laws at the time of original sentencing are subsequently changed
by new statutory authority or case law” (§ 1172.1, subd. (a)(1), as amended by
Stats. 2023, ch. 446, § 2); and (2) allow a trial court, “in the interest of justice
and regardless of whether the original sentence was imposed after a trial or
plea agreement” to “[v]acate the defendant’s conviction and impose judgment
on any necessarily included lesser offense or lesser related offense whether or
not that offense was charged in the original pleading, with the concurrence of
the defendant, and then resentence the defendant to a reduced term of
imprisonment” (§ 1172.1, subd. (a)(3)(B), as amended by Stats. 2023, ch. 446,
§ 2).
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C. Analysis
In support of a remand for further resentencing, Gonzalez argues that
section 1172.75 “incorporates any other statutes that were enacted after [his]
original sentencing date which provide the court with increased discretion to
reduce the defendant’s sentence.” The January 1, 2024 amendment to section
1172.1 is a change in law that provides the court with discretionary power,
not available at the time of his sentencing, to reduce his murder conviction to
a lesser included or lesser related offense. Because his judgment became
non-final upon resentencing and his appeal from that hearing is still pending,
the ameliorative changes to section 1172.1 retroactively apply to him under
In re Estrada (1965) 63 Cal.2d 740, 744 (“If the amendatory statute lessening
punishment becomes effective prior to the date the judgment of conviction
becomes final then, . . . it, and not the old statute in effect when the
prohibited act was committed, applies.”). Thus he asserts remand is
warranted so the court can consider exercising its new discretion under
amended section 1172.1 when resentencing him under section 1172.75.
The Attorney General opposes remand. He argues no remand is
required because a recall and resentencing under section 1172.75 does not
trigger application of section 1172.1, “as it is and always was a separate
jurisdictional vehicle over a criminal judgment that is triggered by action of
the trial court or a governmental actor such as [the] CDCR, and not by a
request on the part of the defense.” Even if a defendant could invoke section
1172.1, remand is not warranted because the 2024 amendment to the statute
is not retroactive under In re Estrada. Last, the Attorney General argues
remand would be futile because the trial court made clear it believed
Gonzalez properly stood convicted and sentenced for first degree murder.
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Because this appeal presents a question of statutory interpretation, our
review is de novo. (People v. Tirado (2022) 12 Cal.5th 688, 694.) In
interpreting a statute, we ascertain the intent of the Legislature to effectuate
the purpose of the law. (People v. Coronado (1995) 12 Cal.4th 145, 151.) In
doing so, we first look to the words of the respective statutes. If there is no
ambiguity in the language of the statute, then we presume the Legislature
meant what it said, and the plain meaning of the language governs. (Ibid.)
Only if the terms of a statute provide no definitive answer may we resort to
extrinsic sources, including the ostensible objects to be achieved and the
legislative history. (Ibid.)
We accept without deciding, for the purposes of this appeal, Gonzalez’s
contention that a full resentencing must incorporate any applicable
ameliorative changes in sentencing law enacted during the pendency of his
appeal and that section 1172.1 grants the trial court discretion to modify the
judgment of conviction and reduce his sentence. However, we do not read
section 1172.1 to require the trial court to reconsider its resentencing of
Gonzalez and therefore to compel remand for that purpose. The plain
language of the statute reserves to the trial court the discretion whether to
act pursuant to the statute.
Section 1172.1, subdivision (a)(1), leaves to the trial court the decision
whether, on its own motion and at any time, to recall and resentence a
defendant. It also plainly states that “[a] defendant is not entitled to file a
petition seeking relief from the court under this section” and “[i]f a defendant
requests consideration for relief under this section, the court is not required to
respond.” (§ 1172.1, subd. (c), italics added.) Elsewhere the Legislature has
made clear its intention to allow only specified individuals to request the
benefit of ameliorative changes in sentencing laws. (See §§ 1172.1,
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subd. (a)(1), (7) [authorizing correctional or prosecutorial officials to petition
trial court for recall and resentencing and requiring court to state on the
record its reasons for granting or denying petition], 1170.91, subd. (b)
[requiring a trial court to hold a resentencing hearing, upon petition by a
defendant suffering from one or more of various conditions arising from
military service], 1172.2, subd. (c) [requiring trial court to hold a hearing
within 10 days of receipt of petition from correctional officials requesting
recall and resentencing of defendant suffering from specified medical
conditions].) The Legislature’s explicit decision not to grant a defendant that
option under section 1172.1 militates against ordering a remand here.
Section 1172.1 is not like other resentencing laws that the voters or
Legislature have enacted to require the trial court to recall and correct
sentences imposed pursuant to statutory provisions that have since been
invalidated. (Compare, e.g., §§ 1170.126, subd. (f) [directing courts to
resentence defendants consistent with amendments to three strike law],
1172.75, subd. (a) [invalidating specified enhancements for prior prison
terms], 1172.7, subd. (a) [invalidating certain sentencing enhancements for
controlled substance violations].) We therefore do not interpret section
1172.1 to allow Gonzalez to invoke it to compel resentencing and thereby
bypass the court’s discretionary authority to choose in the first instance
whether even to consider reducing his sentence.
We observe that even without a remand, the trial court retains the
discretion under section 1172.1 to reduce Gonzalez’s sentence further, on its
own motion and as it deems appropriate. Any instruction from this court
directing the trial court to exercise such discretion would be an improper
intrusion into the trial court’s discretionary purview. To be clear, we express
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no opinion as to whether the trial court should take that initiative now or at
any time in the future. We simply decline to order the trial court to act.
DISPOSITION
The judgment is affirmed.
DO, J.
WE CONCUR:
DATO, Acting P. J.
BUCHANAN, J.
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