Filed 4/28/22 P. v. Guerrero CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B312851
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA097537)
v.
DAVID PAUL GUERRERO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Allen J. Webster, Judge. Affirmed as modified.
James Koester, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Daniel Chang and Nicholas J. Webster,
Deputy Attorneys General, for Plaintiff and Respondent.
David Paul Guerrero, who was convicted of second degree
murder, appeals from an order denying his petition for
resentencing under Penal Code section 1170.95.1 He contends
the trial court applied an incorrect standard of proof at the
hearing on his petition under section 1170.95, subdivision (d)(3).
For the reasons explained below, we affirm the order denying his
petition. The parties ask this court to correct the judgment to
reflect the accurate amounts of certain assessments imposed on
Guerrero’s conviction. We order the trial court to correct the
judgment, as specified below.
BACKGROUND
I. Charges, First Trial, and Direct Appeal
In August 2008, an information charged Guerrero and two
codefendants (Joe Toledo and Jose Enciso) with the murder
(§ 187, subd. (a)) of Darryl White, committed for the benefit of, at
the direction of, and in association with a criminal street gang
(§ 186.22, subd. (b)(1)). The information also alleged that, in the
commission of the murder, codefendant Toledo personally and
intentionally discharged a handgun, and a principal personally
and intentionally discharged a handgun. (§ 12022.53, subds. (b)-
(e).)
In October 2009, a jury found Guerrero and his two
codefendants guilty of first degree murder and found true the
gang and firearm enhancements alleged in the information. Each
defendant was sentenced to 50 years to life in prison. Guerrero
and his codefendants appealed, and we reversed the convictions
for evidentiary error. (People v. Toledo (Oct. 5, 2011, B219800)
[nonpub. opn.].)
1 Further statutory references are to the Penal Code.
2
II. Retrial, Appeal, and Modification of Judgment
Guerrero and his codefendants were retried in 2014. In the
present appeal, Guerrero and the Attorney General take their
summary of the facts and circumstances of the charged offense,
as presented at the retrial, from our January 31, 2017 opinion in
Guerrero’s appeal after retrial. (People v. Guerrero (Jan. 31,
2017, B259164) [nonpub. opn.].) We quote from the background
section of that opinion here:
“Several street gangs claim overlapping territory in
Compton, California, including the Compton Varrio 70 (CV70)
and Leuders Park Piru (Leuders Park) gangs, which maintain a
longstanding feud. Guerrero and his codefendants were members
of CV70. White [the murder victim] was a member of the
Natural Born Players (NBP), a group associated with Leuders
Park.
“On the morning of November 27, 2002, the day before
Thanksgiving, White and his cousin, Brandon Buckhalter, spray
painted ‘NBP’ on some walls and a street sign at the intersection
of San Vicente Street and Bradfield Avenue in Compton. White
also painted over graffiti referring to CV70.
“Guerrero was outside his home with Toledo, Enciso, and
Marcos Contreras, also a CV70 member. Guerrero went inside,
perhaps to use the restroom. While Guerrero was inside, Toledo
learned of White and Buckhalter defacing the CV70 graffiti and
hurried inside the house to get a revolver from Guerrero.
Guerrero followed Toledo out. Guerrero, Enciso, and unidentified
backseat passengers then approached White and Buckhalter on
Bradfield in a blue Chevy Tahoe driven by Enciso. When Enciso
brandished a chrome handgun, White and Buckhalter ran away
from the Tahoe and turned onto Palmer Street. Guerrero and his
3
companions pursued but temporarily lost sight of the NBP
members while turning the Tahoe around. A neighbor driving on
Bradfield saw two Black men argue with the occupants of the
Tahoe, and saw a gun in the hand of the Tahoe’s front passenger,
whose arm was hanging out the window. He saw the Tahoe turn
around and pass him in the direction the two men were running,
and then turn onto Palmer.
“Buckhalter and White ran to a friend’s house, where
Buckhalter talked with the friend on the porch. White left the
house and went back down the street and around the corner.
Then White came running back around the corner chased by
Toledo and Contreras. White ran into the yard of a neighboring
house, closely pursued on foot by Toledo and Contreras. A
woman who lived a few houses down from the friend’s house
heard one of the pursuers shout, ‘Yeah, mother fucker. You think
you got away, but we got you now.’ Toledo and Contreras took
different routes to the yard at 1813 East Palmer Street, cornered
White, and shot him five times with two guns, a revolver and a
semiautomatic, twice through the heart. Then they ran back to
the Tahoe and were driven away. White died at the scene.
“The police investigation spanned several years.
“Two months after the shooting . . . Guerrero’s brother[]
was stopped in his vehicle. Under a seat, police discovered a
semiautomatic handgun that was later determined to have
ejected the semiautomatic cartridge casings recovered at the
scene of the White shooting.
“Guerrero was arrested three years after the murder, on
November 9, 2005, along with Enciso. Toledo was arrested two
months after that.
4
“In 2006, Melina Rodriguez, Guerrero’s girlfriend, was
arrested for drug possession. She told police that on an
unspecified day when an unidentified ‘Black guy got killed,’ she
was living with Guerrero near the intersection of San Vicente and
Bradfield, where White and Buckhalter were seen painting
graffiti. She was in the house with Guerrero while Enciso,
Toledo, and Contreras were outside. Toledo rushed in and told
Guerrero to give him a gun. Guerrero gave Toledo a chrome
revolver and then followed him outside. She could not otherwise
identify the gun. Rodriguez heard shots about five minutes later,
and later learned that a Black man had been killed. In a
subsequent interview, Rodriguez told police she thought that
around the time of the shooting, Enciso had a blue Tahoe—the
same kind of car that had pursued White and Buckhalter—but
she said . . . Guerrero[’s brother] also had a blue Tahoe around
the same time. Rodriguez recanted her statements at the
preliminary hearing and at trial, but recorded clips of the
interviews were played for the jury.
“Also in 2006, police detained . . . Guerrero[’s brother] as he
emerged from the house of Sabrina Lewis, his girlfriend, with a
rifle bag and duffel bags. A search of the bags and Lewis’s
residence recovered eight guns, police vest–penetrating
ammunition, and a CD recording of a police interview with
Toledo. During a search of another Lewis residence, also in 2006,
police found a preliminary hearing transcript of Buckhalter’s
testimony in a separate case.
“Buckhalter identified Toledo and Contreras as the
shooters and Enciso and Guerrero as the Tahoe’s driver and
passenger, respectively.
“[¶] . . . [¶]
5
“At trial, Sheriff’s Detectives Peter Hecht and Brian
Steinwand, the prosecution’s gang experts, testified that a task
force was created in 2005 to solve crimes associated with gangs in
Compton, and as part of that task force, they were assigned to
CV70. Hecht testified CV70’s primary activities were tagging,
robbery, illegal substance dealing, car theft, and murder. He
testified there was a longstanding feud between CV70 and
Leuders Park, beginning with an incident in 1998 in which a
CV70 member shot and injured a Leuders Park member and was
himself shot in the face, prompting retaliatory killings of the
Leuders Park member and the CV70 member’s father in the
subsequent weeks. Another incident in 2001 contributed to the
gang rivalry, in which Ricky Jimenez, the sister of a CV70 gang
member, was murdered.
“Hecht testified that gangs demand respect and announce
their geographical authority with graffiti. In the gang culture,
crossing out a rival gang’s graffiti is a sign of disrespect and
requires retaliation. A gang member loses respect by failing to
retaliate when a gang’s authority is challenged, and can be killed
for cooperating with law enforcement. Hecht opined that the
White murder benefitted CV70 by increasing its reputation for
violence and intimidating the community, thereby discouraging
community members from assisting law enforcement in its
investigations of CV70 activities.
“Guerrero’s codefendants both presented alibi witnesses,
while Guerrero presented no defense witnesses.” (People v.
Guerrero, supra, B259164, pp. 2-5.)
At the retrial, the prosecutor argued to the jury that
Guerrero either (1) directly aided and abetted the first degree
premeditated murder or (2) aided and abetted an assault with a
6
firearm and was guilty of first degree premeditated murder
under the natural and probable consequences doctrine. The trial
court instructed the jury on theories of direct aiding and abetting
a murder and aiding and abetting under the natural and
probable consequences doctrine. (CALCRIM No. 400 [Aiding and
Abetting: General Principles]; CALCRIM No. 401 [Aiding and
Abetting: Intended Crimes]; and CALCRIM No. 403 [Natural and
Probable Consequences (Only Non-Target Offense Charged)].)2
At the retrial, the jury found Guerrero and his
codefendants guilty of first degree premeditated murder and
found true the gang and firearm enhancement allegations. The
trial court again sentenced Guerrero to 50 years to life in prison.
(People v. Guerrero, supra, B259164, p. 6.)
Guerrero appealed, contending the trial court erred in
admitting certain evidence and in instructing the jury on aider
and abettor liability. We rejected his claim of evidentiary error
but agreed the trial court erroneously instructed on the natural
and probable consequences doctrine as it applies to aider and
abettor liability. (People v. Guerrero, supra, B259164, p. 2.) We
explained that, as our Supreme Court held in People v. Chiu
(2014) 59 Cal.4th 155, 166, an aider and abettor may be convicted
of first degree premeditated murder as a direct aider and abettor
of the murder, but not as an aider and abettor under the natural
and probable consequences doctrine. (Guerrero, at p. 14.) As the
record did not establish beyond a reasonable doubt that the jury
2 These jury instructions were included in the appellate
record in Guerrero’s appeal from the trial court’s August 19, 2019
summary denial of his section 1170.95 petition, discussed below.
On this court’s own motion, we take judicial notice of the
appellate record in that appeal, case number B301518.
7
based its verdict on a theory that Guerrero directly aided and
abetted the murder, as opposed to a theory that he aided and
abetted under the natural and probable consequences doctrine,
we concluded the error was not harmless and reversed Guerrero’s
conviction for first degree murder. (Id. at p. 16.) We reasoned,
“however strong the evidence may have been that Guerrero
directly aided and abetted White’s murder, the record does not
establish beyond a reasonable doubt that the jury’s verdict was
based on that evidence and theory.” (Id. at pp. 15-16.)
The prosecution had the option of retrying Guerrero for
first degree murder or accepting a modification of the judgment
to reflect a conviction for second degree murder and resentencing
Guerrero accordingly. (People v. Guerrero, supra, B259164, pp.
16, 22.) The prosecution chose the second option. As reflected in
the September 21, 2017 abstract of judgment, Guerrero was
resentenced to 40 years to life: 15 years to life for second degree
murder, plus 25 years to life for the firearm enhancement under
section 12022.53, subdivisions (d) and (e)(1).3
III. Section 1170.95 Petition and Appeal From Summary
Denial of Petition
On August 9, 2019, Guerrero, representing himself, filed a
form petition for resentencing under section 1170.95, a statute
which permits a person convicted of felony murder or murder
under a natural and probable consequences theory to petition the
court to have the murder conviction vacated and to be
resentenced, if the person could not be convicted of murder today
in light of amendments to sections 188 and 189. Senate Bill No.
3 As set forth below, the abstract of judgment incorrectly
lists the amounts of certain assessments imposed on Guerrero’s
conviction.
8
1437, which added section 1170.95 and amended sections 188 and
189, was enacted in 2018 “to amend the felony murder rule and
the natural and probable consequences doctrine, as it relates to
murder, to ensure that murder liability is not imposed on a
person who is not the actual killer, did not act with the intent to
kill, or was not a major participant in the underlying felony who
acted with reckless indifference to human life.” (Sen. Bill No.
1437 (2017-2018 Reg. Sess.) Stats. 2018, ch. 1015, § 1(f), p. 6674;
§§ 188, subd. (a)(3) & 189, subd. (e).)
In his form petition, Guerrero checked boxes stating, in
pertinent part, that he was convicted of second degree murder
under the natural and probable consequences doctrine or under
the second degree felony murder doctrine and he could not now
be convicted of murder because of changes to sections 188 and
189, effective January 1, 2019. Guerrero also checked the box
requesting the trial court appoint counsel to represent him in
connection with his petition.
On August 19, 2019, the trial court issued a minute order,
denying Guerrero’s petition for resentencing without appointing
counsel for him or holding a hearing. In the minute order, the
court summarized the circumstances of the crime and set forth
the facts supporting the court’s conclusion Guerrero cannot make
a prima facie showing he is eligible for resentencing under
section 1170.95 because “he was convicted by a jury as a direct
aider and abettor to the White murder,” and “he was not
prosecuted under either a felony murder or a natural and
probable consequence[s] theory of culpability.”4
4 The minute order does not specify which portions of the
record of conviction or court file the trial court reviewed in ruling
on the petition.
9
Guerrero appealed from the summary denial of his section
1170.95 petition. He contended, the Attorney General conceded,
and we agreed the trial court erred in denying his petition for
resentencing without appointing counsel for him and allowing
briefing by the parties under section 1170.95, subdivision (c). We
remanded the matter for further proceedings. (People v. Guerrero
(Oct. 28, 2020, B301518) [nonpub. opn.], pp. 2, 8.)
Section 1170.95 provides that if, after briefing, “the
petitioner makes a prima facie showing that [he or she] is
entitled to relief, the court shall issue an order to show cause.”
(§ 1170.95, subd. (c).) At all times relevant to the proceedings
below, section 1170.95, subdivision (d)(3) provided, in pertinent
part: “At the hearing to determine whether the petitioner is
entitled to relief, the burden of proof shall be on the prosecution
to prove, beyond a reasonable doubt, that the petitioner is
ineligible for resentencing......... The prosecutor and the petitioner
may rely on the record of conviction or offer new or additional
evidence to meet their respective burdens.” (Former § 1170.95,
subd. (d)(3).)
IV. Briefing Under Section 1170.95, Subdivision (c) and
Hearing Under Section 1170.95, Subdivision (d)(3)
Upon remand, the district attorney filed a response to
Guerrero’s petition under section 1170.95, subdivision (c). In the
brief, the district attorney quoted the background section of our
January 31, 2017 opinion in Guerrero’s appeal after retrial, as
the statement of the facts and circumstances of the charged
offense. The district attorney argued, because the evidence
presented at the retrial demonstrates Guerrero could be
convicted of murder under a direct aiding and abetting theory, he
is ineligible for resentencing under section 1170.95, and the trial
10
court need not issue an order to show cause under subdivision (c)
and hold a hearing under subdivision (d)(3).
Guerrero, now represented by counsel, filed a reply brief in
support of his section 1170.95 petition. Like the district attorney,
he relied on our January 31, 2017 opinion for a recitation of the
facts in this case.5 He asserted: A “theoretical possibility” that
the jury found him guilty of murder under a direct aiding and
abetting theory “does not make him ineligible for relief” under
section 1170.95 at this stage of the proceedings. He argued he
had made a prima facie showing of entitlement to relief under
section 1170.95, subdivision (c), and the district attorney would
not be able “to prove beyond a reasonable doubt that [he] was
[the actual] killer or that he harbored a specific intent to kill and
that he aided and abetted in killing.”
After briefing, the district attorney conceded Guerrero
made a prima facie case of entitlement to relief, and the trial
court should issue an order to show cause and hold a hearing.
The court set the matter for a hearing.
At the May 25, 2021 hearing, neither side presented new
evidence. The prosecutor argued there is “overwhelming
evidence” to prove beyond a reasonable doubt Guerrero “was a
direct aider and abettor with intent to kill,” and he therefore is
not entitled to relief under section 1170.95. The prosecutor
pointed out that the trial court “sits as the finder of fact” at the
hearing under section 1170.95, subdivision (d)(3). Guerrero’s
counsel argued Guerrero “was simply a passenger in a vehicle,”
5 In his reply brief in support of his petition, Guerrero also
challenged the credibility of Melina Rodriguez’s testimony at the
retrial, citing to pages of the trial transcript that he did not
present to the trial court or include in the record on appeal.
11
and there is insufficient evidence to prove beyond a reasonable
doubt he aided and abetted a murder rather than aided and
abetted an assault with a firearm.
During the hearing, the trial court noted it had presided at
Guerrero’s trial and retrial. The court provided an oral summary
of the facts and circumstances of White’s killing, including the
evidence indicating (1) Guerrero provided Toledo with the gun
that Toledo used in the shooting, and (2) Guerrero waited in the
car and left with the shooters after White’s killing. The court
pointed out that in our January 31, 2017 opinion in Guerrero’s
appeal after retrial, we gave the prosecution the option of trying
Guerrero for a third time for first degree murder, which indicates
a jury “could have found him guilty of first degree murder.”
The trial court commented, in pertinent part: “This was
basically a gang retaliation, a rival gang. And I think the
motivation for this case . . . was you know, a gang thing, basically
defacing gang graffiti. And it just seems to the court that it was
somewhat of a concerted, organized effort, and a common purpose
to kill the people who basically obliterated CV70’s graffiti. [¶] So
it seems to the court that this is, as far as the court is concerned,
a classic aiding and abetting, encouragement, instigating,
supporting by going to the scene, waiting there. And then once
the killing occurred, then leaving, going back to wherever Mr.
Toledo and them [sic] lived. It just seems to the court that when
you put everything together, this is a classic, textbook example of
aiding and abetting.”
The court further commented: “[T]here is no inescapable
conclusion, other than the fact that Mr. Guerrero aided and
abetted, basically, in the killing of Mr. White. And as far as the
court is concerned, even with the amendment to [sections] 188
12
and 189, he could be convicted of first degree murder under
aiding and abetting.” The court found Guerrero is not entitled to
relief under section 1170.95 and denied his petition.
Defense counsel reiterated: “Th[e] aiding and abetting and
intent could [have been] for assault with a deadly weapon, as the
Court of Appeal[] acknowledged, just as easily as it could have
been for premeditated murder. And it’s the People’s burden to
prove beyond a reasonable doubt that it wasn’t aiding and
abetting an assault.” After further discussion of the evidence, the
trial court rejected this theory and stated: “And it just seems to
the court the inescapable conclusion is that this just basically
easily could be an aiding and abetting case. And the Court [of
Appeal] even indicated in this particular case . . . that it could
easily have been a first degree [murder] aiding and abetting case.
They said that. The facts in there say that.”
On May 25, 2021, the same day as the hearing, the trial
court issued a minute order denying Guerrero’s section 1170.95
petition. The court did not set forth its reasons for denying the
petition in the minute order.
DISCUSSION
I. Denial of Section 1170.95 Petition
As set forth above, on May 25, 2021, when the trial court
held the hearing on Guerrero’s petition, section 1170.95,
subdivision (d)(3) stated, in pertinent part: “At the hearing to
determine whether the petitioner is entitled to relief, the burden
of proof shall be on the prosecution to prove, beyond a reasonable
doubt, that the petitioner is ineligible for resentencing.” Senate
Bill No. 775, which amended section 1170.95 effective January 1,
2022, amended the above-quoted sentence of subdivision (d)(3) to
read: “At the hearing to determine whether the petitioner is
13
entitled to relief, the burden of proof shall be on the prosecution
to prove, beyond a reasonable doubt, that the petitioner is guilty
of murder or attempted murder under California law as amended
by the changes to Section 188 or 189 made effective January 1,
2019.” (Sen. Bill No. 775 (2021-2022 Reg. Sess.) Stats. 2021, ch.
551, § 2.) Senate Bill No. 775, among other things, also added
the following sentence to subdivision (d)(3): “A finding that there
is substantial evidence to support a conviction for murder,
attempted murder, or manslaughter is insufficient to prove,
beyond a reasonable doubt, that the petitioner is ineligible for
resentencing.” (Sen. Bill No. 775 (2021-2022 Reg. Sess.) Stats.
2021, ch. 551, § 2.)
Guerrero contends the trial court applied “an erroneous
legal standard” when it “concluded that because substantial
evidence would support a hypothetical juror’s conclusion that [he]
directly aided and abetted the direct perpetrator’s commission of
murder, [he] was ineligible for . . . resentencing consideration”
under section 1170.95. In support of this contention, he asserts
“the court did not say that it was evaluating the evidence as an
independent factfinder and it did not articulate an analytic
process in which, as the factfinder, it had concluded there was
sufficient record evidence to prove beyond a reasonable doubt
that [Guerrero] was acting with the specific intent to directly aid
and abet a murder rather than some less than murderously
intended assault.”
The Attorney General argues that the parties’ arguments
and the trial court’s comments at the hearing demonstrate the
trial court made the requisite factual findings under the
appropriate standard to properly deny Guerrero’s petition. The
Attorney General also argues if there was error, it was harmless.
14
As Guerrero argues, the trial court made some comments
at the hearing which indicate it applied an incorrect standard of
proof: that there was sufficient evidence in the record such that
the jury could have found Guerrero guilty of murder under a
direct aiding and abetting theory. We agree with the Attorney
General, however, that to the extent the trial court applied an
incorrect standard—which had not been clarified in the law at
the time of the hearing—any error was harmless because it is not
reasonably probable the outcome would have been more favorable
to Guerrero if the court had applied the standard of proof now set
forth in section 1170.95, subdivision (d)(3), as amended by Senate
Bill No. 775. (See People v. Lewis (2021) 11 Cal.5th 952, 973-974
[denial of § 1170.95 petition evaluated under the standard of
prejudice described in People v. Watson (1956) 46 Cal.2d 818].)
Other statements by the court made absolutely clear how the
court would have ruled applying the now-codified higher
standard of proof (to the extent the court applied an incorrect
standard). The court found the circumstances of the killing
constituted a concerted, organized effort, and a common purpose
among those present in the vehicle and on foot to kill the rival
gang members who defaced the graffiti. The court also found
Guerrero encouraged, instigated, and supported the killing by
providing a gun, accompanying the shooters to the scene, waiting
in the vehicle, and leaving with the shooters after the killing.
And, although the court did not use the words “reasonable
doubt,” the court indicated it found beyond a reasonable doubt
that Guerrero directly aided and abetted the murder: the court
noted it had presided at Guerrero’s trial and retrial, and there
was only one conclusion that could be drawn from the evidence—
15
the “inescapable conclusion” that “Guerrero aided and abetted,
basically, in the killing of Mr. White.”
“We review the trial court’s determination at the section
1170.95, subdivision (d)(3) hearing for substantial evidence.”
(People v. Garrison (2021) 73 Cal.App.5th 735, 747.) Guerrero
does not argue there is insufficient evidence supporting a finding
that he directly aided and abetted the murder (made under the
correct standard of proof).
Guerrero makes an additional argument, which he
concedes finds no support in case law: that courts should apply
an “alternative theory instructional error analysis” to a section
1170.95 petition when the parties present no new evidence at the
subdivision (d)(3) hearing. This type of analysis applies when a
trial court instructs a jury on a legally correct theory and a
legally incorrect theory. The reviewing court must reverse based
on such instructional error unless the reviewing court concludes,
beyond a reasonable doubt, that the jury based its verdict on the
correct theory. (See People v. Aledamat (2019) 8 Cal.5th 1, 12-
13.) “The question [under this analysis] is not whether we
believe it clear beyond a reasonable doubt that the defendant is
guilty under the legally correct theory, but whether we can say,
beyond a reasonable doubt, that the legally incorrect jury
instruction did not taint the actual jury verdict.” (People v.
Baratang (2020) 56 Cal.App.5th 252, 263.)
There is no language in section 1170.95, as amended by
Senate Bill No. 775, indicating an alternative theory
instructional error analysis should apply to a section 1170.95
petition. As set forth above, section 1170.95, subdivision (d)(3)
now states, in pertinent part: “At the hearing to determine
whether the petitioner is entitled to relief, the burden of proof
16
shall be on the prosecution to prove, beyond a reasonable doubt,
that the petitioner is guilty of murder or attempted murder under
California law as amended by the changes to Section 188 or 189
made effective January 1, 2019.” The question at a subdivision
(d)(3) hearing is whether the prosecution can prove the crime
beyond a reasonable doubt under the law today, based on the
record alone or based on new evidence, not whether the
prosecution can prove beyond a reasonable doubt which theory
was the basis for the jury’s verdict. Moreover, we reject
Guerrero’s assertion that alternative theory instructional error
analysis should apply where the parties introduce no new
evidence at the hearing, and a different standard should apply
where the parties choose to introduce new evidence. Nothing in
the statute supports such a construction.
For the reasons discussed, we have no cause to reverse the
trial court’s order denying Guerrero’s section 1170.95 petition.
II. Correction of Judgment to Reflect Accurate Amount
of Assessments
Guerrero contends, and the Attorney General concedes, the
September 21, 2017 abstract of judgment incorrectly lists the
criminal conviction assessment imposed under Government Code
section 70373 as $50 instead of $30. (Gov. Code, § 70373, subd.
(a)(1) [“The assessment shall be imposed in the amount of thirty
dollars ($30) for each misdemeanor or felony”].) We may correct
an unauthorized sentence, including improperly imposed
assessments, at any time it is brought to our attention, and we do
so here. (See People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6;
People v. Castellanos (2009) 175 Cal.App.4th 1524, 1530.)
The Attorney General notes in the respondent’s brief that
the September 21, 2017 abstract of judgment also incorrectly lists
17
the court operations assessment imposed under section 1465.8 as
$30 instead of 40 dollars. (§ 1465.8, subd. (a)(1) [“an assessment
of forty dollars ($40) shall be imposed on every conviction for a
criminal offense”].) Guerrero did not respond to this issue in his
reply brief. Because it is an unauthorized assessment, we order
the trial court to correct the judgment, as specified below.
DISPOSITION
The May 25, 2021 order denying the section 1170.95
petition is affirmed. The trial court is ordered to correct the
judgment to reflect imposition of a $30 criminal conviction
assessment under Government Code section 70373 and
imposition of a $40 court operations assessment under Penal
Code section 1465.8. As so modified, the judgment is affirmed.
The clerk of the superior court is directed to prepare an amended
abstract of judgment and to forward it to the Department of
Corrections and Rehabilitation.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
ROTHSCHILD, P. J. CRANDALL, J.*
*Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
18