People v. Melendez CA6 ( 2021 )

Filed 4/27/21 P. v. Melendez CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
SIXTH APPELLATE DISTRICT
THE PEOPLE, H046868
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. EE907212)
v.
JUAN FELIPE MELENDEZ,
Defendant and Appellant.
In 2011, a jury convicted appellant Juan Felipe Melendez of multiple felonies,
including robbery and attempted robbery, and found true allegations concerning personal
use of a firearm. In addition, Melendez pleaded guilty to possession of a controlled
substance. The trial court sentenced Melendez to 16 years in prison, which included
then-mandatory firearm use enhancements. This court affirmed the convictions in 2013.
In 2018, the Secretary of the Department of Corrections and Rehabilitation
(CDCR) wrote a letter to the trial court recommending, under Penal Code section 1170,
subdivision (d),1 that the court recall Melendez’s sentence and resentence him. In the
letter, CDCR asked the court to consider a then-recent amendment to section 12022.53,
subdivision (h), that empowers the court to strike or dismiss firearm use enhancements
1
Unspecified statutory references are to the Penal Code.
under section 1385. The trial court held a hearing on the recommendation but declined to
recall the sentence and resentence Melendez. Melendez appeals the trial court’s order,
asserting the court abused its discretion when it failed to strike the firearm use
enhancements.
For the reasons explained below, we affirm the trial court’s order. Additionally,
we direct the trial court to correct errors that we have identified in the current abstract of
judgment.
I. FACTS AND PROCEDURAL BACKGROUND
A. Procedural Background
In July 2011, a jury found Melendez guilty of second degree robbery (§§ 211,
212.5, subd. (c); count 1), attempted second degree robbery (§§ 664, 211, 212.5, subd.
(c); count 2), possession of a silencer (former § 12520; count 3), possession of material
with intent to make a destructive device (former § 12312; count 5), possession of metal
knuckles (former § 12020, subd. (a)(1); count 6), dissuading a witness (§ 136.1, subd.
(c)(1); count 7), and conspiracy to commit robbery (§ 182, subd. (a)(1); count 8). The
jury found true allegations that Melendez personally used a firearm in the commission of
the robbery and attempted robbery (§ 12022.53, subd. (b)), personally used a firearm in
the commission of the conspiracy (§ 12022.5, subd. (a)), and was armed with a firearm
while dissuading a witness (§ 12022, subd. (a)(1)). The jury also found Melendez sane at
the time of the robbery, attempted robbery, conspiracy, and dissuading offenses. In
addition, Melendez pleaded guilty to possession of a controlled substance. (Health &
Saf. Code, § 11377, subd. (a); count 4.)
On November 3, 2011, the trial court sentenced Melendez to an aggregate term of
16 years in prison. The court imposed a two-year lower term for count 1 (robbery), with
a 10-year term for the firearm use enhancement; a consecutive eight-month term for
count 2 (attempted robbery), with a three-year, four-month term for the firearm use
2
enhancement; and concurrent terms for counts 3 through 7 (the various possession
counts). The court stayed the terms for count 8 (dissuading) pursuant to section 654.
In April 2013, this court affirmed the judgment with modifications to various
monetary assessments, surcharges, and penalties.2 (People v. Melendez (Apr. 2, 2013,
H037581) [nonpub. opn.].)
On May 11, 2015, the trial court granted a petition for recall of sentence under
section 1170.18 and reduced Melendez’s conviction on count 4 (possession of a
controlled substance) to a misdemeanor. The court resentenced Melendez to one year in
county jail on count 4, which it deemed completed. In addition, on the felony counts
(i.e., counts 1–3 and 5–8), the court resentenced Melendez to the same 16-year aggregate
sentence it had previously imposed.
In November 2018, CDCR submitted a letter to the trial court recommending
recall of Melendez’s sentence and resentencing pursuant to section 1170, subdivision (d).
CDCR noted that Melendez’s conviction included two allegations of personal use of a
firearm under section 12022.53, subdivision (b). CDCR asked the court to consider the
Legislature’s amendment to section 12022.53, subdivision (h), which empowered the
court to strike or dismiss firearm use enhancements in the interest of justice under section
1385. (See Stats. 2017, ch. 682 [Sen. Bill No. 620 (2017-2018 Reg. Sess.); effective Jan.
1, 2018])
In light of CDCR’s letter, Melendez filed a request to set a resentencing hearing,
which the trial court granted. On February 6, 2019, Melendez filed a resentencing
memorandum and supporting exhibits. The Santa Clara County District Attorney (district
attorney) opposed any reduction in Melendez’s sentence.
2
The opinion in Melendez’s first appeal was not published in the official reports.
In his respondent’s brief, the Attorney General requests that we take judicial notice of the
record and filings in the prior appeal, and Melendez has not opposed this request. We
take judicial notice of the briefs and our unpublished opinion in case No. H037581. (See
Evid. Code, §§ 452, subd. (d), 459.)
3
On March 29, 2019, after a two-day hearing on the CDCR’s recommendation, the
trial court declined to resentence Melendez.
Melendez timely filed a notice appeal from the trial court’s order, asserting a right
to appeal under section 1273, subdivision (b).3
B. Facts of the Offenses4
“Using the name Lucas Rossi, [Melendez] responded to Craigslist ads placed by
Lawrence Dauch, who was selling an expensive watch, and by Pierre St. Cyr, who was
selling a video camera. [Melendez] arranged to meet both men on August 18, 2006. A
woman using the name Sophia helped [Melendez] set up the meeting with St. Cyr. [¶]
[Melendez] met Dauch first, robbing him of the watch and then threaten[ing] him. A few
hours later, [Melendez] attempted to rob St. Cyr of the video camera. In both instances,
[Melendez] used a gun with a silencer. He also wore a fedora hat, sunglasses, and a fake
mustache in both crimes. In 2009, [Melendez] was identified by fingerprints found on
the victims’ vehicles.”
“On July 22, 2009, officers executed a search warrant at [Melendez]’s apartment.
They located a silencer, a .22-caliber handgun, three fedora hats, sunglasses, brass
knuckles, pills containing MDMA, and a computer. The police also located a plastic bag
containing the following items: smokeless gun powder, a roll of electrical tape, a
package of rocket motor igniters, two nine-volt batteries, one nine-volt battery wired to a
push-button switch, an electrician’s tool, a roll of insulated copper wire, a roll of gauged
wire, a four-inch piece of PVC pipe with end caps and a small hole drilled into one end,
and a seven-inch piece of PVC pipe with a small hole drilled into one end.”
3
“An order declining to follow the [CDCR]’s recommendation pursuant to section
1170, subdivision (d)(1), is an appealable order.” (People v. Frazier (2020) 55
Cal.App.5th 858, 863, fn. 2.)
4
We take these facts from this court’s opinion in Melendez’s direct appeal. (See
fn. 2, ante.)
4
C. Background Related to the CDCR’s Recommendation for Recall and
Resentencing
When the trial court originally sentenced Melendez in November 2011, it imposed
an aggregate term of 16 years. That sentence was higher than the 12 years sought by
Melendez and lower than both the 20 years suggested by the Santa Clara County
Probation Department and the 22 years sought by the district attorney. At Melendez’s
2011 sentencing, the court said “it seemed clear that [Melendez] did have some mental
health issues” at the time of the robbery and attempted robbery. The court also noted that
Melendez had no prior criminal record but said Melendez’s crimes showed “planning,
sophistication, and a disregard for the victims.” The court ordered the mitigated term of
two years on count 1 (robbery) because of Melendez’s mental health issues and lack of
prior record. On count 2 (attempted robbery), the court imposed eight months
consecutive because Melendez committed “distinct violent acts involving separate
victims.” In addition, the court imposed three years and four months for the firearm
enhancement on count 2 “in light of the fact that the gun with the silencer was used in
both robberies.”
In November 2018, CDCR submitted a “cumulative case summary and evaluation
report” (capitalization omitted) (hereafter evaluation report) along with its letter to the
trial court recommending recall and resentencing. The evaluation report noted that
Melendez had received no disciplinary reports during his seven years in CDCR’s
custody. The evaluation report also described numerous “self-help activities”
(capitalization omitted) in which Melendez had engaged while serving his prison
sentence. The activities included working as a full-time literacy tutor for the voluntary
education program; completing sessions of various self-help, therapeutic, and other
prison programs; being a member of the prison’s youth diversion outreach program; and
participating in and serving his church community.
5
Melendez filed a resentencing memorandum that included a letter he wrote to the
trial court; CDCR’s letter and evaluation report; dozens of supportive letters from family
members, friends, fellow inmates, and officials who had interacted with Melendez during
his incarceration; a declaration of a social worker addressing Melendez’s social and
mental health history; and some of Melendez’s prison records. Melendez asked the trial
court to recall his sentence and suggested that the court strike the firearm enhancements
on counts 1 and 2 (leaving a sentence of 2 years and 8 months), strike the firearm
enhancement for count 1 (leaving a sentence of 6 years), strike the firearm enhancement
for count 2 and impose a concurrent sentence on count 2, or revise the sentence on count
2 to run concurrent to count 1 (leaving a sentence of 12 years). Further, in reply to the
district attorney’s opposition to resentencing, Melendez filed additional exhibits,
including his apology to the robbery victim (Dauch), a social worker’s evaluation
regarding the appropriateness of resentencing and releasing Melendez on parole, and
additional supportive letters.
The judge who originally sentenced Melendez in 2011 presided at the hearing on
CDCR’s recall and resentencing recommendation. More than a dozen witnesses spoke
favorably of Melendez at the hearing. Melendez also spoke to the trial court. In addition,
Dauch addressed the court, describing Melendez’s manipulative behavior during the
crime and the harm Melendez had caused. Dauch said he did not want Melendez’s
sentence to be shortened.
After hearing from the witnesses, listening to the arguments of counsel, and taking
a week to consider the matter, the trial court declined to resentence Melendez. The court
noted that Melendez had “behaved admirably in prison” and had assisted many of his
fellow inmates. The court also acknowledged that Melendez had “a strong support
group” and that his mother’s request for his release was “genuine and moving.”
The trial court said that “there is no doubt Mr. Melendez has made good use of his
time in prison” but the court also had to “consider the underlying facts in this case.”
6
Melendez had used a firearm (which appeared functional to the victims) when he
committed the robbery and attempted robbery and caused the victims to fear for their
safety. Melendez also acted with an accomplice to commit the crimes and did not
disclose the identity of that person to law enforcement.
The trial court noted that the legislative amendment giving courts discretion to
strike a firearm enhancement did “not mean that every case should result in a reduced
sentence even if recommended by the prison.” Rather, the court “should calmly and
objectively consider all factors and after reflection exercise its discretion in a fair and
equitable manner.”
The trial court said it had reviewed the original 2011 sentence and noted it had
exercised its discretion to impose the lower term despite the fact that “there were
aggravators” “such as planning, sophistication, [and] theft of great value.” The court also
observed that it had run many of the sentences concurrently, even though there were
grounds for a harsher sentence, and it had considered “the evidence of mental illness even
though the defense of insanity was rejected by the jury.” Further, the court had imposed
a 16-year sentence when the probation department and the district attorney each had
sought a longer term. The court concluded its ruling saying, “After careful consideration
of all factors, the Court declines to alter the sentence previously imposed. The petition
for re-sentencing is denied.”
II. DISCUSSION
A. Denial of Sentence Recall and Resentencing
Melendez contends the trial court abused its discretion when it failed to strike the
firearm enhancements upon CDCR’s recommendation that the court recall Melendez’s
sentence and resentence him.
Section 1170, subdivision (d), “ ‘is an exception to the common law rule that the
court loses resentencing jurisdiction once execution of sentence has begun.’ ” (People v.
McCallum (2020) 55 Cal.App.5th 202, 210 (McCallum).) Section 1170, subdivision
7
(d)(1), “provides ‘the court may, within 120 days of the date of commitment on its own
motion, or at any time upon the recommendation of the secretary [of CDCR,] . . . recall
the sentence and commitment previously ordered and resentence the defendant in the
same manner as if they had not previously been sentenced, provided the new sentence, if
any, is no greater than the initial sentence.’ [Citation.] Section 1170, subdivision (d)(1),
provides further as to resentencing that the court ‘shall apply the sentencing rules of the
Judicial Council so as to eliminate disparity of sentences and to promote uniformity of
sentencing. The court resentencing under this paragraph may reduce a defendant’s term
of imprisonment and modify the judgment, including a judgment entered after a plea
agreement, if it is in the interest of justice.’ ” (Ibid., fn. omitted.)
“In deciding whether to recall a sentence under section 1170, subdivision (d)(1),
the trial court may exercise its authority ‘for any reason rationally related to lawful
sentencing.’ [Citation.] Further, section 1170, subdivision (d)(1), expressly authorizes
the court in resentencing a defendant to consider ‘postconviction factors, including, but
not limited to, the inmate’s disciplinary record and record of rehabilitation while
incarcerated, evidence that reflects whether age, time served, and diminished physical
condition, if any, have reduced the inmate’s risk for future violence, and evidence that
reflects that circumstances have changed since the inmate’s original sentencing so that
the inmate’s continued incarceration is no longer in the interest of justice.’ ” (McCallum,
supra, 55 Cal.App.5th at p. 210; see also People v. Delson (1984) 161 Cal.App.3d 56, 62
[recall and resentencing under section 1170, subdivision (d), “is permissive, not
mandatory”].)
Further, current section 12022.53, subdivision (h), permits sentencing courts to
strike a firearm enhancement “in the interest of justice pursuant to Section 1385,” and
this authority “applies to any resentencing that may occur pursuant to any other law.”
(§ 12022.53, subd. (h).) When making a determination under section 12022.53,
subdivision (h), “[i]n addition to the factors expressly listed for determining whether to
8
strike enhancements listed in California Rules of Court, rule 4.428(b), the trial court is
also to consider the factors listed in California Rules of Court, rule 4.410 (listing general
objectives in sentencing), as well as circumstances in aggravation and mitigation under
[California Rules of Court,] rules 4.421 and 4.423.” (People v. Pearson (2019) 38
Cal.App.5th 112, 117 (Pearson).)
“We review the trial court’s decision whether to recall a defendant’s sentence for
an abuse of discretion.” (McCallum, supra, 55 Cal.App.5th at p. 211.) Similarly, a trial
court’s decision on whether to strike a firearm enhancement is reviewed for abuse of
discretion. (Pearson, supra, 38 Cal.App.5th at p. 116.) “ ‘ “Where, as here, a
discretionary power is statutorily vested in the trial court, its exercise of that discretion
‘must not be disturbed on appeal except on a showing that the court exercised its
discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest
miscarriage of justice. [Citations.]’ ” [Citation.] The abuse of discretion standard
“involves abundant deference” to the court’s ruling.’ ” (McCallum, at p. 211.)
In the present case, the record demonstrates that the trial court understood and
appropriately exercised its discretion whether to recall Melendez’s sentence and
resentence him. When ruling, the court said it “ha[d] considered the pleadings filed by
both parties, probation report, and also the evidence and arguments presented at the
various hearings in this matter.” The court expressly acknowledged some of the
information that had been presented and reiterated the reasons why it had originally
sentenced Melendez the way it did. The court’s statements indicate that it considered the
various factors prescribed by the relevant Penal Code sections and court rules and
decided not to recall or alter Melendez’s sentence.
We are not called upon here to decide whether on these facts we would have
reached the same decision as the trial court. Although we commend Melendez’s behavior
while in custody, we cannot on this record conclude that the trial court acted in an
arbitrary, capricious, or absurd manner when it declined to recall Melendez’s sentence
9
and strike the firearm enhancements. We conclude that the court acted within the bounds
of its discretion and thus reject Melendez’s claim of error.
B. Corrections to the Abstract of Judgment
In reviewing the record in this appeal, we have noticed errors in the current
abstract of judgment dated May 29, 2015. That abstract of judgment was generated after
the trial court, on May 11, 2015, granted a petition to recall Melendez’s sentence, under
section 1170.18, and resentenced Melendez. Although neither party in this appeal has
mentioned any such errors, we observe that the abstract of judgment incorrectly states
Melendez was convicted on counts 1 through 3 and 5 through 8 by plea. In fact,
Melendez was convicted on those counts by a jury. Furthermore, the May 29, 2015
abstract of judgment does not include the stayed firearm enhancement (§ 12022.5, subd.
(a)) on count 8. Accordingly, we direct the trial court to prepare an amended abstract of
judgment that correctly reflects Melendez’s convictions were by a jury and the stayed
firearm enhancement on count 8. (See People v. Mitchell (2001) 26 Cal.4th 181, 185.)
III. DISPOSITION
The trial court’s March 29, 2019 order declining to resentence defendant under
Penal Code section 1170, subdivision (d)(1), is affirmed. In addition, the trial court is
directed to correct the May 29, 2015 abstract of judgment to indicate that defendant’s
convictions on counts 1–3 and 5–8 were by a jury and that a firearm enhancement under
Penal Code section 12022.5, subdivision (a), on count 8 was ordered stayed. The trial
court is further directed to forward an amended abstract of judgment to the Department of
Corrections and Rehabilitation.
10
______________________________________
Danner, J.
WE CONCUR:
____________________________________
Elia, Acting P.J.
____________________________________
Grover, J.
H046868
People v. Melendez