People v. Sanchez CA2/8

Filed 3/23/23 P. v. Sanchez CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B322568
Plaintiff and Respondent, (Fresno County Super.
Ct. No. F18902753)
v.
IGNACIO HERNANDEZ SÁNCHEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Fresno
County. Arlan L. Harrell, Judge. Affirmed in part and remanded
with directions.
Derek K. Kowata, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Michael P. Farrell, Assistant
Attorney General, Eric L. Christoffersen and Sally Espinoza,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________________
INTRODUCTION
Ignacio Hernandez Sánchez appeals from his judgment of
conviction of one count of murder (Pen. Code,1 § 187, subd. (a)),
with a true finding on a firearm enhancement (§ 12022.53, subd.
(d)) and admissions to certain prior conviction allegations (§§ 667,
subds. (b)–(i), 1170.12, subds. (a)–(d)), 667.5, subds. (a), (b)). On
appeal, Sánchez argues the trial court violated his constitutional
rights to due process and a fair trial by instructing the jury with
CALCRIM No. 315 regarding eyewitness identification testimony.
He also asserts sentencing error on the grounds that the trial
court did not consider whether to impose a lesser firearm
enhancement under section 12022.53; his prior offenses no longer
qualify for a prior prison term enhancement under section 667.5,
subdivision (b); and the abstract of judgment does not accurately
reflect his presentence custody credit. We conclude the use of
CALCRIM No. 315 did not violate Sánchez’s constitutional rights,
but his sentencing error claims have merit. We accordingly
affirm the conviction and remand the matter for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
I. Evidence at Trial
Shortly before midnight on July 9, 2016, David Lemus,
the victim in this case, was fatally shot outside the Jet Stop gas
station and convenience store in Huron, California. Huron is a
small town in Fresno County whose residents often know one
another. Sánchez, whose nickname was “Giddy,” lived in Huron
and was known to local law enforcement. About an hour and a
half before the shooting, Huron Police Sergeant Charles Rabaut
1 Unless otherwise stated, all further statutory references
are to the Penal Code.
2
observed Sánchez in an alleyway near the Jet Stop. Sánchez was
wearing a red shirt, white shorts, and a white hat.
About 10 minutes before the shooting, Sukhminder Multani
was working at the Chevron gas station and store across the
street from the Jet Stop when two men entered the store arguing.
Multani recognized one of the men as a regular customer. The
other man, whom Multani did not know, wore a red shirt and a
hat, and appeared to be the aggressor. Multani asked both men
to leave, and they complied. After a few minutes, Multani saw a
physical altercation outside the store near a crowd of people that
included the man in the red shirt. An unidentified man was hit
in the face and then fled in his vehicle. A short time later,
Multani was inside the store when he heard a shooting from the
direction of the Jet Stop.
A few minutes before the shooting, Roman Plasencia was
outside the Jet Stop store smoking marijuana when his friend,
Lemus, arrived and parked his car by the gas pumps. Plasencia
walked over to the car and stood by the front passenger window
while Lemus stayed in the driver’s seat. As Plasencia was
talking to Lemus, he noticed a verbal altercation taking place
nearby. Plasencia knew most of the residents of Huron and was
familiar with both Sánchez and his younger brother. Plasencia
observed one of the brothers arguing with the occupant of a van
that had stopped by the gas pumps. That brother yelled the
name “Huron Bulldogs” and lifted his shirt to show his tattoos.
Plasencia began walking back toward the store as that same
person approached Lemus’s car and stopped on the passenger
side where Plasencia had been standing. Moments later,
Plasencia heard the sound of arguing and three gunshots. When
Plasencia went back toward the car, he saw Lemus lying on the
3
ground. In an interview with the police a few days after the
shooting, Plasencia identified photographs of both Sánchez and
his younger brother. Plasencia stated that only one of them had
been present at the Jet Stop that night, but he did not know
which one because they bore a close resemblance. While
Plasencia initially thought it was the younger brother, he noted
that the older brother’s girlfriend was also at the scene.
Rosemary Bernal was standing outside the Jet Stop store
at the time of the shooting. She was a longtime resident of
Huron and knew both Sánchez and his girlfriend from the
neighborhood. A few minutes before the shooting, Bernal saw
Sánchez and two other men walking toward the Jet Stop from the
direction of the Chevron station. She recalled that Sánchez was
wearing red shorts, a white shirt, and a white hat. While Bernal
was inside the store, Sánchez’s girlfriend walked in and asked
the owner if she could use the restroom. When the owner
jokingly stated that she had to pay, the girlfriend responded to
“put it on Giddy’s tab.” Bernal made a purchase and went
outside. As she was standing in front of the store, Bernal saw
Sánchez in an altercation with Lemus near the driver’s side of
Lemus’s car. After punching Lemus once in the face, Sánchez
pulled a gun from his waistband, pointed it at Lemus, and fired
three shots. Sánchez and his companions then ran down the
alley. Lemus tried to get back to his car, but instead fell to the
ground. In a photographic lineup shown to her a few days later,
Bernal identified Sánchez as the shooter. She also told the police
that she was familiar with Sánchez’s younger brother, and that
he was not present at the shooting.
David Sease and his mother were inside the Jet Stop store
when the shooting occurred. Sease knew Lemus through a
4
mutual friend, but he was not familiar with Sánchez. As his
mother stood in line to make a purchase, Sease heard yelling
outside. Sease looked through the glass windows of the store
and saw a group of men surrounding Lemus’s car. Sánchez and
another man were standing on the driver’s side of the car and a
third man was on the passenger side. Sease recalled that
Sánchez was short and wearing a red shirt, a red hat, and white
shorts. As Lemus sat in the driver’s seat, Sánchez reached in and
punched him. Lemus then got out of the car. The man on the
passenger side walked around and hit Lemus from behind. In
response, Lemus approached Sánchez and punched him once in
the face. After being momentarily stunned, Sánchez pulled
a small black object from his waistband. At that point, Sease
ducked down and heard two gunshots. When Sease stood back
up, he saw Sánchez and the other men running down the alley,
and Lemus stumbling toward his car. Lemus then fell to the
ground. In a photographic lineup shown to him several weeks
after the shooting, Sease identified Sánchez as the shooter.
Officers from the Huron Police Department responded to
the scene minutes after the shooting. As Officer Daniel Garibay
was driving to the scene, he observed Sánchez and his brother
walking in an alleyway a few blocks from the Jet Stop. Sánchez
was wearing a red shirt, white shorts, and a white hat, and he
appeared to be reaching his hand toward the front of his
waistband.
Once at the Jet Stop, Officer Garibay stayed outside with
the wounded Lemus while Sergeant Rabaut went into the store to
view surveillance footage of the shooting. While none of the
surveillance cameras captured the shooting, they did record a
portion of the area near the gas pumps where Lemus’s car was
5
parked. In reviewing the video of that area, Sergeant Rabaut
recognized Sánchez as standing near the front passenger door
and then walking around the front of the vehicle. When Officer
Garibay later reviewed the video, he likewise recognized Sánchez.
In the video, Sánchez was wearing the same red shirt, white
shorts, and white hat that the officers had seen him in earlier
that evening.
Lemus died of a gunshot wound to the front abdomen. A
single bullet was recovered from his body. During a search of his
car, the police found a bullet fragment and an expended shell
casing inside the vehicle. The trajectory of that bullet appeared
to be from the front passenger window through the driver’s seat
headrest into the rear passenger door. Both the bullet that killed
Lemus and the shell casing found in his car were from the same
caliber firearm.
At the time of the shooting, Sánchez was on parole and
wearing a global positioning system (GPS) device. His GPS
device showed that Sánchez was at the Jet Stop gas station at
11:58 that night. After the shooting, Sánchez spent the night in
Bakersfield and then drove to Los Angeles. He returned to the
Huron area a few days later.
On July 12, 2016, homicide detectives from the Fresno
County Sheriff’s Department conducted a custodial interview
with Sánchez. Sánchez admitted to the detectives that
his nickname was “Giddy,” and that he was a member of the
Huron Bulldogs gang. In describing his whereabouts on the
night of the shooting, Sánchez stated that he was barhopping
with his girlfriend and some other friends. They had been
drinking at a bar across the street from the Chevron station.
When he saw one of his friends running toward the Chevron,
6
Sánchez followed because he suspected something might be
happening there. Sánchez confronted a young man inside the
Chevron store, but decided to leave him alone after the store
clerk intervened. When Sánchez walked out, he saw that a large
crowd had gathered outside the Chevron station around some
people who were fighting, and he tried to act as a peacemaker
in that fight. The crowd then began walking toward the Jet Stop.
Sánchez initially followed the crowd, but changed his mind and
walked in the opposite direction through an alley. Sánchez
denied going to the Jet Stop, and stated that he was in the alley
when he heard the sound of gunfire. When the detectives showed
Sánchez a still image of surveillance video taken from the Jet
Stop that night, Sánchez admitted that the image was of him, but
he continued to deny any involvement in the shooting.
II. Jury Verdict and Sentencing
The jury found Sánchez guilty of the second degree murder
of Lemus. The jury also found true the enhancement allegation
that Sánchez intentionally discharged a firearm which caused
Lemus’s death within the meaning of section 12022.53,
subdivision (d). In a bifurcated proceeding, Sánchez admitted the
enhancement allegations that he suffered two prior strike
convictions (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)), served
one prior prison term for a violent felony conviction (§ 667.5,
subd. (a)), and served three prior prison terms for other
convictions (§ 667.5, subd. (b)).
The trial court sentenced Sánchez to a total term of
70 years to life in state prison, consisting of 45 years to life on
the murder conviction, plus 25 years to life on the firearm
enhancement (§ 12022.53, subd. (d)). The court exercised its
discretion to strike each of the prior prison term enhancements
7
(§ 667.5, subds. (a), (b)) in the interest of justice pursuant to
section 1385. Sánchez was awarded 1,207 days of presentence
custody credit.
Sánchez filed a timely appeal.
DISCUSSION
I. The Certainty Factor in CALCRIM No. 315
On appeal, Sánchez contends his constitutional rights to
due process and a fair trial were violated when the trial court
instructed the jury with CALCRIM No. 315 that an eyewitness’s
level of certainty is one of the factors to consider in evaluating
the reliability of eyewitness identification testimony. In
challenging the inclusion of the certainty factor in CALCRIM
No. 315, Sánchez argues that the growing body of evidence has
shown no correlation between the confidence and the accuracy of
an eyewitness’s identification. Based on the totality of the record,
we conclude that Sánchez’s constitutional claim fails.
A. Applicable Law
CALCRIM No. 315, as given by the trial court, lists
15 factors for the jury to consider when evaluating eyewitness
identification testimony. One of those factors states: “How
certain was the witness when he or she made an identification?”
In People v. Lemcke (2021) 11 Cal.5th 644 (Lemcke), the
California Supreme Court considered a due process challenge to
the certainty factor in CALCRIM No. 315. The defendant
in Lemcke was convicted of assault and robbery based on the
testimony of a single eyewitness who had no prior relationship
with the defendant and expressed certainty in her identification
of him as the perpetrator. (Id. at p. 666.) In rejecting the
defendant’s due process claim, the Supreme Court held that
“[w]hen considered in the context of the trial record as a whole,
8
listing the witness’s level of certainty as one of 15 factors the jury
should consider when evaluating identification testimony did not
render [the defendant’s] trial fundamentally unfair.” (Id. at
p. 646.) As the court explained, CALCRIM No. 315 “does not
direct the jury that ‘certainty equals accuracy.’ [Citations.]
Although the language may prompt jurors to conclude that a
confident identification is more likely to be accurate, [the
defendant] was permitted to call an eyewitness identification
expert who explained the limited circumstances when certainty
and accuracy are positively correlated. Moreover, the [trial] court
provided additional instructions directing the jury that it was
required to consider the testimony of the expert witness, that
the prosecution retained the burden to prove [the defendant’s]
identity as the perpetrator beyond a reasonable doubt, and that
witnesses sometimes make honest mistakes.” (Lemcke, at
p. 647.)
The Supreme Court acknowledged, however, that “a
reevaluation of the certainty instruction is warranted.” (Lemcke,
supra, 11 Cal.5th at p. 647.) The court noted that “[c]ontrary to
widespread lay belief, there is now near unanimity in the
empirical research that ‘eyewitness confidence is generally an
unreliable indicator of accuracy.’ [Citations.] As currently
worded, CALCRIM No. 315 does nothing to disabuse jurors of
that common misconception, but rather tends to reinforce it by
implying that an identification is more likely to be reliable when
the witness has expressed certainty.” (Ibid.) The court
accordingly referred the matter to the state Judicial Council to
evaluate “whether or how the instruction might be modified to
avoid juror confusion regarding the correlation between certainty
and accuracy.” (Ibid.) The court further directed that “until the
9
Judicial Council has completed its evaluation, trial courts should
omit the certainty factor from CALCRIM No. 315 unless the
defendant requests otherwise.” (Id. at p. 648.)
Following Lemcke, the Supreme Court in People v. Wright
(2021) 12 Cal.5th 419 (Wright) again considered a challenge to
the certainty factor in an eyewitness identification instruction.
The jury in Wright was instructed with the similarly worded
CALJIC No. 2.92, which lists, among other factors to consider,
“ ‘[t]he extent to which the witness is either certain or uncertain
of the identification.’ ” (Wright, at p. 452.) Applying Lemcke, the
Supreme Court held that the inclusion of the certainty factor
in CALJIC No. 2.92 did not violate the defendant’s due process
rights. (Wright, at p. 453.) The court reasoned that, “[a]lthough
the defense below did not present an eyewitness identification
expert as had occurred in Lemcke, [the] defendant’s primary trial
strategy was to discredit [the eyewitnesses], and to imply that
the eyewitnesses were testifying falsely.” (Ibid.) The court also
observed that, “[t]he instant case involved the identification of
defendant by multiple witnesses, and, unlike in Lemcke, at least
two of the witnesses had known [the] defendant in some capacity
prior to the attack.” (Ibid.)
B. The Trial Court’s Inclusion of the Certainty
Factor in CALCRIM No. 315 Did Not Violate
Sánchez’s Constitutional Rights
Sánchez asserts the trial court’s inclusion of the certainty
factor in CALCRIM No. 315 violated his constitutional rights to
due process and a fair trial. As a preliminary matter, we address
the People’s argument that Sánchez forfeited this claim by failing
to object or request a modification of the instruction at trial. An
appellate court may review any claim of instructional error that
10
affects a defendant’s substantial rights irrespective of whether
there was an objection in the trial court. (§ 1259 [“appellate court
may also review any instruction given . . . even though no
objection was made thereto in the lower court, if the substantial
rights of the defendant were affected thereby”].) Whether the
defendant’s substantial rights were affected, however, can only
be determined by deciding if the instruction as given was flawed
and, if so, whether the error was prejudicial. Therefore, we
necessarily must review the merits of Sánchez’s claim that the
instruction violated his constitutional rights. (People v. Mitchell
(2019) 7 Cal.5th 561, 580 [no forfeiture where defendant claimed
that flawed instructions “deprived him of due process . . . because
this would affect his substantial rights if true”].)2
Viewing CALCRIM No. 315 in the context of the jury
instructions and record as a whole, we conclude the trial court’s
inclusion of the certainty factor in the instruction given to the
jury did not violate Sánchez’s constitutional rights. As in Wright,
supra, 12 Cal.5th at page 453, this case involved the
identification of Sánchez as the perpetrator by multiple
witnesses, some of whom knew him prior to the shooting. At
trial, two eyewitnesses, Bernal and Sease, made in-court
identifications of Sánchez as the person who shot Lemus. Both
Bernal and Sease also had identified Sánchez as the shooter in
photographic lineups that were shown to them during their police
interviews. A third eyewitness, Plasencia, told the police that
2 Because we find no forfeiture of Sánchez’s instructional
error claim, we do not reach his argument that his trial counsel’s
failure to object the certainty factor in CALCRIM No. 315
constituted ineffective assistance of counsel.
11
either Sánchez or his similar-looking brother had been present
at the scene and approached Lemus moments before the shooting.
Both Plasencia and Bernal also testified that they were familiar
with most residents in the small town of Huron, and that they
knew Sánchez before the shooting because they would see him
around town. In addition to these witnesses to the shooting, two
local law enforcement officers testified that they knew Sánchez
based on their prior contacts with him, and that they saw him
near the Jet Stop shortly before or after the shooting in the same
color and type of clothing worn by the perpetrator. At trial, none
of the witnesses were asked by either the prosecution or the
defense to express a level of certainty in their identifications.
Moreover, in proving Sánchez’s identity as the shooter, the
prosecution relied heavily on other corroborating evidence that
placed him at the scene. The jury was shown the surveillance
video of the area near the Jet Stop gas pumps where Lemus’s car
had been parked. While the camera did not capture the shooting,
it did show a person whom the prosecution contended was
Sánchez walking around Lemus’s car right before the shooting
occurred. The jury also heard the audio recording of Sánchez’s
police interview during which he repeatedly denied that he was
at the Jet Stop that night, and then upon being shown a still
image taken from the surveillance video, he admitted that the
image was of him. In addition, the jury was presented with
evidence that Sánchez’s GPS tracking device placed him at the
exact location of the Jet Stop right around the time of the
shooting.
In challenging the certainty factor in CALCRIM No. 315,
Sánchez argues the instruction violates due process because it
“lessens the prosecution’s burden of proof by allowing the jury to
12
use improper factors unrelated to accurate identification,” and
“has a negative effect on the defendant’s ability to present his
defense to counter the eyewitness identifications.” These same
arguments, however, were expressly rejected by the Supreme
Court in Lemcke. In response to the claim that CALCRIM
No. 315 lowered the prosecution’s burden of proof, the Lemcke
court explained that “the instruction merely lists the witness’s
level of certainty at the time of identification as one of 15
different factors that the jury should consider,” and “leaves the
jury to decide whether the witness expressed a credible claim of
certainty and what weight, if any, should be placed on that
certainty in relation to the numerous other factors.” (Lemcke,
supra, 11 Cal.5th at p. 657.) The Lemcke court likewise rejected
the claim that the instruction denied the defendant a meaningful
opportunity to present a defense because the record showed that
he “was permitted to put on a vigorous defense on the issue of
identity” through expert testimony and cross-examination on the
reliability of the eyewitness’s identification. (Id. at p. 660.)
Here, the record demonstrates that Sánchez was able to
present a vigorous defense on the issue of identity by challenging
the credibility of the various eyewitnesses on cross-examination
and eliciting inconsistencies in their testimony. Additionally, as
in Lemcke, supra, 11 Cal.5th at page 658 and Wright, supra,
12 Cal.5th at page 453, the instructions as a whole properly
explained to the jury how to evaluate the evidence presented.
The trial court instructed the jury on the defendant’s
presumption of innocence and the prosecution’s burden of proving
guilt beyond a reasonable doubt. The court also instructed the
jury with respect to witness testimony that “[p]eople sometimes
honestly . . . make mistakes about what they remember,” and
13
that the jurors “alone must judge the credibility or believability
of the witnesses.” CALCRIM No. 315, as given to the jury,
further reiterated the burden of proof with respect to identity,
stating: “The People have the burden of proving beyond a
reasonable doubt that it was the defendant who committed the
crime. If the People have not met this burden, you must find the
defendant not guilty.”
On this record, the trial court’s inclusion of the certainty
factor in the eyewitness identification instruction given to the
jury did not render the trial fundamentally unfair or otherwise
violate Sánchez’s due process rights.
II. Discretion to Impose Lesser Uncharged
Enhancements Under Section 12022.53
Sánchez contends the matter must be remanded for
resentencing because the trial court did not understand the scope
of its discretion to strike the enhancement found true by the jury
under section 12022.53, subdivision (d), and to impose a lesser
enhancement under section 12022.53, subdivision (b) or (c). We
agree that remand is appropriate following the Supreme Court’s
decision in People v. Tirado (2022) 12 Cal.5th 688 (Tirado).
A. Applicable Law
Section 12022.53 establishes a tiered system of sentencing
enhancements for certain felonies involving firearms. (Tirado,
supra, 12 Cal.5th at p. 693.) Subdivision (b) of the statute
mandates the imposition of a 10-year enhancement for the
personal use of a firearm in the commission of one of those
felonies; subdivision (c) requires the imposition of a 20-year
enhancement for the personal and intentional discharge of a
firearm; and subdivision (d) provides for a 25-year-to-life
enhancement for the personal and intentional discharge of a
14
firearm causing great bodily injury or death to a person other
than an accomplice. (§ 12022.53, subds. (b)–(d).)
Effective January 1, 2018, the Legislature amended section
12022.53, subdivision (h), to give trial courts the discretion to
strike or dismiss a firearm enhancement in the interest of justice.
(Stats. 2017, ch. 682, § 2.) While section 12022.53, subdivision
(h), as amended, authorized a court to strike a section 12022.53,
subdivision (d) enhancement entirely and impose no additional
punishment under the statute, the question remained whether
the court could instead strike the section 12022.53, subdivision
(d) enhancement and impose a lesser enhancement under section
12022.53, subdivision (b) or (c), even if the lesser enhancement
was not charged in the information or found true by the jury.
During the pendency of this appeal, the Supreme Court
issued its decision in Tirado, supra, 12 Cal.5th at page 696,
which resolved a split that had developed among the Courts of
Appeal as to the scope of the trial court’s discretion to impose a
lesser, uncharged enhancement under section 12022.53. The
court concluded that “the statutory framework permits a court
to strike the section 12022.53(d) enhancement found true by the
jury and to impose a lesser uncharged statutory enhancement
instead.” (Tirado, at p. 692.) Thus, “[w]hen an accusatory
pleading alleges and the jury finds true the facts supporting a
section 12022.53(d) enhancement, and the court determines
that the section 12022.53(d) enhancement should be struck or
dismissed under section 12022.53(h), the court may . . . impose
an enhancement under section 12022.53(b) or (c).” (Id. at p. 700.)
15
B. The Matter Must Be Remanded for the Trial
Court to Consider Whether to Impose a Lesser
Enhancement Under Section 12022.53
In this case, the People alleged, and the jury found true,
the section 12022.53 subdivision (d) enhancement that Sánchez
had personally and intentionally discharged a firearm which
proximately caused Lemus’s death. At Sánchez’s November 1,
2019 sentencing hearing, the trial court stated that it understood
it had “newly granted discretion to strike or stay such an
enhancement,” and that it was declining to strike the
enhancement. However, in sentencing Sánchez to an additional
25-year-to-life term under section 12022.53, subdivision (d), the
trial court did not state whether it had considered imposing a
lesser enhancement under section 12022.53, subdivision (b) or (c).
The People assert that Sánchez forfeited his claim that the
trial court failed to properly exercise its discretion under section
12022.53 because he never objected to the firearm enhancement
at sentencing. Generally, “ ‘[a] party in a criminal case may not,
on appeal, raise “claims involving the trial court’s failure to
properly make or articulate its discretionary sentencing choices”
if the party did not object to the sentence at trial.’ ” (People v.
Scott (2015) 61 Cal.4th 363, 406.) “ ‘In determining whether the
significance of a change in the law excuses counsel’s failure to
object at trial, we consider the “state of the law as it would have
appeared to competent and knowledgeable counsel at the time of
the trial.” ’ ” (People v. Perez (2020) 9 Cal.5th 1, 8.) In this case,
at the time of Sánchez’s sentencing, the law was unsettled as to
whether a trial court had any discretion to strike a section
12022.53, subdivision (d) enhancement and to impose a lesser,
uncharged enhancement instead. (Compare People v. Morrison
16
(2019) 34 Cal.App.5th 217, 223 [finding discretion] with People
v. Tirado (2019) 38 Cal.App.5th 637, 643 [finding no discretion],
reversed by Tirado, supra, 12 Cal.5th 688.) Given the
uncertainty in the law at the time, we find no forfeiture in
Sánchez’s failure to object to his sentence.3
The People also argue that remand is not warranted
because the record reflects that the trial court properly
understood its discretion to impose a lesser enhancement and
declined to exercise such discretion. “ ‘Defendants are entitled to
sentencing decisions made in the exercise of the “informed
discretion” of the sentencing court.’ ” (People v. Gutierrez (2014)
58 Cal.4th 1354, 1391.) When a court is unaware of the scope of
its discretion, it cannot exercise that informed discretion. (Ibid.)
“In such circumstances, . . . 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.’ ” (Ibid.) Here, the record
does not clearly indicate that the trial court understood it had
discretion to impose a lesser, uncharged enhancement under
section 12022.53, or that it would have declined to do so even if it
had been aware of the full scope of its discretion. Under these
circumstances, remand is required for the trial court to determine
whether to exercise its discretion to strike the section 12022.53,
subdivision (d) enhancement and to impose a lesser enhancement
under section 12022.53, subdivision (b) or (c). We express no
3 Because we find that Sánchez did not forfeit his claim that
the trial court failed to understand the scope of its discretion
under section 12022.53, we need not address his argument that
he received ineffective assistance of counsel based on his trial
counsel’s failure to object to the sentence.
17
opinion on how the trial court should exercise its discretion on
remand.
III. The Section 667.5, Subdivision (b) Enhancements
Must Be Stricken
Sánchez argues the three 1-year enhancements that the
trial court found to be true under section 667.5, subdivision (b),
must be vacated because his prior convictions no longer qualify
for a sentence enhancement under Senate Bill No. 136 (2019–
2020 Reg. Sess.) (Senate Bill 136). The People acknowledge that
Sánchez is entitled to the benefit of Senate Bill 136, but contend
that we should remand the case for resentencing rather than
vacate or strike the enhancements. Because the matter is being
remanded to the trial court to exercise its discretion under
section 12022.53, we conclude the proper remedy is for the trial
court to strike the section 667.5, subdivision (b) enhancements on
remand.
At the time of Sánchez’s November 1, 2019 sentencing,
section 667.5, subdivision (b) required trial courts to impose a
one-year sentence enhancement for each true finding on an
allegation that the defendant had served a separate prior prison
term and had not remained free of custody for at least five years.
(§ 667.5, former subd. (b).) Trial courts nevertheless had the
discretion to strike a prior prison term enhancement pursuant to
section 1385, subdivision (a). (People v. Jennings (2019)
42 Cal.App.5th 664, 681.) Effective January 1, 2020, Senate
Bill 136 amended section 667.5, subdivision (b), to limit the
applicability of the enhancement to defendants who served a
prior prison term for a sexually violent offense, as defined in
Welfare and Institutions Code section 6600, subdivision (b).
(Stats. 2019, ch. 590, § 1.) As the People concede, Senate Bill 136
18
applies retroactively to Sánchez because the judgment in his case
is not final and none of his prior convictions was for a sexually
violent offense. (People v. Choi (2021) 59 Cal.App.5th 753, 769;
People v. Winn (2020) 44 Cal.App.5th 859, 872.)
While the parties agree that Sánchez is entitled to the
benefit of Senate Bill 136, they dispute the proper remedy given
that, at Sánchez’s sentencing, the trial court exercised its
discretion to strike the prior prison term enhancements in the
interest of justice pursuant to section 1385. Sánchez argues the
true findings on the section 667.5, subdivision (b) enhancements
must be vacated because the trial court no longer has discretion
to impose punishment for those enhancements. The People
assert the case should be remanded to allow the trial court to
reassess Sanchez’s total sentence in light of the change in the law
effectuated by Senate Bill 136. Because Sánchez’s prior
convictions are for offenses that no longer qualify for a sentence
enhancement under section 667.5, subdivision (b), the three 1-
year prior prison term enhancements are unauthorized by law
and must be stricken. (People v. Morelos (2022) 13 Cal.5th 722,
770; People v. Choi, supra, 59 Cal.App.5th at pp. 769–770.)
Accordingly, in addition to any other changes that may be
ordered on remand, the trial court is directed to strike each of the
section 667.5, subdivision (b) enhancements.
IV. Sánchez Is Entitled to an Additional Day of
Presentence Custody Credit
Lastly, Sánchez asserts, and the Attorney General agrees,
the judgment must be modified to accurately reflect Sánchez’s
presentence custody credit. Section 2900.5, subdivision (a),
provides that a defendant is entitled to receive full credit for
actual confinement time prior to the commencement of the
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sentence. At his sentencing, Sánchez was awarded 1,207 days of
presentence custody credit. However, because Sánchez was
taken into custody on July 12, 2016, and was sentenced on
November 1, 2019, he is entitled to one additional day of
presentence custody credit for a total of 1,208 days. Therefore, on
remand, the trial court is directed to modify the judgment to
reflect an award of 1,208 days of presentence custody credit.
DISPOSITION
The conviction is affirmed. The matter is remanded to the
trial court with directions (1) to determine whether to exercise
its discretion to strike the section 12022.53, subdivision (d)
enhancement and impose a lesser enhancement under section
12022.53, subdivision (b) or (c); (2) to strike each of the section
667.5, subdivision (b) enhancements; and (3) to modify the
judgment to reflect an award of 1,208 days of presentence
custody credit.
VIRAMONTES, J.
We concur:
GRIMES, Acting P. J.
WILEY, J.
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