People v. Cervantes CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCE403126
- Trial judge
- Kenneth K. So
- Outcome
- reversed in part — Affirmed in part, reversed in part, and remanded for resentencing.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), Judith D. McConnell, O'Rourke
Analysis
The trial court sentenced the defendant to 16 years in prison, including an upper term for assault with a deadly weapon. The Court of Appeal reversed in part, vacating the sentence and remanding for resentencing to apply newly enacted amendments to Penal Code section 1170.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Imposition of the upper term sentence for the assault with a deadly weapon conviction.“Senate Bill No. 567 changed the manner of calculation of the upper term choice. It declares the middle term to be the presumptive choice and places limitations on what a judge may consider in selecting an upper term sentence.” | de novo | error (statutory interpretation) | agree with court The appellate court held that the trial court erred by imposing the upper term under the pre-amendment version of Penal Code section 1170, as the newly enacted Senate Bill 567 and Assembly Bill 124 changed the presumptive term and limitations on upper term selection, and these changes are retroactive to pending appeals under In re Estrada and People v. Lara. |
Authorities
- relied: In re Estrada (1965) 63 Cal.2d 740 — A defendant on appeal is entitled to the benefit of a statute that reduces punishment and is retroactive to pending appeals.
- relied: People v. Superior Court (Lara) (2018) 4 Cal.5th 299 — The retroactivity principle from In re Estrada applies to changes in sentencing laws that reduce punishment, even if the statute is not explicitly retroactive.
The appellate opinion: sound — The opinion is sound because it correctly applies the well-established retroactivity principles from In re Estrada and People v. Lara to the newly enacted amendments to Penal Code section 1170. The court properly identifies that the legislative changes reduce the presumptive term and limit upper term selection, entitling the defendant to resentencing.
How this analysis was made · dispute it
unusual dispositionThe trial court sentenced Cervantes to the upper term of four years for assault with a deadly weapon, doubled for a strike prior, plus enhancements for a total of 16 years. On appeal, with the Attorney General's concession, the Court of Appeal held that Senate Bill No. 567 and Assembly Bill No. 124's amendments to Penal Code section 1170 apply retroactively under Estrada, vacated the sentence, and remanded for resentencing while otherwise affirming the judgment.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Imposition of the upper term of four years for the assault with a deadly weapon conviction under former Penal Code section 1170, subdivision (b)“We agree with the parties that Cervantes is entitled to the benefit of the new legislation and the case should be remanded for resentencing.” | de novo | error (statutory interpretation) | agree with court The judgment was not final when SB 567 and AB 124 took effect on January 1, 2022; the amendments to section 1170, subdivision (b) are ameliorative because they make the middle term presumptive and restrict aggravating factors to those stipulated or found true by a jury, and AB 124 makes the lower term presumptive in certain mitigating circumstances. Under In re Estrada and Lara, such ameliorative changes apply retroactively to nonfinal judgments, so remand for resentencing under the amended statute is correct. The trial court did not err at the time, but the sentence is unlawful under the retroactive statute. |
Authorities
- relied: In re Estrada (1965) 63 Cal.2d 740 — An amendatory statute lessening punishment applies retroactively to all cases not yet final on the statute's effective date absent a contrary indication of legislative intent.
- relied: People v. Superior Court (Lara) (2018) 4 Cal.5th 299 — The Estrada presumption of retroactivity extends to ameliorative legislation that potentially reduces punishment, including provisions affecting sentencing procedures, for defendants whose judgments are not final.
The appellate opinion: sound with gaps — The opinion reaches the correct and conceded result that SB 567 and AB 124's amendments to section 1170 apply retroactively to this nonfinal judgment under Estrada and Lara, and remand for resentencing is the appropriate remedy. It is extremely brief, omits any discussion of whether the record might show the upper term would have been imposed regardless (harmlessness), and does not address the specific statutory subdivisions, but given the Attorney General's concession the result is defensible.
Opinion
Filed 5/16/22 P. v. Cervantes CA4/1 NOT TO BE PUBLISHED IN 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D079691
Plaintiff and Respondent, v. (Super. Ct. No. SCE403126)
EMILIO ORTIZ CERVANTES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Kenneth K. So, Judge. Affirmed in part, reversed in part, and remanded for resentencing. Aurora Elizabeth Bewicke, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Robin Urbanski and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent. A jury convicted Emilio Ortiz Cervantes of assault with a deadly weapon (Pen. Code,1 § 245, subd. (a)(1)) and made a true finding that Cervantes personally inflicted great bodily injury on the victim (§ 12022.7, subd. (a)). Cervantes admitted a prior serious felony conviction (§ 667, subd. (a)(1), and a strike prior (§ 667, subds. (b)-(i)). The court sentenced Cervantes to the upper term of four years for the assault conviction, doubled because of the strike prior. The court added three years for the great bodily injury enhancement and five years for the serious felony prior, for a total determinate term of 16 years in prison. Cervantes appeals challenging his sentence. Cervantes contends, and the Attorney General agrees, the case must be remanded for reconsideration of the term imposed for the assault conviction in light of newly enacted amendments to section 1170. We agree with the parties that Cervantes is entitled to the benefit of the new legislation and the case should be remanded for resentencing.2 DISCUSSION After the sentencing in this case, the Legislature enacted two measures amending section 1170 with regard to the selection of the term where the felony offense has three possible terms. Senate Bill No. 567 changed the manner of calculation of the upper term choice. It declares the middle term to be the presumptive choice and places limitations on what a judge may consider in selecting an upper term sentence. Assembly Bill No. 124 makes the lower term sentence the presumptive sentence where there are certain mitigating circumstances present. Both 1 All further statutory references are to the Penal Code.
2 The facts of the offense are not relevant to the issues in this current appeal. We will omit the traditional statement of facts. 2 legislative changes potentially reduce the defendant’s punishment. Thus, as the parties agree, he is entitled to whatever benefit the statute may provide. (In re Estrada (1965) 63 Cal.2d 740; People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 304-308.) The Attorney General properly concedes the statutory changes must be applied in this case. Accordingly, we will vacate the sentence and remand for resentencing. DISPOSITION The sentence is vacated, and the case is remanded for resentencing consistent with the views expressed in this opinion. We express no opinion as to what sentence should be imposed on remand. In all other respects, the judgment is affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
O’ROURKE, J.
Cites, in this corpus
- People v. Superior Court of Riverside Cnty. S241231 · 2018-02-01
- In Re Estrada Crim. 8524 · 1965-12-23