People v. Reid CA5

Filed 4/7/21 P. v. Reid CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

THE PEOPLE,
F077351/F079649
Plaintiff and Respondent,
(Super. Ct. No. CRM028533B)
v.

MARC LYNDS REID II, OPINION
Defendant and Appellant.

THE COURT*
APPEAL from a judgment of the Superior Court of Merced County. Mark V.
Bacciarini, Judge.
Theresa Hsu Schriever, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler and Lance E. Winters, Chief
Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Eric
Christoffersen, Louis M. Vasquez, Amanda D. Cary and William K. Kim, Deputy
Attorneys General, for Plaintiff and Respondent.
-ooOoo-

* Before Poochigian, Acting P.J., Franson, J. and Meehan, J.
 PROCEDURAL HISTORY
As summarized in our partially published opinion issued on April 20, 2016,
defendant Marc Lynds Reid II was arrested and charged with multiple felonies related to
a mausoleum theft of nine metal urns containing the cremated remains of 11 people.
(People v. Reid (2016) 246 Cal.App.4th 822, 825–826 (Reid I).)1 Defendant was
convicted by jury of all 23 charged counts: 11 counts of removal of human remains from
the place of interment (Health & Saf. Code, § 7052, subd. (a); counts 1–11); 11 counts of
grand theft (Pen. Code, § 487, subd. (a); counts 12–22);2 and one count of vandalism
(§ 594, subd. (b)(1); count 23). (Reid I, supra, at p. 825.) He was sentenced to an
aggregate term of 24 years 8 months. (Ibid.)3 On review, we reversed two grand theft
counts and stayed the vandalism sentence under section 654, which reduced defendant’s
aggregate sentence to 23 years 4 months. (Id. at pp. 826, 835.) We also found the trial
court erred in denying defendant’s Pitchess4 motion and we conditionally reversed with
instructions to the trial court to conduct an in camera review pursuant to the procedure set
forth in People v. Gaines (2009) 46 Cal.4th 172. (Reid I, supra, at p. 835.)
On remand following the decision in Reid I, the trial court conducted an in camera
review of Detective Johnson’s personnel file on May 16, 2016, and found no
discoverable information. (Reid II, supra, F074138.) The trial court reinstated the
judgment, resentenced defendant on June 21, 2016, and then resentenced him again on

1 We take judicial notice of our prior opinions in Reid I and People v. Reid (Dec. 4, 2017,
F074138) [nonpub. opn.] (Reid II), and the records from those appeals. (Evid. Code, §§ 452,
subd. (d), 459.)
2 All further statutory references are to the Penal Code unless otherwise indicated.
3 The trial court imposed the upper term of three years on count 1, doubled to six years for
defendant’s prior conviction within the meaning of the “Three Strikes” law (§§ 667, subds. (b)–
(i), 1170.12, subds. (a)–(d)); ten 16-month terms on counts 2 through 11 (one-third of middle
term, doubled); a 16-month term on count 23; and one-year terms for each of the four prison
priors. The sentences on counts 12 through 22 were stayed under section 654.
4 Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).

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July 11, 2016. (Reid II, supra, F074138.) Defendant filed a notice of appeal in Reid II
challenging the trial court’s ruling following the in camera review on the ground that the
court lacked jurisdiction because it acted prior to the issuance of remittitur in Reid I.
(Reid II, supra, F074138.) The People conceded the issue, we agreed the court acted in
the absence of jurisdiction, and we reversed the judgment and remanded the matter for
further proceedings in accordance with Reid I, supra, 246 Cal.App.4th at page 835. (Reid
II, supra, F074138.)
Defendant’s third appeal is now before us.5 Defendant requests that we conduct
an independent review of the proceedings related to his Pitchess motion and the trial
court’s determination that there is no information subject to disclosure. (Evid. Code,
§ 1043; Pitchess, supra, 11 Cal.3d 531; People v. Townsel (2016) 63 Cal.4th 25, 67–68.)
Defendant also claims, in accordance with the decision in People v. Dueñas (2019) 30
Cal.App.5th 1157 (Dueñas), that he is entitled to relief from the restitution fine and court
assessments that were imposed until and unless the People demonstrate he has the ability
to pay; and in supplemental briefing, defendant requests that we strike the four 1-year
prior prison term enhancements imposed pursuant to Senate Bill No. 136, which amended
section 667.5, subdivision (b), effective January 1, 2020. (Stats. 2019, ch. 590, § 1,
pp. 1–4 (Senate Bill No. 136).) Finally, by separate appeal now consolidated with the
present matter, defendant claims the trial court erred when it denied his petition for recall
of sentence pursuant to section 1170.91.
The People do not object to our independent review of the Pitchess proceedings,
and they concede that the prior prison term enhancements must be stricken under Senate
Bill No. 136, but they dispute defendant’s entitlement to relief on his Dueñas claim.

5 Defendant’s fourth appeal, case No. F079649, addressed in part III. B. of the Discussion,
has been consolidated with the present matter.

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They also dispute his claim that the trial court erred in denying his section 1170.91
petition.
After briefing was complete in this matter, we raised the issue of jurisdiction given
that the fees and assessments subject to defendant’s Dueñas challenge were imposed in
2016 prior to the issuance of remittitur in Reid I. (Gov. Code, § 68081.) We
subsequently consolidated defendant’s third and fourth appeals, and also permitted the
parties to brief the issue of jurisdiction with respect to defendant’s section 1170.91
petition. (Gov. Code, § 68081.)
Briefing is now complete in this matter. We find no error with respect to either
the Pitchess proceedings or the trial court’s determination that there is no discoverable
information in Deputy Johnson’s personnel file, and we agree with the parties that in light
of the amendment to section 667.5, subdivision (b), the four 1-year prior prison term
enhancements must be stricken. However, as addressed in Reid II, the trial court lacked
jurisdiction over defendant’s criminal case when it resentenced him on July 11, 2016,
prior to the issuance of remittitur in Reid I. Due to the pendency of this appeal, the trial
court also lacked jurisdiction when it ruled on defendant’s petition under section 1170.91,
and, therefore, its order is void and defendant’s appeal is dismissed with respect to that
issue.
As explained in part III.A. of the Discussion, because the trial court exercised its
discretion to modify the restitution fine during the resentencing hearing held on July 11,
2016, it is appropriate to remand this matter to allow the trial court to resentence
defendant once remittitur issues in this case. This renders defendant’s Dueñas claim
moot and we do not reach the merits.

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 DISCUSSION
I. Independent Review of Pitchess Proceedings
A. Background
Defendant filed a pretrial motion seeking discovery from the personnel file of
Deputy Johnson, who was involved in the underlying criminal investigation in this case.
The prosecutor opposed the motion, and the trial court found no good cause to conduct an
in camera review of the deputy’s personnel file. (Evid. Code, § 1043.) We determined
this was error in Reid I and on remand following resolution of the jurisdictional issue in
Reid II, the trial court reviewed Deputy Johnson’s personnel file in camera and concluded
that there was no discoverable information.
Defendant now requests that we conduct an independent review of the Pitchess
proceedings to ensure that the trial court complied with the procedural requirements set
forth in People v. Mooc (2001) 26 Cal.4th 1216, 1228–1229, and did not abuse its
discretion in denying discovery. The People do not oppose the request.
B. Legal Standard
The procedure for obtaining discoverable information from law enforcement
personnel files is well established. Pursuant to Evidence Code section 1043,
subdivision (b), “on a showing of good cause, a criminal defendant is entitled to
discovery of relevant documents or information in the confidential personnel records of a
peace officer accused of misconduct against the defendant. [Citation.] Good cause for
discovery exists when the defendant shows both ‘“materiality” to the subject matter of
the pending litigation and a “reasonable belief” that the agency has the type of
information sought.’ [Citation.] A showing of good cause is measured by ‘relatively
relaxed standards’ that serve to ‘insure the production’ for trial court review of ‘all
potentially relevant documents.’ [Citation.] If the defendant establishes good cause, the
court must review the requested records in camera to determine what information, if any,
should be disclosed. [Citation.] Subject to certain statutory exceptions and limitations

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[citation], ‘the trial court should then disclose to the defendant “such information [that] is
relevant to the subject matter involved in the pending litigation.”’” (People v. Gaines,
supra, 46 Cal.4th at p. 179.)
On appeal, a defendant may request an independent review of the proceedings and
the trial court’s determination regarding the presence or absence of discoverable
information. (People v. Townsel, supra, 63 Cal.4th at pp. 67–68; People v. Yearwood
(2013) 213 Cal.App.4th 161, 179–180.) “A trial court is afforded wide discretion in
ruling on a motion for access to law enforcement personnel records. The decision will be
reversed only on a showing of abuse of discretion.” (People v. Yearwood, supra, at
p. 180, citing People v. Hughes (2002) 27 Cal.4th 287, 330.)
C. No Abuse of Discretion
We have independently reviewed the record and examined Deputy Johnson’s
personnel file. We find the trial court followed the proper procedure and created an
adequate record of the in camera hearing (People v. Mooc, supra, 26 Cal.4th at pp. 1228–
1229; People v. Yearwood, supra, 213 Cal.App.4th at p. 180), and the trial court did not
abuse its discretion in determining there is no information subject to disclosure (People v.
Samayoa (1997) 15 Cal.4th 795, 827).
II. Senate Bill No. 136
Next, defendant seeks relief from the prior prison term enhancements pursuant to
Senate Bill No. 136. Pursuant to section 667.5, subdivision (a), and subject to an
exception not relevant here, trial courts are required to impose a three-year sentence for
each prior, separate prison term served by the defendant for a violent felony where the
current offense is also a violent felony, as defined in subdivision (c) of the statute. For
other felonies, pursuant to former subdivision (b) of section 667.5, and subject to
exceptions not relevant here, trial courts are required to impose an additional one-year
term for each prior, separate prison term or county jail felony term. As amended by
Senate Bill No. 136, subdivision (b) of section 667.5 limits imposition of the additional

6.
one-year term to each prior, separate prison term served for a conviction of a sexually
violent offense as defined in Welfare and Institutions Code section 6600, subdivision (b).
In accordance with the California Supreme Court’s decision in In re Estrada
(1965) 63 Cal.2d 740, 744 (Estrada), “‘“[a]n amendatory statute lessening punishment is
presumed to apply in all cases not yet reduced to final judgment as of the amendatory
statute’s effective date” [citation], unless the enacting body “clearly signals its intent to
make the amendment prospective, by the inclusion of either an express saving clause or
its equivalent” [citations].’” (People v. Lara (2019) 6 Cal.5th 1128, 1134, quoting
People v. DeHoyos (2018) 4 Cal.5th 594, 600; accord, People v. Frahs (2020) 9 Cal.5th
618, 624.)
We agree with the parties that Senate Bill No. 136 is retroactive under the Estrada
rule and, therefore, the amendment to section 667.5, subdivision (b), applies here. The
trial court found the four prior prison term enhancement allegations true and imposed
four one-year terms based on the enhancements. (§ 667.5, former subd. (b).)
Defendant’s prior convictions for possession of a controlled substance, reckless evasion
of a peace officer, petty theft with a prior conviction, and robbery are not qualifying
offenses under section 667.5, subdivision (b), as amended. Therefore, we order the four
1-year prior prison term sentence enhancements imposed by the trial court stricken.6

6 Striking the prior prison term enhancements does not require remand for resentencing
under the full resentencing rule where, as here, the trial court imposed the maximum sentence.
(People v. Buycks (2018) 5 Cal.5th 857, 896, fn. 15.) However, as discussed next, we remand
the matter for resentencing because the trial court modified the restitution fine in the absence of
jurisdiction.

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III. Jurisdictional Issues
A. Dueñas Challenge to Fine and Assessments Imposed on July 11, 2016
1. Procedural Background
Defendant challenges the imposition of fines and court assessments without a
determination on his ability to pay, in accordance with the decision in Dueñas. (Pen.
Code, §§ 1202.4, subd. (b)(1), 1465.8; Gov. Code, § 70373.) The People dispute
defendant’s entitlement to remand for an ability-to-pay hearing, and the parties disagree
over whether defendant forfeited his claim by failing to object. However, the restitution
fine and court assessments defendant challenges in this appeal were imposed prior to the
issuance of remittitur in Reid I, and, therefore, the trial court lacked jurisdiction at the
time of the resentencing hearing. As discussed next, we conclude it is appropriate to
remand the matter to allow the court to resentence defendant once remittitur issues in this
case, which renders defendant’s Dueñas claim moot.
Defendant was convicted on May 2, 2014, and sentenced on June 2, 2014. At the
original sentencing hearing, the trial court imposed a restitution fine of $7,500 under
Penal Code section 1202.4, subdivision (b)(1); a total court operations assessment of
$920 under Penal Code section 1465.8; and a total court facilities assessment of $690
under Government Code section 70373. As discussed in Reid I, this court vacated two
grand theft convictions because defendant stole nine rather than 11 metal urns. In
addition, this court stayed the sentence on count 23 for vandalism under section 654, and
conditionally reversed the judgment and remanded the matter for the trial court to
conduct an in camera review of Detective Johnson’s personnel file.
On remand, the trial court reviewed the personnel file in camera on May 17, 2016,
and determined it contained no discoverable information. On June 21, 2016, the trial
court held a sentencing hearing during which it ordered counts 19 and 22 for grand theft
vacated, and it stayed count 24 for vandalism. It also imposed a modified restitution fine
of $6,300 under Penal Code section 1202.4, subdivision (b)(1), a total court operations

8.
assessment of $800 under Penal Code section 1465.8; and a total court facilities
assessment of $600 under Government Code section 70373. On July 11, 2016, the court
vacated its prior ruling as to count 24, which had been dismissed prior to trial, and stayed
count 23 under section 654. It also increased the restitution fine to $7,200 under Penal
Code section 1202.4, subdivision (b)(1), and again imposed a total court operations
assessment of $800 under Penal Code section 1465.8 and a total court facilities
assessment of $600 under Government Code section 70373.
As discussed in Reid II, remittitur did not issue in Reid I until July 21, 2016, and,
therefore, the trial court lacked jurisdiction at the time of the resentencing hearings held
on June 21, 2016, and on July 11, 2016. On remand in Reid II, and after remittitur issued,
the trial court reviewed Detective Johnson’s personnel file in camera on March 8, 2018.
During that hearing, the trial court noted its intention to resentence defendant on
March 23, 2018.
On March 23, 2018, the trial court addressed two issues relating to sentencing.
The first amended abstract of judgment, filed July 11, 2016, still reflected counts 19 and
22 for grand theft, and the court ordered the issuance of a second amended abstract of
judgment omitting reference to these counts, which were vacated in accordance with
Reid I. The trial court also noted that it previously mispronounced defendant’s aggregate
sentence as 20 years 8 months rather than 23 years 4 months, and although the abstract of
judgment did not reflect that error, the court corrected its prior misstatement for the
record. The court did not speak to fines and court assessments. Following the hearing, a
second amended abstract of judgment was filed on April 3, 2018, and, because the
corrected abstract still reflected count 22 in error, a third amended abstract of judgment
was filed on April 9, 2018.
2. Restitution Fine Modified in Absence of Jurisdiction to Act
As explained in Reid II, subject to certain exceptions not relevant here (People v.
Scarbrough (2015) 240 Cal.App.4th 916, 923–924), “[t]he filing of a valid notice of

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appeal vests jurisdiction of the cause in the appellate court until determination of the
appeal and issuance of the remittitur” (People v. Perez (1979) 23 Cal.3d 545, 554;
accord, People v. Awad (2015) 238 Cal.App.4th 215, 223; People v. Saunoa (2006) 139
Cal.App.4th 870, 872; see § 1265, subd. (a); Cal. Rules of Court, rule 8.272).
“‘Remittitur transfers jurisdiction back to the inferior court so that it may act upon the
case again, consistent with the judgment of the reviewing court.’” (People v. Awad,
supra, at p. 223, quoting Gallenkamp v. Superior Court (1990) 221 Cal.App.3d 1, 10;
accord, People v. Saunoa, supra, at p. 872.)
Here, the trial court modified the judgment with respect to the restitution fine and
court assessments on July 11, 2016, prior to the issuance of remittitur in Reid I. The
record reflects that following remand in Reid II, the trial court intended to resentence
defendant, in addition to reviewing Detective Johnson’s personnel file in camera, but it
did not do so.
As the People point out, the court assessments imposed under Penal Code
section 1465.8 and Government Code section 70373 are mandatory and, if erroneous,
may be corrected on review. (People v. Robinson (2012) 209 Cal.App.4th 401, 405.)
However, “[w]ithin the range authorized by statute, the court has wide discretion in
determining the amount [of the restitution fine]” (People v. Urbano (2005) 128
Cal.App.4th 396, 406), and in this case, the trial court exercised its discretion and
reduced the restitution fine from $7,500 to $7,200, after initially reducing it to $6,300.
Because the court modified the judgment in the absence of jurisdiction to do so (People v.
Scarbrough, supra, 240 Cal.App.4th at p. 923), it is appropriate to remand this matter to
allow the trial court to exercise its discretion in imposing the restitution fine under section
1202.4, subdivision (b), once remittitur issues. This renders defendant’s present
challenge advanced under Dueñas moot and we do not reach it.
We reject the People’s contention that because the trial court issued amended
abstracts of judgment in 2018 following remand in Reid II, we may overlook the

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jurisdictional error that occurred when defendant was resentenced in 2016. The trial
court’s oral pronouncement is the judgment of conviction (People v. Jones (2012) 54
Cal.4th 1, 89), and a restitution fine must be imposed at the sentencing hearing rather
than merely added to an abstract of judgment (People v. Frederickson (2020) 8 Cal.5th
963, 1027). The 2018 amendments to the abstract of judgment, which served to correct
clerical errors, cannot cure the jurisdictional error that resulted from resentencing
defendant prior to the issuance of remittitur. Therefore, this matter shall be remanded to
allow the trial court to resentence defendant following the issuance of remittitur.
B. Denial of Section 1170.91 Petition
Finally, section 1170.91, subdivision (b)(1) provides:

“A person currently serving a sentence for a felony conviction,
whether by trial or plea, who is, or was, a member of the United States
military and who may be suffering from sexual trauma, traumatic brain
injury, post-traumatic stress disorder, substance abuse, or mental health
problems as a result of his or her military service may petition for a recall
of sentence, before the trial court that entered the judgment of conviction in
his or her case, to request resentencing pursuant to subdivision (a) if the
person meets both of the following conditions:

“(A) The circumstance of suffering from sexual trauma, traumatic
brain injury, post-traumatic stress disorder, substance abuse, or mental
health problems as a result of the person’s military service was not
considered as a factor in mitigation at the time of sentencing.

“(B) The person was sentenced prior to January 1, 2015. This
subdivision shall apply retroactively, whether or not the case was final as of
January 1, 2015.”
On May 16, 2019, while the appeal in the present matter was pending, defendant,
proceeding in pro. per., filed his second petition seeking recall of his sentence under
section 1170.91, subdivision (b)(1).7 The trial court denied the petition on May 30, 2019,

7 Defendant’s first petition is not part of the record, but a copy of the order denying that
petition, filed March 20, 2019, is included. The trial court noted defendant failed to sign the

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as successive and defendant filed a notice of appeal in case No. F079649, which we
consolidated with the appeal in case No. F077351.
The parties disagree whether the trial court erred when it denied defendant’s
second petition. Further, in supplemental briefing, defendant argues, in relevant part, that
the trial court had jurisdiction to consider his petition under section 1170,
subdivision (d).8
“[S]ection 1170, subdivision (d) allows a sentencing court on its own motion to
recall and resentence, subject to the express limitation that the court must act to recall the
sentence within 120 days after committing the defendant to prison. (See Dix v. Superior
Court (1991) 53 Cal.3d 442, 456.) ‘Cases under … section 1170[, subdivision ](d) …
have held that the court loses “own-motion” jurisdiction if it fails to recall a sentence
within 120 days of the original commitment. [Citations.]’ (Id. at p. 464, italics
omitted.)” (People v. Chamizo (2019) 32 Cal.App.5th 696, 700.)
Defendant was originally sentenced in 2014 and resentenced in 2016, and he filed
a notice of appeal in the matter now before us in April 2018. Both his petition for relief
under section 1170.91 and the trial court’s ruling on it occurred in May 2019. “A
sentencing court does not have open-ended jurisdiction to modify a sentence; the court’s
jurisdiction expires after 120 days.” (People v. Willie (2005) 133 Cal.App.4th 43, 49;
accord, People v. Loper (2015) 60 Cal.4th 1155, 1165.) Here, the trial court had long
since lost jurisdiction to recall defendant’s sentence under section 1170, subdivision (d),
and we reject defendant’s contrary argument.9 Due to the pendency of this appeal, the

petition, failed to include the attachments referenced and did not qualify because he was
sentenced after January 1, 2015.
8 The People did not elect to file a supplemental brief on the jurisdictional issue.
9 Under certain circumstances, a defendant with a pending appeal may request a limited
remand to seek relief in the trial court. (§ 1260; People v. Gentile (2020) 10 Cal.5th 830, 858–
859 [limited remand to seek relief under Sen. Bill No. 1437 relief]; People v. Awad, supra, 238

12.
trial court was without jurisdiction over this matter and its ruling on defendant’s
section 1170.91 petition is void. (People v. Chamizo, supra, 32 Cal.App.5th at pp. 699–
700; People v. Scarbrough, supra, 240 Cal.App.4th at p. 923; People v. Awad, supra, 238
Cal.App.4th at pp. 221–222.) Accordingly, as to this issue, defendant’s appeal is
dismissed.10
DISPOSITION
Pursuant to Senate Bill No. 136, the four 1-year prior prison term enhancements
imposed under section 667.5, former subdivision (b), are stricken, and, as provided in
part III.A. of the Discussion, this matter is remanded for resentencing. Following
resentencing, the court shall forward an amended abstract of judgment reflecting
omission of the four prior prison term enhancements and the modified fines and fees to
the appropriate authorities. The judgment is otherwise affirmed.

Cal.App.4th at pp. 221–222 [limited remand to seek Prop. 47 relief].) Defendant did not do so
here, and we express no further view on the matter.
10 We express no view on the underlying merits of defendant’s petition. He may seek relief
as he or his trial counsel deems appropriate after remittitur issues in this case.

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