Filed 3/9/23 P. v. Ruiz 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F083496
Plaintiff and Respondent,
(Super. Ct. No. F20905432)
v.
ANDRES RUIZ, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Houry A.
Sanderson, Judge.
Catherine White, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and
Barton Bowers, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Franson, Acting P. J., Smith, J. and Meehan, J.
Defendant Andres Ruiz challenges the sentence he received after being found
guilty by a jury of committing four crimes involving one victim. Our review of the
sentence imposed in this case and the relevant statutory authority leads us to conclude
this matter must be remanded for resentencing.
PROCEDURAL AND FACTUAL SUMMARY
The circumstances of this case involve incidents that occurred on two separate
days. On August 12, 2020, just after midnight, R.N. returned to her house in Fresno after
driving from Mexico for approximately 11 hours. R.N. travelled to Mexico to visit her
family. Living with R.N. at the time were her sons and defendant, who had moved into
the house in December 2019 after the couple had dated for approximately two months.
Soon after arriving at her home, R.N. testified she went to her bedroom, changed
clothes, and got into bed next to defendant who she thought was asleep. Defendant was
not asleep and asked for sex. When R.N. stated she was tired after the long drive and just
wanted to go to sleep, defendant became angry and started calling her names and
questioning why she had taken an extra day for the trip. After R.N. tried to calm
defendant down, he jumped on top of her, and a violent struggle ensued. During this
struggle, defendant partially removed R.N.’s pajama pants and engaged in intercourse
with her against her will. When asked if she called the police, R.N. admitted she had not,
explaining she had been in shock that this occurred in her home while her children were
in another room. The next morning R.N. noticed a scratch on her right arm, and that the
headboard of the bed had been cracked. R.N. testified she asked defendant to move out
of the house. At first, defendant acted as if he did not hear her, but then asked to have
until the end of the month. R.N. stated in court she did not believe defendant would leave
voluntarily.
On August 15, 2020, R.N. testified defendant called her early in the afternoon to
tell her he was coming home and would be taking her out. As they were preparing to go
out, R.N. and defendant argued about a car they helped R.N.’s son purchase. Sometime
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during the argument, R.N. decided she would not go out with defendant and moved to the
kitchen to put some groceries away. When she returned to the bedroom, R.N. noticed
defendant getting angrier and angrier. While they were arguing again, defendant took
R.N.’s phone out of her hand after she threatened to call the police, and threw it on the
dresser. R.N. ran to the dining room where there was an alarm panel for the house and
set off the alarm. R.N. testified defendant could not believe she had actually set off the
alarm and became even angrier. When she told him to leave, he went into the bedroom
yelling at her and making noises she thought meant he was collecting his things to leave,
but she later discovered was defendant punching her dresser.
Once defendant actually started to collect his things to leave, R.N. turned off the
alarm. R.N. then described how defendant ran toward her and pushed her against the
wall, repeatedly. When R.N. was able to get away, she ran toward the back door, but was
grabbed again by defendant, who started to pull her toward the bedroom. Once again,
R.N. managed to get away from defendant and set off the alarm. R.N. told defendant to
leave, which after another struggle, defendant finally agreed to do when he observed
two sheriff’s deputies had arrived. R.N. described to one of the deputies why she had set
off the alarm, but also eventually provided information about what happened on
August 12, 2020. The deputy then informed R.N. that they would be arresting defendant.
Following a preliminary hearing, an information was filed on July 1, 2021,
charging defendant with committing corporal injury upon a cohabitant who he was in a
dating relationship with (Pen. Code,1 § 273.5, subd. (f)(1), a felony; count 1), forcible
rape (§ 261, subd. (a)(2), a felony; count 2), dissuading a witness by force or threat
(§ 361.1, subd. (c)(1), a felony; count 3), and battery (§ 243, subd. (e)(1), a misdemeanor;
count 4). A special allegation attached to count 1 also alleged defendant had suffered a
prior conviction of section 273.5, subdivision (f)(1), within the last seven years. Another
1 All further statutory references are to the Penal Code.
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special allegation attached to count 2 provided notice to defendant that the crime alleged
in count 2 would be considered a serious felony within the meaning of section 1192.7,
subdivision (c).
On July 12, 2021, a jury returned verdicts finding defendant guilty of committing
the crimes alleged in all four counts, and further found true the allegation that the crime
alleged in count 3, involving dissuading a witness, was committed maliciously and
through the use of force, the threat of force, or violence. When sentencing defendant in
October 2021, the trial court stated as follows:
“Having weighed and looked at the evidence, the Court does believe
that the middle term is appropriate. I understand the victim⸻I understand
the People’s request to have the defendant committed to state prison for the
11 years that’s recommended. The Court does believe, though, that the
middle term is appropriate in Count 2 which is a 261(a)(2) and that’s a
6-year exposure. Count 4⸻I’m sorry, Count 1. I apologize. Count 1,
Penal Code 273.5(f)(1) will run concurrent to the main count. However,
Count 3 pursuant to 1170.15, the Court is mandated to impose
consecutively at a rate of the full middle term. The Court accepts that
representation. I have not heard any opposition to that and it will be a
3-year full term for a total term of 9 years.”
The abstract of judgment filed in this case reflects defendant received a sentence of
six years for count 2 (forcible rape), a concurrent term of four years for count 1 (corporal
injury), and a full consecutive middle term of three years for count 3 (dissuading a
witness). A sentence for count 4 is not reflected on the abstract of judgment, however,
during sentencing the trial court indicated defendant would receive credit for time served.
DISCUSSION
Defendant does not challenge the jury verdict and does not raise any issues
impacting his conviction. Defendant’s focus in this appeal is on the sentence he received.
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I. This Matter Must Be Remanded For Resentencing
A. The Full Consecutive Middle Term For Dissuading a Witness
Defendant makes two claims when challenging the sentence he received on
count 3 for dissuading a witness. First, defendant states a full consecutive term was
unavailable because such a term could only be imposed if the crime was attached to a
felony. Defendant is assuming the trial court linked count 3 to count 4 for battery
because they were alleged to have occurred on the same date, August 15, 2020. Count 4
was charged as a misdemeanor. Defendant’s second challenge argues the court failed to
exercise discretion and seemed to believe it was required to impose the full middle term
consecutively. The People agree this case must be remanded for resentencing because
the court appeared to believe it had no discretion under section 1170.15 to select a
concurrent sentence for count 3.
We address defendant’s second claim regarding the exercise of discretion first. A
trial court has broad discretion under the existing sentencing scheme, and therefore,
decisions about sentencing will be subject to a review for abuse of discretion. (People v.
Sandoval (2007) 41 Cal.4th 825, 847, superseded by statute on other grounds.)
“Defendants are entitled to ‘sentencing decisions made in the exercise of the “informed
discretion” of the sentencing court,’ and a court that is unaware of its discretionary
authority cannot exercise its informed discretion.” (People v. Brown (2007) 147
Cal.App.4th 1213, 1228.)
Section 1170.15 states in relevant part:
“Notwithstanding subdivision (a) of Section 1170.1 which provides for the
imposition of a subordinate term for a consecutive offense of one-third of
the middle term of imprisonment, if a person is convicted of a felony, and
of an additional felony that is a violation of Section 136.1 or 137 and that
was committed against the victim of, or a witness or potential witness with
respect to, or a person who was about to give material information
pertaining to, the first felony, …, described the subordinate term for each
consecutive offense that is a felony in this section shall consist of the full
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middle term of imprisonment for the felony for which a consecutive term of
imprisonment is imposed ….”
The court in People v. Woodworth (2016) 245 Cal.App.4th 1473, 1480, held that error
occurred in that case because the trial court did not understand it had discretion to impose
a concurrent sentence. The Woodworth court considered other statutes governing
sentencing decisions noting that some stated clear requirements for choosing a
consecutive term over a concurrent term.2 The court then went on to note, “ ‘[a]bsent an
express statutory provision to the contrary, section 669 provides that a trial court shall
impose either concurrent or consecutive terms for multiple convictions.’ ” (Woodworth,
at p. 1479, citing People v. Rodriguez (2005) 130 Cal.App.4th 1257, 1262.) Therefore,
the Woodworth court concluded that unless there was a statutory requirement to choose a
consecutive term, the trial court still had the ability to exercise discretion and consider the
possibility of imposing a concurrent term. (Woodworth, at p. 1480.) The Woodworth
court eventually held, if the consecutive term was selected for a count involving a
conviction for dissuading a witness after exercising discretion, then section 1170.15
would require that consecutive term be for the full middle term. (Woodworth, at
p. 1480.)
The language employed by the trial court when sentencing defendant suggests a
belief it lacked discretion and was required to impose the consecutive sentence for
count 3. Because the trial court did not exercise discretion to consider whether a
concurrent term was warranted in this case, the matter must be remanded for
resentencing. (See People v. Downey (2000) 82 Cal.App.4th 899, 912.)
2 A current example of the type of language the Woodworth court was referencing is
found in the new version of section 667.61, subdivision (i) which states, “[f]or any
offense specified in paragraphs (1) to (7), inclusive, of subdivision (c), or in paragraphs
(1) to (6), inclusive, of subdivision (n), the court shall impose a consecutive sentence for
each offense that results in a conviction under this section if the crimes involve separate
victims or involve the same victim on separate occasions as defined in subdivision (d) of
Section 667.6.” (Emphasis added.)
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B. Was Section 1170.15 Available As a Sentencing Option?
Case law has held that section 1170.15 provides an alternative sentencing scheme,
not an enhancement to a sentence that would require separate pleading and proof.
(People v. Hennessey (1995) 37 Cal.App.4th 1830, 1834.) As a result, there is no need to
provide additional evidence that the defendant intended to dissuade a witness from
reporting a particular crime. (Ibid., emphasis added.) “[T]he sentencing judge need only
determine if that crime was a felony of which the defendant was convicted; the dissuasion
sentence quite obviously cannot run fully consecutively to an underlying offense for
which the defendant was not convicted.” (Id. at p. 1835.)
In a case with some factual similarities to our case, the court in People v. Evans
(2001) 92 Cal.App.4th 664 (Evans), discussed the language of section 1170.15 and its
interpretation by the court in Hennessey. The Evans court summarized its relevant facts
as follows:
“Defendant’s conviction for dissuading a witness was based on his
statement to his wife in January 1998, after he choked her, that she ‘better
not tell his probation officer …’ of the incident. If defendant had been
convicted of a felony for choking his wife, then section 1170.15 would
have applied, because defendant’s dissuasion conviction for attempting to
prevent his wife from reporting the choking incident would have been
related to another felony of which he was also convicted. The jury,
however, acquitted defendant of the felony assault charge in the choking
incident and convicted him of only misdemeanor battery. Thus, the
dissuasion for which defendant was convicted did not relate to another a
felony, but to only a misdemeanor, and therefore section 1170.15 did not
apply.” (Evans, supra, 92 Cal.App.4th at p. 670.)
When considering these facts in light of the language provided in Hennessey, the Evans
court held, “the dissuasion for which the defendant was convicted must relate to another
felony, of which the defendant was also convicted.” (Id. at p. 670.)
Again, pursuant to Hennessey, section 1170.15 provides an alternative sentencing
scheme and should not be viewed as an enhancement that would have required separate
pleading and proof. Therefore, when exercising discretion on the question of whether to
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impose a full consecutive term under section 1170.15, the trial court will first have to
address whether defendant’s conviction for dissuading a witness related to another felony
“of which [he] was also convicted.” (See Evans, supra, 92 Cal.App.4th at p. 670.)
Defendant encourages this court to address this issue as a pure question of law and
conclude that the full consecutive middle term specified in section 1170.15 was not
available because the conviction in count 3 was related to the conviction in count 4,
which was a misdemeanor. We are unwilling to take that course of action for the same
reason it was rejected by the court in Evans. “ ‘The wiser course is to remand for
resentencing rather than have us hazard a guess in the first instance as to the likely
sentence that would have been imposed had the trial court been advised of our
interpretation.’ ” (Evans, supra, 92 Cal.App.4th at p. 670, citing People v. Scott (1993)
17 Cal.App.4th 1383, 1388.)
II. The Concurrent Term For Count 1
Under section 654, when a defendant faces convictions for acts or omissions
“punishable in different ways by different provisions of law,” that defendant may face
punishment under either provision, but not both. In this case, defendant was charged in
two counts for the same act. In count 1, defendant faced a charge of corporal injury to a
cohabitant he was in a dating relationship with. In count 2, defendant was charged with
forcible rape. Defendant alleges and the People concede that these charges were based
on the same set of facts and that no separate objective existed in the sequence of events
leading to the separate charges. We see no reason on the record to disagree with that
conclusion.
Therefore, “rather than dismissing charges or imposing concurrent sentences,
when a court determines that a conviction falls within the meaning of section 654, it is
necessary to impose [a] sentence but to stay the execution of the duplicative sentence ….”
(People v. Duff (2010) 50 Cal.4th 787, 796.) The stay is effective pending the successful
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completion of the sentence not stayed, at which time the stay becomes permanent. (See
People v. Alford (2010) 180 Cal.App.4th 1463, 1469.)
When this matter is remanded for resentencing, we note there is one more change
the trial court must consider before choosing a sentence for counts 1 and 2. Specifically,
until recently, section 654 required trial courts to impose a sentence “under the provision
that provides for the longest potential term of imprisonment.” (Former § 654.) “In 2021,
however, the Legislature enacted Assembly Bill No. 518 (2021−2022 Reg. Sess.)
(Stats. 2021, ch. 441), which removes the requirement to impose the longest prison term.”
(People v. Sek (2022) 74 Cal.App.5th 657, 673.) As a result, a trial court now must
exercise discretion to select one or the other provision as providing the sentence the
defendant receives, not necessarily the one that imposes the longest sentence.3 (Ibid.)
DISPOSITION
The judgment is affirmed. The sentence imposed is vacated, and the matter is
remanded for resentencing. Following resentencing by the trial court, the abstract of
judgment shall be amended and a certified copy forwarded to the appropriate authorities.
3 Under the principles laid out in In re Estrada (1965) 63 Cal.2d 740, Assembly Bill
No. 518 (2021−2022 Reg. Sess.) (Stats. 2021, ch. 441, § 1(a)) applies retroactively to
defendant whose conviction was not yet final when the law went into effect on January 1,
2022.
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