People v. Arias ( 2020 )

Filed 7/15/20
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
A156360
v.
JUAN CARLOS ARIAS, (Sonoma County
Super. Ct. No. SCR 494159)
Defendant and Appellant.
Appellant Juan Carlos Arias entered a negotiated plea of no contest to
two counts of assault with a deadly weapon (Pen. Code,1 § 245) and one count
of unlawful driving or taking a vehicle (Veh. Code, § 10851, subd. (a)), and
admitted enhancements that he committed these felonies for the benefit of a
criminal street gang (§ 186.22, subd. (b)(1)(C)), and inflicted great bodily
injury (§ 12022.7, subd. (a)). In 2007, he received a stipulated sentence of 18
years eight months in state prison.
Years later, the Secretary of the Department of Corrections and
Rehabilitation (Secretary) recommended to the superior court that
appellant’s sentence be recalled and he be resentenced in accordance with
section 1170, subdivision (d)(1), on the basis that appellant’s sentence may be
unlawful under People v. Gonzalez (2009) 178 Cal. App. 4th 1325 (Gonzalez).
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this
*
opinion is certified for publication with the exception of parts I.A and II.B.
1 All further unspecified statutory references are to the Penal Code.
1
The trial court recalled appellant’s sentence and held a resentencing
hearing. At the conclusion of the proceedings, the court stayed the great
bodily injury enhancements, imposed gang enhancements on each assault
count, and after other adjustments sentenced appellant to 18 years four
months in state prison—four months less than the original bargained-for
sentence. Appellant contends that the trial court erred in imposing two gang
enhancements under section 654 because he acted with a single intent to
benefit his gang when he committed the assaults. The Attorney General
urges us to dismiss his appeal on the grounds that he failed to obtain a
certificate of probable cause and he abandoned any claim that a component of
his sentence violated section 654’s prohibition against double punishment
when he agreed to a specified term of years.
In the published part of this opinion, we conclude that an appeal may
be taken from a sentence imposed under the resentencing provisions of
section 1170, subdivision (d)(1), without need for a certificate of probable
cause. (§ 1237, subd. (a).) In the nonpublished portion of this opinion, we
find no error in the trial court’s sentence and affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND2
A. Factual Background
On an evening in August 2006, John Packnett left a friend’s home to
meet another friend, Jason Hopkins, on Lancaster Street. Randy Alonzo
approached Packnett near the driveway and demanded Packnett’s cell phone.
Packnett refused and walked away. Alonzo followed him down the street,
talking on a cell phone.
2 We summarize the facts from our prior opinion in this matter, People
v. Arias (Apr. 14, 2008, A119662 [nonpub. opn.].)
2
Packnett found his friend Hopkins on Lancaster Street in his
Mitsubishi Galant and entered the car. Alonzo walked up, and without
invitation, also entered the car. Neither Packnett nor Hopkins were
acquainted with Alonzo. After traveling a short distance, Hopkins and
Alonzo exited the vehicle and began to argue. As Hopkins turned to ask
Packnett “what’s going on,” Alonzo grabbed Hopkins’s cell phone, which fell
from his hand to the ground. They scuffled momentarily before Hopkins
retrieved his phone. Hopkins noticed someone else walking up the street
toward the car but did not pay attention to him.
Packnett, still seated in the car, then saw a hand holding a knife come
through the open window. He was stabbed once in the arm and three times
in the upper chest before he managed to kick his attacker. Packnett was
positive that the assailant was not Alonzo, who was still grappling with
Hopkins when the stabbing occurred. Alonzo entered the driver’s side and
began to drive the car forward before he stopped. Hopkins tried to jump
through the driver’s side window with both feet and began to kick Alonzo in
the head and chest. The man who had stabbed Packnett ran around the car
and stabbed Hopkins three times in the side and back. Hopkins later
identified the assailant as appellant.
Appellant entered the passenger side, and he and Alonzo drove away in
the Galant. Hopkins and Packnett enlisted the help of a passerby and they
were taken to the hospital for treatment of their wounds. Hopkins recovered
his vehicle a week or so later. The car was damaged and items of personal
property, including a laptop computer, software, digital cameras, stereos, and
a leather jacket, had been stolen. At the preliminary hearing, an expert
witness opined that both appellant and Alonzo were affiliated with the
3
Sureño criminal street gang and that the offenses were committed to benefit
the gang.
B. Procedural History
In April 2007, appellant was charged by information with two counts of
attempted murder (§ 664/187, subd. (a), counts one and two), two counts of
assault with a deadly weapon (a knife) (§ 245, subd. (a)(1), counts three and
four), auto theft (§ 215, subd. (a), count five), attempted robbery (§ 644/211,
count six), and participation in a criminal street gang (§ 186.22, subd. (a),
count seven). The information also alleged various enhancements.
On May 29, 2007, appellant entered a negotiated plea of no contest to
the two counts of assault with a deadly weapon (§ 245, subd. (a)(1)), and to
unlawful driving or taking a vehicle (Veh. Code, § 10851, subd. (a), count
eight). As to each assault count, he admitted to criminal street gang
(§ 186.22, subd. (b)(1)(C)) and personal infliction of great bodily injury
(§ 12022.7, subd. (a)) enhancements.3
The trial court imposed a stipulated aggregate term of 18 years eight
months. On the principal term of assault (count three), appellant was
sentenced to the midterm of three years, a consecutive three-year term for
personal infliction of great bodily injury, and a consecutive 10-year term for
commission of a violent felony to benefit a criminal street gang. On the
subordinate assault count (count four), the trial court imposed a consecutive
one-year term (at one-third the midterm), a consecutive one-year term for the
great bodily injury enhancement, and it imposed and stayed a consecutive
3In accordance with the plea agreement, the counts of attempted
murder (§§ 664, 187), attempted robbery (§§ 664, 211), and participation in a
criminal street gang (§ 186.22, subd. (a)) were dismissed with a Harvey
waiver (People v. Harvey (1979) 25 Cal. 3d 754), as were the alleged
enhancements for personal use of a deadly weapon (§ 12022, subd. (b)(1)).
4
10-year term for the criminal street gang enhancement. Appellant was
sentenced to a consecutive eight-month term for the vehicle theft count.
Notice of appeal was timely filed, but appellant did not obtain a certificate of
probable cause. We affirmed the judgment. (People v. Arias, supra,
A119662).)
In September 2018, the Secretary recommended recall of appellant’s
sentence under section 1170, subdivision (d), noting a possible sentencing
error under Gonzalez, based upon the simultaneous imposition of criminal
street gang and great bodily injury enhancements.4 The court recalled
appellant’s sentence and ordered briefing.
At appellant’s December 17, 2018 resentencing hearing, the prosecutor
argued that the sole issue to be addressed under Gonzalez was the imposition
of the great bodily injury enhancements. She indicated it would be possible
to apply Gonzalez and still achieve the substance of the negotiated disposition
by adjusting the terms attached to each count. Defense counsel proposed
that appellant be resentenced to 15 years after staying the second gang
enhancement. Counsel argued that appellant’s act of stabbing two people
had occurred during a continuous gang fight, and thus imposing two gang
enhancements would amount to double punishment under section 654. 5 The
prosecutor countered that appellant was asking the court to “expand”
4 The Gonzalez court concluded that the trial court in that case had
erred in imposing enhancements under both section 12022.7, subdivision (a)
and section 186.22, subdivision (b)(1)(C) for felony assault because both
enhancements punished the infliction of great bodily injury on the same
victim in the commission of a single offense, in violation of section 1170.1,
subdivision (g). (Gonzalez, supra, 178 Cal.App.4th at pp. 1331–1332.)
5 Section 654 precludes multiple punishments for a single act or
indivisible course of conduct. (People v. Miller (1977) 18 Cal. 3d 873, 885.)
5
Gonzalez to revisit the gang enhancement, arguing the court should not do so
because the present case involved separate victims and separate crimes.
The trial court stayed the terms on the great bodily injury
enhancements as required under Gonzalez and imposed gang enhancements
on counts three and four. The gang enhancement on the subordinate assault
count was calculated at one-third of the maximum, resulting in a term of
three years four months. After adjusting the vehicle theft count upward from
eight months to two years, the court resentenced appellant to a total prison
term of 18 years four months—four months less than the previous sentence.
This appeal followed.
II. DISCUSSION
Appellant does not challenge the trial court’s application of Gonzalez to
stay the three-year great bodily injury enhancement in each assault count.
He instead contends that, pursuant to section 654, he cannot be punished
with multiple gang enhancements because he acted with a single intent to
benefit his gang when he committed the assaults.
A. Appellant’s Claim is Cognizable on Appeal
Before reaching the merits of the appeal, we first address the Attorney
General’s contention that appellant is precluded from challenging his
sentence by California Rules of Court, rule 4.412(b) (rule 4.412(b)) and People
v. Hester (2000) 22 Cal. 4th 290 (Hester). Rule 4.412(b) states as follows: “By
agreeing to a specified term in prison or county jail . . ., a defendant who is
sentenced to that term or a shorter one abandons any claim that a component
of the sentence violates section 654’s prohibition of double punishment,
unless that claim is asserted at the time the agreement is recited on the
record.” The Attorney General argues that appellant abandoned any claim of
double punishment because he did not raise it on the record at the time he
6
agreed to a specified sentence pursuant to his plea. We find these authorities
inapplicable.
In Hester, the defendant sought to raise a section 654 multiple-
punishment claim on appeal after entering a guilty plea. The plea agreement
required him to serve a four-year term on a burglary count, with a concurrent
three-year term for felony assault. (Hester, supra, 22 Cal.4th at p. 293.) On
appeal, he argued that the assault term should have been stayed under
section 654. (Hester, at p. 294.) In finding no error, the high court noted that
the defendant had bargained for a four-year term, received that term at the
time of sentencing, and he “did not raise a section 654 objection to any
possible concurrent terms ‘at the time the agreement [was] recited on the
record,’ namely, at the change of plea hearing. Therefore, he abandoned ‘any
claim that a component of the sentence violates section 654’s prohibition of
double punishment.’ ” (Hester, at p. 296, quoting from rule 4.412(b).)
The Attorney General overlooks the fact that appellant is not
challenging the original sentence he had received pursuant to his plea
agreement in 2007. He is challenging the sentence he received after the trial
court recalled his case for resentencing pursuant to section 1170, subdivision
(d)(1).6 When the trial court exercises its discretion to recall a sentence
6 Section 1170, subdivision (d)(1) provides in relevant part: “When a
defendant . . . has been sentenced to be imprisoned in the state prison . . . ,
the court may . . . at any time upon the recommendation of the secretary or
the Board of Parole Hearings in the case of state prison inmates . . . recall the
sentence and commitment previously ordered and resentence the defendant
in the same manner as if he or she had not previously been sentenced,
provided the new sentence, if any, is no greater than the initial sentence. . . .
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. The court may
consider postconviction factors, including, but not limited to, the inmate’s
7
pursuant to section 1170, subdivision (d)(1), the prior sentence and order of
commitment is effectively “vacated” and the court is empowered “to
‘resentence . . . in the same manner as if [the defendant] had not previously
been sentenced.’ ” (Dix v. Superior Court (1991) 53 Cal. 3d 442, 456; see In re
Acker (1984) 158 Cal. App. 3d 888, 891 [“A prison sentence recalled pursuant
to section 1170, subdivision (d) is vacated for all intents and purposes, not
completed.”].) In Dix, our high court held that section 1170, subdivision (d),
permits recall and resentencing “for any reason which could influence
sentencing generally, even if the reason arose after the original commitment.”
(Dix, at p. 463 [defendant’s postconviction willingness to cooperate in another
prosecution was a permissible basis for resentencing].)
Appellant’s sentence was recalled to address a potential sentencing
error highlighted in Gonzalez, an opinion by the Second District Court of
Appeal that issued after appellant’s original sentence and commitment.
Postconviction changes in law or clarifications of the law are permissible
grounds by which a trial court may recall a sentence and resentence to a
lower term “in the interest of justice.” (§ 1170, subd. (d)(1); see Dix, supra,
53 Cal.3d at p. 463.) Here, the recall of appellant’s sentence effectively
vacated his original sentence and commitment. In its place, a new sentence
was imposed under section 1170, subdivision (d)(1), not under an
“agree[ment] to a specified term [of years] in prison or county jail . . . .” (Rule
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.
8
4.412(b).) Under the circumstances, we conclude that rule 4.412(b) does not
bar appellant’s appeal.
Left unresolved is whether appellant may challenge his modified
sentence on appeal. “The right to appeal is statutory only, and a party may
not appeal a trial court’s judgment, order or ruling unless such is expressly
made appealable by statute.” (People v. Loper (2015) 60 Cal. 4th 1155, 1159
(Loper).) Section 1237, subdivision (a), provides that a criminal defendant
may appeal “from a final judgment of conviction” and clarifies that “[a]
sentence . . . shall be deemed to be a final judgment within the meaning of
this section.” Because appellant does not challenge his no contest plea and
instead attacks aspects of his modified sentence, it could be argued that his
judgment of conviction is unaffected by his appeal, and the trial court’s
modified sentence is a postjudgment order. However, the plain language of
section 1170, subdivision (d)(1) leads us to conclude that a newly imposed
sentence under this provision constitutes an appealable final judgment of
conviction.
Section 1170, subdivision (d)(1) provides that 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.” (Italics added.) Subdivision (d)(1) further
provides that the trial court may “resentence the defendant in the same
manner as if he or she had not previously been sentenced, provided the new
sentence, if any, is no greater than the initial sentence.” (§ 1170, subd. (d)(1);
see Dix, supra, 53 Cal.3d at p. 463 [the trial court may “impose any new
sentence that would be permissible under the Determinate Sentencing Act
[as] if the resentence were the original sentence.”].) Just as an original
sentence is appealable as a “final judgment of conviction” under section 1237,
9
subdivision (a), so too is the imposition of sentence under the recall and
resentencing provision of section 1170, subdivision (d)(1).7
The Attorney General also contends that appellant’s failure to obtain a
certificate of probable cause is fatal to his appeal because the sentence was
part of his plea agreement, citing section 1237.5. Section 1237.5 provides in
relevant part: “No appeal shall be taken by the defendant from a judgment of
conviction upon a plea of guilty or nolo contendere . . . except where . . .
[¶] . . . [¶] [t]he trial court has executed and filed a certificate of probable
cause for such appeal with the clerk of the court.” As explained above,
however, the sentence from which appellant has taken an appeal arose under
section 1170, subdivision (d), not his earlier—now vacated—sentence entered
under the negotiated plea. Because the present appeal does not challenge the
validity or terms of the prior plea agreement, section 1237.5 is not a bar to
his appeal. (See People v. Buttram (2003) 30 Cal. 4th 773, 781–782 [“ [T]he
critical inquiry is whether a challenge to the sentence is in substance a
challenge to the validity of the plea, thus rendering the appeal subject to the
requirements of section 1237.5.”].)
7 Even if we construed the trial court’s modified sentence as a
postjudgment order, such order would be appealable under section 1237,
subdivision (b): “An appeal may be taken by the defendant from . . . [¶]. . . [¶]
. . . any order made after judgment, affecting the substantial rights of the
party.” (See Loper, supra, 60 Cal.4th at pp. 1161–1162 & fn. 3 [denial of
request for resentencing under compassionate release statute (§ 1170,
subd. (e)) was appealable by prisoner under § 1237, subd. (b) because the
order “implicates a prisoner’s substantial interest in personal liberty”]; Teal
v. Superior Court (2014) 60 Cal. 4th 595, 600–601 [denial of petition for recall
of sentence and resentencing under § 1170.126 (Three Strikes Reform Act of
2002) is appealable under § 1237, subd. (b).) The resentencing order here
necessarily implicates appellant’s interest in his personal liberty and,
therefore, his “substantial rights” for purposes of allowing a postjudgment
appeal under section 1237, subdivision (b).
10
Equally important, trial courts are not bound by the terms of an earlier
plea agreement when resentencing under section 1170, subdivision (d)(1).
(See § 1170, subd. (d)(1) [“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” (italics added).].) Indeed, section 1170, subdivision (d)(1) expressly
contemplates that the trial court may take into account postconviction factors
such as a prisoner’s record of rehabilitation, age, diminished physical
condition, or other factors suggesting that the prisoner’s term of
imprisonment should be reduced or “the inmate’s continued incarceration is
no longer in the interest of justice.” (Ibid.) Such considerations would prove
meaningless if the trial court were constrained by the dictates of an earlier
plea agreement.
Not only was the trial court below not required to follow the terms of
the earlier plea agreement, it could not do so without reimposing an
unauthorized sentence under Gonzalez. Instead, the trial court exercised its
discretion to resentence appellant in a manner that approximated his earlier
sentence length, by staying both great bodily injury enhancements, imposing
both criminal street gang enhancements, and adjusting upward his vehicle
theft conviction. (See People v. Garner (2016) 244 Cal. App. 4th 1113, 1118
[“When a sentence is subject to ‘recall’ under section 1170, subdivision (d), the
entire sentence may be reconsidered.”].) Because the modified sentence
differed from the previous one in material respects, it cannot seriously be
argued that this appeal is in substance an attack on the plea agreement
itself. Where the Legislature has established a resentencing process that
expressly authorizes the trial courts to modify a “judgment entered after a
plea agreement,” we conclude that an appeal from such sentence does not
11
require the defendant to obtain a certificate of probable cause. Appellant’s
claim is therefore reviewable on appeal.
B. Appellant’s Sentence Does Not Violate Section 654
Appellant concedes that section 654 does not preclude separate
punishment for the two counts of assault with a deadly weapon against two
separate victims. He asserts, however, that the court was barred from
applying a separate gang enhancement on each of the two assault counts
because the assaults constituted a “single episode of gang related violence”
and a single intent to promote his criminal street gang. His argument misses
the mark.
“Whether section 654 applies to the facts in a given case is one of fact
for the trial court to decide, and such findings will be upheld on appeal if
there is any substantial evidence to support them. [Citations.] We review
the trial court’s findings ‘ “in a light most favorable to the respondent and
presume in support of the [sentencing] order the existence of every fact the
trier could reasonably deduce from the evidence.” ’ ” (People v. Atencio (2012)
208 Cal. App. 4th 1239, 1242–1243.)
Under section 654, “[a]n act or omission that is punishable in different
ways by different provisions of law shall be punished under the provision that
provides for the longest potential term of imprisonment, but in no case shall
the act or omission be punished under more than one provision.” (§ 654,
subd. (a).) “Whether a course of criminal conduct is divisible and therefore
gives rise to more than one act within the meaning of section 654 depends on
the intent and objective of the actor. If all of the offenses were incident to one
objective, the defendant may be punished for any one of such offenses but not
for more than one.” (Neal v. State of California (1960) 55 Cal. 2d 11, 19,
disapproved on another ground in People v. Correa (2012) 54 Cal. 4th 331, 334
12
(Correa).) “On the other hand, if the evidence discloses that a defendant
entertained multiple criminal objectives which were independent of and not
merely incidental to each other, he may be punished for the independent
violations committed in pursuit of each objective even though the violations
were parts of an otherwise indivisible course of conduct.” (People v. Perez
(1979) 23 Cal. 3d 545, 551 (Perez).)
The parties dispute whether section 654’s prohibition against double
punishment applies as a matter of law to the imposition of section 186.22,
subdivision (b) gang enhancements, and whether appellant’s actions
constituted an indivisible course of conduct with a single intent or separate
acts against separate victims. We need not resolve these questions because
appellant’s claim is barred under the judicially created exception for cases
involving multiple victims of violent crime.
Section 654 does not bar separate punishments for crimes of violence
committed against multiple victims. (Correa, supra, 54 Cal.4th at p. 343.)
The basis for this exception is that “[a] defendant who commits an act of
violence with the intent to harm more than one person or by a means likely to
cause harm to several persons is more culpable than a defendant who harms
only one person.” (People v. Oates (2004) 32 Cal. 4th 1048, 1063.) The
multiple victim exception applies to a single act of violence committed against
multiple victims, even when the defendant harbored the same intent and
objective in committing the offenses. (Id. at pp. 1063–1064.) Assault with a
deadly weapon is a violent crime. (People v. Hall (2000) 83 Cal. App. 4th 1084,
1089–1090.) Thus, even if we agreed with appellant that he was acting with
a single objective when he stabbed Packnett and Hopkins in rapid succession,
section 654 is not a bar to the imposition of multiple punishments for his
violent act.
13
People v. Akins (1997) 56 Cal. App. 4th 331 (Akins) is instructive. The
defendant participated in multiple robberies and assaults against different
victims over the course of one night. A jury convicted on all charges and
found that the defendant had participated in these offenses to benefit a
criminal street gang. The trial court imposed section 186.22, subdivision
(b)(1) gang enhancements on each of two residential robbery counts. (Akins,
at p. 334 & fns. 4, 5.) The defendant asserted error in the imposition of two
criminal street gang enhancements under section 654, arguing that the
robberies were part of a continuous course of conduct with a single intent to
benefit the street gang. (Id. at pp. 337–338.)
The Akins court held that when two underlying offenses are separately
punishable, section 654 does not preclude separate gang enhancements
pursuant to section 186.22, subdivision (b)(1) for each such offense: “Since
the underlying offenses, robbery and assault, were not subject to section 654
because [there is] evidence that defendant’s criminal intent was multiple, the
two gang enhancements pursuant to section 186.22, subdivision (b)(1) are
also not subject to section 654.” (Akins, supra, 56 Cal.App.4th at p. 340.) It
additionally observed that section 654 does not preclude separate
punishment for crimes of violence against separate victims. (Akins, at
pp. 339–340.) The court concluded that section 654 was not applicable to the
defendant, and thus separate gang enhancements were properly applied to
each separate offense despite a common objective to benefit the gang. (Akins,
at pp. 340–341.)
Appellant seeks to distinguish Akins by noting that the crimes of
violence in that case were committed several hours apart and in different
locations, and the court found evidence of multiple criminal intents.
However, while not expressly naming the multiple victim exception, the
14
Akins court made clear that the result would have been the same had the
violent crimes taken place in a single episode when it pointed out that
“[m]ultiple acts of violence committed against separate victims may be
separately punished, even when they are for the same intent and during the
same transaction.” (Akins, supra, 56 Cal.App.4th at pp. 340–341, citing
Perez, supra, 23 Cal.3d at p. 553.)
We conclude that section 654 provides no legal basis to stay the section
186.22, subdivision (b)(1)(C) enhancement with respect to the second assault
with a deadly weapon count (count four).8
DISPOSITION
The judgment is affirmed.
8 Finally, we reject appellant’s comparison to People v. Mesa (2012)
54 Cal. 4th 191, 197–198, in which the Supreme Court held that section 654
prohibits punishment for both the crime of participation in a criminal street
gang (§ 186.22, subd. (a)) and assault with a firearm when both offenses are
based upon shooting the victim. As neither the gang enhancement under
section 186.22, subdivision (b)(1), nor the multiple victim exception to section
654, was at issue in Mesa, there is simply no analogy to be drawn.
15
_________________________
Sanchez, J.
WE CONCUR:
_________________________
Margulies, Acting P.J.
_________________________
Banke, J.
A156360 People v. Arias
16
Trial Court: Sonoma County Superior Court
Trial Judge: Hon. Rene A. Chouteau
Counsel:
Sandra Gillies, under appointment by the Court of Appeal, for Defendant and
Appellant
Xavier Becerra, Attorney General, Lance E. Winters and Jeffrey M.
Laurence, Assistant Attorneys General, Donna M. Provenzano and
Cristina vom Sol, Deputy Attorneys General, for Plaintiff and Respondent
A156360 People v. Arias
17