People v. Arias

• Decision Date: 15 July 2020
• Docket Number: A156360
• Citation: People v. Arias, 52 Cal.App.5th 213, 265 Cal.Rptr.3d 817 (Cal. App. 2020)
• Parties: The PEOPLE, Plaintiff and Respondent, v. Juan Carlos ARIAS, Defendant and Appellant.
• Court: California Court of Appeals

52 Cal.App.5th 213

265 Cal.Rptr.3d 817

The PEOPLE, Plaintiff and Respondent,

v.Juan Carlos ARIAS, Defendant and Appellant.

A156360

Court of Appeal, First District, Division 1, California.

Filed July 15, 2020

Certified for Partial Publication.^*

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

Sanchez, J.AppellantJuan 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, 101 Cal.Rptr.3d 135( Gonzalez ).

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^**

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 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.⁴The 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 654.⁵The prosecutor countered that appellant was asking the court to "expand"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, 92 Cal.Rptr.2d 641, 992 P.2d 569( 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 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, 92 Cal.Rptr.2d 641, 992 P.2d 569.)On appeal, he argued that the assault term should have been stayed under section 654.( Hester , at p. 294, 92 Cal.Rptr.2d 641, 992 P.2d 569.)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, 92 Cal.Rptr.2d 641, 992 P.2d 569, quoting fromrule 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 afterthe trial court recalled his case for resentencing pursuant to section 1170, subdivision (d)(1).⁶When the trial court exercises its discretion to recall a sentence 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, 279 Cal.Rptr. 834, 807 P.2d 1063;seeIn re Acker(1984)158 Cal.App.3d 888, 891, 205 Cal.Rptr. 82["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, 279 Cal.Rptr. 834, 807 P.2d 1063[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...