People v. Yanaga

Filed 12/14/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B302291
(Super. Ct. No. 15F-05954)
Plaintiff and Respondent, (San Luis Obispo County)
v.
THOMAS NOLAN YANAGA,
Defendant and Appellant.
Thomas Nolan Yanaga appeals a postjudgment order
denying his motion to strike a firearm enhancement after we had
remanded the matter for resentencing on the enhancement. We
conclude that the trial court prejudicially erred because it was
unaware of the scope of its discretionary power. It refused to
consider appellant’s postjudgment rehabilitative efforts in prison
because it mistakenly believed it could consider only information
before the original sentencing court. We reverse and remand.
Procedural Background
In a nonpublished opinion (People v. Yanaga (Sept. 25,
2017, B267571)), we affirmed the judgment entered after a jury
had convicted appellant of second degree murder. (Pen. Code §§
187, subd. (a), 189.) 1 The jury found true an enhancement
allegation that he had personally and intentionally discharged a
firearm causing death. (§ 12022.53, subd. (d).) Appellant was
sentenced to prison for an aggregate term of 40 years to life: 15
years to life for second degree murder plus 25 years to life for the
firearm enhancement.
The California Supreme Court granted review. It
transferred the matter to us “with directions to vacate [our]
decision and reconsider the cause in light of S.B. [Senate Bill No.]
620 (Stats. 2017, ch. 682).” Senate Bill No. 620 amended
subdivision (h) of section 12022.53 to authorize the striking of a
firearm enhancement in the interest of justice pursuant to section
1385.
In a second nonpublished opinion (People v. Yanaga (May
17, 2018, B267571)), we reversed the trial court’s imposition of a
25-year-to-life term for the firearm enhancement. We concluded
that, because appellant’s judgment was not final, he was entitled
to the benefit of the legislative determination that the previous
bar on striking firearm enhancements was too severe. (See
People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308.) We
remanded the matter for the limited purpose of allowing the trial
court to exercise its discretion whether to strike the enhancement
in the interest of justice pursuant to sections 12022.53(h) and
1385. It declined to strike the firearm enhancement.
1 All statutory references are to the Penal Code.
2
Facts Presented at Trial
Ashley Moss and appellant were friends. They frequently
used methamphetamine together. Moss was living in a spare
room in the home of appellant and his wife, Joyce.
Moss and the victim, Marshall Savoy, had a dating
relationship. Savoy visited Moss at appellant’s home when
appellant was present.
On March 13, 2015, Savoy visited Moss at a trailer parked
outside appellant’s home. He heard appellant and Joyce arguing
inside the home. Savoy entered the home and accused appellant
of disrespecting his wife.
Joyce testified that Savoy took off his shirt and was trying
to provoke appellant, but appellant just “sat there.” Savoy threw
the shirt at appellant. Appellant said to Savoy in a “stern” voice,
“please get off my property.” Savoy refused. Appellant
repeatedly said to Savoy, “Get out of my house.” When Savoy
lunged at him, appellant shot Savoy. He told Joyce to call 911.
Moss testified that she saw appellant grab a gun that was
on the kitchen island. He inserted a loaded magazine into the
gun. With a “happy smirk” on his face, he walked out of the
kitchen and said, “‘Hey, Marshall.’” Moss could not see appellant
and then she heard gunshots. Appellant “yell[ed] at his wife to
call 911 and tell them that there was an intruder.”
Deputy sheriffs responded to Joyce’s 911 call. They found
Savoy dead in the driveway. Appellant told the deputies, “He
charged me. . . . The gun’s in the house.”
The night before Savoy was shot, Moss heard appellant say,
“‘I have always wondered what it would be like to kill somebody.’”
That same night, Wesley Hart, Moss’s and Savoy’s friend, heard
appellant say: “‘I just want to kill someone. I just want to shoot
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somebody.’” About two months before the shooting, appellant
threatened Maddison McCullough, a friend of Savoy. He said
“‘I’ll kill you on my property and say it’s an intruder and get away
with it.’”
Appellant did not testify at trial. But after the shooting,
appellant told the police that he was inside the garage with Joyce
when appellant came “bargin’ in.” Without knocking, Savoy
“burst through the [screen] door [into the garage], gets in my
face.” He “[j]ust starts mouthin’ off about, you know, just starts
ramblin’.” He “tell[s] me he was gonna bash my head in.”
Appellant thought Savoy “was gonna smack me in the head and
fuckin’ crush my skull in.” “And, then all of a sudden he charges
me.” Appellant fired the gun three or four times.
Appellant’s Request that Trial Court
Consider His Post-Sentencing Conduct
Appellant requested that the trial court consider his post-
sentencing conduct in determining whether to strike the firearm
enhancement. Appellant submitted to the court a “laudatory
chrono” from a catholic prison chaplain; a “[c]haracter [r]eference
[l]etter” from a protestant prison chaplain; and commendations
for his active participation in a “12-step self-help rehabilitation
program,” an “Anti-Recidivism Coalition Youth Offender
Mentoring Program,” and a “live-in placement” program that
trains dogs to serve wounded veterans. In addition, appellant
submitted certificates presented to him for successfully
completing three 10-week rehabilitation programs.
Trial Court’s Ruling
The original sentencing judge had retired. Therefore, a
different judge (resentencing judge) conducted a hearing on
appellant’s motion to strike the firearm enhancement. The
4
resentencing judge said that she had “had an opportunity to
review the entirety of the trial transcripts,” including “the pre-
trial rulings, the trial testimony, and . . . the sentencing hearing.”
The resentencing judge believed that her task was “to
essentially attempt now to make a determination as to whether
with the evidence that was presented during the trial, the Court
would have exercised discretion under [section] 12022.53,
subsection (h) at the time of [original] sentencing to strike the
[firearm enhancement].” She was “putting [her]self back in the
situation of [the original sentencing judge] at the time of
sentencing.”
As aggravating factors, the resentencing judge found that
“[t]he crime involved great violence, great bodily harm, threat of
great bodily harm, or other acts disclosing a high degree of
cruelty, viciousness, or callousness.” On the other hand, a
mitigating factor was that appellant “had either no prior record
or an insignificant record of criminal conduct.” The resentencing
judge considered expert testimony at the trial that the victim had
been shot five times and that “the final wound was to his left
scapula [shoulder blade] on his back. So he was clearly shot in
the back at the very end of that discharge of five rounds.” She
also considered that when he was shot the victim “was shirtless
with no weapons, no implements that could be used as a weapon.”
The resentencing judge continued: “I see why [the original
sentencing court] made the statement . . . about [appellant]
having essentially been a productive member of society prior to
the event. But . . . he had spiraled into a lifestyle that involved
associations with people who used drug[s], that he was . . .
regularly carrying a firearm; that essentially this situation in
which he shot an individual who was shirtless with no weapons
5
five times had a certain inevitability to it given the lifestyle and
the continued carrying around of a firearm and the association
with the people who testified during this trial. [¶] So weighing
all of those factors . . . , I believe that the interest of justice would
not be served by striking [the firearm enhancement] . . . .”
The resentencing judge said that she did not consider
appellant’s post-sentencing conduct: “I don’t believe that that
information is appropriately before the Court for purposes of
determining whether to exercise discretion because it appears to
me that the [section] 12022.53, subsection (h) analysis should
occur at the time of [original] sentencing . . . with the
information before the sentencing judge, which that judge would
not have had. So all of the behavior -- and really it’s model
behavior that [appellant] has exhibited while at CDCR
[California Department of Corrections and Rehabilitation]. I am
not taking that behavior into consideration for purposes of the
analysis.” “I’m relying primarily upon the testimony presented
during the trial and the information that would have been
presented to the judge at the time of [original] sentencing.”
Resentencing Judge’s Mistaken Belief Regarding
Consideration of Postjudgment Conduct in Prison
Appellant contends that the order declining to strike the
firearm enhancement must be reversed because the resentencing
judge mistakenly believed that she could not consider his four
years of postjudgment conduct in prison. We agree. “‘Defendants
are entitled to sentencing decisions made in the exercise of the
“informed discretion” of the sentencing court. [Citations.] A
court which is unaware of the scope of its discretionary powers
can no more exercise that “informed discretion” than one whose
sentence is or may have been based on misinformation regarding
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a material aspect of a defendant's record.’” (People v. Gutierrez
(2014) 58 Cal.4th 1354, 1391 (Gutierrez).)
“[I]t is well settled that when a case is remanded for
resentencing after an appeal, the defendant is entitled to ‘all the
normal rights and procedures available at his original sentencing’
[citations], including consideration of any pertinent
circumstances which have arisen since the prior sentence was
imposed [citation].” (Dix v. Superior Court (1991) 53 Cal.3d 442,
460; see also People v. Jackson (1987) 189 Cal.App.3d 113, 119
[“[W]here a sentence has been vacated and the issue remanded to
the trial court for resentencing, the trial court must consider
information concerning defendant’s postoriginal sentencing
behavior contained in a supplemental probation or corrections
report”]; People v. Brady (1984) 162 Cal.App.3d 1, 7 [“we hold
that upon remand for resentencing, even when the defendant is
ineligible for probation, if the resentencing court has discretion to
alter the length of the defendant's imprisonment, it must obtain a
new, updated probation report, including information regarding
the defendant’s behavior while incarcerated during the pendency
of any appeal, before proceeding with the resentencing” (italics
added)]; 2 People v. Bullock (1994) 26 Cal.App.4th 985, 990; People
2 “Brady has since been abrogated to the extent it holds a
new probation officer’s report is mandatory where a defendant is
ineligible for probation. [Citation.] The rationale behind the
Brady decision still applies, however: ‘There may be compelling
reasons for ordering a probation report even when the defendant
is ineligible for probation. The defendant’s postconviction
behavior and other possible developments remain relevant to the
trial court’s consideration upon resentencing.’ [Citation.]”
(People v. Garcia (2008) 161 Cal.App.4th 475, 484, disapproved
on other grounds in People v. Picklesimer (2010) 48 Cal.4th 330,
7
v. Warren (1986) 179 Cal.App.3d 676, 689-690; Id., at p. 692
[“Consideration of postconviction behavior is not an act of mercy,
grace or forgiveness . . . . Rather, consideration of such evidence
merely strengthens the court's ability to fit the punishment to the
crime and the particular defendant”].)
The People argue that the matter must be decided on the
facts as of the date of the original sentencing. The People rely on
People v. Pearson (2019) 38 Cal.App.5th 112 (Pearson). This case
is distinguishable. In Pearson the appellate court “remanded the
case to the trial court to hold a new sentencing hearing to
consider whether to exercise its discretion to ‘strike or dismiss an
enhancement otherwise required by section 12022.53.’” (Id. at
p. 114.) The trial court denied the defendant’s motion to strike
the enhancement. On appeal the defendant claimed that, in
refusing to strike the enhancement, the trial court had “relied
entirely on the nature of the offense.” (Id. at p. 116.) Defendant
“contend[ed] the trial court should have also considered the
likelihood that [he] would continue to be a danger to society in
the future . . . .” (Ibid.)
The appellate court upheld the denial of the motion to
strike. It observed that, pursuant to rule 4.409 of the California
Rules of Court, the trial court is deemed to have considered all
relevant sentencing factors unless the record affirmatively
demonstrates otherwise. (Pearson, supra, 38 Cal.App.5th at p.
117.) 3 The appellate court noted that the trial court had
338, fn. 4, and Johnson v. Department of Justice (2015) 60 Cal.4th
871, 888.)
3All further references to rules are to the California Rules
of Court.
8
expressly considered certain aggravating factors specified in rule
4.421, and “nothing in the record affirmatively establishes that
the trial court did not consider other relevant factors it was
required to consider.” (Pearson, supra, at p. 117.)
Pearson does not suggest that the trial court would have
been barred from considering defendant’s post-sentencing
conduct while in prison. According to Pearson, “[T]he factors to
be considered on a remand for resentencing under Senate Bill No.
620 . . . are [not] a blank slate.” (Pearson, supra, 38 Cal.App.5th
at p. 116.) “The factors that the trial court must consider when
determining whether to strike a firearm enhancement under
section 12022.53, subdivision (h) are the same factors the trial
court must consider when handing down a sentence in the first
instance.” (Id. at p. 117.) Rules 4.421(c) and 4.423(c) provide
that the sentencing court may consider as aggravating or
mitigating factors “[a]ny other factors . . . [that] reasonably relate
to the defendant.” (See also People v. Stanley (1984) 161
Cal.App.3d 144, 150 [“The scope of information a sentencing
court may consider is very broad, and includes the circumstances
surrounding the crime and facts relating to the defendant which
are not directly connected to commission of the crime for which
he is being sentenced”].) The defendant’s post-sentencing conduct
while in prison is a factor “[that] reasonably relate[s] to the
defendant.” (Cal. Rules of Court, rules 4.421(c), 4.423(c).)
The first sentence of section 12022.53(h) provides, “The
court may, in the interest of justice pursuant to Section 1385 and
at the time of sentencing, strike or dismiss an enhancement
otherwise required to be imposed by this section.” (Italics added.)
The People argue that “the Legislature’s inclusion of ‘at the time
of sentencing’ must have meant that it desired for courts to use
9
factors that existed only during the time of the original
sentencing.”
The People overlook the statute’s second sentence: “The
authority provided by this subdivision applies to any resentencing
that may occur pursuant to any other law.” (§ 12022.53, subd.
(h), italics added.) In other words, in the interest of justice and at
the time of resentencing pursuant to any other law, the court
may strike an enhancement. “[T]his provision extends the
benefits of Senate Bill [No.] 620 to defendants who have
exhausted their rights to appeal and for whom a judgment of
conviction has been entered but who have obtained collateral
relief by way of a state or federal habeas corpus proceeding.”
(People v. Arredondo (2018) 21 Cal.App.5th 493, 507.) In such
cases the resentencing court may consider factors existing at the
time of resentencing, such as the defendant’s post-sentencing
behavior in prison. (See the discussion at pp. 7-8, ante.) It
follows that a court should not be barred from considering similar
factors where, as here, the matter has been remanded for
resentencing because the judgment was not final when section
12022.53(h) became effective. (See People v. Robbins (2018) 19
Cal.App.5th 660, 679 [“we conclude section 12022.53, subdivision
(h), may be applied in the instant case because . . . defendant’s
sentence was not final at the time the subdivision became
effective”].)
The People’s interpretation of section 12022.53(h) could
lead to absurd consequences. Our holding allows a consideration
of both good and bad post-sentencing conduct in prison. Suppose
that an incarcerated defendant whose judgment was not final has
obtained a new sentencing hearing. He requests that a firearm
enhancement be dismissed pursuant to sections 12022.53(h) and
10
1385. Unlike appellant, the defendant has made no effort to
rehabilitate himself. He has joined a violent, racist prison gang,
fought with other inmates, and flouted prison rules. Pursuant to
the People’s interpretation of section 12022.53(h), the trial court
could not consider the defendant’s post-sentencing conduct. It
would have to exercise its discretion based only on facts existing
at the time of the original sentencing, even though the
defendant’s post-sentencing conduct militated against striking
the firearm enhancement in the interest of justice. The
Legislature surely did not intend that the resentencing court be
so constrained in its exercise of discretion.
Resentencing Judge’s Mistake Was Not Harmless Error
The People maintain that the resentencing judge’s
misunderstanding of her discretionary power was harmless error
because “even if [she] had considered appellant’s post-sentencing
conduct, it is not reasonably probable that [she] would have
stricken the firearm enhancement.” This is not the correct
standard of review. Where a sentencing court is unaware of “the
full scope” of its discretionary power, “the appropriate remedy is
to remand for resentencing unless the record ‘clearly indicate[s]’
that the trial court would have reached the same conclusion ‘even
if it had been aware that it had such discretion.’” (Gutierrez,
supra, 58 Cal.4th at p. 1391; accord, People v. Chavez (2018) 22
Cal.App.5th 663, 713; see also the discussion in People v.
McDaniels (2018) 22 Cal.App.5th 420, 425-428.)
“[W]e cannot say with confidence” that the resentencing
judge would have declined to strike the enhancement had she
realized that she could consider appellant’s post-sentencing
prison conduct. (Gutierrez, supra, 58 Cal.4th at p. 1391.)
Accordingly, we reverse the order declining to strike the firearm
11
enhancement and remand the matter for a new hearing on this
issue.
Disposition
The order declining to strike the section 12022.53,
subdivision (d) firearm enhancement is reversed. The matter is
remanded for the limited purpose of conducting a new hearing on
this issue. The trial court shall take into account appellant’s
post-sentencing conduct in prison as well as other relevant
factors. We express no opinion as to how the trial court should
exercise its discretion.
CERTIFIED FOR PUBLICATION.
YEGAN, J.
We concur:
GILBERT, P. J.
PERREN, J.
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Jacquelyn H. Duffy, Judge
Superior Court County of San Luis Obispo
______________________________
Dwyer + Kim and Jin H. Kim, under appointment by the
Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Julie A. Harris, Gregory B. Wagner,
Deputy Attorneys General, for Plaintiff and Respondent.