People v. Trejo CA1/2

Filed 12/1/20 P. v. Trejo CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A158925
v.
ALBERT TREJO, (San Mateo County
Super. Ct. No. SC081258)
Defendant and Appellant.
This appeal arises from a resentencing hearing in the trial court
following a remand from this court in appellant’s prior appeal, directing the
trial court to consider whether to exercise its new discretion, pursuant to
amended Penal Code section 12022.53, subdivision (h),1 to strike or dismiss
the firearm enhancement it had imposed under subdivision (d) of that
section. (People v. Trejo (Dec. 12, 2018, A150790) [nonpub. opn.], review
denied Feb. 27, 2019.) In this appeal, appellant contends that,
notwithstanding our limited remand in the prior appeal, newly enacted
Senate Bill No. 1393 gave the trial court the power to exercise its discretion
to strike or dismiss appellant’s serious felony enhancement, previously
imposed pursuant to section 667, subdivision (a), and the trial court should
All further statutory references are to the Penal Code unless
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otherwise indicated.
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have considered whether to exercise that discretion at the resentencing
hearing. Appellant further contends that because the trial court failed to
recalculate his total custody credits at the resentencing hearing, it should be
directed on remand to amend the abstract of judgment to include the custody
credits from the time of his arrest through the date of his resentencing.
Respondent concurs in both contentions.
For the reasons discussed herein, we shall reverse and remand the
matter for resentencing, to permit the court to exercise its discretion to strike
or dismiss the serious felony enhancement. We will also direct the court to
recalculate appellant’s custody credits to include all days he has been in
custody since the date of his arrest. We shall otherwise affirm the judgment.
PROCEDURAL BACKGROUND
Appellant was originally charged by information with premeditated
murder (§§ 187, subd. (a) & 189—count 1) and being an ex-felon in possession
of a firearm (§ 29800, subd. (a)(1)—count 2). The information alleged, as to
count 1, that appellant personally and intentionally discharged a firearm.
(§ 12022.53, subd (d).) The information further alleged, as to count 2, that
appellant had suffered seven prior convictions, including two serious felony
convictions pursuant to 667, subdivision (a), and two strike convictions
pursuant to section 1170.12, subd. (c)(2).
On June 11, 2015, following a jury trial, the jury convicted appellant of
first degree murder, finding true the allegation that he had personally and
intentionally discharged a firearm, and also convicted him of being an ex-
felon in possession of a firearm. Following a court trial, the court struck one
of the serious felony allegations and one of the strike allegations, but found
the five remaining allegations true.
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On January 13, 2017, the court sentenced appellant to a total of 80
years to life in state prison.
Appellant appealed the judgment, and on December 12, 2018, a panel
of this Division reduced the first degree murder conviction to second degree
murder and also remanded the matter to the trial court for resentencing,
with directions to exercise its new discretion, pursuant to amended section
12022.53, subdivision (h), to determine whether to strike or dismiss the
firearm enhancement imposed under subdivision (d) of that section. (People
v. Trejo, supra, A150790.)
On February 27, 2019, the California Supreme Court denied appellant’s
petition for review (case No. S253665), and on March 25, 2019, the remittitur
issued.
At the November 1, 2019 resentencing hearing, the trial court declined
to strike the section 12022.53 firearm enhancement and resentenced
appellant to 60 years to life in prison.
On November 12, 2019, appellant filed a notice of appeal.2
DISCUSSION
I. Senate Bill No. 1393
Appellant contends the trial court should have considered whether to
exercise its discretion to strike or dismiss the five-year enhancement for
appellant’s prior serious felony conviction at the November 2019 resentencing
hearing, in light of newly enacted Senate Bill No. 1393. Respondent agrees.
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Because the facts underlying appellant’s convictions are not necessary
to our resolution of the issues raised on appeal, we will not repeat them here.
They are, however, set forth in our prior opinion. (See People v. Trejo, supra,
A150790.)
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A. Trial Court Background
Appellant’s original sentence included imposition of a five-year term
under section 667, subdivision (a) for the prior serious felony conviction
enhancement.
In this court’s December 12, 2018 opinion in this case, we remanded the
matter to the trial court with directions to resentence appellant after
considering its new discretion under amended section 12022.53, subdivision
(h), to strike or dismiss the firearm enhancement.
At the November 1, 2019 resentencing hearing on the firearm
enhancement, after first arguing against the trial court exercising its new
discretion to strike that enhancement, the prosecutor further argued that the
court was not permitted to consider striking the serious felony enhancement
because this court had limited the remand for resentencing to a
determination of whether to dismiss or strike the firearm enhancement.
The trial court declined to strike the firearm enhancement, and
resentenced appellant to 60 years to life in prison, which included a term of
15 years to life for second degree murder, doubled based on the prior strike; a
consecutive term of 25 years to life for the firearm enhancement, and a term
of 5 years for the serious felony enhancement. The court did not address the
question of whether it should exercise its discretion to strike or dismiss the
serious felony enhancement.
B. Legal Analysis
“On September 30, 2018, the Governor signed Senate Bill No. 1393
which, effective January 1, 2019, amend[ed] sections 667(a) and 1385(b) to
allow a court to exercise its discretion to strike or dismiss a prior serious
felony conviction for sentencing purposes. (Stats. 2018, ch. 1013, §§ 1–2.)”
(People v. Garcia (2018) 28 Cal.App.5th 961, 971.) Recently, in People v.
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Stamps (2020) 9 Cal.5th 685, 693 (Stamps), our Supreme Court held that
under In re Estrada (1965) 63 Cal.2d 740, 745, Senate Bill No. 1393 applies
retroactively to any defendant whose judgment is not yet final, reasoning
that “[e]liminating the prior restriction on the court’s ability to strike a
serious felony enhancement in furtherance of justice constitutes an
ameliorative change within the meaning of Estrada.” (Stamps, at p. 699,
citing People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308–309.)
In the present case, appellant’s judgment was not final on January 1,
2019, the effective date of Senate Bill No. 1393, and therefore, under Stamps,
Senate Bill No. 1393 is applicable to him.
Before we again remand the matter to the trial court for resentencing,
we will address whether—as appellant asserts—the trial court should have
considered its new discretion to strike the serious felony enhancement in the
first instance at the prior resentencing hearing, even though our remand only
directed the court to consider its new discretion under section 12022.53,
subdivision (h) to strike or dismiss the firearm enhancement. Ordinarily,
“ ‘[w]here a reviewing court reverses a judgment with directions . . . the trial
court is bound by the directions given and has no authority to retry any other
issue or to make any other findings. Its authority is limited wholly and solely
to following the directions of the reviewing court.’ [Citations.]” (People v.
Dutra (2006) 145 Cal.App.4th 1359, 1367.)
In People v. Hargis (2019) 33 Cal.App.5th 199, 205 (Hargis), the Fifth
District Court of Appeal addressed the scope of a trial court’s jurisdiction on
remand for resentencing following an appeal, where a change in the law
became effective after issuance of the appellate court’s opinion but before
resentencing. The appellate court first found that the trial court did have the
power on remand to consider the effect of the enactment of Proposition 57,
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which had become effective before appellant’s convictions were final. (Hargis,
at p. 207.) The court explained: “We do not believe our limited remand
constituted a straightjacket for the trial court such that it had no power to
hear a motion on an issue that could not have been raised on defendant’s
prior appeal, and which concerned a change in the law that altered the
court’s authority to adjudicate defendant’s case in criminal (adult) court in
the first instance. [Citation.]” (Id. at pp. 207–208.) The court also found that
“even if the trial court properly concluded it lacked jurisdiction to entertain
the motion, the Proposition 57 issue has now been brought before us. The
scope of our prior remand is no longer relevant to our analysis, as the law
entitles defendant to a juvenile fitness/transfer hearing. [Citation.] We are
bound by the law to afford him that hearing . . . .” (Hargis, at p. 208.)
Here, as in Hargis, our prior remand could not have included directions
related to Senate Bill No. 1393, since the law giving a trial court discretion to
strike or dismiss a serious felony enhancement had not yet been enacted. By
the time of the resentencing hearing, however, the law had been changed to
allow such discretion, applicable to all defendants whose cases were not yet
final. (See Stamps, supra, 9 Cal.5th at p. 699.) Consequently, the trial court
had the power to exercise its discretion to strike or dismiss the serious felony
enhancement, despite our limited remand. (See Hargis, supra, 33
Cal.App.5th at pp. 207–208.) Moreover, regardless of whether the trial court
had jurisdiction to address this issue on the earlier remand, it “has now been
brought before us” and “[t]he scope of our prior remand is no longer relevant
to our analysis . . . .” (Id. at p. 208.)
In conclusion, because the judgment in appellant’s case was not yet
final when Senate Bill No. 1393 took effect, and because the record does not
clearly indicate that the trial court would have declined to strike or dismiss
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the five-year serious felony enhancement even if it knew it had the discretion
to do so (see People v. Almanza (2018) 24 Cal.App.5th 1104, 1110), he is
entitled to a remand for resentencing, to give him the opportunity to seek
relief under Senate Bill No. 1393. (See Stamps, supra, 9 Cal.5th at p. 707;
People v. Garcia, supra, 28 Cal.App.5th at p. 971.)
II. Recalculation of Appellant’s Custody Credits
Appellant contends that because the trial court failed to recalculate his
total custody credits at the resentencing hearing, the abstract of judgment
must be amended to include the days he spent in custody between his arrest
and his resentencing. Respondent agrees.
At the November 1, 2019 resentencing hearing, the court did not
recalculate the number of days appellant had spent in custody from the date
of his arrest to the date of his resentencing, and did not include those custody
credits in the amended abstract of judgment.
“Where a defendant has served any portion of his sentence under a
commitment based upon a judgment which judgment is subsequently
declared invalid or which is modified during the term of imprisonment, such
time shall be credited upon any subsequent sentence he may receive upon a
new commitment for the same criminal act or acts.” (§ 2900.1; see People v.
Buchalter (2001) 26 Cal.4th 20, 37 [“the trial court, having modified
defendant’s sentence on remand, was obliged, in its new abstract of
judgment, to credit him with all actual days he had spent in custody, whether
in jail or prison, up to that time”].)
Appellant is plainly entitled to custody credits for all of the days he
spent in custody between the date of his arrest and the date of his
resentencing. Because we are remanding the case to the trial court for
resentencing, we will also direct the court to recalculate the total number of
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custody credits to which appellant is entitled, and to include those credits in
an amended abstract of judgment.
DISPOSITION
The matter is remanded for resentencing, with directions to the trial
court to (1) consider whether to exercise its discretion to strike or dismiss
appellant’s five-year serious felony enhancement; (2) recalculate his custody
credits, as set forth in this opinion; and (3) prepare an amended abstract of
judgment reflecting the changes in appellant’s sentence, if any, and the
additional custody credits to which he is entitled, and to forward a certified
copy of the amended abstract of judgment to the Department of Corrections
and Rehabilitation. In all other respects, the judgment is affirmed.
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_________________________
Kline, P.J.
We concur:
_________________________
Richman, J.
_________________________
Stewart, J.
People v. Trejo (A158925)
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