People v. Cadena CA2/2

Filed 9/28/21 P. v. Cadena CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B307086
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA056822)
v.
VICTOR JAVIER CADENA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Patrick Connolly, Judge. Affirmed in part,
reversed in part, and remanded.
Sally Patrone Brajevich, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Wyatt E. Bloomfield and Michael C. Keller,
Deputy Attorneys General, for Plaintiff and Respondent.
______________________________
In 2001, a jury found defendant and appellant Victor Javier
Cadena guilty of one count of murder (Pen. Code, § 187, subd. (a);
count 1)1 and 10 counts of second degree robbery (§ 211; counts 2–
5, 15–17 & 50–52). (People v. Olvera (Nov. 2, 2005, B154139)
[nonpub. opn.], p. 2 (Olvera).) The jury also found true various
firearm enhancement allegations. (§§ 12022, subd. (a)(1),
12022.53, subd. (b); Olvera, supra, B154139, at p. 2.) The trial
court sentenced defendant to serve 66 years to life in state prison.
We affirmed the judgment on direct appeal. (Olvera, at p. 19.)
In 2019, defendant filed a petition for resentencing
pursuant to section 1170.95. The trial court granted the petition,
vacated the murder conviction on count 1, and resentenced
defendant to an aggregate term of 36 years on the remaining
counts.
Appealing from his resentencing, defendant argues that
(1) he is entitled to a juvenile transfer hearing pursuant to
Proposition 57, (2) the trial court failed to exercise its discretion
as to the firearm enhancements, and (3) the fees and fines
imposed should be stricken pursuant to People v. Dueñas (2019)
30 Cal.App.5th 1157. Defendant acknowledges that his counsel
below failed to request a juvenile transfer hearing, move to
dismiss the firearm enhancements, or object to the fines and fees,
but he contends that these failures constituted ineffective
assistance of counsel.
We do not reach the merits of defendant’s arguments. That
is because the matter must be remanded for resentencing
regardless to correct an unauthorized sentence on count 2. (See
People v. Lua (2017) 10 Cal.App.5th 1004, 1021 [appellate court’s
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
conclusion that remand for resentencing was required rendered
moot other arguments raised on appeal regarding the sentence].)
As to count 2, the trial court sentenced defendant to eight
months (excluding enhancements), which it explained was one-
third of the middle term. Given that (1) one-third of the middle
term of second degree robbery is one year (see § 213, subd. (a)(2)
[“Robbery of the second degree is punishable by imprisonment in
the state prison for two, three, or five years”]), (2) the trial court
stated that count 2 “was not a robbery,” and (3) the abstract of
judgment lists count 2 as “Attmpt [sic] 2nd Degree Robbery[,]” it
is apparent that the trial court erroneously sentenced defendant
as if he had been convicted of attempted robbery (§§ 664, 211) on
count 2 instead of second degree robbery (§ 211).2
Because defendant was sentenced on count 2 for the wrong
crime, the sentence is unauthorized and cannot stand. (See
People v. Scott (1994) 9 Cal.4th 331, 354 [“a sentence is generally
‘unauthorized’ where it could not lawfully be imposed under any
circumstance in the particular case”]; People v. Dotson (1997)
16 Cal.4th 547, 554, fn. 6 [“A claim that a sentence is
unauthorized . . . is subject to judicial correction whenever the
error comes to the attention of the reviewing court”]; People v.
Delgado (2010) 181 Cal.App.4th 839, 854 (Delgado) [an appellate
2 In the original information filed on September 5, 2000,
defendant was indeed charged with attempted second degree
robbery (§§ 664, 211). In the amended information filed on
June 5, 2001, count 2 was changed to second degree robbery
(§ 211). The verdict form for count 2 states, in relevant part:
“We the jury in the above entitled action find the defendant
VICTOR CADENA[] GUILTY of the crime of Second Degree
Robbery, upon Juan Saavedra, in violation of Penal Code Section
211, a felony, as charged in Count 2 of the information.”
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court “may set aside an unauthorized sentence so a proper
sentence may be imposed, even if the new sentence is harsher”].)
We therefore remand for resentencing. (See Delgado,
supra, 181 Cal.App.4th at p. 855.) On remand, defendant may
raise for the first time in the trial court his arguments that (1) he
is entitled to a juvenile transfer hearing, (2) the trial court should
exercise its discretion regarding whether to dismiss the firearm
enhancements, and (3) fees and fines should not be imposed. We
express no opinion as to how the trial court should rule on these
matters in the first instance.
DISPOSITION
The sentence is reversed, and the matter is remanded to
the trial court for resentencing. In all other respects, the
judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, J.
ASHMANN-GERST
We concur:
________________________, P. J.
LUI
________________________, J.
CHAVEZ
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