Filed 12/10/20 P. v. Gutierrez CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B306071
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA063723)
v.
JOSE JESUS GUTIERREZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Connie R. Quinones, Judge. Reversed and
remanded.
Edward H. Schulman, 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, Scott A. Taryle and Michael R. Johnsen,
Deputy Attorneys General.
******
Jose Jesus Gutierrez (defendant) argues that the trial court
erred in declining to consider whether to exercise its newly
conferred discretion to strike his firearm enhancements at a
hearing to correct defendant’s unauthorized sentence. Because
this new discretion “applies to any resentencing that may occur
pursuant to any other law” (Pen. Code, § 12022.53, subd. (h)),1
the trial court erred in not considering defendant’s request to
strike his firearm enhancements. Accordingly, we remand for the
trial court to do so.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
In February 2002, defendant was a member of the Victoria
Park Locos street gang. On February 1, defendant shot two
members of the rival Victoria Park Crips gang; he wounded but
did not kill them. The next night, defendant shot two other men;
he wounded one and killed the other.
II. Procedural Background
A. Prosecution, trial and original sentence
The People charged defendant with one count of murder
(§ 187, subd. (a)) and three counts of attempted premeditated
murder (§§ 187, subd. (a), 664, subd. (a)). As to each count, the
People alleged that defendant personally and intentionally
discharged a firearm causing great bodily injury or death
(§ 12022.53, subd. (d)), personally and intentionally discharged a
firearm (id., subd. (c)), and personally used a firearm (id., subd.
(b)). The People further alleged that defendant committed these
crimes to benefit a criminal street gang (§ 186.22, subd. (b)).
1 All statutory references are to the Penal Code unless
otherwise indicated.
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A jury convicted defendant of second degree murder and all
three counts of attempted premeditated murder, found the
firearm enhancements true as to all counts and the gang
enhancement true as to the attempted murder counts.
In the aggregate, the trial court sentenced defendant to
prison for four terms of life imprisonment plus an additional 70
years. More specifically, the court imposed a sentence of life plus
25 years on the murder count, comprised of a base term life
sentence (with a minimum 15 year term) plus 25 years for the
firearm enhancement. The court then imposed a consecutive life
sentence plus 35 years for one of the attempted murder counts,
with life as the base term plus 25 years for the firearm
enhancement and 10 years for the gang enhancement. The court
then imposed a consecutive life sentence plus 10 years on another
of the attempted murder counts, with life as the base term plus
10 years for the gang enhancement; on this count, the court ran
the 25-year firearm enhancement consecutively. The court lastly
imposed a consecutive life sentence on the third attempted
murder count, but ran both the 25-year firearm and 10-year gang
enhancements concurrently.
B. Appeal and resentencing on remand
Defendant appealed his sentence. In April 2004, this court
affirmed his convictions but concluded that the trial court erred
in imposing additional 10 year sentences for the gang
enhancements because, as applied here, the enhancement merely
prescribes a minimum parole period of 15 years on the
underlying life sentence.
On remand, the trial court imposed an aggregate sentence
of four life terms plus 50 years. More specifically, the court once
again imposed a sentence of life plus 25 years on the murder
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count, comprised of a life sentence (with a minimum 15 year
term) as the base term plus 25 years for the firearm
enhancement. The court then imposed a consecutive life sentence
plus 25 years for one of the attempted murder counts, with life
(with a minimum 15 year term) as the base term plus 25 years
for the firearm enhancement. The court imposed consecutive life
sentences on the remaining two attempted murders counts (each
with a minimum 15 year term); the court ran the 25-year firearm
enhancement for each of these counts concurrently.
C. Letter from California Department of
Corrections and second resentencing
In November 2017, the California Department of
Corrections (the Department) sent a letter to the trial court
explaining that its imposition of concurrent 25-year sentences for
the firearm enhancement on two of the attempted murder counts
“may be . . . error” because section 12022.53 requires the
imposition of consecutive terms for that enhancement.
In February 2020, the trial court held a hearing to correct
defendant’s sentence. Prior to and at the hearing, defendant
asked the court to exercise its newly conferred discretion to
“strike or dismiss” all four of the firearm allegations. A court’s
discretion to do so had been added by Senate Bill 620, which took
effect on January 1, 2018. (Stats. 2017, ch. 682, § 2.) The trial
court declined defendant’s request, reasoning that it was “just
correcting the abstract” of judgment and thus had no jurisdiction
to consider his request.
The court then imposed an aggregate sentence of four life
terms plus 100 years. More specifically, the court once again
imposed a sentence of life plus 25 years on the murder count,
comprised of a life sentence (with a minimum 15 year term) as
the base term plus 25 years for the firearm enhancement. The
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court then imposed three consecutive life sentences plus 25 years
for each of the attempted murder counts, with life (with a
minimum 15 year term) as the base term plus 25 years for the
firearm enhancement.
D. Appeal
Defendant filed this timely appeal.
DISCUSSION
Defendant argues that the trial court erred in determining
that it lacked jurisdiction to consider whether to strike the
firearm enhancements pursuant to Senate Bill 620. The People
agree that the trial court erred. We do as well, but for different
reasons than the parties.
As a threshold matter, we disagree with the parties as to
the basis for the trial court’s jurisdiction to conduct the February
2020 resentencing. Although a trial court generally lacks
jurisdiction to resentence a criminal defendant after execution of
that sentence commences (People v. Karaman (1992) 4 Cal.4th
335, 344), a trial court retains the jurisdiction to “recall [a]
sentence and commitment previously ordered and [to] resentence
the defendant” “upon the recommendation of” the Department.
(§ 1170, subd. (d)(1); Dix v. Superior Court (1991) 53 Cal.3d 442,
455.) However, this jurisdiction only exists if “the new sentence
. . . is no greater than the initial sentence.” (§ 1170, subd. (d)(1),
italics added; People v. Hill (1986) 185 Cal.App.3d 831, 834;
People v. Torres (2008) 163 Cal.App.4th 1420, 1432-1433.) Here,
the trial court’s sentence of four life terms plus 100 years is
greater than its previously imposed sentence of four life terms
plus 50 years. Thus, the court could not have been acting
pursuant to section 1170, subdivision (d)(1)’s grant of jurisdiction,
and the parties’ argument that it was is therefore incorrect.
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Instead, we find that the court was properly correcting an
“unauthorized sentence”—that is, a sentence that “could not
lawfully be imposed” (People v. Scott (1994) 9 Cal.4th 331, 354;
People v. Cunningham (2001) 25 Cal.4th 926, 1044-1045)—for
which a trial court always retains jurisdiction. Such jurisdiction
exists even if the corrected sentence ends up being, as it was
here, “more severe than the original unauthorized
pronouncement.” (People v. Serrato (1973) 9 Cal.3d 753, 764,
overruled on other grounds as stated in People v. Fosselman
(1983) 33 Cal.3d 572, 583, fn. 1; In re Renfrow (2008) 164
Cal.App.4th 1251, 1256.)
Because a trial court exercising its jurisdiction to correct an
unauthorized sentence is “vacat[ing]” the prior sentence and
“resentencing” the defendant to a new and “proper” sentence
(People v. Massengale (1970) 10 Cal.App.3d 689, 693; People v.
Irvin (1991) 230 Cal.App.3d 180, 192-193), defendant is entitled
to have the trial court consider his request to exercise its
newfound discretion to strike his firearm enhancements. That is
because section 12022.53 expressly provides that the newly
conferred “authority” to “strike or dismiss a[ firearm]
enhancement [imposed under section 12022.53]” “in the interest
of justice” “applies to any resentencing that may occur pursuant
to any other law.” (§ 12022.53, subd. (h), italics added.) Suffice it
to say, “any” means “any.” (Santa Clarita Organization for
Planning & the Environment v. Abercrombie (2015) 240
Cal.App.4th 300, 312.) Thus, the trial court was required to
consider the defendant’s request, and erred in refusing to do so.
What is more, because the People alleged—and the jury found—
all three firearm enhancements set forth in subdivisions (b), (c)
and (d) of section 12022.53, the court has the discretion to choose
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which of those enhancements, if any, it will impose for each
count. (Cf. People v. Garcia (2020) 46 Cal.App.5th 786, 790-792
[trial court lacks jurisdiction to substitute lesser enhancements
under section 12022.53 when they were neither alleged nor found
by the trier of fact].) Our analysis obviates the need for us to
address the parties’ remaining arguments based on the
application of section 1170, subdivision (d)(1).
DISPOSITION
The case is remanded so that the trial court may consider,
under the discretion now conferred by section 12022.53,
subdivision (h), whether to dismiss or reduce any of the four
firearm enhancements imposed in this case.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
ASHMANN-GERST
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