People v. Ceballos-Rodriguez CA1/2

Filed 6/20/23 P. v. Ceballos-Rodriguez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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,
A164326
v.
IXCOATL CEBALLOS– (Contra Costa County Super.
RODRIGUEZ, Ct. No. 1-196539-1)
Defendant and Appellant.
Effective January 1, 2022, the determinate sentencing law, Penal Code
section 1170, was amended in several fundamental ways. As relevant here,
the law now specifies that the lower term is the presumptive term if either
certain types of trauma or the defendant’s youth was a contributing factor in
the commission of the offense. (§ 1170, subd. (b)(6).)
Defendant Ixcoatl Ceballos-Rodriguez was sentenced in December
2021, before the new law came into effect. His only contention on appeal is
that he is entitled to resentencing under Penal Code section 1170 as
amended, and his case should be remanded for that purpose. The Attorney
General argues remand is not necessary in the circumstances of this case.
We will remand for resentencing under the amended law.
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BACKGROUND
A jury found defendant guilty of 10 offenses: one count of misdemeanor
fleeing a pursuing peace officer’s motor vehicle (Veh. Code, § 2800.1, subd.
(a)), four counts of driving a vehicle without consent (id., § 10851, subd. (a)),
two counts of fleeing a pursuing peace officer’s vehicle while driving
recklessly (id., § 2800.2), two counts of fleeing a peace officer’s vehicle while
driving against traffic (id., § 2800.4), and one count of misdemeanor false
imprisonment (Pen. Code,1 § 236).
At the sentencing hearing on December 3, 2021, the court sentenced
defendant to two years and eight months in state prison. The sentence was
composed of a middle term of two years for one count of fleeing a peace
officer’s vehicle while driving against traffic and a consecutive term of eight
months (one-third the middle term) for one count of driving a vehicle without
consent. Punishment for the remaining counts was either imposed to run
concurrently or stayed under section 654.
DISCUSSION
A. Changes to Section 1170
At the time defendant was sentenced, section 1170 gave the trial court
broad authority to select a principal term from the applicable statutory triad
(lower, middle, or upper term) that “in the court’s discretion, best serve[d] the
interests of justice.” (Former § 1170, subd. (b), as amended by Stats. 2020,
ch. 29, § 15.)
Effective January 1, 2022, however, section 1170, was amended to add
subdivision (b)(6) (§ 1170(b)(6)).2 This subdivision provides in relevant part,
1 Further undesignated statutory references are to the Penal Code.
2 The parties both refer to Assembly Bill No. 124 (2021–2022 Reg.
Sess.) as the legislation that added section 1170(b)(6). Technically, however,
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“the court shall order imposition of the lower term” if (1) the defendant either
“has experienced psychological, physical, or childhood trauma” or is a “youth”
and (2) the circumstance (of trauma or youth) “was a contributing factor in
the commission of the offense” “unless the court finds that the aggravating
circumstances outweigh the mitigating circumstances that imposition of the
lower term would be contrary to the interests of justice.” (§ 1170(b)(6)(A) and
(B), italics added.) A “youth” for purposes of the statute is “any person under
26 years of age on the date the offense was committed.” (§§ 1016.7, subd. (b);
1170(b)(6)(B).)
Defendant was 24 years old at the time of the offenses. There was also
evidence in the record suggesting defendant had experienced physical
trauma. At sentencing, a therapist who worked with defendant testified that
defendant was “a victim of community violence,” and an intervention
specialist who worked with defendant testified that he was stabbed in
October 2019.
B. Analysis
The parties agree that section 1170(b)(6) applies retroactively to
defendant’s case. (See People v. Flores (2022) 73 Cal.App.5th 1032, 1039
(Flores) [amendments to section 1170 are “an ameliorative change in the law
applicable to all nonfinal convictions on appeal”].) The usual remedy in this
circumstance is to remand the matter for the trial court to resentence the
defendant under the current version of section 1170. (E.g., id. at pp. 1034–
1035.)
it was Senate Bill No. 567 (2021–2022 Reg. Sess.) that effectively amended
section 1170. (See People v. Jones (2022) 79 Cal.App.5th 37, 44, fn. 11.)
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1. The Appeal is Not Moot
The Attorney General, however, argues remand is unnecessary in this
case because the appeal is moot. An appeal becomes moot when events have
rendered it impossible for an appellate court to grant effective relief. (Becerra
v. McClatchy Co. (2021) 69 Cal.App.5th 913, 927, fn. 4.) “Generally, the
burden is on the party claiming mootness to establish that an appeal is
moot.” (Ibid.)
The Attorney General asserts defendant is no longer in custody and
therefore it is not possible for this court to grant effective relief. Defendant
responds the appeal is not moot because he remains on parole until March
2024. We agree with defendant.
“A criminal case should not be considered moot where a defendant has
completed a sentence where . . . the sentence may have ‘disadvantageous
collateral consequences.’ ” (People v. Ellison (2003) 111 Cal.App.4th 1360,
1368–1369.) Here, defendant is still on parole, and if he violates the terms of
his parole, he would again be exposed to a state prison sentence. (See id. at
p. 1369.) If this court grants defendant relief by remanding the matter for
resentencing, it is possible defendant would receive a shorter sentence,
which, in turn, would affect the length of time defendant would remain on
parole. In this circumstance, the appeal is not moot. (See ibid.; People v.
Goodson (1990) 226 Cal.App.3d 277, 280, fn. 2 [where the defendant was on
parole, his appeal seeking additional custody credits was not moot because
“receiving additional custody credits would give defendant an earlier
constructive release date and shorten his parole period”].)
2. Remand is Appropriate
Next, the Attorney General argues remand is not necessary because the
reporter’s transcript of the sentencing hearing clearly indicates the trial court
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would reach the same sentence if it applied section 1170(b)(6). We are not
persuaded. While the trial court rejected defendant’s request for probation, it
also found the prosecution’s request for a sentence of five years, eight months
in prison to be “a bit draconian and not warranted by the facts here.”
Because section 1170(b)(6) was not in effect then, we do not know what
defendant would have argued or offered as evidence regarding trauma and
youth if the law had been in effect when he was sentenced. Nor can we infer
how the trial court would have viewed the offenses under the new
presumption of a lower term where trauma or youth contributed to their
commission. Under this circumstance, it is appropriate to remand to allow
defendant to offer argument and evidence and the trial court to select a
sentence under the new law in the first instance. (Flores, supra, 73
Cal.App.5th at p. 1039.)
DISPOSITION
The sentence is vacated and the matter is remanded to the trial court
to sentence defendant under section 1170 as amended.
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_________________________
Miller, J.
WE CONCUR:
_________________________
Richman, Acting P.J.
_________________________
Markman, J.*
A164326, People v. Ceballos-Rodriguez
*Judge of the Alameda Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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