Opinion
E067708
02-14-2018
THE PEOPLE, Plaintiff and Respondent, v. JESSE MERAZ, JR., Defendant and Appellant.
Steven L. Harmon, Public Defender, and Laura Arnold, Deputy Public Defender, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Peter Quon, Jr. and Garrett Beaumont, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. INF058375) OPINION APPEAL from the Superior Court of Riverside County. James S. Hawkins, Judge. Reversed and remanded with directions. Steven L. Harmon, Public Defender, and Laura Arnold, Deputy Public Defender, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Peter Quon, Jr. and Garrett Beaumont, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Jesse Meraz, Jr., who already had two strike priors, ditched a loaded revolver while running away from the police. He was convicted of unlawful possession of a firearm, as well as other offenses, and was sentenced pursuant to the Three Strikes Law to 36 years to life in prison.
Defendant appealed. We reversed his conviction on some counts, but we affirmed his conviction on others, including the conviction for unlawful possession of a firearm. On remand, the trial court resentenced defendant pursuant to Proposition 36 to just eight years in prison.
That time, the People appealed. We held that defendant was not automatically entitled to be sentenced under Proposition 36; if he was entitled to resentencing under Proposition 36 at all (and it now appears that he probably is not), he had to file a petition. We reversed and remanded with directions to resentence defendant.
Meanwhile, however, defendant had served his reduced term and been released. On remand, he filed a Romero motion. (See People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) In it, he argued that he had been a model prisoner and, since his release, a model citizen. The People argued, however, that the terms of our opinion in the second appeal precluded the trial court from even considering a Romero motion. The trial court agreed. Thus, it resentenced defendant to 36 years to life.
Now, defendant appeals again. He argues that there was nothing in our opinion in the second appeal that precluded the trial court from considering a Romero motion. We agree. Hence, we will reverse.
I
FACTUAL AND PROCEDURAL BACKGROUND
The parties have not requested judicial notice of the record in either of the two previous appeals. We are not required to take judicial notice of court records in the absence of a request. (Evid. Code, §§ 452, subd (d), 453, 459, subd. (a).) Because some background information is needed, however, we take judicial notice, on our own motion, of our unpublished opinions in the previous appeals. (In re W.R. (2017) 16 Cal.App.5th 1053, 1057, fn. 2.)
A. Defendant's Conviction.
In 2011, a jury found defendant guilty on four counts:
Count 1: Possession of a firearm by a convicted felon. (Pen. Code, former § 12021, subd. (a)(1); see now Pen. Code, § 29800, subd. (a)(1).)
Count 2: Possession of ammunition by a convicted felon. (Pen. Code, former § 12316, subd. (b)(1); see now Pen. Code, § 30305, subd. (a)(1).)
Count 3: Carrying a loaded firearm in public while an active gang participant. (Pen. Code, former § 12031, subd. (a)(2)(C); see now Pen. Code, § 25850, subd. (c)(3).)
Count 4: Active gang participation. (Pen. Code, § 186.22, subd. (a).)
In addition, two strike priors (Pen. Code, §§ 667, subds. (b)-(i), 1170.12), two prior serious felony allegations (Pen. Code, § 667, subd. (a)), and two 1-year prior prison term allegations (Pen. Code, § 667.5, subd. (b)) were found true.
The trial court sentenced defendant to 25 years to life on each count; the terms on counts 1, 2, and 4 were stayed pursuant to Penal Code section 654. It also sentenced him to five years on each of the two prior serious felony enhancements and one year on one of the prior prison term enhancements, for a total of 36 years to life in prison.
B. Defendant's First Appeal.
Defendant appealed.
In 2013, we issued our opinion. (People v. Meraz (Dec. 20, 2013, E055229) 2013 Cal. App. Unpub. LEXIS 9249 (Meraz I).) We reversed counts 3 and 4, holding that there was insufficient evidence that defendant was an active gang participant. (Id. at pp. *6-*9.) Otherwise, we affirmed. We directed the trial court to resentence defendant. (Id. at p. *13.)
C. Defendant's First Resentencing.
While defendant's first appeal was pending, Proposition 36 went into effect. Thus, on remand, in 2014, defendant argued that he was entitled to be sentenced pursuant to Proposition 36. The trial court agreed. It therefore sentenced defendant to a total of eight years in prison.
D. Defendant's Second Appeal.
The People appealed.
In 2016, we issued our opinion. (People v. Meraz (Feb. 10, 2016, E061584) 2016 Cal. App. Unpub. LEXIS 963 (Meraz II).) We held that, because defendant was convicted before Proposition 36 went into effect, the trial court should not have resentenced him on remand pursuant to Proposition 36. (Meraz II at pp. *6-*14.) We noted that Proposition 36 allows a person "presently serving an indeterminate term of imprisonment" to petition for resentencing; thus, it implies that such a person is not entitled to resentencing automatically. (Id. at pp. *6, *9.)
The Supreme Court later held that a defendant serving a three-strikes sentence that has not become final on appeal is not automatically entitled to be resentenced under Proposition 36 on remand. (People v. Conley (2016) 63 Cal.4th 646, 652.)
We also cited People v. Buckhalter (2001) 26 Cal.4th 20, which had held that, after a judgment is reversed with directions for resentencing, the defendant is in post-sentence custody, not pre-sentence custody, at least for purposes of custody credit. (Meraz II at pp. *11-*13.) We stated that "Under Buckhalter, [defendant] . . . remained in the postsentence custody of the Department of Corrections and Rehabilitation, and he continued to serve an indeterminate term of imprisonment." (Id. at p. *13.)
At this point, we dropped a footnote — footnote 2 — which stated: "Although we had reversed counts 3 and 4, and hence the indeterminate 25-years-to-life terms imposed on them, this reversal required that the Penal Code section 654 stay on the indeterminate 25-years-to-life term on either count 1 or count 2 be vacated. (See In re Pope (2010) 50 Cal.4th 777, 784.)" (Meraz II at p. *13, fn. 2.)
Our disposition was: "The judgment is reversed, solely with respect to the sentence, and the matter is remanded for resentencing." (Meraz II at p. *15.)
E. Defendant's Second Resentencing.
On remand, defendant filed a written Romero motion. According to the motion, defendant had had a disadvantaged childhood, including domestic violence and drug abuse. His strike priors, for robbery and mayhem, were fairly remote (1999 and 2004) and arose out of relatively mild misconduct on defendant's part. His current offenses were not serious or violent.
The factual statements made in the Romero motion were not supported by a declaration. However, the prosecution did not object or oppose the motion on that ground.
On remand, as far as the record reflects, defendant never filed a petition for resentencing pursuant to Proposition 36. Presumably this is because his conviction for possession of a firearm by a convicted felon was based on evidence that he held and carried a loaded revolver. In 2014, People v. White (2014) 223 Cal.App.4th 512 held that a defendant who was armed during the commission of unlawful possession of a firearm is disqualified from resentencing. (Id. at pp. 524-526.)
While in Pelican Bay State Prison, defendant had earned a general education diploma (GED). He had attended Narcotics Anonymous and Bible study classes.
While his second appeal was pending, defendant was released from prison and placed on post-release supervision. On December 29, 2014, he was granted early termination due to sustained good behavior. (See Pen. Code, § 3456, subd. (a).)
Meanwhile, defendant entered a one-year in-patient substance abuse recovery program. He then trained as an apprentice ironworker (apparently a fairly arduous process) while holding down other jobs. Ultimately, he obtained a job as an ironworker. He also started tattoo removal treatments.
Defendant submitted some 12 letters of recommendation, from prison teachers, employers, pastors, and friends. They praised him as "reliable," "responsible," "conscientious," "trustworthy," "sober and clear headed," and "one of our best employees."
The prosecution did not dispute that defendant's Romero motion was persuasive. It raised one and only one argument: That our disposition and directions in Meraz II deprived the trial court of jurisdiction to rule on the Romero motion.
The trial court agreed with the prosecution. Accordingly, it sentenced defendant to 25 years to life on count 1 and stayed count 2; with the enhancements, the total sentence was 36 years to life in prison.
The abstract of judgment erroneously omits the two 5-year terms imposed on the prior serious felony conviction enhancements.
II
OUR PREVIOUS OPINION DID NOT BAR A ROMERO MOTION
"'"An unqualified reversal remands the cause for new trial and places the parties in the trial court in the same position as if the cause had never been tried." [Citation.] . . . [¶] That status even permits amendment of the accusatory pleading [citation], as well as renewal and reconsideration of pretrial motions and objections to the admission of evidence. [Citation.]' [Citation.]" (People v. Boyer (2006) 38 Cal.4th 412, 443, fn. 18.)
By analogy, an affirmance with respect to the conviction when combined with an unqualified reversal with respect to the sentence leaves the case in the same position as if the defendant had never been sentenced. It should allow both parties to take all procedural steps that are ordinarily permitted at sentencing. This would include allowing the defendant to bring a Romero motion, as a Romero motion is typically heard at the time set for sentencing. Unlike a motion for new trial, a Romero motion cannot remove the case from the sentencing track and send it back to trial. Rather, it merely determines how many strikes (if any) the trial court will deem the defendant to have for sentencing purposes.
All of this applies, however, only in the absence of directions to the contrary. "'On remand with directions, after a judgment on appeal, the trial court has jurisdiction only to follow the directions of the appellate court; it cannot modify, or add to, those directions.' [Citation.]" (People v. Vizcarra (2015) 236 Cal.App.4th 422, 441.)
"Whether the trial court has correctly interpreted an appellate opinion is an issue of law subject to de novo review. In interpreting the language of a judicial opinion, the appellate court looks to the wording of the dispositional language, construing these directions 'in conjunction with the opinion as a whole.' [Citations.]" (Ducoing Management Inc. v. Superior Court (2015) 234 Cal.App.4th 306, 313.)
Here, our disposition remanded the matter for "resentencing." As noted, a Romero motion is properly embraced in sentencing. Indeed, the People do not argue otherwise. Rather, they point to footnote 2, in which we stated that our reversal in Meraz I "required that the Penal Code section 654 stay on the indeterminate 25-years-to-life term on either count 1 or count 2 be vacated." They conclude that our remand for resentencing had a narrowly limited purpose: It allowed the trial court to lift the stay on either count 1 or count 2.
Footnote 2, however, formed no part of our directions. Rather, it was part of our explanation of our main holding that defendant was not automatically entitled to resentencing under Proposition 36. As we discussed, under Proposition 36, "persons presently serving an indeterminate term of imprisonment" can obtain relief, if at all, only by petitioning for resentencing. Defendant had argued that, after our reversal in Meraz I, he was no longer "serving an indeterminate term of imprisonment." The point of footnote 2 was to explain how defendant was still "serving an indeterminate term"; instead of an indeterminate term on count 3 or 4, which we had reversed, it had become an indeterminate term on either count 1 or count 2.
In other words, footnote 2 described the status quo after Meraz I was decided, but before defendant was resentenced. It did not purport to describe the resentencing options that the trial court would have on remand after Meraz II was decided.
In the People's view, the trial court's original sentence remained in effect, albeit based on count 1 or count 2 rather than count 3 or count 4; all the trial court had to do on remand was decide whether to lift the stay as to count 1 or count 2. However, this is inconsistent with our actual disposition, in which we "reversed" "[t]he judgment . . . with respect to the sentence" and remanded for "resentencing." This general reversal left no part of the sentence in place. If we wanted to do what the People envision, we would have directed the trial court to modify the sentence. Or more likely — as it really did not matter whether the sentence was based on count 1 or count 2 — we would have modified the sentence ourselves.
At several points, the People seem to assume that defendant's Romero motion was also barred because he had brought previous Romero motions that were denied and he had not challenged these denials in his previous appeal. They did not raise this argument below. In any event, we reject it, for three alternative reasons.
First, the People raise this argument in a single sentence, without citing any supporting authority, and without any applicable heading or subheading. (See Cal. Rules of Court, rule 8.204(a)(1)(B).) "If a party's briefs do not provide legal argument and citation to authority on each point raised, '"the court may treat it as waived, and pass it without consideration. [Citations.]"' [Citation.]" (People v. Bryant, Smith, and Wheeler (2014) 60 Cal.4th 335, 363-364.)
Second, our record fails to show that defendant actually brought any previous Romero motions. The People purport to cite the record from Meraz I. However, as mentioned in footnote 1, ante, they have not placed that record before us.
Third, even assuming that the trial court did deny previous Romero motions, that would not preclude defendant's present motion. Our opinions in Meraz I and II could not establish the law of the case on matters that they did not consider. "'Generally, the doctrine of law of the case does not extend to points of law which might have been but were not presented and determined in the prior appeal. [Citation.] . . .' [Citation.]" (Leider v. Lewis (2017) 2 Cal.5th 1121, 1127.)
Law of the case aside, the trial court had jurisdiction to reconsider its own interim rulings. A court has the inherent authority "to reconsider its prior interim orders so it may correct its own errors." (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1107; see also Jackson v. Superior Court (2010) 189 Cal.App.4th 1051, 1065 ["'In criminal cases, there are few limits on a court's power to reconsider interim rulings . . . .' [Citation.]"].) Reconsideration was all the more appropriate here because there was new evidence in the meantime, regarding defendant's performance in prison and on release.
We therefore conclude that the trial court erred by refusing to consider defendant's Romero motion. What is more, the error was plainly prejudicial. The Romero motion was solid and persuasive. It strongly tended to show that defendant had turned over a new leaf so that he was no longer within the spirit of the Three Strikes Law. The People did not argue otherwise below; they do not argue otherwise in this appeal.
We are not holding that the trial court was absolutely required to grant the Romero motion - i.e., that it would have been an abuse of discretion to deny it. We do not wish to fetter the trial court's exercise of its discretion on remand. However, we do hold that the Romero motion, on its face, was so well-argued that there is a reasonable probability that, if the trial court had considered it, it would have granted it. Accordingly, we must reverse and remand for resentencing.
III
DISPOSITION
The judgment is reversed, solely with respect to the sentence. On remand, the trial court must reconsider defendant's Romero motion. Because there may be changed circumstances bearing on the merits of the Romero motion, it must give both sides an opportunity to file supplemental briefing and evidence. If it grants the Romero motion, in whole or in part, it must proceed to resentence defendant. If it denies the Romero motion, it must reimpose the same sentence.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: McKINSTER
J. SLOUGH
J.