People v. Andrade

1

THE PEOPLE, Plaintiff and Respondent, v. MATTHEW ANDRADE, Defendant and Appellant.

B313650

California Court of Appeals, Second District, Seventh Division

February 9, 2023

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. MA063875, Charles A. Chung, Judge. Sentence vacated with directions.

William L. Heyman, 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, Senior Assistant Attorney General, Kenneth C. Byrne, Supervising Deputy Attorney General, and Allison H. Chung, Deputy Attorney General, for Plaintiff and Respondent.

SEGAL J.

INTRODUCTION

Matthew Andrade appeals from the judgment following his no contest plea to human trafficking (Pen. Code, § 236.1 subdivision (b))^[1] and other charges related to an incident where he restrained an individual against her will while his confederate robbed and threatened to kill her. The trial court sentenced Andrade to concurrent upper terms on each of his convictions.

While Andrade's appeal was pending, the Legislature amended section 1170, subdivision (b), to require the trial court to impose a sentence that does not exceed the middle term unless the defendant stipulates to the facts supporting circumstances in aggravation or a jury or a judge in a court trial finds those facts true beyond a reasonable doubt. Andrade argues the trial court abused its discretion in imposing upper terms by improperly weighing the aggravating and mitigating factors. He also argues, in supplemental briefing, he is entitled to resentencing under the new legislation. We agree with Andrade's second argument, vacate his sentence, and direct the trial court to resentence Andrade under amended section 1170, subdivision (b).

FACTUAL AND PROCEDURAL BACKGROUND

A. Andrade Commits Multiple Crimes

In the summer of 2014 Lisa L., who worked as an escort, met James Jackson in the laundry room of her apartment complex. Jackson told Lisa he recognized her from an advertisement on an adult services platform Lisa used to solicit clients. Jackson later sent Lisa several text messages stating she should work for him and allow him to be her pimp. Lisa refused and said she wanted to work for herself. The tone of the text messages began to "escalate," and Jackson accused Lisa of stealing his clients and said she owed him money. In one of the text messages, Jackson threatened to take Lisa "out to the desert" and kill her. Lisa blocked text messages from Jackson's phone.

On the evening of August 1, 2014 Lisa received a text message from someone she did not recognize, asking for an appointment. Lisa sent her address, and a few hours later Andrade appeared at her front door. Lisa led Andrade through her living room and up the stairs to her bedroom, where Andrade gave her $200, the agreed-upon price. Lisa noticed the money "was fake." As she reached for her cell phone to call her boyfriend, she "got hit" with "a hard, metal-like object" in the back of her head. She felt "lightheaded" and fell to the floor. When she regained consciousness, her hands were cuffed behind her back. Andrade pulled out a "fake badge" and told Lisa she was under arrest. Andrade dragged Lisa down the stairs, put her on the couch, and pinned her down. Andrade made a phone call and said, "I got the girl." Two minutes later, Jackson walked into Lisa's apartment. He searched through Lisa's wallet and then switched positions with Andrade, leaning on Lisa to prevent her from getting up. Lisa felt a cold metal object against the back of her head; Jackson told her he was going to kill her and take her out to the desert.

When Jackson and Andrade went to the front door to check whether the hallway was clear for them to escape, Lisa ran out through the back door to the patio and screamed. A neighbor came to help her call the police. Lisa told the police officer who responded that Andrade hit her in the back of the head with the barrel of the gun. Lisa suffered a fractured wrist from the incident.

The People charged Andrade with, among other crimes, kidnapping to commit robbery (§ 209, subd. (b)(1); count 1), first degree residential robbery (§ 211; count 2), human trafficking with the intent to pimp or pander (§ 236.1, subd. (b); count 3), making a criminal threat (§ 422, subd. (a); count 4), assault with a deadly weapon (§ 245, subd. (a)(1); count 7), conspiracy to commit murder (§ 182, subd. (a)(1); count 8), and assault with a firearm (§ 245, subd. (a)(2); count 9). On counts 1, 2, and 8 the People alleged Andrade personally used a firearm, within the meaning of section 12022.53, subdivision (b), and on count 9 the People alleged Andrade personally used a firearm, within the meaning of section 12022.5.

B. Andrade Pleads No Contest, and the Trial Court Sentences Him

A jury trial commenced in the fall of 2016. Lisa and the police officer who responded to the 911 call testified about the events of August 1, 2014. Andrade testified in his defense and described the incident in a way that minimized his culpability.

According to Andrade, Jackson told him that Lisa worked for him as a prostitute, that she owed him money, and that she stopped talking to him. Andrade testified Jackson said that he was going to send Lisa a text message asking for an escort appointment and that Andrade would pose as the client. Andrade said that at first he refused to participate in the plan, but that he eventually agreed because he "was under duress." Pursuant to Jackson's instructions, Andrade purchased handcuffs from a sporting goods store. Andrade stated that on the way to Lisa's apartment Jackson gave him a toy gun.

Andrade testified that, once he arrived at Lisa's apartment, he followed Lisa upstairs and gave her two fake 100 dollar bills Jackson had given him. Andrade stated that when Lisa looked at the bills she told him that she could not "see" him. Andrade said he pulled out his police identification, told Lisa that she was under arrest, and instructed her to put her hands behind her back. Andrade stated that Lisa began to slap and hit him and that he tried to defend himself by handcuffing her. Andrade testified he walked Lisa downstairs, called Jackson, and opened the door for Jackson to come into the apartment. According to Andrade, Lisa recognized Jackson and screamed for both men to get out. Andrade stated that he told Jackson they should leave and that, as they walked out, Jackson took Lisa's identification and cell phone from the kitchen table. Andrade denied he used a gun, hit Lisa, or dragged her down the stairs.

At the close of evidence, Andrade agreed to a negotiated disposition of the case. The People agreed to amend the information to change count 1 from kidnapping to commit robbery (§ 209, subd. (b)(1)) to kidnapping (§ 207, subd. (a)), dismiss the conspiracy to commit murder charge (count 8), and add to counts 3 and 4 an allegation a principal used a firearm in the commission of the crimes, within the meaning of section 12022.53, subdivision (b).^[2] Andrade agreed to plead no contest to all the charges and to admit the firearm allegations, and the parties agreed the court would impose a prison sentence between zero years and 40 years four months, based on argument at a sentencing hearing the court would hold in a month. Andrade pleaded no contest to the charges as amended and admitted the firearm allegations.

Due to the COVID-19 pandemic and other circumstances, one month became almost five years, and on September 24, 2021 the trial court held the sentencing hearing. Counsel for Andrade asked the court to consider several mitigating factors, including Andrade's military service, other employment history, and lack of a criminal record. The prosecutor argued that, based on a policy directive from the new District Attorney, the People could ask for no more than a 20-year prison sentence.

The court found three aggravating circumstances: (1) "There was extreme sophistication involved. The defendant posed as an officer, utilized a badge, handcuffs, and a gun."; (2) "There was extreme violence involved, pistol-whipping at one point. The victim was forced to kneel before the defendant with her back toward him. His feet were on the back of her knees holding her in place. The gun was put to the back of her skull, and it looked pretty much like an execution-style situation."; "On top of that," the court continued, (3) Andrade's experience as a peace officer and a member of the armed forces was "a factor to consider in terms of culpability and responsibility" (although the court also said Andrade's military service "weighs into sentencing . . . both ways"). The court imposed the upper term of 20 years on count 3 and imposed and stayed, under section 654, execution of a term of 10 years for the firearm enhancement.^[3] The court imposed the upper term on each of the remaining counts, plus 10-year terms for the firearm enhancements, all concurrent to the sentence imposed on count 3. Andrade timely appealed.^[4]

DISCUSSION

A. Applicable Law

When the trial court sentenced Andrade in 2021, section 1170, subdivision (b), provided: "When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court." (Stats. 2020, ch. 29, § 14; see People v. Flowers (2022) 81 Cal.App.5th 680, 684, review granted Oct. 12, 2022, S276237; People v. Zabelle (2022) 80 Cal.App.5th 1098, 1108 (Zabelle).) Effective January 1, 2022, the Legislature amended section 1170, subdivision (b), to provide:

"(1) When a judgment of imprisonment is to be imposed and the statute specifies three...