Filed 7/28/22 P. v. Vigil CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 FOUR
THE PEOPLE, B315445
Plaintiff and Respondent, Los Angeles County
Super. Ct. Nos. KA117978,
v. KA117413
AARON ANTHONY VIGIL,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Mike Camacho. Remanded with instructions.
Richard B. Lennon, 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, Senior
Assistant Attorney General, Scott A. Taryle and David A. Voet,
Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
In two separate jury trials, defendant and appellant Aaron
Anthony Vigil was convicted of various crimes, including mayhem
and assault with a deadly weapon. The trial court sentenced him
to an upper term on the mayhem count and stayed sentencing on
the assault count under Penal Code section 654.1 On appeal, this
court concluded the trial court prejudicially erred by relying on
improper aggravating factors in imposing the upper term on the
mayhem count. We remanded the matter to the trial court for a
resentencing hearing. At the resentencing hearing, the trial court
sentenced Vigil to a middle term on the mayhem count. Vigil now
raises one contention on appeal – that the matter should be
remanded to allow the trial court to reconsider his sentence in
light of recently-enacted Assembly Bill 518 (AB 518). AB 518
amended section 654 by removing the requirement that a
defendant be punished for the offense with the longest term of
imprisonment (2021-2022 Reg. Sess.) (Stats 2021, Ch. 441). For
the reasons discussed below, we agree with Vigil and remand the
case for the trial court to consider whether to grant him relief
under AB 518.
BACKGROUND2
In case KA117413, a jury convicted Vigil of assault with a
deadly weapon (§ 245, subd. (a)(1); count one) and mayhem
(§ 203; count two). The jury also found he personally used a
1 All undesignated statutory references are to the Penal
Code.
2 We omit recitation of the facts underlying Vigil’s
convictions because they are not relevant to the issue presented
in this appeal.
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deadly weapon (§ 12022, subd. (b)(1)) and personally inflicted
great bodily injury (§ 12022.7, subd. (a)). In case KA117978, a
jury convicted Vigil of three counts of a felon possessing a firearm
(§ 29800, subd. (a)(1)) and one count of felon possessing
ammunition (§ 30305, subd. (a)(1)). Based on Vigil’s admissions,
the court found he sustained a prior strike and serious felony
conviction (§§ 667, 1170.12), and he committed certain crimes
charged in case KA117978 while on bail in case KA117413
(§ 12022.1). In a joint sentencing hearing on the two cases, the
court imposed an aggregate sentence of 24 years and 8 months in
state prison.
On appeal in case B298543, this court affirmed the
sentence (case no. KA117978). In case B298482, we remanded the
matter for the trial court to reconsider the imposition of the
upper term on the mayhem count (case no. KA117413).
On remand, the trial court imposed the middle term of four
years on the mayhem count, doubled to eight years because of the
prior strike. The court re-imposed the other sentences and
enhancements it had initially imposed, resulting in an aggregate
sentence of 16 years and 8 months in state prison.
Vigil timely appealed in case KA117978, and we ordered
the notice amended to include case KA117413.
DISCUSSION
Vigil argues his case should be remanded for
reconsideration in light of AB 518. We agree.
As noted earlier, Vigil was convicted in case KA117413 of
mayhem and assault with a deadly weapon. Under the applicable
law at the time of Vigil’s sentencing, an act or omission that was
punishable in different ways by different laws had to be punished
under the law that provided for the longest possible term of
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imprisonment. (Former § 654, subd. (a).) Mayhem carries a
sentence of two, four, or eight years in state prison (§ 204), and
felony assault with a deadly weapon carries a sentence of two,
three, or four years (§ 245, subd. (a)(1)). The sentencing court
thus imposed sentence on the mayhem count but stayed
sentencing on the assault count as required by former section
654.
As amended by AB 518, section 654 now provides that the
trial court may impose and execute sentence on either of the
penal provisions, and not solely on the statute with the greater
punishment. (People v. Sek (2022) 74 Cal.App.5th 657, 673.)
Because Vigil’s sentence was not final on January 1, 2022, when
AB 518 took effect, he is entitled to its ameliorative effect. (People
v. Sek, supra, at p. 673; see In re Estrada (1965) 63 Cal.2d 740,
745.)
As the Attorney General points out, remand is
unwarranted if the record provides clear indication that the trial
court would not impose a lesser sentence. (See People v. Gutierrez
(2014) 58 Cal.4th 1354, 1391.) Although the Attorney General
agrees with Vigil that AB 518 is retroactive, he contends remand
is unwarranted because the record clearly indicates the trial
court would not reduce Vigil’s sentence. We are not persuaded.
Although it is true that the trial court, at the resentencing
hearing, did not lower Vigil’s sentence as much as it could have,
we cannot be certain what the trial court would do with its
newfound discretion under AB 518. For this reason, and because
Vigil’s liberty interest is at stake, we remand the cases for
reconsideration in light of AB 518. We express no view
concerning what sentence the court should impose on remand.
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DISPOSITION
The cases are remanded for reconsideration in light of AB
518. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, J.
We concur:
MANELLA, P.J.
COLLINS, J.
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