People v. Arellano CA2/7

Filed 1/26/22 P. v. Arellano CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B314434
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA112598)
v.
EDGAR ARELLANO,
Defendant and Appellant.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, Juan Carlos Dominguez, Judge.
Affirmed.
Edgar Arellano, in pro. per., and Richard B. Lennon, under
appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance by Plaintiff and Respondent.
________________
Edgar Arellano, sentenced in January 2017 pursuant to a
negotiated plea agreement to state prison for 22 years for first
degree burglary with prior conviction enhancements, petitioned
for resentencing pursuant to Senate Bill No. 1393 (Stats. 2018,
ch. 1013, §§ 1 & 2) (Senate Bill 1393), which, effective January 1,
2019, allowed the trial court to exercise its discretion under Penal
Code section 13881 to strike or dismiss section 667,
subdivision (a), prior serious felony enhancements. The superior
court denied Arellano’s petition, ruling Senate Bill 1393 was not
retroactive and, in any event, did not apply when the defendant
had agreed in a negotiated plea to a specific prison term that
included those enhancements.
We reversed the order denying Arellano’s petition based on
People v. Stamps (2020) 9 Cal.5th 685 (Stamps), decided while
Arellano’s appeal was pending, and remanded the matter to
provide Arellano the opportunity to ask the superior court to
exercise its discretion not to impose the prior serious felony
enhancements and, if the request was made, for the parties and
the court to follow the procedure approved in Stamps. (People v.
Arellano (Sept. 14, 2020, B300847) [nonpub. opn.].)
On remand the superior court, after denying Arellano’s
request to change his appointed counsel pursuant to People v.
Marsden (1970) 2 Cal.3d 118, denied Arellano’s request to strike
the prior serious felony enhancements, stating, in view of the
seriousness of the current offense and Arellano’s criminal history,
Arellano was “extremely fortunate that he received the sentence
that he received.”
1 Statutory references are to this code.
2
No arguable issues were identified following review of the
record by Arellano’s appointed appellate counsel. We also have
identified no arguable issues after our own independent review of
the record and analysis of the contentions presented by Arellano
in his supplemental brief. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Arellano’s Plea to a Second Strike Sentence and Petition
for Resentencing
In April 2016 Arellano was arrested after he entered the
dormitory room of a female college student while she was
sleeping. While in the room, Arellano removed some of the
student’s undergarments from a laundry hamper. Arellano was
not a student at the college and did not have permission to be in
the dormitory.
In January 2017, pursuant to a negotiated agreement,
Arellano pleaded no contest to first degree burglary with a person
present and admitted a 1999 first degree burglary conviction as a
prior strike and 1999 and 2002 first degree burglary convictions
as prior serious felony convictions under section 667,
subdivision (a)(1). He was sentenced to an aggregate state prison
term of 22 years, consisting of the six-year upper term for
residential burglary, doubled, plus two five-year terms for the
prior serious felony enhancements.
This court affirmed Arellano’s conviction in a nonpublished
opinion on November 29, 2017. (People v. Arellano (Nov. 29,
2017, B281513).) Arellano’s petition for review in the California
Supreme Court was denied in February 2018; and his petition for
writ of certiorari with the United States Supreme Court was
denied April 22, 2019, at which time the judgment became final.
(See People v. Buycks (2018) 5 Cal.5th 857, 876, fn. 5.)
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On June 5, 2019 Arellano petitioned for resentencing under
Senate Bill 1393. The superior court denied the petition, ruling
Senate Bill 1393 did not apply retroactively to Arellano’s 2017
conviction and sentence.
In Stamps, supra, 9 Cal.5th 685, however, the Supreme
Court held Senate Bill 1393 applied to any case not yet final on
appeal on its January 1, 2019 effective date. The Court also held
Senate Bill 1393 applied, at least to a limited extent, to
negotiated sentences; but, if the trial court was inclined to
exercise its discretion not to impose a prior serious felony
enhancement that was part of a negotiated sentence, the
prosecutor was entitled to withdraw his or her agreement to the
plea. As the Court explained, if the defendant asks the trial court
to exercise its discretion to strike the enhancement(s) and the
court declines to do so, “that ends the matter and defendant’s
sentence stands.” (Stamps, at p. 707.) However, “[i]f the court
indicates an inclination to exercise its discretion
under section 1385, the prosecution may, of course, agree to
modify the bargain to reflect the downward departure in the
sentence such exercise would entail. Barring such a modification
agreement, ‘the prosecutor is entitled to the same remedy as the
defendant—withdrawal of assent to the plea agreement.’” (Ibid.)
Finally, even if the prosecutor and the defendant agree the
negotiated prison term should be reduced by eliminating the
prior serious felony enhancement, the trial court retains its
authority to withdraw approval of the plea agreement. (Id. at
p. 708.)
Based on Stamps we reversed the superior court’s order
and remanded the matter to permit Arellano to request that the
superior court (and the prosecutor) agree to reduce his sentence
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by striking one or both of the prior serious felony enhancements.
(People v. Arellano, supra, B300847.)
2. Proceedings on Remand
On remand Arellano moved to replace the deputy public
defender representing him, arguing she was hard to reach by
telephone, had called him a horrible person and was resistant to
his “legal input” challenging the validity of one of his prior
serious felony convictions (to which he had pleaded guilty). The
superior court conducted two hearings and, after an explanation
from Arellano’s counsel, denied the motion.
Before the court considered Arellano’s petition for
resentencing, the prosecutor stated, if the court indicated it was
inclined to strike the serious felony enhancements, “the
likelihood of him getting an offer or a settlement anything lower
than what he’s received is, in my experience from what I’m seeing
here and the conversations with my colleagues, infinitesimally
small.” The court then explained to Arellano, if the People
withdrew from the plea agreement and the matter went to trial
and Arellano was convicted, he would likely be sentenced to a
third strike indeterminate sentence of 25 years to life.
Arellano stated he wished to proceed with the petition for
resentencing. Arguing in support of Arellano’s request, his
counsel emphasized the remoteness of his two prior serious felony
convictions (1999 and 2002). In response the prosecutor noted
the two prior burglaries were similar to the current offense—
targeting women on a college campus to steal their underwear—
and Arellano had an additional felony conviction in 2006 (with a
six-year prison sentence) for possession of stolen property, which,
it appeared, also consisted of personal items of clothing taken
from a young woman’s campus residence.
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The court denied the petition, describing Arellano’s course
of conduct as “pretty disturbing” and the offenses as “very, very
troubling.”
Arellano filed a timely notice of appeal.
DISCUSSION
In accord with the procedures described in People v. Cole
(2020) 52 Cal.App.5th 1023, review granted October 14, 2020,
S264278, we appointed counsel to represent Arellano on appeal.
After reviewing the record, Arellano’s counsel filed a brief raising
no issues. Appointed counsel advised Arellano he could submit a
supplemental brief raising any grounds of appeal, contentions or
arguments he wanted the court to consider. We provided a
similar notice to Arellano on November 24, 2021 and stated any
supplemental brief must be filed within 30 days.
On December 23, 2021 we received a two-page handwritten
letter brief from Arellano that asserts (1) the case should be
remanded in light of the passage of Senate Bill No. 81 (2021-2022
Reg. Sess.) (Stats. 2021, ch. 721, § 1) (Senate Bill 81), to allow
Arellano to offer and prove mitigating circumstances, and (2) his
counsel at the hearing on remand did not adequately represent
him.
Prior to enactment of Senate Bill 81, section 1385 provided
a trial court may dismiss sentencing enhancements in the
interest of justice. It was this authority to dismiss Arellano’s
prior serious felony enhancements, as provided by Senate
Bill 1393, that the trial court considered on remand. Senate
Bill 81 amended section 1385 by adding new subdivision (c),
which provides 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
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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.” (Italics added.)
New section 1385, subdivision (c)(7), however, provides,
“This subdivision shall apply to sentencings occurring after the
effective date of the act that added this subdivision.” Because
both his original sentencing hearing and reconsideration of his
sentence pursuant to Senate Bill 1393 occurred prior to the
January 1, 2022 effective date of Senate Bill 81, Arellano is not
entitled to any benefit from the new law.
Beyond the single sentence stating his counsel did not
adequately represent him, Arellano’s supplemental letter
presents no facts or argument to support a claim of ineffective
assistance of counsel.
Because no cognizable legal issues have been raised by
Arellano’s appellate counsel or by Arellano or identified in our
independent review of the record, including a review of the
confidential reporter’s transcript of the Marsden hearings, the
order denying the postjudgment motions is affirmed. (See People
v. Cole, supra, 52 Cal.App.5th at pp. 1039-1040, review granted;
see also People v. Serrano (2012) 211 Cal.App.4th 496, 503; see
generally People v. Kelly (2006) 40 Cal.4th 106, 118-119; People v.
Wende (1979) 25 Cal.3d 436, 441-442.)
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DISPOSITION
The postjudgment order is affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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