People v. Esquivel CA2/5 ( 2022 )

Filed 4/21/22 P. v. Esquivel CA2/5
Opinion on remand from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B294024
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA102362)
v.
RANDOLPH STEVEN ESQUIVEL,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Jesus I. Rodriguez, Judge. Affirmed as
modified.
Paul R. Kraus, under appointment by the Court of Appeal,
for Defendant and Appellant.
Ron Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Michael R. Johnsen and David W. Williams,
Deputy Attorneys General, for Plaintiff and Respondent.
__________________________
Defendant and appellant Randolph Steven Esquivel was
convicted, by plea, of willfully attempting to burn a structure
(Pen. Code, § 455).1 A prison sentence of five years was imposed,
but execution was suspended, and he was granted probation.
Upon violation of probation, his probation was revoked and the
previously imposed sentence executed. There followed a series of
events, including California Supreme Court review and multiple
amendments to applicable sentencing laws. During this time,
defendant completed his term and was released on parole.
Although it is now undisputed that two of the five years of his
sentence must be stricken, the Attorney General argues that it
should be permitted to rescind the plea agreement and return to
the status quo ante. Recently codified authority prohibits this
result. We modify defendant’s sentence to strike both one-year
priors, and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Proceedings in the Trial Court
In 2015, defendant was charged by information with willful
attempt to burn (§ 455) and possession of flammable material
with the intent to maliciously use (§ 453, subd. (a)). With respect
to both counts, he was alleged to have suffered two prior prison
terms (§ 667.5, subd. (b)), a prior strike (§ 667, subds. (b)-(j)), and
a prior serious felony conviction (§ 667, subd. (a)(1)).
On September 11, 2015, defendant entered a negotiated
plea of no contest to the count of willful attempt to burn, and an
1 All further statutory references are to the Penal Code
unless otherwise stated.
2
admission of the priors, in exchange for a five-year suspended
sentence.
The sentence was calculated as follows: The three-year
high term for intent to burn, plus two years for the two prior
prison terms. The strike and prior serious felony conviction
enhancements were stricken in the interests of justice. The five-
year term was imposed and stayed, pending successful
completion of five years’ formal probation.
For several months in 2018, defendant failed to report to
probation. In the interim, he had been convicted of domestic
violence (§ 243, subd. (e)) and was arrested two additional times,
giving police a false name on each occasion.
At a probation violation hearing, the court found defendant
in violation of probation for multiple reasons: he failed to report
to probation; he sustained the domestic violence conviction; and
he failed to inform probation of that conviction. The court
terminated probation and executed the five-year sentence
previously imposed and suspended.
2. Initial Appeal
Defendant filed a timely notice of appeal. On appeal,
defendant made three arguments: (1) the court misunderstood
its discretion to reinstate probation, and therefore did not make
an informed appraisal of whether to reinstate probation; (2) an
intervening change in the law (Sen. Bill No. 136 (SB 136))
required the two prior prison term enhancements to be stricken;
and (3) the court erred in imposing a minimum restitution fine
and court fees without a determination of his ability to pay.
We held (1) there was no error in failing to reinstate
probation; and (2) the sentencing issues were not cognizable on
the appeal because defendant’s sentence was final when it was
imposed (albeit with execution suspended), and defendant failed
3
to timely appeal the original sentence. (People v. Esquivel
(Mar. 26, 2020, B294024) [nonpub. opn.] [2020 WL 1465895].)
3. Supreme Court Review
The California Supreme Court granted review, limited to
the issue: “Is the judgment in a criminal case considered final for
purposes of applying a later ameliorative change in the law when
probation is granted and execution of sentence is suspended or
only upon revocation of probation when the suspended sentence
is ordered into effect?”
The court concluded that the sentence was not final until
executed. (People v. Esquivel (2021) 11 Cal.5th 671 (Esquivel).)
As such, defendant was entitled to the benefit of intervening
changes in the law that were retroactive to cases not yet final –
including SB 136. The matter was remanded to this court for
further proceedings consistent with the high court’s opinion.2
4. Arguments on Remand
On remand to this court, the Attorney General argued that
simply striking the two now invalid one-year section 667.5,
2 As the Supreme Court granted review on the limited issue
of sentence finality, our original resolution of defendant’s
contention regarding the court’s failure to reinstate probation
was untouched by the grant of review and still applies. (See
Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs
(The Rutter Group 2021) ¶ 13:120.1(a) [if the Supreme Court
reviews only selected issues, remaining issues are decided by
either the original Court of Appeal opinion or subsequent action
by the Court of Appeal as directed by the Supreme Court].) In
our original opinion, we also held that defendant’s argument on
his inability to pay fines and fees was barred by the finality of the
original imposition of sentence. Although the Supreme Court
held the original imposition of sentence was not, in fact, final,
defendant makes no argument regarding the ability-to-pay issue
on remand. We treat it as abandoned.
4
subdivision (b) enhancements would deprive the prosecution of
the benefit of its plea bargain. It sought remand to the trial court
with directions to permit the People to rescind the plea
agreement, with the understanding that any resentencing could
be for a longer term than the initially-imposed five years.
Defendant argued that this court should strike the two
enhancements, and there is no need to remand for resentencing.
(Defendant also offered an alternative disposition that would
have returned the case to the trial court. In light of the decision
that we reach, we need not address this alternative argument.)
5. Further Legislative Action
In 2021, after briefing had been completed in the present
appeal, the Legislature enacted another statute, Senate Bill
No. 483 (SB 483), which was codified in section 1171.1. That
statute provides that the earlier legislation, SB 136, which
limited section 667.5, subdivision (b) enhancements to prior
prison terms imposed for sexually violent offenses, was fully
retroactive to all defendants, even those whose judgment was
final.
Section 1171.1 provides that “[a]ny sentence enhancement
imposed prior to January 1, 2020, pursuant to subdivision (b) of
Section 667.5, except for any enhancement imposed for a prior
conviction for a sexually violent offense . . . is legally invalid.”
(§ 1171.1, subd. (a).) It also states that the Department of
Corrections and Rehabilitation and the county correctional
administrator of each county “shall identify those persons in their
custody currently serving a term for a judgment that includes an
enhancement described in subdivision (a) and shall provide the
name of each person, along with the person’s date of birth and
the relevant case number or docket number, to the sentencing
court that imposed the enhancement.” (Id. at subd. (b).)
5
Sentencing courts, upon receiving the information from
correctional officials, shall recall the sentences and resentence
the individuals. (Id. at subd. (c).) The statute creates a time line
so those inmates “who have served their base term and any other
enhancements and are currently serving a sentence based on the
[SB 136] enhancement” will have their sentences reviewed first.
(Id. at subds. (b) & (c).) Resentencing “shall result in a lesser
sentence than the one originally imposed as a result of the
elimination of the repealed enhancement, unless the court finds
by clear and convincing evidence that imposing a lesser sentence
would endanger public safety. Resentencing pursuant to this
section shall not result in a longer sentence than the one
originally imposed.”3 (Id. at subd. (d)(1).)
An uncodified section of the law provided that “[i]t is the
intent of the Legislature that any changes to a sentence as a
result of the act that added this section shall not be a basis for a
prosecutor or court to rescind a plea agreement.” (Stats 2021,
ch. 728, § 1.) We sought additional briefing on the effect, if any,
of section 1171.1 on the current appeal.4
In his supplemental briefs, the Attorney General takes the
position that, the uncodified provision notwithstanding, the
prosecutor is entitled to rescind the plea. The Attorney General
3 The statue also provides that the court shall appoint
counsel for resentencing (§ 1171.1, subd. (d)(5)) and may consider
postconviction factors (id. at subd. (d)(3)). “The court shall apply
the sentencing rules of the Judicial Council and apply any other
changes in law that reduce sentences or provide for judicial
discretion so as to eliminate disparity of sentences and to
promote uniformity of sentencing.” (Id. at subd. (d)(2).)
4 Section 1171.1 became effective January 1, 2022.
6
reasons that the SB 483 procedures apply only to defendants
serving prison terms for invalid section 667.5, subdivision (b)
enhancements. The Attorney General represents that defendant
has been released from prison, having completed his term in June
2021, and was placed on parole. As he is no longer in prison, the
Attorney General argues, defendant falls outside the scope of the
statute, and the prosecutor is permitted to rescind the plea
agreement and seek a longer sentence.
DISCUSSION
Defendant’s sentence consists of the three-year high term
for the offense, plus two years for the prior prison terms.
Following the Supreme Court’s opinion in this matter and SB
483, the two prior prison term enhancements imposed in this
case are statutorily “invalid.”5 The Attorney General concedes
the point. However, the Attorney General argues that if we
simply modify the sentence to strike two years, it will be deprived
of the benefit of its plea bargain. The argument follows that the
prosecution should be entitled to rescind the plea agreement, and
defendant may be subject to a longer sentence.
The Legislature appears to have undercut the Attorney
General’s argument by addressing this very question: “It is the
intent of the Legislature that any changes to a sentence as a
5 The Supreme Court’s holding was that defendant’s
sentence was not final until it was executed, and agreed with the
parties’ concession that SB 136 applied to all cases not yet final.
(Esquivel, supra, 11 Cal.5th at pp. 674, fn. 1 & 678.) SB 483
extended the Supreme Court’s holding by providing that any
SB 136 sentence enhancements that were imposed prior to
January 1, 2020, were invalid, meaning that it applied not only
to cases not yet final on appeal, but to all such enhancements
imposed prior to January 1, 2020, even those in final judgments.
Defendant was sentenced in 2015.
7
result of the act that added this section shall not be a basis for a
prosecutor or court to rescind a plea agreement.” (Stats 2021,
ch. 728, § 1.)
The Attorney General, undeterred, argues that, because
defendant here has completed his custody term, he is outside the
scope of SB 483. From there, it follows that the prosecution is not
prohibited from rescinding the original plea bargain on remand,
and defendant may be resentenced to a greater term. The
Attorney General reads too much into the statute.
The Attorney General’s argument assumes that only state
and county correctional officials can trigger the process
established by SB 483. His letter brief states, in part: “However,
[SB] 483 contains a significant limitation. By its terms,
resentencing under [SB] 483 is available only to ‘those persons in
[CDCR] custody currently serving a term for a judgment that
includes an enhancement [pursuant to section 667.5, subdivision
(b)].’ ” The fatal weakness in that argument is that the Attorney
General’s “[SB] 483 is available only” language is nowhere to be
found in the statute.
As relevant to the current appeal, SB 483, as codified in
section 1171.1, has two principal components. First in
subdivision (a), the statute declares that the one year
enhancement, except when imposed on a conviction for a sexually
violent offense, is “legally invalid.” Next is subdivision (b) on
which the Attorney General relies:
“(b) The Secretary of the Department of Corrections and
Rehabilitation and the county correctional administrator of each
county shall identify those persons in their custody currently
serving a term for a judgment that includes an enhancement
described in subdivision (a) and shall provide the name of each
person, along with the person’s date of birth and the relevant
8
case number or docket number, to the sentencing court that
imposed the enhancement. This information shall be provided as
follows:
“(1) By March 1, 2022, for individuals who have served
their base term and any other enhancements and are currently
serving a sentence based on the enhancement. For purposes of
this paragraph, all other enhancements shall be considered to
have been served first.
(2) By July 1, 2022, for all other individuals.”6
Nothing in the statute says SB 483 is limited to those who
are in custody. On the contrary, the Legislature has imposed
mandatory duties on correctional officers for inmates whose
sentences include the SB 136 enhancements. They must advise
6 Related provisions include:
“(c) Upon receiving the information described in subdivision
(b), the court shall review the judgment and verify that the
current judgment includes a sentencing enhancement described
in subdivision (a). If the court determines that the current
judgment includes an enhancement described in subdivision (a),
the court shall recall the sentence and resentence the defendant.
The review and resentencing shall be completed as follows:
“(1) By October 1, 2022, for individuals who have served
their base term and any other enhancement and are currently
serving a sentence based on the enhancement.
“(2) By December 31, 2023, for all other individuals.
“(d)(1) Resentencing pursuant to this section shall result in
a lesser sentence than the one originally imposed as a result of
the elimination of the repealed enhancement, unless the court
finds by clear and convincing evidence that imposing a lesser
sentence would endanger public safety. Resentencing pursuant
to this section shall not result in a longer sentence than the one
originally imposed.”
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the court that those inmates may be eligible for SB 136 relief.
Upon receipt of the relevant information the trial court “shall
review the judgment and verify that the current judgment
includes a [SB 136] sentencing enhancement.” There is nothing
in the statute that denies SB 136 relief to those persons who are
not in custody and whose appeals are still pending in the
appellate courts. Nothing is said about the appellate courts at
all.
Defendant served the entirety of his sentence, including
two section 667.5, subdivision (b) enhancements which are now
invalid. We modify his sentence to strike those enhancements,
and otherwise affirm.7
DISPOSITION
Defendant’s sentence is modified to strike the two section
667.5, subdivision (b) enhancements. As modified, the judgment
is affirmed.
RUBIN, P. J.
WE CONCUR:
BAKER, J. KIM, J.
7 Our discussion is limited to defendants, like Esquivel, who
have completed their terms but are nonetheless entitled to relief
because their cases are not yet final. We express no opinion as to
the effect of the statute on defendants whose cases are final and
who have already fully served their sentences.
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