People v. Arellano

1

THE PEOPLE, Plaintiff and Respondent, v. EDGAR ARELLANO, Defendant and Appellant.

B319570

California Court of Appeals, Second District, Seventh Division

May 17, 2023

NOT TO BE PUBLISHED

APPEAL from a postjudgment order of the Superior Court of Los Angeles County, No. KA112598 Juan Carlos Dominguez, Judge. Affirmed.

Anna Rea, 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, Scott A. Taryle, Supervising Deputy

Attorney General, and Daniel C. Chang, Deputy Attorney General, for Plaintiff and Respondent.

PERLUSS, P. J.

Edgar Arellano was convicted in 2017 of residential burglary with a person present (Pen. Code, §§ 459, 667.5, subd (c)(21))^[1] with a prior strike (§§ 667 subds (b)-(i), 1170.12) and two prior serious felony convictions (§ 667, subd. (a)) and sentenced pursuant to a negotiated plea agreement to 22 years in state prison-a sentence that included the upper term of six years on the aggravated burglary count (doubled as a result of the prior strike conviction). On January 12, 2022 Arellano filed a petition for resentencing, citing Senate Bill No. 567 (Stats 2021, ch. 731, § 1.3) (Senate Bill 567), which effective January 1, 2022, amended section 1170, subdivision (b), to limit a trial court's discretion to impose the upper term of the triad (lower, middle or upper term of imprisonment) under California's determinate sentencing law. The superior court denied the petition, ruling Arellano was ineligible for relief because his conviction had become final before the effective date of Senate Bill 567 and he had been sentenced pursuant to the terms of a negotiated agreement. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Arellano's Conviction and First Petition for Resentencing

In April 2016 Arellano was arrested after he entered the dormitory room of a female college student while she was sleeping. While in the room, Arellano removed some of the student's undergarments from a laundry hamper. Arellano was not a student at the college and did not have permission to be in the dormitory.

In January 2017, pursuant to a negotiated agreement, Arellano pleaded no contest to first degree burglary with a person present and admitted a 1999 first degree burglary conviction as a prior strike and 1999 and 2002 first degree burglary convictions as prior serious felony convictions under section 667, subdivision (a)(1). He was sentenced to an aggregate state prison term of 22 years, consisting of the six-year upper term for residential burglary, doubled, plus two five-year terms for the prior serious felony enhancements.

This court affirmed Arellano's conviction on November 29, 2017. (People v. Arellano (Nov. 29, 2017, B281513) [nonpub. opn.] (Arellano I).) Arellano's petition for review in the California Supreme Court (S246344) was denied on February 14, 2018. His petition for writ of certiorari with the United States Supreme Court was denied April 22, 2019, at which time the judgment became final. (See People v. Buycks (2018) 5 Cal.5th 857, 876, fn. 5 ["[a] judgment becomes final when the availability of an appeal and the time for filing a petition for certiorari with the United States Supreme Court have expired"].)

On June 5, 2019 Arellano petitioned for resentencing under Senate Bill No. 1393 (Stats. 2018, ch. 1013, §§ 1 &2), which, effective January 1, 2019, allowed the trial court to exercise its discretion to strike or dismiss section 667, subdivision (a), prior serious felony enhancements. The superior court denied the motion, ruling Senate Bill No. 1393 was not retroactive and, in any event, did not apply when the defendant had agreed in a negotiated plea to a specific prison term that included those enhancements.

While Arellano's appeal of that denial was pending in this court, the Supreme Court decided People v. Stamps (2020) 9 Cal.5th 685 (Stamps), holding Senate Bill No. 1393 applied to any case not yet final on appeal on its effective date; a defendant sentenced pursuant to a negotiated plea agreement need not obtain a certificate of probable cause to claim on appeal the new law applies to him or her; Senate Bill No. 1393 applied to negotiated sentences, at least to a limited extent; but, if the trial court was inclined to exercise its discretion not to impose a prior serious felony enhancement that was part of a negotiated sentence, the prosecutor was entitled to withdraw assent to the plea agreement. Based on Stamps, we reversed the postjudgment order denying Arellano's motion for resentencing and remanded the matter to provide Arellano the opportunity to ask the trial court to exercise its discretion not to impose the prior serious felony enhancements and, if such a request was made, for the parties and the trial court to follow the process approved in Stamps. (People v. Arellano (Sept. 14, 2020, B300847) [nonpub. opn.] (Arellano II).)

On remand the superior court denied Arellano's request to strike the prior serious felony enhancements from the agreed-upon sentence. We affirmed that order, finding no cognizable issues had been raised or identified in our own independent review of the record. (People v. Arellano (Jan. 26, 2022, B314434) [nonpub. opn.] (Arellano III).)

2. Arellano's Second Petition for Resentencing

On January 12, 2022 Arellano filed a petition for resentencing under Senate Bill 567. Arellano contended he was entitled to a hearing to allow the court to consider whether to resentence him in accordance with Senate Bill 567's amendments to section 1170, subdivision (b), which limited the authority of the trial court to impose a sentence exceeding the middle term. He also noted that Assembly Bill No. 1618 (Stats. 2019, ch. 586, § 1), added section 1016.8, effective January 1, 2020, providing, in part, that future beneficial changes in sentencing laws could not be denied to an individual who was convicted pursuant to a negotiated plea agreement.

The superior court called the matter on January 31, 2022 without Arellano being present or represented by counsel and denied the petition. The court ruled, "Defendant's sentence is pursuant to an agreed upon disposition between the defense and the People. [¶] SB 567 does not apply to cases 'final' when law was enacted."

Arellano filed a timely notice of appeal.

DISCUSSION

1. Senate Bill 567's Amendments to Section 1170

When Arellano pleaded no contest in 2017, 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.) Pursuant to Senate Bill 567, 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 possible terms, the court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term, except as otherwise provided in paragraph (2). [¶] (2) The 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." (Stats. 2021, ch. 731, § 1.3.) The court, however, "may consider the defendant's prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury." (§ 1170, subd. (b)(3).)^[2] Senate Bill 567's amendments were intended "to limit the sentencing discretion of trial courts" and to "potentially lessen punishment for defendants sentenced to the upper term on an offense." (People v. Zabelle (2022) 80 Cal.App.5th 1098, 1108, 1109.)

The ameliorative provisions of Senate Bill 567 apply retroactively to judgments that were not final as of January 1, 2022. (People v. Zabelle, supra, 80 Cal.App.5th at p. 1109; People v. Flores (2022) 73 Cal.App.5th 1032, 1039; see People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308 ["'in the absence of contrary indications, a legislative body ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not'"]; see also In re Estrada (1965) 63 Cal.2d 740, 744-745.)

2. This Court Has Jurisdiction To Consider the Issue of Finality Raised by Arellano's Appeal

Citing People v. King (2022) 77 Cal.App.5th 629 (King), the Attorney General argues, because Arellano's judgment of conviction was final as of April 22, 2019 and remained final notwithstanding our September 2020 remand in Arellano II, the superior court lacked jurisdiction to rule on Arellano's nonstatutory petition for resentencing (although, as discussed, the superior court did not dismiss Arellano's petition on that ground) and, as a consequence, this court also lacks jurisdiction to entertain Arellano's appeal. But this is not a case like People v. Torres (2020) 44 Cal.App.5th 1081 or People v. Fuimaono (2019) 32 Cal.App.5th 132 where the defendant's request for modification of his sentence to benefit from new ameliorative sentencing rules was concededly made long after the judgment in the case was final and without any statutory authorization. The Attorney General does not contend-and we do not believe-the superior court lacked jurisdiction to consider the applicability of Senate Bill 567 to Arellano's stipulated...