People v. Fontenot CA4/1

Filed 4/26/23 P. v. Fontenot CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D079573
Plaintiff and Respondent,
v. (Super. Ct. No. FBA1100269)
JOSE LUIS FONTENOT,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Bernardino
County, Lisa M. Rogan, Judge. Conditionally reversed and remanded.
Patricia L. Brisbois, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Melissa
Mandel and Tami Falkenstein Hennick, Deputy Attorneys General, for
Plaintiff and Respondent.
INTRODUCTION
Jose Luis Fontenot was charged in count 1 with the 2011 murder of
J.H, his stepfather, and in count 2 with the 2009 murder of G.B. (Pen. Code,1
§§ 187, subd. (a), 667.5(c).) Fontenot was also charged with gun
enhancements for personally and intentionally discharging a firearm and
causing great bodily injury and death. (§ 12022.53, subd. (d).) The complaint
further charged him with lesser-included gun enhancements. (§ 12022.53,
subds. (b) & (c).)
A jury convicted him of first degree murder in count 1, and it found
true the allegation that he intentionally and personally used a firearm in the
commission of the crime. (§§ 187, subd. (a), 12022.53, subd. (d); count 1.) It
also convicted Fontenot of second degree murder and found true the
allegation that he intentionally and personally used a firearm in the
commission G.B.’s murder. (§§ 187, subd. (a), 12022.53, subd. (d); count 2.)
He was a juvenile in 2009 when he committed the crime. Fontenot appealed,
contending the 2009 crime should have been handled by the juvenile court,
and challenging the sentence. (People v. Fontenot (Jan. 14, 2019, D074575)
[nonpub. opn.].) We conditionally reversed the conviction on count 2 and
remanded the matter for further resentencing.
On remand, the juvenile court concluded Fontenot was appropriately
transferred to criminal court. It resentenced Fontenot, imposing life in
prison without parole for count 1 and 15 years to life for count 2, to run
consecutively. It also imposed gun enhancements of 25 years to life on each
count, totaling an additional 50 years to life, also to run consecutively.
In this appeal, Fontenot contends we must conditionally reverse the
conviction on count 2 so that the juvenile court can evaluate whether the
1 Statutory references are to the Penal Code unless otherwise specified.
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matter was appropriately transferred to the criminal court under the burden
of proof outlined in newly-amended Welfare and Institutions Code
section 707. He also contends the matter must be remanded for resentencing
in criminal court because the court did not understand its discretion under
sections 12022.53 and 669. Finally, he asks for corrections to the abstract of
judgment that were not completed following the previous appeal.
The Attorney General agrees that the judgment of the criminal court on
count 2 should be conditionally reversed with directions to the juvenile court
to conduct a transfer hearing under the new standard for burden of proof.
We accept this concession, and we conditionally reverse that judgment.
We also agree with Fontenot that the court was not aware of its
discretion under sections 12022.53 and 669, and so we remand the matter for
resentencing. Because the superior court failed to make corrections to the
abstract of judgment as instructed, we also direct it to make those
corrections.
I.
BACKGROUND AND PROCEDURAL FACTS
Convictions and First Sentencing Hearing
We take the following facts from our previous opinion, People v.
Fontenot, supra, D074575 (Fontenot):
“In May 2011, Fontenot was charged in count 1 with the murder of his
stepfather, J.H., in violation of section 187, subdivision (a), and with
personally and intentionally discharging a firearm. (§§ 12022.53,
subds. (b)-(d), 1192.7, subd. (c)(8), 667.5 subd. (c)(8) ). While Fontenot was in
custody, police learned Fontenot was also responsible for the 2009 homicide
of G.B., when Fontenot was 17 years and four months old. In November 2011,
Fontenot was charged in count 2 with G.B.’s murder and with personally and
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intentionally discharging a firearm. (§§ 12022.53, subds. (b)-(d), 1192.7,
subd. (c)(8), 667.5 subd. (c)(8).) He was also charged with a multiple murders
special circumstance that would warrant a sentence of life in prison without
the possibility of parole if found true. (§ 190.2, subd. (a)(3).)
“Trial eventually commenced in August 2016.2 In September 2016, a
jury found Fontenot guilty of second degree murder on count 2 and found true
that Fontenot personally and intentionally discharged a firearm, causing
death to G.B. The jury deadlocked on count 1, and the court declared a
mistrial on that count.
“In February 2017, Fontenot was retried for the count 1 murder, along
with special allegations of multiple murders and the personal and intentional
discharge of a firearm in the commission of the crime. The jury found
Fontenot guilty of first degree murder and found both special allegations
true.
“[¶] . . . [¶]
“The court sentenced Fontenot to life without the possibility of parole
for count 1 and an additional 25 years to life, to be served consecutively, for
the firearm enhancement. It sentenced Fontenot to 15 years to life for
count 2, which the court stayed ‘consecutive to the above.’ The court also
applied a firearm enhancement to the second count, for 25 years to life, and
stated the total prison commitment would be life without the possibility of
parole, consecutive to 50 years to life for the firearm enhancements.”
2 “The length of time between the charges being filed and commencement
of the first trial was due, in part, to psychological testing to determine
Fontenot's competence to stand trial. The court ordered psychological
evaluations in 2011 and found Fontenot competent to stand trial in August
2012. It ordered additional evaluations in June and July 2014, and in
February 2016. The court found Fontenot competent to stand trial again in
April 2016.”
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Juvenile Transfer Hearing
We conditionally reversed and remanded the count 2 conviction for the
2009 murder of G.B., which Fontenot committed when he was 17 years and 4
months old. We instructed the juvenile court to conduct a transfer hearing,
directing it to reinstate the judgment as to count 2 and conduct a
resentencing hearing if it determined it would have transferred Fontenot to
criminal court. (Fontenot, supra, D074575.)
We also found the court had incorrectly applied section 654 by staying
the conviction in count 2 because the two counts regarded unrelated murders
that occurred two years apart: “the trial court did not have discretion to stay
the sentence on count 2 pursuant to section 654.” We further noted that had
the stay been properly applied, the inclusion of the sentence for the related
firearm enhancement was improper because accompanying enhancements
must also be stayed. (Fontenot, supra, D074575, citing People v. Calles (2012)
209 Cal.App.4th 1200, 1221; People v. Guildford (1984) 151 Cal.App.3d 406,
412 [“[I]f the stay of the sentence for the base term becomes permanent, time
for that enhancement, by definition, will never be served”].)
On remand, the juvenile court found Fontenot “was appropriately tried
in adult court.” The matter returned to criminal court for resentencing.
Resentencing Hearing
At the resentencing hearing, Fontenot requested the prison terms on
counts 1 and 2 to run concurrently. The court commented: “Mr. Fontenot’s
personal request i[s] that the sentences run concurrent, but the Court has no
ability to do [that] pursuant to the law and based on the counts that were
found in which he was found guilty beyond a reasonable doubt.” It then
explained it was “lift[ing] its previously imposed stay pursuant to the
Appellate Court’s direction and run[ning] that consecutive based on the fact
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that it was multiple—or a different victim.” The court imposed a sentence of
life in prison without the possibility of parole as to count 1 and 15 years to
life for count 2, to run consecutively. Additionally, the court found that
Fontenot exhibited a “high degree of cruelty, viciousness, and callousness,”
and it imposed a gun enhancement of 25 years to life on each count, for a
total of 50 years to life. Thus, Fontenot was sentenced to life in prison
without the possibility of parole plus 65 years to life in prison.
Fontenot timely appealed.
II
DISCUSSION
A. Assembly Bill No. 2361
Prior to the enactment of Assembly Bill No. 2361, the prosecution bore
the burden of establishing that a minor was not suitable for rehabilitation
under the juvenile court system using a standard of preponderance of the
evidence. (Kevin P. v. Superior Court (2020) 57 Cal.App.5th 173, 186.) While
this appeal was pending, Assembly Bill No. 2361 became effective. (Stats.
2022, ch. 330, § 1 (Assem. Bill 2361) eff. Jan. 1, 2023.) It amended Welfare
and Institutions Code section 707 to require a juvenile court, in evaluating
whether to transfer a minor to adult court, to apply the standard of proof of
clear and convincing evidence to the ultimate finding that the minor is not
amenable to rehabilitation while under the jurisdiction of the juvenile court.
The new law also requires the juvenile court to state in an order the reasons
supporting its finding that the minor is not amenable to the rehabilitation.
(Welf. & Inst. Code, § 707, subd. (a)(3).)
Fontenot and the Attorney General agree that the amendments to
section 707 apply retroactively under In re Estrada (1965) 63 Cal.2d 740 and
People v. Superior Court (Lara) (2018) 4 Cal.5th 299. In Estrada, the
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Supreme Court held that an amendment to a statute that reduces the
punishment for a crime applies retroactively to any case in which the
judgment is not final before the amendment’s operative date, unless there is
evidence of contrary legislative intent. (Estrada, at pp. 742-746.) In Lara,
the Supreme Court considered the retroactivity of Proposition 57, which
prohibited prosecutors from charging juveniles with crimes directly in adult
court and instead required that they commence the action in juvenile court
and seek transfer to the adult court. Although Proposition 57 did not reduce
the punishment for a crime, “[t]he possibility of being treated as a juvenile in
juvenile court—where rehabilitation is the goal—rather than being tried and
sentenced as an adult can result in dramatically different and more lenient
treatment. Therefore, Proposition 57 reduces the possible punishment for a
class of persons, namely juveniles.” (Lara, at p. 303.) The Supreme Court
thus concluded that “Proposition 57 applie[d] to all juveniles charged directly
in adult court whose judgment was not final at the time it was enacted.” (Id.
at p. 304.)
Because amended Welfare and Institutions Code section 707 requires
clear and convincing evidence, it heightens the prosecution’s burden of proof
at a transfer hearing, which thereby increases the possibility of treatment in
juvenile court and reduces the possible punishment for a person who was a
juvenile at the time he or she committed the crime. Thus, we agree with
Fontenot and the Attorney General that Assembly Bill No. 2361’s changes to
Welfare and Institutions Code section 707 apply retroactively to juveniles
transferred to adult courts whose judgments were not final as of January 1,
2023. This includes Fontenot.
Accordingly, we conditionally reverse the conviction and sentence on
count 2, and we order the juvenile court to conduct a juvenile transfer
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hearing. If the juvenile court determines that the matter should have been
addressed in the juvenile court, the juvenile court shall impose an
appropriate disposition for the conviction on the second count. If the juvenile
court determines it would have transferred Fontenot to a court of criminal
jurisdiction, the original conviction and sentence must be reinstated and
remanded to the trial court for resentencing, as we detail post.
B. Penal Code Section 12022.53
Fontenot also asks us to remand the matter for resentencing because
he contends the court was unaware of its discretion to replace the gun
enhancement under section 12022.53 subdivision (d) with a lesser
enhancement. The Attorney General contends Fontenot forfeited this issue
by failing to make the request at resentencing and asks us to adopt the
reasoning indicated in People v. Tirado (2022) 12 Cal.5th 688, at page 694,
footnote 8 (Tirado). There, the Supreme Court acknowledged that the
defendant could have forfeited the request for a lesser enhancement by not
specifically requesting that the trial court strike or reduce the enhancement
imposed. However, the Supreme Court did not actually reach a conclusion
regarding forfeiture. It simply gave the parties the opportunity to address
the “unresolved forfeiture argument” on remand. Thus, there is no reasoning
for us to adopt.
At the time of sentencing, there was a split of authority regarding the
court’s discretion under section 12022.53. People v. Morrison (2019) 34
Cal.App.5th 217 had concluded that, under the newly amended
subdivision (h), trial courts had discretion to strike an enhancement and
replace it with a lesser included, uncharged enhancement. (Morrison, at
pp. 222-223.) People v. Tirado (2019) 38 Cal.App.5th 637, at page 643, review
granted November 13, 2019, S257658 and reversed and remanded by Tirado,
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supra, 12 Cal.5th 688, had held that subdivision (h) did not authorize a court
to substitute one enhancement for another. Because the Supreme Court
resolved a split of authority among the Courts of Appeal in Tirado, the new
understanding applies retrospectively to the nonfinal judgment here (see
People v. Guerra (1984) 37 Cal.3d 385, 400), so we remand for resentencing
regardless of the forfeiture issue.
Further, at the time of resentencing, the Supreme Court had not yet
issued its decision in Tirado, and nothing in the record indicates the trial
court anticipated the holding or otherwise understood its discretion to impose
lesser enhancements if it struck the enhancements under section 12022.53,
subdivision (d). Although we remanded the matter so that the superior court
could consider its discretion under section 12022.53, subdivision (d), the
Attorney General does not point to anything in the record indicating that the
court understood its discretion to be something other than the binary choice
to either impose or strike the enhancements.
Fontenot asked the trial court to strike either or both firearm
enhancements. Fontenot’s attorney argued that the court had not been
empowered to strike the use of the firearm at the first sentencing hearing,
but it was “now empowered to strike the use of the firearm.” The prosecution
likewise treated the court’s discretion as limited to striking the firearm
enhancements: “The People ask that the Court not exercise its discretion in
striking any of the allegations . . . .”
Neither Fontenot nor the prosecutor argued that the court had
discretion to impose a section 12022.53, subdivisions (b) or (c) enhancement
in lieu of the section 12022.53 subdivision (d) enhancement. They simply
addressed whether the court should strike a firearm enhancement, and the
court declined to do so. Accordingly, it is appropriate to remand the matter
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for resentencing so that the court has an opportunity to consider its full
discretion.
C. Penal Code Section 669
Section 669 gives a trial court discretion to impose concurrent or
consecutive prison terms on a defendant who has been convicted of more than
one felony punishable by a life term. (People v. Jenkins (1995) 10 Cal.4th
234, 256; People v. Shaw (2004) 122 Cal.App.4th 453, 459 [concurrent terms
not prohibited].)
The Attorney General acknowledges that the court “apparently
misunderstood its discretion to impose concurrent sentences” under
section 669. Notwithstanding the court’s comments in the resentencing
hearing that Fontenot acted with a “high degree of cruelty, viciousness, and
callousness,” the record does not clearly indicate the trial court would have
declined to run the sentences concurrently had it understood its discretion to
run the terms concurrently. “ ‘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 a material
aspect of a defendant’s record.’ [Citation.] In such circumstances, we have
held that 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.’ ” (People v.
Gutierrez (2014) 58 Cal.4th 1354, 1391.)
Moreover, because we are remanding the matter for resentencing,
Fontenot will have an opportunity to raise any sentencing issues at that time,
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including the court’s discretion under section 669.3 (People v. Valenzuela
(2019) 7 Cal.5th 415, 424-425 [“[T]he full resentencing rule allows a court to
revisit all prior sentencing decision when resentencing a defendant”].) We
express no view on the sentence Fontenot may receive upon resentencing.
D. Corrections to Abstract of Judgment
The parties agree the abstract of judgment incorrectly identifies the
dates of the offense and conviction in count 2. These should be corrected to
reflect that the offense in count 2 occurred in 2009, and the conviction for
count 2 occurred September 8, 2016. In our previous decision, we also
ordered the removal of the parole revocation fine because Fontenot was
sentenced to life in prison without the possibility of parole. Although we
previously instructed the clerk of the superior court to make these
corrections, they were not made. Additionally, on September 10, 2021, the
superior court found that Fontenot had served a total of 3,783 actual days in
custody but was not entitled to any additional conduct credit. The actual
days of custody credit should be included in the amended abstract of
judgment.
“[W]hen an appellate court remands a matter with directions governing
the proceedings on remand, ‘ “those directions are binding on the trial court
and must be followed.” ’ ” (People v. Ramirez (2019) 35 Cal.App.5th 55, 64.)
On remand, these errors must be corrected.
DISPOSITION
The judgment of the criminal court on count 2 is conditionally reversed
and the matter remanded to the juvenile court with directions to conduct a
3 Senate Bill No. 81, which applies to all sentencing after January 1,
2022, added subdivision (c) to section 1385, which also addresses sentencing
enhancements.
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transfer hearing pursuant to Welfare and Institutions Code section 707 no
later than 90 days from the filing of the remittitur.
If, at the transfer hearing, the juvenile court determines it would have
transferred Fontenot to a court of criminal jurisdiction, the judgment shall be
reinstated as of that date. The court is then directed to conduct a
resentencing hearing. Fontenot can raise any other sentence-related
arguments at that time.
If, at the transfer hearing, the juvenile court determines that it would
not have transferred count 2 to a court of criminal jurisdiction, then
Fontenot’s criminal conviction for count 2 and true finding on the related
firearm enhancement will be juvenile adjudications as of that date. The
juvenile court is then to conduct a dispositional hearing within its usual time
frame. The trial court is then directed to conduct a resentencing hearing on
count 1. Fontenot can raise any other sentence-related arguments at that
time.
Following the hearings on remand, the clerk of the superior court is
instructed to prepare amended abstracts of judgment reflecting the trial
court’s sentencing decisions. The clerk is further instructed to remove the
parole revocation fine, and to amend the abstract to reflect that the offense in
count 2 occurred in 2009 and that the conviction for count 2 occurred
September 8, 2016. The clerk is also instructed to amend the abstract of
judgment to reflect that the actual days of custody credit as of September 10,
2021 totaled 3,783 or to update the actual days of custody credit following the
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new resentencing hearing. The clerk shall serve certified copies on the
Department of Corrections and Rehabilitation.
HUFFMAN, Acting P. J.
WE CONCUR:
O’ROURKE, J.
DATO, J.
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