People v. Canchola CA6 ( 2021 )

Filed 1/28/21 P. v. Canchola 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, H047703
(Monterey County
Plaintiff and Respondent, Super. Ct. Nos. SS141485A,
SS102792A)
v.
ARMANDO GARZA CANCHOLA,
Defendant and Appellant.
I. INTRODUCTION
In case No. SS141485A, defendant Armando Garza Canchola was convicted by
jury of two counts of assault (Pen. Code, § 240),1 one count of assault on a peace officer
(§ 245, subd. (c)), and one count of active participation in a criminal street gang
(§ 186.22, subd. (a)). The jury found true allegations that defendant personally inflicted
great bodily injury (§ 122022.7, subd. (a)) and allegations that he committed the assault
on a peace officer to benefit a criminal street gang (§ 186.22, subd. (b)(1)). The trial
court found true an allegation that defendant had a prior serious felony conviction (§ 667,
subd. (a)(1)) and an allegation that defendant had two prior “strike” convictions
(§ 1170.12, subd. (c)(2)). At a combined sentencing hearing, the trial court sentenced
1
All further statutory references are to the Penal Code unless otherwise indicated.
defendant to a prison term of 40 years to life, consecutive to a 42-year sentence for an
earlier voluntary manslaughter case (No. SS102792A).
In a prior appeal by defendant regarding case No. SS141485A (assault on a peace
officer), this court reversed the judgment and remanded the matter for resentencing for
the trial court could determine: (1) whether to exercise its discretion pursuant to
section 1385 to dismiss the gang enhancement (§ 186.22, subd. (b)(1)); and (2) whether
to exercise its discretion pursuant to section 1385 to strike defendant’s prior serious
felony conviction for the purposes of sentencing him under section 667, subdivision (a).
(People v. Canchola (Jan. 31, 2019, H044154) [nonpub. opn.], pp. 21-22.)
At the subsequent resentencing hearing, the trial court denied defendant’s request
to strike the additional punishment for the gang enhancement but stayed the punishment
for the serious felony enhancement. Defendant was sentenced to 35 years to life in case
No. SS141485A (assault on a peace officer), consecutive to a 42-year sentence in the
earlier voluntary manslaughter case, No. SS102792A.
In the pending appeal, defendant contends that the trial court abused its discretion
in denying his request to strike the additional punishment for the gang enhancement in
case No. SS141485A (assault on a peace officer). He also argues that he is entitled to an
additional 1,092 days of credit for his actual time in custody between resentencing
hearings in case No. SS102792A (voluntary manslaughter). Lastly, defendant contends
that errors regarding the abstract of judgment require correction.
For reasons that we will explain, we will modify the judgment to reflect that
defendant is entitled to an additional 1,092 days of credit in case No. SS102792A, order
the preparation of amended abstracts of judgment, and affirm the judgment as modified.
II. BACKGROUND
Defendant’s convictions in case No. SS141485A arose from a group assault on
Monterey County Sheriff’s Deputy Nicholas Menezes, by inmates in a Norteño pod at the
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Monterey County Jail. At trial, the prosecution’s theory was that the assault was directed
by the pod’s “shot-caller,” inmate Alberto Cortez. The defense argued that the evidence
did not show an assault ordered by the gang and that there was no evidence defendant
ever “touched” Deputy Menezes during the incident.
A. The Jail Assault
On May 25, 2014, Monterey County Sheriff’s Deputy Michelle Bossuot was
observing Deputies Max Crowell, Bryan Whaley, and Menezes as they pat searched
inmates from the J pod in preparation for allowing those inmates to go out to the yard.
The inmates were lined up along a wall in a hall outside the J pod, a designated Norteño
pod.
Inmate Giovanni Pacheco would not spread his legs when directed to do so by
Deputy Menezes. As Deputy Menezes tried to search Pacheco, Pacheco elbowed him in
the chest. Deputy Menezes therefore put Pacheco into a “wrist lock” and escorted
Pacheco back into the pod, with Deputy Crowell following. Deputy Menezes placed
Pacheco in handcuffs and escorted Pacheco back out of the pod. Some of the inmates
began “talking shit,” and Pacheco began kicking Deputy Menezes in the legs. Deputy
Menezes ordered Pacheco to drop to his knees, but Pacheco did not do so. Deputy
Menezes then did a “leg sweep” to get Pacheco to his knees.
Cortez yelled, “Get him. Get him. Get him.” In response, at least five inmates—
including defendant—ran over and began attacking Deputy Menezes, who was kneeling
on the ground next to Pacheco. Deputy Menezes was kicked in the face, causing his head
to snap backwards. He felt punches “raining” down on his head and neck. He fought his
way up to a standing position and covered his head with one arm, using the other arm to
try to “fend off as many people” as he could. He could see defendant in the group that
was attacking him. At one point, defendant was trying to pull Deputy Menezes down.
Deputy Menezes was able to access his baton and began using it to strike the
inmates who were attacking him. Meanwhile, Deputy Bossuot called for backup, pulled
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out her Taser, and aimed the Taser at defendant, who was throwing punches towards
Deputy Menezes. Deputy Crowell used his baton to strike other inmates involved in the
assault. He hit two inmates on the back and hit one inmate on the head. Another inmate
was tased by Deputy Whaley.
After the deputies got the inmates under control, Marcos Zamora, one of the other
inmates who had been involved in the assault told Cortez (the “shot-caller”), “Look what
they did to my head.” Cortez responded, “Don’t worry, we’ll get them back.”
After the assault, Deputy Menezes was “covered in blood” and appeared to be
disoriented. He was taken to the hospital, where he received stitches for a cut above his
eye. He was diagnosed with a traumatic brain injury. For about a year after the assault,
he had trouble walking, especially going up and down stairs. Deputy Menezes was still
receiving follow-up medical treatment at the time of trial, for post-concussion syndrome
and a pinched nerve in his neck. Deputy Menezes had no feeling in parts of his arm. He
also had cognitive deficits, headaches, nausea, and dizziness. He had not worked since
the incident.
B. Gang Expert Testimony
Monterey County Sheriff’s Deputy Jesse Pinon testified as the prosecution’s gang
expert. He described how the “Norteno-Sureno thing” started in California prisons with
the Nuestra Familia organizing to combat the bullying that northern Hispanic inmates
were experiencing from Mexican Mafia inmates. He described how both the Mexican
Mafia and the Nuestra Familia are “very sophisticated,” with a hierarchy from the prison
to the streets. On the streets, Norteños are the Nuestra Familia’s “foot soldiers.”
In the Monterey County Jail, the Nuestra Familia has a “shot-caller or leader” and
a chain of command. If a Norteño inmate attacks a jail deputy, it shows the gang
member’s power and “that they’re willing to do whatever for the gang.”
During Deputy Pinon’s testimony, the parties informed the jury of a stipulation:
“that the defendant has been convicted of voluntary manslaughter, with an enhancement
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that it was done for the benefit of the gang.” The jury was informed that the conviction
arose from an “event that happened in 2010.” According to Deputy Pinon, the fact that
defendant had admitted having committed a homicide for the benefit of the gang was
significant to him, because it showed defendant’s “willingness to do things for the gang”
even if there was a risk to his future. Defendant was willing to spend the rest of his life
in prison for the gang.
Deputy Pinon had researched defendant’s prior contacts with law enforcement,
finding indicia of gang association such as defendant’s clothing, tattoos, statements, and
companions. One tattoo read, “Soulless against all odds.” It meant defendant had “no
heart” and was “willing to do whatever he can for the gang” without a second thought.
Defendant’s jail and prison records showed he was an active Norteño gang member.
Defendant had not been assaulted while he was housed in J pod, showing that “he was in
good standing” with the gang.
Deputy Pinon had also researched the backgrounds of the other inmates in J pod,
the majority of whom had Norteño gang affiliation. He described how Norteños follow
the “Fourteen bonds,” which are essentially bylaws. The “bonds” include “backing up” a
fellow gang member and “not being a coward.”
Deputy Pinon was familiar with Cortez, who had previously been convicted of
murder for the benefit of a gang. Cortez had a tattoo reading “scrap killer.” The word
“scrap” referred to Sureños. Cortez also had other gang-related tattoos. Deputy Pinon
believed Cortez was a shot-caller in the Monterey County jail.
Deputy Pinon described the “shot-caller” in a jail’s gang pod as the person who
makes all the decisions for the pod. If a shot-caller in a Norteño jail pod told other
Norteños in the pod, “Get him, get him, get him,” referring to a deputy, that would be
perceived as “an order from the gang to the soldiers of the gang.” The gang members
would be required to attack the deputy; if they did not, they would be subject to discipline
from the gang for an “act of cowardice.” The discipline could include being assaulted or
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killed. A group assault on a deputy would strengthen the power of the gang by showing
that the gang is “not scared of the law.”
Deputy Pinon described the primary activities of “Nortenos in the Norteno pods in
the Monterey County Jail” as including the commission of murder, manslaughter, assault
with a deadly weapon, robbery, extortion, carjacking, and other crimes. He agreed a
pattern of criminal gang activity was shown by the murder Cortez committed for the
benefit of the gang, the manslaughter defendant committed for the benefit of the gang,
and the assault on Deputy Menezes by members of the gang.
C. Defense Case
The emergency room doctor who treated Deputy Menezes had diagnosed him with
a “closed head injury.” Deputy Menezes had complained of having been punched in the
face. X-rays of his neck did not show any abnormalities. However, a bulging disc or
pinched nerve would not have appeared on an x-ray.
Monterey County Sheriff’s Deputy David Vargas interviewed Deputy Menezes by
phone the day after the assault. Deputy Menezes said he was taking pain medication, and
he was having difficulty communicating. Deputy Vargas therefore set up a meeting
about a week later, on June 3, 2014. At that time, Deputy Menezes had a scar from his
laceration, but he had no other bruising on his face.
D. Charges, Verdicts, and Sentence
Defendant was charged in case No. SS141485A with battery with injury on a
peace officer (§ 243, subd. (c)(2); count 1), battery with serious bodily injury (§§ 242,
243, subd. (d); count 2), assault on a peace officer (§ 245, subd. (c); count 3), and active
participation in a criminal street gang (§ 186.22, subd. (a); count 4). The amended
information alleged that defendant personally inflicted great bodily injury on Deputy
Menezes (§§ 969f, subd. (a), 12022.7, subd. (a)), that defendant committed counts 1
through 3 for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), and that
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defendant had two prior voluntary manslaughter convictions that qualified as serious
felonies (§ 667, subd. (a)(1)) and strikes (§ 1170.12, subd. (c)(2)).
In counts 1 and 2, a jury found defendant not guilty of the two felony battery
charges but guilty of the lesser included offense of assault (§ 240) as to both counts. The
jury found defendant guilty of count 3 (assault on a peace officer) and count 4 (active
participation in a criminal street gang). The jury found true the allegation that defendant
personally inflicted great bodily injury in the commission of counts 3 and 4, and it found
true the gang allegation associated with count 3. The trial court found true one prior
serious felony conviction allegation and both prior “strike” allegations.
At the sentencing hearing, the trial court denied defendant’s Romero2 motion to
strike the prior strike allegations. The court also stated that it did not have the discretion
to dismiss the gang enhancement. The court proceeded to impose a term of 40 years to
life, comprised of an indeterminate term of 25 years to life for count 3 (assault on a peace
officer), a determinate term of 10 years for the criminal street gang allegation associated
with count 3, and a determinate term of 5 years for the prior serious felony allegation.
The terms for counts 1, 2, and 4 were stayed pursuant to section 654, and the term for the
great bodily injury allegation associated with count 3 was also stayed. The trial court
ordered defendant’s sentence in this case to run consecutive to a 42-year sentence in an
earlier voluntary manslaughter case (No. SS102792A).
E. Defendant’s First Appeal
In defendant’s first appeal, he contended that (1) the trial court erroneously
believed it could not dismiss the gang enhancement or strike the punishment for that
enhancement, and (2) the court had discretion to strike his prior serious felony conviction
under a new law that applied retroactively to him. This court reversed the judgment and
remanded the matter for resentencing for the trial court to determine: (1) whether to
2
People v. Superior Court (Romero) (1996) 13 Cal. 4th 497.
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exercise its discretion pursuant to section 1385 to dismiss the gang enhancement
(§ 186.22, subd. (b)(1)); and (2) whether to exercise its discretion pursuant to
section 1385 to strike defendant’s prior serious felony conviction for the purposes of
sentencing him under section 667, subdivision (a).
F. Trial Court Proceedings After First Appeal
1. Defendant’s written request to strike the punishment
for the gang enhancement
After the case was remanded to the trial court, defendant filed a written request to
“ ‘strike the additional punishment’ ” of five years for the serious felony enhancement
and 10 years for the gang enhancement in the interests of justice under section 1385,
subdivision (b)(1). In support of striking the punishment for the two enhancements,
defendant made the following arguments.
First, defendant observed that his original sentence of 40 years to life, which was
ordered to run consecutive to a 42-year sentence in case No. SS102792A, resulted in an
aggregate sentence of 82 years to life. He contended that he would not be eligible for
parole consideration until he had served 70 years. Defendant argued that if the court
struck the serious felony and gang enhancements, defendant’s aggregate sentence for
both cases would be 67 years to life, and he could seek parole after serving 57 years when
he was 79 years old.
Second, defendant provided an excerpt from his Romero motion, which the trial
court had denied at the original sentencing. Defendant indicated that he was adopting the
statement of facts set forth in his Romero motion, in which he had argued that a deputy
“tased” him and that he did not join in the subsequent assault on Deputy Menezes.
Defendant also questioned the severity or extent of injuries suffered by Deputy Menezes
as a result of the assault.
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Third, defendant contended that his family had “continued dedication to him as a
person,” as reflected in letters of support that were prepared in connection with his
original sentencing.
Fourth, defendant acknowledged that since his original sentencing, he had been
disciplined for violating prison rules on three occasions. In July 2017, two cell phones
and other items were found to be hidden in the prison. Defendant was determined to
have possessed one of the phones based on pictures in the phone and the fact that his
father’s phone number was programmed into the phone. In December 2017, defendant
was determined to have engaged in a fight with another inmate. In July 2018, defendant
and another inmate were in a cell that contained approximately two gallons of inmate
manufactured alcohol.
Defendant contended, however, that he had made “strides” while incarcerated. He
worked as a “porter” in prison and was paid for his work. Defendant also provided
documentation showing that he had completed or was participating in several programs
while in prison, including regarding gang awareness, alternatives to violence, art,
religion, and substance abuse.
2. Resentencing hearing
The resentencing hearing was held on November 14, 2019. The prosecutor
contended that while defendant was awaiting sentencing in another case for two killings
with a gang enhancement (case No. SS102792A), defendant “in a Norteno pod, took the
orders of the shot-caller” and, along with several others, attacked Deputy Menezes “and
disabled him for life, all because the gang told him to do it.” The prosecutor argued that
the question was whether defendant deserved an “increased penalty for acting on behalf
of the Norteno criminal street gang.” The prosecutor contended that the gang engaged in
the attack to “instill fear in deputies so that they won’t mess with the gang members, they
won’t search them as closely, they won’t regulate their behaviors, to instill fear in other
inmates that the gang is so scary they will attack a deputy and disable a deputy and so
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everyone else should be afraid of them as well.” The prosecutor argued against “[t]he
idea that now [defendant] should get some kind of reprieve from his choices to act
violently, three times at least, on behalf of the Norteno street gang now because he’s
taken a few classes in prison . . . .” According to the prosecutor, “[t]hese weren’t
youthful misunderstandings. These weren’t momentary lapses of judgment. This was a
lifestyle that [defendant] has not just embraced but risen to the highest level. He was an
assassin for the Norteno street gang, and he ruined an officer, a deputy’s life, who still
doesn’t work, still is disabled, and still is suffering for the defendant’s choice.” The
prosecutor contended that “the interest of justice does not mean that [defendant] should
be relieved of the penalties that the [L]egislature set down for those crimes.” In addition
to the gang enhancement, the prosecutor also argued that the trial court should impose the
serious felony enhancement. The prosecutor concluded by stating, “[T]he People
strongly oppose any reduction by a single day. He deserves everything he gets.”
Defense counsel explained that defendant was requesting that the punishment, not
that the enhancements themselves, be struck and that the request would not “make a
massive difference” in the length of his sentence. Counsel contended that defendant had
participated in a “significant amount” of prison programs, which were for rehabilitative
purposes, and that defendant had “certainly lived up to that portion today” and had “made
significant strides” while in custody.
Defendant also spoke during the sentencing hearing. He admitted making “some
bad decisions” and stated that he did not want to “downplay” his offenses. Defendant
had participated in prison programs and indicated that he was a different person now.
~(RT 9)~ He acknowledged that he was facing a “long sentence,” but stated, “I remain
positive, and I wake up, and I do my best.” Defendant further stated that he would
“continue to . . . remain positive and grow,” and that he would “continue to better”
himself. He indicated that he had been accepted for a college humanities class in the fall,
10
and that he took “pride in being acknowledged for something positive instead of being on
the front page talking about I got convicted for something.”
The trial court indicated that it has seen the document regarding the humanities
class and expressed its understanding that defendant’s family visited him regularly. The
court then stated to defendant: “I have no doubt . . . you would not be taking these
classes and doing these things if you had stayed in the lifestyle that you were in. So . . .
when I tell people, . . . ‘Take advantage of programs in prison,’ you truly have done that.
So now when I say that to people, I know that it can happen.
“I have no doubt you’re a different person than you were when these crimes
occurred. Yet [the prosecutor] has a good point. The horrific nature of the crime here
and the gang crimes that you were committing, I still think that large number of years,
obviously, is appropriate for your sentence because of the nature of these offenses.
“The gang enhancement here, this whole assault was gang driven. I mean, it was
as [the prosecutor] said, a shot-caller and the [C]ourt of [A]ppeal has adopted, basically,
that statement of facts as to what happened in this case to Mr. Cortez, having given the
order . . . to attack, and fellow gang members did. I do think the gang enhancement here,
within my discretion, I do think it’s appropriate where this was solely a gang-driven
offense.”
The trial court proceeded to impose the same sentence, including the 10-year gang
enhancement, except the court “stay[ed]” the punishment for the five-year serious felony
enhancement “in the interest of justice.” Defendant’s total sentence was 35 years to life
consecutive to a 42-year sentence in an earlier voluntary manslaughter case (No.
SS102792A), resulting in an aggregate sentence of 77 years to life.
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III. DISCUSSION
A. Gang Enhancement
Defendant contends that the trial court abused its discretion in denying his request
to strike the 10-year punishment for the gang enhancement in case No. SS14185A
(assault on a peace officer). The Attorney General argues that no abuse of discretion has
been shown.
A trial court has the discretion to strike a gang enhancement or to strike the
additional punishment for the gang enhancement. (§§ 1385, subd. (a), 186.22, subd. (g);
People v. Fuentes (2016) 1 Cal. 5th 218, 224, 231.) In the trial court, defendant requested
that the court strike the additional punishment for the gang enhancement under
section 1385, subdivision (b)(1). Section 1385, subdivision (b)(1) generally provides that
a trial court may “strike the additional punishment” for an enhancement “in the
furtherance of justice in compliance with subdivision (a).”3 Subdivision (a) of
section 1385 in turn authorizes a court to dismiss an action “in furtherance of justice”
pursuant to specified procedures.
“ ‘ “[T]he language of [section 1385], ‘in furtherance of justice,’ requires
consideration both of the constitutional rights of the defendant, and the interests of
society represented by the People, in determining whether there should be a dismissal.
[Citations.]” [Citations.] At the very least, the reason for dismissal must be “that which
would motivate a reasonable judge.” [Citations.]’ [Citations.]” (People v. McGlothin
3
Section 1385, subdivision (b)(1) generally authorizes a trial court to strike the
additional punishment for an enhancement, while section 186.22, subdivision (g)
specifically authorizes a trial court to strike the punishment for a gang enhancement.
Section 186.22, subdivision (g) states: “Notwithstanding any other law, the court may
strike the additional punishment for the enhancements provided in this section or refuse
to impose the minimum jail sentence for misdemeanors in an unusual case where the
interests of justice would best be served, if the court specifies on the record and enters
into the minutes the circumstances indicating that the interests of justice would best be
served by that disposition.”
12
(1998) 67 Cal. App. 4th 468, 473, italics omitted.) In determining whether to strike the
additional punishment for an enhancement in furtherance of justice, a court is “guided . . .
by the particulars of the [sentencing] scheme itself, informed as well by ‘generally
applicable sentencing principles relating to matters such as the defendant’s background,
character, and prospects,’ including the factors found in California Rules of Court,
rule 410 [now rule 4.410] et seq. [Citation.]” (Id. at p. 474; see People v. Torres (2008)
163 Cal. App. 4th 1420, 1433, fn. 6 (Torres).)
A trial court’s refusal to strike the additional punishment for an enhancement
under section 1385 is reviewed for abuse of discretion. (People v. Lua (2017) 10
Cal. App. 5th 1004, 1020 (Lua).) A trial court abuses its discretion “when its
determination is arbitrary or capricious or ‘ “ ‘exceeds the bounds of reason, all of the
circumstances being considered.’ ” [Citations.]’ [Citation.]” (People v. Carbajal (1995)
10 Cal. 4th 1114, 1121 (Carbajal).) “For example, an abuse of discretion occurs where
the trial court was not ‘aware of its discretion’ to dismiss [citation], or where the court
considered impermissible factors in declining to dismiss [citation].” (People v. Carmony
(2004) 33 Cal. 4th 367, 378 (Carmony).) “Where the record is silent [citation], or
‘[w]here the record demonstrates that the trial court balanced the relevant facts and
reached an impartial decision in conformity with the spirit of the law, we shall affirm the
trial court’s ruling, even if we might have ruled differently in the first instance’
[citation].” (Ibid.; accord, Lua, supra, at p. 1020.)
In this case, we find no abuse of discretion in the trial court’s refusal to strike the
gang enhancement. The court acknowledged that defendant had taken advantage of
programs that were offered in prison and expressed “no doubt” that defendant was “a
different person” than when he committed his crimes. However, the court also referred to
the “horrific nature of the crime here and the gang crimes that [defendant was]
committing.” Regarding defendant’s participation in the group assault on the sheriff’s
deputy, the court stated that the “whole assault was gang driven,” a “shot-caller” gave
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“the order . . . to attack, and fellow gang members did.” The court ultimately concluded
that the gang enhancement was “appropriate where this was solely a gang-driven
offense.” The “record demonstrates that the trial court balanced the relevant facts and
reached an impartial decision in conformity with the spirit of the law.” (Carmony, supra,
33 Cal.4th at p. 378; accord, Lua, supra, 10 Cal.App.5th at p. 1020.) Although defendant
sought to establish to the trial court that he was a different person since the time of the
offenses, defendant’s assault on the deputy was committed solely on the order of another
gang member and followed defendant’s prior conviction for a gang-related killing. On
this record, we cannot say the court’s refusal to strike the gang enhancement for the
assault on the deputy was “arbitrary or capricious or ‘ “ ‘exceed[ed] the bounds of reason,
all of the circumstances being considered.’ ” [Citations.]’ [Citation.]” (Carbajal, supra,
10 Cal.4th at p. 1121.)
Defendant contends that the trial court “failed to give proper weight” to the
“evidence of his rehabilitation since he was first sentenced” and the fact that he “would
still be sentenced to a term of imprisonment spanning decades if the court struck the
punishment for the gang enhancement.” The record reflects, however, that the trial court
was well aware of both factors and considered the significance of both factors in
exercising its discretion. Regarding defendant’s rehabilitation efforts, the court expressly
acknowledged that defendant “truly ha[d]” taken advantage of programs in prison and
that the court “ha[d] no doubt [defendant was] a different person” now. The court
indicated, however, that it had weighed those rehabilitation efforts with “the horrific”
assault on the deputy and the prior gang killing and ultimately concluded that the “large
number of years . . . is appropriate for [defendant’s] sentence.” In this regard, the court
observed that the group assault by defendant and others on the sheriff’s deputy was
“solely a gang-driven offense” that occurred on the “order” of the “shot-caller.”
Defendant fails to cite any authority for the proposition that it was an abuse of discretion
for the court to determine that the nature of his current offense and his prior criminal
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gang history warranted imposition of the gang enhancement despite his rehabilitative
efforts while in custody since the time the crimes were committed. (Cf. Torres, supra,
163 Cal.App.4th at pp. 1426, 1433 [finding that trial court stated sufficient reasons to
strike gang allegations where the defendant was “ ‘youthful,’ ” had no prior record, and
there was “ ‘no indication he was ever in any gang related activity prior to this
instance’ ”].) To the contrary, on this record, the court was well within its discretion in
determining that defendant fell within the particulars of the gang statute. (See People v.
Prunty (2015) 62 Cal. 4th 59, 74 [explaining that the Legislature “identified ‘the
organized nature of street gangs’ as posing a unique threat to public safety” and that the
“clear purpose of the [statute containing the gang enhancement] is to target these criminal
groups”].) As “the record demonstrates that the trial court balanced the relevant facts and
reached an impartial decision in conformity with the spirit of the law, we shall affirm the
trial court’s ruling . . . .’ ” (Carmony, supra, 33 Cal.4th at p. 378; accord, Lua, supra, 10
Cal.App.5th at p. 1020.)
B. Credit for Actual Time in Custody Through Resentencing
Defendant contends that the trial court erred by failing to award an additional
1,092 days of credit for his actual time in custody following his sentencing on
November 17, 2016, through his resentencing on November 14, 2019. The Attorney
General concedes the issue. We find the Attorney General’s concession appropriate.
The record reflects that on November 17, 2016, defendant was initially sentenced
at a combined sentencing hearing for case No. SS141485A, involving the assault on the
deputy, and case No. SS102792A, in which defendant had pleaded to two counts of
voluntary manslaughter with a firearm enhancement and a gang enhancement. At the
combined sentencing hearing, the trial court stated that the custody credits were “zero” in
the case involving the assault on the deputy (case No. SS141485A) because defendant
was “receiving credits on the other docket.” In the voluntary manslaughter case (case
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No. SS102792A), the court granted defendant 2,577 days of custody credits, consisting of
2,241 actual days and 336 days’ conduct credit.
Following defendant’s first appeal and this court’s remand, a combined
resentencing hearing was held on November 14, 2019. At the hearing, the trial court
modified defendant’s sentence for the two cases from 82 years to life to 77 years to life.
The court did not grant any additional credit for actual custody time.
In People v. Buckhalter (2001) 26 Cal. 4th 20 (Buckhalter), the California Supreme
Court held that, “[w]hen, as here, an appellate remand results in modification of a felony
sentence during the term of imprisonment, the trial court must calculate the actual time
the defendant has already served and credit that time against the ‘subsequent sentence.’
(§ 2900.1.) On the other hand, a convicted felon once sentenced, committed, and
delivered to prison is not restored to presentence status, for purposes of the sentence-
credit statutes, by virtue of a limited appellate remand for correction of sentencing errors.
Instead, he remains ‘imprisoned’ [citation] in the custody of the Director [of Corrections]
‘until duly released according to law’ [citation], even while temporarily confined away
from prison to permit his appearance in the remand proceedings. Thus, he cannot earn
good behavior credits under the formula specifically applicable to persons detained in a
local facility, or under equivalent circumstances elsewhere, ‘prior to the imposition of
sentence’ for a felony. (§ 4019, subds. (a)(4), (b), (c), (e), (f); . . .) Instead, any credits
beyond actual custody time may be earned, if at all, only under the so-called worktime
system separately applicable to convicted felons serving their sentences in prison.
(§ 2930 et seq., . . .)” (Id. at p. 23.) “Accrual, forfeiture, and restoration of prison
worktime credits are pursuant to procedures established and administered by the Director.
[Citations.]” (Id. at p. 31.)
In this case, “the trial court, having modified defendant’s sentence on remand, was
obliged, in its new abstract of judgment, to credit him with all actual days he had spent in
custody, whether in jail or prison, up to that time.” (Buckhalter, supra, 26 Cal.4th at
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p. 37.) We will therefore order the judgment modified to include an additional 1,092
actual days of custody credit in case No. SS102792A (the voluntary manslaughter case)
for defendant’s time in custody following his sentencing at the original combined
sentencing hearing on November 17, 2016, through the date of his resentencing on
November 14, 2019, after appeal and remand.
Defendant also observes that the amended abstract of judgment filed on
December 16, 2019, indicates in multiple places that defendant was sentenced on
November 17, 2016, which was the date of the original combined sentencing hearing. To
avoid confusion regarding the calculation of custody credit, we will order the abstract of
judgment corrected to indicate that defendant was sentenced on November 14, 2019,
which was the date of his resentencing following appeal and remand.
C. Abstract of Judgment
Defendant contends that the abstract of judgment requires correction or
clarification. The Attorney General concedes the need for correction or clarification. We
find the concession appropriate.
First, the amended abstract of judgment for the indeterminate term (Judicial
Council form CR-292), which was filed on December 16, 2019, indicates that in the case
involving the assault on the deputy (case No. SS141485A), defendant was convicted in
count 3 of a violation of section 245, subdivision (c), which the amended abstract
describes as: “Assault with deadly weapon other than a firearm.” We agree with the
parties that this is not an accurate description of the crime. We will order the abstract
corrected to describe the crime as assault on a peace officer.
Second, the record reflects that when defendant was initially sentenced in 2016,
the trial court filed two abstracts of judgment—one for the indeterminate term (Judicial
Council form CR-292) and one for the determinate term (Judicial Council form CR-290).
Upon resentencing defendant in 2019, the trial court filed an amended abstract of
judgment for only the indeterminate term (Judicial Council form CR-292). That
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amended abstract for the indeterminate term expressly refers to Judicial Council form
CR-290, an abstract of judgment for a determinate term. We agree with the parties that
amended abstracts for both the indeterminate and determinate terms should be filed to
avoid the potential for confusion at the Department of Corrections and Rehabilitation,
rather than relying on an amended abstract of judgment for an indeterminate term that
appears to refer to an abstract of judgment for a determinate term filed years earlier.
Third, we agree with the parties that the amended abstracts of judgment should
reflect the following: (1) in the caption of the abstracts of judgment, the box stating,
“Amended Abstract,” should be marked; and (2) on page 2, in the section regarding
execution of sentencing, the box stating, “at resentencing per decision on appeal,” should
be marked.
IV. DISPOSITION
The judgment is modified to reflect that in case No. SS102792A, defendant is
entitled to 3,333 days of actual custody credit and 336 days of conduct credit, for a total
of 3,669 days of credit as of the date of his resentencing on November 14, 2019. As so
modified, the judgment in case Nos. SS141485A and SS102792A is affirmed.
The trial court is directed to prepare amended abstracts of judgment for the
indeterminate and determinate terms (Judicial Council forms CR-292 and CR-290)
encompassing case Nos. SS141485A and SS102792A. Both amended abstracts of
judgment shall include the following:
(1) the modification to the judgment regarding custody credits as set forth
above;
(2) in the caption, the box stating, “Amended Abstract,” shall be marked;
(3) in the caption (“DATE OF HEARING”) and on page 2 in the section
regarding credit for time served (“Date Sentence Pronounced”), the date
shall be November 14, 2019; and
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(4) on page 2, in the section regarding execution of sentencing, the box stating,
“at resentencing per decision on appeal,” shall be marked.
In addition, the amended abstract of judgment for the indeterminate term shall
reflect that defendant was convicted in case No. SS141485A, in count 3, of assault on a
peace officer.
The trial court shall send a copy of the amended abstracts of judgment to the
Department of Corrections and Rehabilitation.
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BAMATTRE-MANOUKIAN, J.
WE CONCUR:
ELIA, ACTING P.J.
DANNER, J.
People v. Canchola
H047703