People v. Federico CA4/2 ( 2022 )

Filed 6/17/22 P. v. Federico CA4/2
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E072620
v. (Super.Ct.No. SWF017423)
ADRIAN GILBERT FEDERICO, OPINION ON TRANSFER
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John M. Monterosso,
Judge. Reversed with directions.
John L. Staley, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Julie L. Garland, Assistant
Attorney General, Steve Oetting and Daniel J. Hilton, Deputy Attorneys General, for
Plaintiff and Respondent.
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PROCEDURAL BACKGROUND
On April 18, 2008, defendant and appellant Adrian Gilbert Federico entered a plea
agreement and pled guilty to assault with a firearm. (Pen. Code,1 § 245, subd. (a)(2),
count 1.) He also admitted that he personally used a firearm in the commission of the
offense (§§ 12022.5, subd. (a), 1192.7, subd. (c)(8)), personally inflicted great bodily
injury (GBI) (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8)), and committed the offense for
the benefit of a criminal street gang (§ 186.22, subd. (b)). In accordance with the
agreement, the trial court sentenced him to a total term of 20 years in state prison,
consisting of three years on count 1, plus the midterm of four years on the personal
firearm use enhancement, three years on the GBI enhancement, and 10 years on the gang
enhancement.
On September 24, 2018, the superior court received a letter from the California
Department of Corrections and Rehabilitation (CDCR), recommending the court recall
and resentence defendant under section 1170, subdivision (d). The letter reflected that
the court should not have imposed both the GBI and gang enhancements in light of
People v. Gonzalez (2009) 178 Cal.App.4th 1325 (Gonzalez).
Defendant filed a motion agreeing with CDCR’s recommendation. Defendant
additionally requested the court apply Proposition 57 and transfer jurisdiction to the
juvenile court (he was 15 years old at the time of the offense). The trial court declined to
apply Proposition 57 since defendant’s judgment was final long before Proposition 57
1 All further statutory references will be to the Penal Code, unless otherwise
noted.
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took effect. However, the court concluded it would provide him with Gonzalez relief. It
resentenced defendant to 17 years in state prison, consisting of four years on count 1, plus
three years on the GBI enhancement, and 10 years on the personal firearm enhancement.
The court imposed but stayed the 10-year gang enhancement under section 654.
On appeal, defendant argued that the trial court erred in denying his request to
apply Proposition 57 and/or Senate Bill No. 1391 (2017-2018 Reg. Sess.), and that the
matter should be remanded to the juvenile court. By published opinion filed June 11,
2020, we affirmed the judgment, holding that the court properly declined to apply
Proposition 57 and Senate Bill No. 1391. On September 2, 2020, we issued the
remittitur. On January 7, 2021, we recalled the remittitur after being notified that the
California Supreme Court had granted review of the matter on August 26, 2020.
By order dated February 9, 2022, the California Supreme Court directed us to
vacate our June 11, 2020, opinion and reconsider the cause in light of Assembly Bill
No. 1540 (Stats. 2021, ch. 719). By order filed February 23, 2022, we vacated our
published opinion and provided that the parties could file supplemental briefs within
15 days of the transfer order.
DISCUSSION
Defendant filed a supplemental brief in which he contends the judgment should be
conditionally reversed and remanded to the trial court with directions to determine
whether, pursuant to Assembly Bill No. 1540, a juvenile disposition is required. The
People did not file a supplemental brief. We agree with defendant.
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“Assembly Bill 1540 . . . clarifies the required procedures including that, when
recalling and resentencing, the court ‘shall . . . apply any changes in law that reduce
sentences or provide for judicial discretion.’” (People v. McMurray (2022)
76 Cal.App.5th 1035, 1040, italics added; accord, People v. Cepeda (2021)
70 Cal.App.5th 456, 471 [Assembly Bill No. 1540 requires courts to apply any changes
in the law once a sentence has been recalled for resentencing.].)
The ameliorative effects of Proposition 57 apply where a defendant’s final
judgment in a criminal case is vacated and the court has the discretion to resentence the
defendant. (People v. Padilla (May 26, 2022, S263375) ___ Cal.5th ___ [2022 Cal.
Lexis 2916, at pp. *2-*3, *11-*14].) “Senate Bill 1391 is likewise an ameliorative
change to the criminal justice system that emphasizes rehabilitation over punishment and
serves the broader purpose of decarceration.” (O.G. v. Superior Court (2021) 11 Cal.5th
82, 101 [Senate Bill No. 1391 “amended Proposition 57 to prohibit minors under the age
of 16 from being transferred to adult criminal court.”].)
Here, defendant’s sentence was recalled pursuant to the letter from the CDCR,
which gave the court authority to resentence defendant pursuant to section 1170,
subdivision (d). Thus, defendant was entitled to any ameliorative changes enacted into
law after his initial judgment. Therefore, the court must refer the matter to the juvenile
court to determine whether defendant is entitled to any ameliorative effects under
Proposition 57 and/or section 1391.
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DISPOSITION
Defendant’s sentence is reversed, and the matter is remanded to the trial court with
directions to refer the case to the juvenile court to determine whether defendant is entitled
to any ameliorative effects under Proposition 57 and/or Penal Code section 1391.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J.
We concur:
MILLER
J.
CODRINGTON
J.
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