Filed 9/29/20 P. v. Sandoval CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B301530
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA115203)
v.
CARLOS SANDOVAL,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court for Los Angeles
County, Thomas C. Falls, Judge. Affirmed in part, reversed in part and
remanded.
Jenny M. Brandt, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney
General, David E. Madeo and Michael C. Keller, Deputy Attorneys
General, for Plaintiff and Respondent.
Defendant Carlos Sandoval appeals from a judgment on remand,
resentencing him to 35 years to life in prison on convictions for robbery
(Pen. Code,1 § 211) and assault by means of force likely to produce great
bodily injury (§ 254, subd. (a)(4)). In our opinion on Sandoval’s appeal
from the original judgment (People v. Sandoval (April 30, 2019,
B289571) [unpub. opn.] (Sandoval I)), we reversed the judgment in part
and remanded the matter with directions as to two issues: we directed
the trial court to resentence Sandoval on the assault count and to
consider whether to strike either or both of the two five-year sentence
enhancements imposed under section 667, subdivision (a)(1).
Unfortunately, our disposition with respect to the assault count
was not as specific as it should have been, and the court reimposed the
sentence we had found (in the body of our opinion) was improper,
although the court stayed that sentence under section 654 as we
instructed in our disposition. Although neither party has addressed
this error in their briefs in this appeal, we are compelled to reverse the
judgment to the extent the court imposed a 25-years-to-life sentence on
the assault count because it is an unauthorized sentence.
With regard to the two sentence enhancements, the trial court on
remand declined to strike either enhancement. Sandoval argues on
appeal that the trial court erred by so ruling because (1) it improperly
relied upon an erroneous understanding of parole eligibility dates to
justify imposing the enhancements; (2) it failed to properly consider the
sentencing factors set forth in the California Rules of Court and the
1 Further undesignated statutory references are to the Penal Code.
2
spirit of felony sentencing laws; and (3) it improperly made dual use of
facts in reaching its sentencing decision. We conclude the record and
the law do not support Sandoval’s contentions. Accordingly, we affirm
the judgment except to the extent the court imposed a 25-years-to-life
sentence on the assault count, and remand the case for resentencing on
that count.
BACKGROUND
Our description of the crimes and original sentencing is taken
from our earlier opinion.
“On the night of May 3, 2017, Anthony Gonzalez was walking to a
store at the intersection of Cogswell Road and Exline Street in El
Monte. He was listening to music from his cell phone on his
headphones. On his way, he had to walk under a freeway overpass. As
he was walking under the overpass, he saw two people beating up a boy.
At trial, he identified Sandoval as one of the two people; he identified
Arnulfo Ernesto Meza (who was tried with Sandoval) as the other
person.
“As Gonzalez was walking past the men, Sandoval approached
him and asked if he had seen anything. Gonzalez said he had not.
Sandoval then grabbed Gonzalez’s phone from his hand and punched
him in the face. Meza also came over and punched him the face, and
Gonzalez fell to the ground. Both men then stomped on Gonzalez while
he was on the ground. Eventually, the men stopped punching and
stomping on Gonzalez and left, walking south on Cogswell Road and
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tossing Gonzalez’s cell phone back and forth between them.” (Sandoval
I, supra, B289571, at p. 3.)
A jury convicted Sandoval of robbery (§ 211) and assault by means
of force likely to produce great bodily injury (§ 254, subd. (a)(4)), and,
following a court trial, the trial court found to be true allegations that
Sandoval had been convicted of three prior serious and/or violent
felonies as defined in sections 667, subdivision (d) and 1170.12,
subdivision (b), had suffered two prior serious felony convictions as
described in section 667, subdivision (a)(1), and had served two prior
prison terms as described in section 667.5, subdivision (b). (Sandoval I,
supra, B289571, at pp. 5, 8.) The trial court sentenced Sandoval to 25
years to life in prison on the robbery count, plus two consecutive five-
year terms for the prior serious felony convictions (the section 667
enhancements). The court also imposed a third-strike 25-years-to-life
sentence on the assault count, but found that section 654 applied, and
ordered the sentence to run concurrently. Finally, the court struck the
prior prison term enhancements for sentencing purposes. (Sandoval I,
supra, B289571, at pp. 8-9.)
Sandoval appealed from the judgment, raising three issues. The
first issue addressed the validity of his conviction; we rejected his
argument, and affirmed the conviction. (Sandoval I, supra, B289571, at
pp. 2, 11-13, 15.) The second issue addressed the concurrent third-
strike sentence imposed on the assault count; we agreed the third-strike
sentence was erroneous and that, under section 654, whatever sentence
is imposed must be stayed, so we reversed and remanded for
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resentencing on the assault count. (Sandoval I, supra, B289571, at pp.
2, 13, 15.) The third issue addressed the newly-amended section 1385,
which amendment removed the provision prohibiting a trial court from
striking a section 667 enhancement; we agreed the matter had to be
remanded to allow the trial court to consider whether to strike either or
both of the section 667 enhancements it had imposed. (Sandoval I,
supra, B289571, at pp. 2, 13-15.)
In the disposition of our opinion, we stated: “The judgment is
reversed to the extent the trial court imposed a concurrent 25 years to
life sentence on the assault count. The matter is remanded for a
resentencing hearing with directions to the trial court to resentence
Sandoval on the assault count, and stay that sentence pending
completion of the sentence on the robbery count, at which time the stay
will become permanent. The trial court also is directed to consider
whether to strike either or both of the five-year terms imposed under
section 667, subdivision (a)(1). In all other respects, the judgment is
affirmed.” (Sandoval I, supra, B289571, at p. 15.)
On remand, the trial court held the resentencing hearing as
directed. Sandoval’s counsel asked the court to strike one or both of the
section 667 enhancements, arguing that Sandoval was doing everything
he could to change his life and make himself a better man while he was
in prison, and that 25 years to life was a significant enough sentence for
the crime in this instance. The prosecutor argued against striking the
two section 667 enhancements, noting Sandoval’s long and extensive
criminal history and the violence of the crime at issue.
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After hearing counsels’ arguments, the court stated: “Let me just
cut right to the chase. . . . Mr. Sandoval, the problem that arises is your
history.” The court noted that Sandoval “first entered the system as a
juvenile . . . at age 14” with a juvenile petition “for a deadly weapon and
for first degree robbery,” and then had another juvenile petition for
robbery when he was 17, for which he was sent to the California Youth
Authority. The court continued, “Anyway, after you became an adult,
you continued to commit crimes. And I understand you were steep[ed]
in the gang culture out in El Monte. And then you picked up two
strikes for criminal threats, a 422, and another robbery.”
After a short colloquy with Sandoval (about a restitution order
from one of his prior cases), the court went on: “You got paroled in
2016, January 2016. A little over a year later, you ran into this case.
And, again, this is another robbery case. [¶] That’s the problem. The
problem is—I’m discounting, truthfully—and I don’t know if I
mentioned it before. Your very first case that . . . [y]ou were in juv[i]e
back at the time. But, then, when you were older, you picked up
another one. You went to Y.A. for it. You got out. You did another one.
You did another one. [¶] And for those reasons, I’m not—but again,
you’re living in interesting times because you’re still going to get an
earlier parole date than when I sentenced you originally. [¶] Do you
even have your date yet?”
After Sandoval stated that he did not, the court continued: “And
this isn’t going to affect your parole date. What’s going to affect your
parole date is going to be how you do in prison. If you really stick to
what you’re saying, they’re not going to care about these 10 years any
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longer. [¶] It’s—it’s—sometimes I wonder why we wake up and come
in and do our job in the morning, to be honest with you. It doesn’t
matter.” Sandoval interrupted, saying, “But, still, my parole date would
be 20 years from now.” The court responded, “I don’t know. You’re
going to have to talk to the prison authorities about that. [¶] Honest to
goodness, they’re changing the dates every—I want to say every six
months. They’re coming out with new rules, and everything is to
benefit you. Not you personally but the entire prison population, mind
you. And they’re rolling it back and back and back. And you need to
stay on top of that. All right? Because if you start to see something
where you—somebody’s pressuring you to jump into something, you
may just blow it for yourself. And this is basically the sword hanging
over your head. You screw up in prison, they ‘can’ keep you in this long.
It’s no longer they ‘will.’”
Following more discussion about the restitution order from
Sandoval’s prior case (the court was trying to find the case number for
Sandoval so he could challenge that order), the court returned to the
sentencing matters. It ordered its original sentence on the assault
count stayed pending Sandoval’s completion of the sentence on the
robbery count, at which time the stay would become permanent. After
explaining to Sandoval what that order meant, the court stated,
“However, with regard to the five-year priors, the original orders will
stay in full force and effect for the reasons I stated.” There was another
short discussion, after which the court said, “I want the record to be
clear that I’m [im]posing the two five-year priors because I believe
they’re appropriate. [¶] . . . [¶] It has nothing to do with the changes
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in the law. I was just explaining to your client how that benefits him.
But even if it didn’t, it would be the appropriate sentence based on his
past history.”
The court’s minute order from the hearing states that as to the
assault count, “the sentence remains 25 years to life in state prison,”
and that the sentence is stayed pending the completion of the sentence
in the robbery count, the stay to become permanent upon completion of
the robbery sentence. Regarding the section 667 enhancements, the
minute order states: “The court has considered the arguments offered
by both parties and believes that imposing both 5 year terms is
appropriate based on the defendant’s past history, therefore the
additional 10 years imposed on count 1 pursuant to section 667(a)(1) of
the Penal Code will remain in full force and effect.”
Sandoval timely filed a notice of appeal from the judgment.
DISCUSSION
A. The Third-strike Sentence on the Assault Count is an
Unauthorized Sentence
In this appeal, Sandoval challenges only the trial court’s
imposition of the two section 667 enhancements. Before we reach that
issue, however, we must address the trial court’s reimposition of the 25-
years-to-life sentence on the assault count.
In Sandoval’s prior appeal, he argued the trial court erred by
sentencing him on the assault count to 25 years to life under the Three
Strikes law because a violation of section 245, subdivision (a)(4) was not
a serious or violent felony under sections 1192.7 and 1192.8, and
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therefore it did not qualify for sentencing as a third strike. The
Attorney General agreed that Sandoval could not be sentenced as a
third strike defendant on the assault count. We concurred, reversed the
judgment with regard to the assault count, and remanded the matter to
the trial court for resentencing on that count. (Sandoval I, supra,
B289571, at pp. 13, 15.)
Although we indicated in the body of our earlier opinion that the
third-strike sentence on the assault count was improper and that
whatever sentence the trial court imposed on remand had to be stayed
under section 654, the language of our disposition was not as specific.
And, despite the fact that both sides had agreed that a third-strike
sentence was improper, neither side brought that to the attention of the
trial court during resentencing. Nor has either side raised the improper
sentence in the present appeal. However, because a 25-years-to-life
sentence cannot be imposed under any circumstance for the crime of
assault under section 245, subdivision (a)(4), the sentence the trial
court imposed on remand was unauthorized, and is subject to correction
at any time. (People v. Scott (1994) 9 Cal.4th 331, 354; People v. Serrato
(1973) 9 Cal.3d 753, 763.) Accordingly, we reverse the judgment to the
extent the trial court imposed a third-strike sentence on the assault
count and remand the matter for resentencing.2
2 Ordinarily, we would ask the parties for supplemental briefing under
Government Code section 68081 before rendering a decision on an issue the
parties had not addressed in their briefs on appeal. However, this issue was
briefed by both sides in the original appeal, and both sides agreed the third-
strike sentence was improper; therefore, no additional briefing is necessary.
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B. The Trial Court Did Not Err By Imposing the Section 667
Enhancements
As noted, Sandoval raises three arguments in support of his
contention that the trial court erred by imposing the section 667
enhancements.3 In doing so, however, he relies upon faulty factual
and/or legal premises.
First, Sandoval points to snippets from the trial court’s discussion
during the resentencing hearing of his possible parole date to argue
that the trial court based its decision not to strike the section 667
enhancements on an erroneous view of the effect of those enhancements
on his parole. But when those snippets are viewed in context, it is clear
that the court’s comments were meant to encourage Sandoval to
continue to work to change his life and become a better person while in
prison, rather than to explain the basis for its decision not to strike the
section 667 enhancements. Indeed, after announcing its ruling on
Sandoval’s request to strike the enhancements, the court emphasized
that its decision was based upon its determination that the sentence
was appropriate based upon Sandoval’s criminal history, and not upon
possible changes in the law that would allow Sandoval to get out on
parole early despite the additional 10-year enhancement.
Second, Sandoval asserts that the trial court erred by failing to
properly consider the felony sentencing factors and the “spirit of felony
3 Although Sandoval acknowledges that the trial court’s sentencing
decisions are reviewed for abuse of discretion, he notes (correctly) that a court
necessarily abuses its discretion if it erroneously applies the law. (People v.
Sandoval (2007) 41 Cal.4th 825, 847.)
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sentencing law” when imposing the section 667 enhancements. In
making this assertion, he misapprehends the governing law, the rules
of court, and the role of the trial court with regard to sentence
enhancements. Section 667, subdivision (a)(1) expressly states that a
person convicted of a serious felony who has a prior conviction for a
serious felony “shall receive” a five-year enhancement in addition to the
sentence imposed for the current offense. (Italics added.) The
sentencing factors, which may come into play when determining the
sentence for the offense, have no role in determining whether to impose
the enhancement.
That a court may now, under section 1385 (as amended), strike a
section 667 enhancement “in furtherance of justice” (§ 1385, subd. (a))
does not transform the enhancement into a sentence that requires the
court to weigh aggravating and mitigating circumstances before it may
be imposed. Rather, the enhancement must be imposed unless the trial
court determines, in its “limited” discretion (People v. Superior Court
(Romero) (1996) 13 Cal.4th 497, 530), that striking the enhancement is
in furtherance of justice.
As the Supreme Court instructed in People v. Williams (1998) 17
Cal.4th 148, in order to strike a prior serious felony conviction finding,
the trial court must find that “in light of the nature and circumstances
of [the defendant’s] present felonies and prior serious and/or violent
felony convictions, and the particulars of his background, character, and
prospects, the defendant may be deemed outside the [sentencing]
scheme’s spirit, in whole or in part, and hence should be treated as
though he had not previously been convicted of one or more serious
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and/or violent felonies.” (Id. at p. 161.) The trial court’s statements in
the present case demonstrate that the court considered Sandoval’s
current and prior crimes, as well as his background, character, and
prospects. And, by declining to strike the section 667 enhancements,
the court impliedly found that Sandoval could not be deemed to fall
outside the spirit of the recidivism enhancement scheme. Thus,
contrary to Sandoval’s assertion, the trial court properly considered the
factors relevant to its determination when it denied his request to strike
the enhancements.
Finally, Sandoval misconstrues the law in arguing the trial court
erred by using the same fact—his criminal history—“to justify the
imposition of two different enhancements,” i.e., the third-strike 25-
years-to-life sentence and the section 667 enhancements. Although we
(and other courts) have held that the use of the same conviction both as
a qualifying strike under the Three Strikes law and as a section 667
enhancement does not violate the prohibition against dual use of facts
because the Three Strikes law is a parallel sentencing scheme rather
than an enhancement (see, e.g., People v. Nelson (1996) 42 Cal.App.4th
131, 141), Sandoval asserts those cases do not resolve the issue he is
raising here. Instead, he asserts “the question [he presents] is not
whether the convictions that triggered the section 667, subdivision (a)
enhancement, also trigger a three-strikes ‘enhancement.’ The question
is whether the facts relied upon to justify imposing the five-year
enhancements, may also be the facts relied upon to deny a motion to
strike a conviction for purposes of shifting from one sentencing scheme
to another. When this is the issue, the focus is not so much on whether
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a third-strike sentence is an ‘enhancement’ as a term of art, as it is
whether the trial court properly exercises its discretion when it elevates
and lengthens a defendant’s sentence based on the same facts.”
The problem with Sandoval’s attempt to reframe the issue is that
the question before a trial court when presented with a request to strike
a prior conviction—either for purposes of sentencing under the Three
Strikes law or for sentence enhancements—is whether to lessen the
defendant’s sentence, rather than lengthen it. If the prior conviction
allegations have been found to be true, the default is that defendant
will be sentenced under the Three Strikes law and/or the section 667
enhancements will be imposed. It is only when a court determines that
the defendant “may be deemed outside the [sentencing] scheme’s spirit”
(People v. Williams, supra, 17 Cal.4th at p. 161) that the default
sentence can be modified to lessen the sentence. Unlike the cases
Sandoval relies upon, whose rulings are based upon specific statutes
and court rules that prohibit the dual use of facts to justify both the
imposition of an aggravated term and an enhancement (or two
enhancements) (People v. Coleman (1989) 48 Cal.3d 112, 163; People v.
Avalos (1984) 37 Cal.3d 216, 233; People v. Ratcliffe (1981) 124
Cal.App.3d 808, 821; People v. Flores (1981) 115 Cal.App.3d 67, 79;
People v. Lawson (1980) 107 Cal.App.3d 748), there are no statutes or
rules that prohibit the dual use of facts when determining whether to
lessen a sentence by striking a strike or an enhancement. Indeed, given
that the court must consider “the nature and circumstances of his
present felonies and prior serious and/or violent felony convictions,”
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among other things, in making this determination (People v. Williams,
supra, 17 Cal.4th at p. 161), the court necessarily must rely upon the
same facts regardless whether the determination is whether to strike a
strike or to strike an enhancement.
In short, Sandoval has failed to demonstrate that the trial court
abused its discretion by denying his request to strike one or both of the
section 667 enhancements. Based upon Sandoval’s background and
extensive criminal history, the court implicitly concluded that he falls
outside the spirit of the recidivism sentencing scheme. While Sandoval
may disagree with the spirit of that scheme, and presents reasons why
he believes the scheme is ill-advised, that is an argument better
addressed to the Legislature; neither the trial court nor we have any
power to change the scheme. Given the scheme as it currently exists,
and the facts presented, the trial court’s denial of Sandoval’s request to
strike the section 667 enhancements was not “so irrational or arbitrary
that no reasonable person could agree with it.” (People v. Carmony
(2004) 33 Cal.4th 367, 377.) Accordingly, we affirm the court’s denial of
that request.
//
//
//
//
//
//
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DISPOSITION
The judgment is reversed to the extent the trial court imposed a
25-years-to-life sentence on the assault count under the Three Strikes
law. The matter is remanded for a resentencing hearing with directions
to the trial court to resentence Sandoval to a determinate sentence on
the assault count, and stay that sentence pending completion of the
sentence on the robbery count, at which time the stay will become
permanent. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
MANELLA, P. J.
COLLINS, J.
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