People v. Niebla CA4/1 ( 2020 )

Filed 12/16/20 P. v. Niebla CA4/1
OPINION AFTER TRANSFER FROM THE CALIFORNIA 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D075037
Plaintiff and Respondent,
v. (Super. Ct. No. 212938)
LUIS FONSECA NIEBLA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Lorna
A. Alksne, Judge. Remanded with directions.
Johanna Pirko, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha
Cortina and Robin Urbanski, Deputy Attorneys General, for Plaintiff and
Respondent.
We dismissed this appeal in our prior opinion, filed on March 17, 2020,
because defendant was seeking a modification of his plea agreement and did not
have a certificate of probable cause. (People v. Niebla (Mar. 17, 2020, D075037
[nonpub. opn.].) The Supreme Court granted review. It subsequently ruled in
People v. Stamps (2020) 9 Cal.5th 685, 698 (Stamps) that a certificate of
probable cause is not required for a defendant who entered a negotiated plea to
seek relief on appeal based on a change in the law that benefitted defendant.
The court transferred this case back to us with directions to vacate our prior
decision and to reconsider the cause in light of Stamps. We requested and
received supplemental briefs from both parties.
We vacate our prior opinion of March 17, 2020.
We now agree with defendant that this case should be remanded so that
he may ask the court to exercise its discretion to consider striking the 10-year
firearm enhancement that the court imposed in accordance with the plea
bargain. If the court indicates a willingness to do so, it must first offer the
People an opportunity to withdraw the plea. (Stamps, supra, 9 Cal.5th at
p. 706.)
BACKGROUND
Facts1
In 2006, several items were stolen from Luis Bello's home, including
$10,000 in cash and 27 pounds of marijuana. Lopez told Bello that Ramon
Hernandez had called him and had asked him to help burglarize the home.
Lopez refused, because he was friends with Bello. Bello suspected that Niebla
had helped Hernandez commit the crime. Bello and three friends went to
confront Niebla and Hernandez. Niebla and Hernandez denied stealing from
Bello. Bello and others convinced Lopez to confront Niebla and Hernandez with
1 We include a brief statement of the facts, drawn from the probation
report, concerning the murder only. That is the only offense with a firearm
enhancement, which is the gravamen of Niebla's appeal. Niebla admitted that
he committed the other charges alleged, except for conspiracy.
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the accusations face-to-face. The men gathered at a dirt parking lot where an
argument ensued and Niebla shot Lopez seven times. The men drove off,
leaving Lopez to die.
Procedure
An amended information charged Niebla with murder with the allegation
that he personally used a firearm during the murder (Pen. Code,2 §§ 187, subd.
(a) & former 12022.5, subd. (a), count 1); conspiracy to commit murder (§ 182,
subd. (a)(1), count 2); false imprisonment by violence (§§ 236 & 237, subd. (a),
count 3); transportation of more than an ounce of marijuana (former Health &
Saf. Code, § 11360, subd. (a), count 4); possession of more than an ounce of
marijuana for sale (former Health & Saf. Code, § 11359, count 5); burglary
(§ 459, count 6); and two counts of making a criminal threat (§ 422, counts 7 &
8).
Niebla agreed to plead guilty to voluntary manslaughter (§ 192, subd.
(a)), as a lesser included offense of murder, with personal use of a firearm, and
six other felonies, in return for a stipulated sentence of 26 years and dismissal
of the conspiracy charge.
In 2011, the trial court sentenced Niebla to the stipulated term of 26
years, comprised of the upper term of 11 years for voluntary manslaughter,
with a consecutive upper term of 10 years for personal use of a firearm, and
consecutive terms of one-third of the middle term on each of the remaining
counts: eight months for false imprisonment; one year for transportation of
marijuana; eight months for possession of marijuana for sale; one year four
2 Further statutory references are to the Penal Code unless otherwise
specified. We refer to the 2006 versions of all code sections in connection with
Niebla's crimes.
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months for first degree burglary; and eight months on each of the two counts of
making a criminal threat.
The court granted a petition for resentencing on the marijuana counts at
an ex parte hearing on October 23, 2018, pursuant to Proposition 64, which
reduced most felony marijuana offenses to misdemeanors, including
transportation and sale of more than an ounce of marijuana. (Health & Saf.
Code, § 11361.8, subd. (b).) Niebla's sentence was recalled, his felony
marijuana offenses were reduced to misdemeanors and Niebla was resentenced
to one year, concurrent, on each of the two marijuana counts, with credit for
time already served. The court resentenced Niebla on the remaining counts to
the same terms originally ordered. Niebla's total sentence was reduced from 26
years to 24 years 4 months.
Niebla filed his notice of appeal on November 30, 2018.
DISCUSSION
Firearm enhancements were mandatory and could not be stricken when
Niebla killed Lopez in 2006. The statute was amended effective January 1,
2018, to give the trial court discretion to strike or dismiss the firearm
enhancements in the interest of justice. (§ 12022.5, subd. (c).) The court had
the authority to consider its new discretion to strike the enhancement when it
resentenced Niebla on the marijuana convictions, but did not. (See ibid.
[discretionary striking of firearm enhancement applicable at any resentencing];
People v. Buycks (2018) 5 Cal.5th 857, 893–894 [court may consider all
components of sentence when it resentences defendant on any portion of
sentence].)
Niebla asks that this case be remanded so that he can ask the trial court
to exercise its newly authorized discretion to strike or dismiss the firearm
enhancement from his stipulated sentence. We agree it is appropriate to
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remand the case, but with the caveat that the People must have the
opportunity to withdraw from the plea agreement if the court is inclined to
strike the firearm enhancement. The 10-year term for the enhancement was a
significant part of Niebla’s stipulated sentence, almost half, and the court may
not drastically change the terms of the plea bargain without the People’s
assent. (Stamps, supra, 9 Cal.5th at p. 707.)
DISPOSITION
We remand the matter for the limited purpose of allowing Niebla to
request relief under section 12022.5, subdivision (c), and otherwise affirm the
judgment. If Niebla chooses not to request relief, or the trial court declines to
exercise its discretion under section 1385, Niebla’s sentence will be affirmed. If
the court indicates a willingness to strike the firearm enhancement, the
prosecution will be entitled to withdraw from the plea agreement, and the court
will be entitled to withdraw its approval of the plea agreement.
BENKE, J.
WE CONCUR:
McCONNELL, P. J.
GUERRERO, J.
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