Filed 6/11/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E072620
v. (Super.Ct.No. SWF017423)
ADRIAN GILBERT FEDERICO, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John M. Monterosso,
Judge. Affirmed.
John L. Staley, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General,
Steve Oetting and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and
Respondent.
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In 2008, defendant and appellant Adrian Gilbert Federico entered a plea agreement
and pled guilty to assault with a firearm. (Pen. Code,1 § 245, subd. (a)(2), count 1.) He
admitted that he personally used a firearm in the commission of the offense (§§ 12022.5,
subd. (a) & 1192.7, subd. (c)(8)), personally inflicted great bodily injury (GBI)
(§§ 12022.7, subd. (a) & 1192.7, subd. (c)(8)), and committed the offense for the benefit
of a criminal street gang (§ 186.22, subd. (b)). In exchange, a trial court sentenced him to
a total term of 20 years in state prison, consisting of three years on count 1, plus the
midterm of four years on the personal firearm use enhancement, three years on the GBI
enhancement, and 10 years on the gang enhancement.
Ten years later, the superior court received a letter from the California Department
of Corrections and Rehabilitation (CDCR), recommending that the court recall and
resentence defendant under section 1170, subdivision (d). The letter stated that the court
should not have imposed both the GBI and gang enhancements in light of People v.
Gonzalez (2009) 178 Cal.App.4th 1325 (Gonzalez). Defendant filed a motion agreeing
with CDCR’s recommendation and also requesting the court to apply Proposition 57 and
transfer jurisdiction to the juvenile court (he was 15 years old at the time of the offense).
The trial court declined to apply Proposition 57, since defendant’s judgment was final
long before Proposition 57 took effect. However, the court concluded it would provide
him with Gonzalez relief. It resentenced him to 17 years in state prison, consisting of
four years on count 1, plus three years on the GBI enhancement, and 10 years on the
1 All further statutory references will be to the Penal Code, unless otherwise
noted.
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personal firearm enhancement. The court imposed but stayed the 10-year gang
enhancement under section 654.
On appeal, defendant argues that the trial court erred in denying his request to
apply Proposition 57 and/or Senate Bill No. 1391 (2017-2018 Reg. Sess.) and remand the
matter to the juvenile court. We affirm.
PROCEDURAL BACKGROUND
On April 18, 2008, defendant entered a plea agreement and pled guilty to assault
with a firearm. (§ 245, subd. (a)(2), count 1.) He also admitted that he personally used a
firearm in the commission of the offense (§§ 12022.5, subd. (a) & 1192.7, subd. (c)(8)),
personally inflicted GBI (§§ 12022.7, subd. (a) & 1192.7, subd. (c)(8)), and committed
the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)). In accordance
with the agreement, the trial court sentenced him to a total term of 20 years in state
prison, consisting of three years on count 1, plus the midterm of four years on the
personal firearm use enhancement, three years on the GBI enhancement, and 10 years on
the gang enhancement.
On September 24, 2018, the superior court received a letter from CDCR providing
it with authority to recall defendant’s sentence under section 1170, subdivision (d). The
letter recommended that defendant be resentenced in accordance with Gonzalez, supra,
178 Cal.App.4th 1325, in which the appellate court held that the trial court should not
have imposed sentence enhancements under section 12022.7 and section 186.22, since
they were both based on the infliction of GBI on the victim. The Gonzalez court held that
the imposition of both enhancements violated section 1170.1, subdivision (g), which
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provides that “[w]hen two or more enhancements may be imposed for the infliction of
great bodily injury on the same victim in the commission of a single offense, only the
greatest of those enhancements shall be imposed for that offense.” (Gonzalez, at
p. 1329.)
Defendant filed a motion in response to the CDCR letter, agreeing that his
sentence was unauthorized under Gonzalez and should be recalled. However, he also
argued that the matter should be remanded to the juvenile court, pursuant to Proposition
57, for a hearing to determine if he was “a fit subject for consideration under the juvenile
court law” (Welf. & Inst. Code, § 604, subd. (b)), then transferred to adult court, if
needed. Defendant claimed that his Penal Code section 1170, subdivision (d), recall to
correct his unauthorized sentence rendered his judgment not final; thus, Proposition 57
could be applied.
The People also filed a response to the CDCR letter, arguing that since the
Gonzalez case did not involve a negotiated disposition, the court should not follow
CDCR’s recommendation to resentence defendant.
In a reply brief, defendant contended the People’s argument should be rejected.
He continued to claim the matter should be remanded to the juvenile court for a transfer
hearing in light of Proposition 57. In the alternative, he argued he should be resentenced
to a term of 10 years, in the interests of justice, pursuant to Senate Bill No. 1391.
The court held a hearing on the motion on February 20, 2019. It noted that
Gonzalez came out about one year after defendant was sentenced and held that the
enhancements under sections 12022.7, subdivision (a), and 186.22, subdivision (b)(1)(C),
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could not both be imposed. Defense counsel argued that, once the court recalled the
sentence, it could reconsider the entire sentence, not just the enhancements, even if the
sentence was the result of a plea. Defense counsel contended that, in resentencing
defendant, the court should consider every pertinent circumstance, including that if he
were sentenced today, he would have remained in juvenile court, would have gone to the
Department of Juvenile Justice, and would have been out of custody.
The prosecutor responded that this case involved a plea that was entered 11 years
prior, and that the CDCR letter did not undo the finality of the earlier proceedings. He
argued that section 1170, subdivision (d), was very limited in its scope and only allowed
the court to cure what may have been an unauthorized sentence; however, it did not allow
the court to undo everything and start all over again. The prosecutor further concluded
that since this was a plea agreement, the court should fix the sentencing error and
resentence him in a way that most closely resembled the sentence bargained for. Defense
counsel did not think the court should give undue weight to the fact that defendant
entered a plea agreement, and that it should consider changes in the law that had occurred
since he entered the plea.
After considering the matter for a few days, the court held a continued hearing and
found that defendant’s judgment was “long final” at the time Proposition 57 was enacted,
and it “remain[ed] final.” The court declined to find that Proposition 57 applied, noting
that the language of Proposition 57 did not address retroactivity. It then noted that it was
recalling defendant’s sentence, and it would be unfair for the plea bargain process to be
completely undermined by it now engaging in weighing and reweighing factors that were
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not part of the bargained-for process. The court stated its intention was to restructure the
plea bargain to reflect as closely as possible the intentions of the parties, while still
respecting the fact that defendant deserved a fair sentence that was not unauthorized. The
court then sentenced defendant to a total term of 17 years in state prison, consisting of the
upper term of four years on count 1, a consecutive three years on the GBI enhancement,
and the upper term of 10 years on the personal firearm use enhancement. The court
imposed but stayed the gang enhancement pursuant to section 654.
ANALYSIS
I. The Court Properly Declined to Apply Proposition 57 and SB 1391
Defendant asserts that he was 15 years old when he committed the offense in
count 1, and argues that the trial court was required to apply Proposition 57 and/or Senate
Bill No. 1391 retroactively to his case. The People contend that Proposition 57 and
Senate Bill No. 1391 applied retroactively only to defendants whose judgments were not
yet final, and defendant’s judgment was final long before they took effect. Defendant
claims the recall of his sentence under section 1170, subdivision (d), and the resentencing
itself, removed the finality of his judgment. We agree with the People and conclude the
court properly declined to apply Proposition 57 and Senate Bill No. 1391.
A. Relevant Law
“On November 8, 2016, the electorate passed Proposition 57, and it took effect the
next day.” (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 304 (Lara),
superseded by statute on other grounds, as stated in In re M.S. (2019) 32 Cal.App.5th
1177, 1191.) Proposition 57 prohibits prosecutors from charging juveniles with crimes
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directly in adult court. “Instead, they must commence the action in juvenile court. If the
prosecution wishes to try the juvenile as an adult, the juvenile court must conduct what
we will call a ‘transfer hearing’ to determine whether the matter should remain in
juvenile court or be transferred to adult court. Only if the juvenile court transfers the
matter to adult court can the juvenile be tried and sentenced as an adult.” (Lara, at
p. 303.)
In Lara, supra, 4 Cal.5th 299, our Supreme Court applied the principles of In re
Estrada (1965) 63 Cal.2d 740 (Estrada) and held that Proposition 57 applies retroactively
to all juveniles charged directly in adult court whose judgments were not yet final when it
was enacted. (Lara, at pp. 303-304.) The Lara court reasoned that “[t]he possibility of
being treated as a juvenile in juvenile court—where rehabilitation is the goal—rather than
being tried and sentenced as an adult can result in dramatically different and more lenient
treatment. Therefore, Proposition 57 reduces the possible punishment for a class of
persons, namely juveniles. For this reason, Estrada’s inference of retroactivity applies.”
(Id. at p. 303.)
In September 2018, the Governor approved Senate Bill No. 1391. (People v.
Superior Court (Alexander C.) (2019) 34 Cal.App.5th 994, 998.) Senate Bill No. 1391,
which went into effect January 1, 2019, “eliminates the district attorneys’ ability to seek
transfer of 14 and 15 year olds from juvenile court to criminal court, save for a narrow
exception if the minor is ‘not apprehended prior to the end of juvenile court
jurisdiction.’ ” (Ibid.) At least one court has applied Lara, supra, 4 Cal.5th 299 and
Estrada, supra, 63 Cal.2d 740 to conclude that Senate Bill No. 1391 applies retroactively
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to defendants whose cases were not final at the time Senate Bill No. 1391 went into
effect. (C.S. v. Superior Court (2018) 29 Cal.App.5th 1009, 1038 (C.S.).)
B. Defendant is Not Entitled to Relief Because His Judgment Was Final
“In a criminal case, judgment is rendered when the trial court orally pronounces
sentence.” (People v. Karaman (1992) 4 Cal.4th 335, 344, fn. 9 (Karaman).) “The
finality of a judgment has been defined as that point at which the courts can no longer
provide a remedy on direct review. This includes the time within which to petition the
United States Supreme Court for writ of certiorari.” (In re Pine (1977) 66 Cal.App.3d
593, 595; see People v. Barboza (2018) 21 Cal.App.5th 1315, 1319 (Barboza).)
Here, defendant pled guilty and was sentenced to state prison on April 18, 2008.
Accordingly, a judgment was rendered when he was sentenced that day. He apparently
did not appeal from the judgment. It therefore became final 60 days after he was
sentenced. (Cal. Rules of Court, rule 8.308(a).) Proposition 57 took effect in 2016, and
Senate Bill No. 1391 took effect in 2019. Thus, defendant’s judgment became final long
before Proposition 57 or Senate Bill No. 1391 went into effect.2 (See Barboza, supra, 21
Cal.App.5th at p. 1319 [unappealed judgment final before Prop. 57 went into effect].) As
a result, Proposition 57 and Senate Bill No. 1391 did not apply retroactively to defendant.
(Lara, supra, 4 Cal.5th at pp. 303-304.)
2 Defendant cites People v. McKenzie (2020) 9 Cal.5th 40 in support of his
position. However, that case is distinguishable. In McKenzie, the statutory amendments
the defendant sought to take advantage of took effect before his judgment was final. (Id.
at p. 45.)
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Defendant argues that his judgment from 2008 was not final due to the
resentencing hearing on February 26, 2019. He reasons that because he had the right to
appeal the judgment imposed on February 26, 2019, his judgment was not final. His
reasoning is flawed. At the time of the resentencing hearing in February 2019, defendant
argued that the court should remand the matter to the juvenile court, pursuant to
Proposition 57. He claimed that his 2008 judgment was not final because his sentence
had been recalled under section 1170, subdivision (d), for the court to resentence him in
light of Gonzalez, supra, 178 Cal.App.4th 1325. The court disagreed, finding that his
judgment was final long before Proposition 57 was enacted, and that “it remain[ed]
final.” The court specifically declined to find that the CDCR’s recommendation to recall
the sentence rendered the judgment not final, for purposes of applying Proposition 57
retroactively. Defendant is now appealing that decision, arguing that the court erred in
not applying Proposition 57 and Senate Bill No. 1391 to the 2008 judgment. The fact
that he could appeal the court’s decision made on February 26, 2019 (the instant appeal)
does not render the 2008 judgment not final.
Defendant also claims that because his sentence was recalled by the court pursuant
to section 1170, subdivision (d), his sentence was “reopened” for the purpose of applying
Proposition 57 and/or Senate Bill No. 1391. However, even if a trial court has authority
to recall a sentence under section 1170, subdivision (d), it does not follow that the
sentence is not a final judgment under Estrada. “Under the general common law rule, a
trial court is deprived of jurisdiction to resentence a criminal defendant once execution of
the sentence has commenced.” (Karaman, supra, 4 Cal.4th at p. 344.) Section 1170,
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subdivision (d), is an exception to that common law rule. (People v. Howard (1997) 16
Cal.4th 1081, 1089.) Section 1170, subdivision (d), states, in pertinent part, that when a
defendant has been sentenced to the state prison and has been committed to the custody
of the Director of Corrections, “the court may, within 120 days of the date of
commitment on its own motion, or 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.” (§ 1170,
subd. (d)(1).)
Section 1170, subdivision (d), specifies how the offender is to be resentenced—“in
the same manner as if he or she had not previously been sentenced.” (§ 1170, subd.
(d)(1).) “It allows the trial court to reconsider its original sentence and impose any new
sentence that would be permissible under the Determinate Sentencing Act if the
resentence were the original sentence so long as the new aggregate sentence does not
exceed the original sentence.” (People v. Johnson (2004) 32 Cal.4th 260, 265.) “When a
sentence is subject to ‘recall’ under section 1170, subdivision (d), the entire sentence may
be reconsidered.” (People v. Garner (2016) 244 Cal.App.4th 1113, 1118.) “This rule is
justified because an aggregate prison term is not a series of separate independent terms,
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but one term made up of interdependent components. The invalidity of one component
infects the entire scheme.” (People v. Hill (1986) 185 Cal.App.3d 831, 834 (Hill).)
Contrary to defendant’s claim, section 1170, subdivision (d), says nothing about
“reopening” a judgment that has been final for years, in order to apply recently enacted
laws retroactively. Moreover, remanding the case to the juvenile court for a fitness
hearing pursuant to Proposition 57 would certainly not comply with the language of
section 1170, subdivision (d). The statute specifically provides that the court may
“resentence the defendant in the same manner as if he or she had not previously been
sentenced.” (§ 1170, subd., (d)(1), italics added.) It simply allows the court to reconsider
its sentencing choices in the original sentence and resentence the defendant. (Hill, supra,
185 Cal.App.3d at p. 834.)
Defendant further contends that recall of a sentence under section 1170,
subdivision (d), permits the trial court to consider any relevant circumstances that have
occurred since a defendant was originally sentenced, under the “full resentencing rule,”
as named in People v. Buycks (2018) 5 Cal.5th 857, 893-894 (Buycks). Therefore, he
claims the trial court was required to apply Proposition 57 and Senate Bill No. 1391 when
it resentenced him. He claims that the full resentencing rule “is in substance an exception
to the rule of finality as applied to sentences.” However, his reliance upon the full
resentencing rule in Buycks is misplaced. In that case, the Supreme Court concluded that
the full resentencing rule applied to defendants who qualified for resentencing under
Proposition 47. (Buycks, at pp. 893-895.) The Supreme Court essentially held that “a
defendant who successfully invokes the Proposition 47 resentencing process may secure
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the dismissal or other appropriate treatment of an enhancement or crime subsumed within
a judgment that was not yet final on November 5, 2014 (the effective date of Prop. 47),
when that allegation is premised on the existence of a felony conviction that has been
reduced to a misdemeanor.” (People v. Valenzuela (2019) 7 Cal.5th 415, 424
(Valenzuela); see Buycks, supra, 5 Cal.5th at pp. 889-891.) The instant case does not
involve a resentencing under Proposition 47.
We note that the Buycks court did state that under the full resentencing rule, the
resentencing court “has jurisdiction to modify every aspect of the sentence, and not just
the portion subjected to the recall.” (Buycks, supra, 5 Cal.5th at p. 893.) However, this
statement does not support defendant’s claim that the court here was required to apply
Proposition 57 and/or Senate Bill No. 1391 and remand the matter to the juvenile court.
The Buycks court explained that “when part of a sentence is stricken on review, on
remand for resentencing ‘a full resentencing as to all counts is appropriate, so the trial
court can exercise its sentencing discretion in light of the changed circumstances.’ ”
(Buycks, at p. 893, italics added.)
The Supreme Court gave examples of the application of the full resentencing rule
in Valenzuela, supra, 7 Cal.5th 415. It cited the example of “when a felony conviction
supplying a principal sentence term is reversed on appeal and the case returns to the trial
court for resentencing.” (Id. at p. 425.) In that circumstance, “that court must select
another conviction, if it exists, to supply the new principal term.” (Ibid.) Furthermore,
“[a] court conducting a full resentencing also may, as appropriate, revisit sentencing
choices such as a decision to stay a sentence [citation], to impose an upper term instead
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of a middle term [citation], or to impose concurrent instead of consecutive sentences
[citation.].” (Ibid.) None of these examples expand the scope of the resentencing court’s
discretion on a section 1170, subdivision (d) recall in the manner claimed by defendant.
In sum, the court here properly concluded that defendant’s judgment was long
final at the time Proposition 57 and Senate Bill No. 1391 were enacted. Thus, it properly
declined to apply them retroactively to defendant’s case. (Lara, supra, 4 Cal.5th at
pp. 303-304; C.S., supra, 29 Cal.App.5th at p. 1038.)
DISPOSITION
The judgment is affirmed.
CERTIFIED FOR PUBLICATION
McKINSTER
Acting P. J.
We concur:
MILLER
J.
CODRINGTON
J.
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