People v. Arellano

86 Cal.App.5th 418

302 Cal.Rptr.3d 478

The PEOPLE, Plaintiff and Respondent,

v.Luis Ramon Manzano ARELLANO, Defendant and Appellant.

H049413

Court of Appeal, Sixth District, California.

Filed December 16, 2022

Peter F. Goldscheider, Redwood City, by appointment of the Court of Appeal under the Sixth District Appellate Program, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Senior Assistant Attorney General, Arlene A. Sevidal, Supervising Deputy Attorney General and James H. Flaherty III, Deputy Attorney General, for Plaintiff and Respondent.

Danner, J.

In this appeal, we consider whether a trial court may include a sentence enhancement in the target offense or underlying felony when redesignating a conviction under Penal Code section 1172.6, subdivision (e).¹ Based on the relevant statutory language, we conclude it may not.

Defendant Luis Ramon Manzano Arellano (Arellano) appeals from a resentencing after the trial court vacated his second degree murder conviction under former Penal Code section 1170.95 (Stats. 2018, ch. 1015, § 4 ).² He contends the trial court erred by including within his newly redesignated conviction for attempted robbery a firearm enhancement that had originally been charged with that attempted robbery offense but was dismissed after he pleaded guilty solely to second degree murder. He further contends that the court erred by ordering parole supervision because his excess custody credits satisfied any parole term.

We decide that the trial court erred under section 1172.6, subdivision (e) when it included the firearm enhancement in the redesignated conviction. We therefore reverse the conviction, vacate the sentence, and remand for redesignation of Arellano's vacated murder conviction and resentencing.

I. FACTS AND PROCEDURAL BACKGROUND

In January 1992, J. Sacramento Benitez was killed during a home burglary and attempted robbery. In September 1992, the Santa Clara County District Attorney filed a second amended felony complaint (complaint) charging Arellano and two codefendants, Arturo Mendoza and Jesus Antonio Mandujano, with murder "with malice aforethought" ( Pen. Code, § 187 ; count 1), attempted robbery ( §§ 664, 211, 212.5, subd. (a) ; count 2), and first degree burglary ( §§ 459, 460, subd. (a) ; count 3). The murder and attempted robbery counts further alleged that each defendant personally used a firearm during the commission of the offense ( §§ 12022.5, subd. (a), 1203.06 ) (firearm enhancement).

In October 1992, prior to a preliminary hearing, the district attorney moved to amend the murder count to "strike ‘with malice’ " and charge Arellano with second degree murder. Arellano then pleaded guilty to the second degree murder count with certain conditions, including that the firearm enhancement allegation attached to that count would be stricken and counts 2 and 3 of the complaint would be dismissed.

In November 1992, the trial court sentenced Arellano to an indeterminate term of 15 years to life for second degree murder (count 1), concurrent to another sentence that Arellano had been serving for a different case (No. 155635). The court also dismissed the other counts for attempted robbery (count 2) and first degree burglary (count 3).

Twenty-eight years later, in October 2020, Arellano, through counsel, filed a petition for resentencing under then-current section 1170.95 (petition). The district attorney opposed the petition, arguing that Arellano's "bare-bones declaration of eligibility is insufficient pleading for a prima facie case." Arellano's counsel filed a reply, acknowledging that "[t]here were different accounts of who did what" during the "home burglary-robbery that ended in a terrible murder." Counsel attached exhibits to the reply, including an excerpt from a habeas corpus petition that Arellano had filed in 2009 challenging a denial of parole, several police reports describing police interviews of Arellano and his codefendants Mendoza and Mandujano, and a page from an April 2008 "prison psychological evaluation quoting a correctional counselor's report" that described the crime and what the murder victim's sister, Rafaela H., had said about the incident.

In the habeas corpus petition excerpt attached to the reply, Arellano had alleged that "[a]lthough there were a lot [of] conflicting statements by the residents of the residence where the alleged homicide took place, there was no evidence to prove that [he] was there at any given time."

According to the police reports attached to the reply, Arellano made "several conflicting statements" during his police interview about his proximity to the residence at the time of the crime but maintained that he was not present for the attempted robbery. Codefendant Mendoza told the police that he, Mandujano, and Arellano each had guns during the course of the robbery. Mandujano similarly told the police that he, Mendoza, and Arellano possessed guns during the incident.

According to the attached prison psychological evaluation, a "counselor's report dated December 2002" included, inter alia, the following information about the crime: "According to the victim's sister, four young males had come to her door looking for another address. About one hour later, they came back to her house and rang the doorbell. When she opened the door, Jesus Antonio Mandujano and Ramon Arellano rushed past her. Arturo Mendoza came in next and held a gun to the left side of Benitez's sister. Benitez, the victim, appeared from a rear bedroom, saw what was happening and attempted to get back into the bedroom. Mandujano and Arellano saw Benitez and chased him down the hall with guns in their hands. Benitez attempted to shut the bedroom door[,] but Mandujano and Arellano were pushing against it. Mandujano had his hand, which was holding the .45 caliber handgun between the door and the [doorjamb] and fired one round, which struck Benitez in the shoulder. The three then fled on foot from the scene."

On April 22, 2021, the trial court held a hearing on Arellano's petition. The court ordered the district attorney to show cause why relief should not be granted. In response to that order, the district attorney stated that "the People will be stipulating to a resentencing." The court confirmed with the parties the understanding that the matter would proceed under then-current section 1170.95, subdivision (d)(2).³ Given the district attorney's concession, the court vacated Arellano's murder conviction, stayed the execution of that vacatur pending resentencing, and set the matter for further proceedings to redesignate the charge or charges upon which Arellano would be resentenced.

At a hearing held on April 26, 2021, Arellano's defense counsel stated that section "1170.95[, subdivision] (e) stipulates that [Arellano] should be resentenced on the target offense" and the defense had no objection to the district attorney's request that Arellano be resentenced on the originally charged attempted robbery and its attached firearm enhancement (count 2).⁴ The district attorney asked the trial court to exercise its discretion to impose a period of parole supervision for Arellano.

At the April 26, 2021 hearing, the trial court confirmed the parties' agreement as to resentencing Arellano for the attempted robbery offense and the firearm enhancement and referred the matter to the probation department for a presentencing report. The court explained its understanding of the impending resentencing under then-current section 1170.95 as follows: "[T]his was a case in which Counts 2 and 3 did reflect what might be considered target offenses for the murder crime in Count No. 1. Those counts were submitted for dismissal. The defendant never pled to nor admitted them. So this is not a situation where statutorily under [ section] 1170.95 I'm sentencing on the, quote, remaining counts. [¶] What I will be doing is by the agreement of the parties redesignating Count No. 1 to the violations of [sections] 664/211/212.5 subdivision (a) with the enhancement under 12022.5 subdivision (a)."

The district attorney subsequently filed a resentencing brief. Regarding the facts of the crime, the district attorney asserted, inter alia, the following: "Based on information provided by witnesses, detectives were able to identify the suspects, along with a fourth participant who was killed shortly after the crime. Defendants Jesus Mandujano and Arturo Mendoza told police that Petitioner Arellano was present during the robbery/murder. [Arellano] told police he knew other individuals were planning to commit the robbery, but that he did not participate. [Arellano] provided several conflicting statements regarding his whereabouts at the time of the murder." In addition, the district attorney noted the agreement of the parties concerning the "underlying felony committed by [Arellano]" (i.e., attempted robbery) and "that an arming enhancement pursuant to Penal Code section 12022.5 be imposed." The district attorney stated that the parties had not reached a stipulation concerning the imposition of any parole supervision under then-current section 1170.95, subdivision (g), and requested that the trial court impose a three-year parole term.⁵

Defense counsel filed two memoranda regarding the impending resentencing—one objecting to the imposition of any parole term, and the other addressing the new sentence. Regarding parole, Arellano's counsel argued that the trial court had no authority to impose a parole term because Arellano's "years of excess credits far more than offset a 3-year period of parole ‘following the completion of the sentence’ (under [former § 1170.95,] subd. (g))." Regarding Arellano's new sentence, counsel reversed course on the agreement to include the firearm enhancement with the attempted robbery offense for redesignation. Counsel argued that " section 1170.95 does not permit [inclusion of the firearm enhancement], and ...