Opinion
F086072
04-16-2024
THE PEOPLE, Plaintiff and Respondent, v. ANGEL JULIAN OROZCO, Defendant and Appellant.
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kenneth N. Sokoler and Sean M. McCoy, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Fresno County. No. F14911003 Houry A. Sanderson, Judge.
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kenneth N. Sokoler and Sean M. McCoy, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
Defendant Angel Julian Orozco was sentenced to 16 years in prison pursuant to a plea agreement with a stipulated sentence. The sentence included a one-year prior prison term enhancement. Following enactment of Penal Code section 1172.75, the trial court struck the prior prison term enhancement but otherwise reinstated the stipulated sentence. On appeal, defendant argues that even though he was sentenced to a stipulated term pursuant to a plea agreement, under section 1172.75 he was entitled to a full resentencing. The People agree. We remand for resentencing pursuant to section 1172.75.
All further undesignated statutory references are to the Penal Code.
PROCEDURAL HISTORY
On December 11, 2014, the Fresno County District Attorney filed a complaint charging defendant with second degree robbery (§ 211; count 1) and attempted second degree robbery (§§ 211, 664; count 2). The complaint further alleged that defendant had suffered two prior strike convictions within the meaning of the "Three Strikes" law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), that defendant had suffered a prior serious felony conviction (§ 667, subd. (a)(1)), that defendant had served a prior prison term for a specified violent felony conviction (§ 667.5, subd. (a)), and that defendant had served a prior prison term for a conviction other than a specified violent felony conviction (§ 667.5, former subd. (b)).
Defendant entered into a plea agreement by which he pled no contest on count 1, admitted having suffered one prior strike conviction and one serious felony conviction, and admitted having served one prior prison term (§ 667.5, former subd. (b)) in exchange for dismissal of count 2 and the remaining allegations. He was sentenced on April 24, 2015. Pursuant to the agreement, the trial court imposed an aggregate term of 16 years, consisting of: on count 1, 10 years (the upper term of five years, doubled due to the prior strike conviction), plus a five-year prior serious felony conviction enhancement, plus a one-year prior prison term enhancement.
Defendant was identified by the Department of Corrections and Rehabilitation (CDCR) as serving a prior prison term pursuant to section 667.5, former subdivision (b). On March 29, 2023, the trial court held a hearing and struck the one-year prior prison term enhancement, but otherwise sentenced defendant pursuant to the terms of the plea agreement.
On April 4, 2023, defendant filed a notice of appeal, and on April 20, 2023, defendant filed an amended notice of appeal.
RESENTENCING HEARING PURSUANT TO SECTION 1172.75
Because the facts underlying the offenses are not relevant to the sentencing issue before us, we omit a summary of those facts.
Following enactment of section 1172.75, defendant was identified by the CDCR as serving a sentence on a prior prison term enhancement pursuant to section 667.5, former subdivision (b). The parties filed briefing regarding the scope of relief offered by section 1172.75 where, as here, the defendant was sentenced to a stipulated term pursuant to a plea agreement. Defense counsel argued that defendant was entitled to a full resentencing. The prosecutor argued that while defendant was entitled to have the now-invalid prior prison term enhancement removed from his sentence, the trial court did not have discretion to conduct a full resentencing.
The trial court held a hearing on March 29, 2023. The court held that it only had authority to strike the prior prison term enhancement and otherwise reinstate the sentence based on the plea agreement. It "[did] not have jurisdiction and/or discretion to resentence a stipulated plea agreement."
Accordingly, the trial court recalled defendant's sentence and struck the one-year prior prison term enhancement, but otherwise reinstated the sentence pursuant to the terms of the plea agreement.
DISCUSSION
I. Applicable Law and Standard of Review
The Legislature passed Senate Bill No. 136 (2019-2020 Reg. Sess.), effective January 1, 2020, which amended section 667.5, subdivision (b) to limit prior prison term enhancements to sexually violent offenses as defined in the Welfare and Institutions Code. (Stats. 2019, ch. 590, § 1; People v. Lopez (2019) 42 Cal.App.5th 337, 340-341.) The Legislature subsequently passed Senate Bill No. 483 (2021-2022 Reg. Sess.), which made this change retroactive by adding section 1171.1 (Stats. 2021, ch. 728, §§ 1 & 3), which was later renumbered as section 1172.75 (Stats. 2022, ch. 58, § 12). Under section 1172.75, "[a]ny sentence enhancement that was imposed prior to January 1, 2020, pursuant to subdivision (b) of Section 667.5, except for any enhancement imposed for a prior conviction for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code is legally invalid." (§ 1172.75, subd. (a).)
Once a trial court has confirmed that a defendant's current judgment includes a prior prison term enhancement that is now legally invalid, it "shall recall the sentence and resentence the defendant." (§ 1172.75, subd. (c).) Section 1172.75 sets forth parameters for resentencing. (Id., subd. (d).) As relevant to this appeal, section 1172.75, subdivision (d)(2), states that "[t]he court shall apply the sentencing rules of the Judicial Council and apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing."
We review issues of statutory construction de novo. (People v. Gonzales (2018) 6 Cal.5th 44, 49.) Our goal is to determine the legislative intent of the statute. (People v. Johnson (2022) 79 Cal.App.5th 1093, 1108.) "Because the statutory language is generally the most reliable indicator of that intent, we look first at the words themselves, giving them their usual and ordinary meaning." (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1040, overruled on other grounds in Facebook, Inc. v. Superior Court (Touchstone) (2020) 10 Cal.5th 329, 345, fn. 6.) When the statutory language is unambiguous, its plain meaning controls. (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735.) We also "generally must 'accord[] significance, if possible, to every word, phrase and sentence in pursuance of the legislative purpose,' and [the Supreme Court] ha[s] warned that '[a] construction making some words surplusage is to be avoided.'" (People v. Valencia (2017) 3 Cal.5th 347, 357.) Where the language supports more than one reasonable construction, we may look to extrinsic aids, including the legislative history, for additional guidance. (People v. Ruiz (2018) 4 Cal.5th 1100, 1105-1106.)
II. Analysis
The trial court found that, because defendant was sentenced pursuant to a plea agreement, it only had authority to "remove the one[-]year prison prior and reinstate the sentence based on the stipulated plea agreement as was submitted at the time of the plea in this case." The court was incorrect.
In People v. Stamps (2020) 9 Cal.5th 685, the defendant was sentenced to nine years in prison, "based on the low term for burglary (two years), doubled under the Three Strikes law (... § 1170.12, subd. (c)(1)), plus five years for the serious felony enhancement." (Id. at p. 693.) The sentence in Stamps was based upon a plea agreement that included a stipulated sentence and a specific sentencing calculation. (Ibid.) After the defendant pled guilty and while his appeal was pending, "a new law went into effect permitting the trial court to strike a serious felony enhancement in furtherance of justice (... § 1385, subd. (a)), which it was not previously authorized to do." (Id. at p. 692.) Our Supreme Court found that this new law, which was ameliorative in nature, applied to the defendant even though the defendant was sentenced pursuant to a plea agreement. (Id. at pp. 698-699.)
Section 1385 was subsequently amended. (See People v. Sek (2022) 74 Cal.App.5th 657, 674.) This amendment does not affect our analysis.
We see no reason why the result should be different here. Like the defendant in Stamps, defendant was sentenced pursuant to a plea agreement and his sentence included five years for the serious felony enhancement. While Stamps did not address section 1172.75, section 1172.75, subdivision (d)(2) required the trial court to "apply the sentencing rules of the Judicial Council and apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing." Accordingly, pursuant to Stamps, the trial court had discretion under section 1385 to strike the serious felony enhancement even though defendant was sentenced pursuant to a plea agreement with a stipulated sentence. (See also People v. Carter, supra, 97 Cal.App.5th at p. 977 ["in enacting Senate Bill 483, the Legislature intended that the full resentencing procedure in section 1172.75 should be applied to all sentences, including stipulated sentences imposed as part of a plea bargain"].)
There is a split of authority regarding whether the People may withdraw from a plea agreement if the trial court exercises its discretion to reduce a defendant's sentence at a section 1172.75 resentencing. (Compare People v. Carter (2023) 97 Cal.App.5th 960, 977 [under section 1172.75, "the prosecution may not withdraw from the plea bargain if the court imposes a lower sentence on resentencing"] with People v. Coddington (2023) 96 Cal.App.5th 562, 571 [holding that section 1172.75 precludes the prosecutor from withdrawing from a plea agreement when a prior prison term enhancement is stricken, but the prosecutor may be able to withdraw from the agreement if the sentence is further reduced].) The parties do not ask us to address this split of authority, and we take no position. Albeit in a different context-before the defendant's case was final on appeal-in Stamps, our Supreme Court permitted the People to withdraw from a plea agreement if the trial court struck a section 667, subdivision (a) enhancement pursuant to section 1385. (People v. Stamps, supra, 9 Cal.5th at p. 707.).
" '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, ... 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.)
As the trial court was not aware of the scope of its discretionary powers, and as the record does not clearly indicate that the court would have reached the same conclusion had it been aware of its discretion, we remand for resentencing pursuant to section 1172.75.
It appears that on remand defendant will seek relief pursuant to amended section 1170, subdivision (b)(2), which states that "[t]he court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial." However, section 1172.75, subdivision (d)(4), states that, "[u]nless the court originally imposed the upper term, the court may not impose a sentence exceeding the middle term unless there are circumstances in aggravation that justify the imposition of a term of imprisonment exceeding the middle term, and those facts have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial." As neither party addresses the interplay between these two sections, we leave it to the trial court to address in the first instance, if necessary.
DISPOSITION
The sentence is vacated. The matter is remanded to the trial court to conduct a resentencing pursuant to section 1172.75.
[*] Before Franson, Acting P. J., Pena, J. and DeSantos, J.