Filed 6/29/22 P. v. Gonzales CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
| THE PEOPLE, Plaintiff and Respondent, v. RAMIRO SAMUEL GONZALES, Defendant and Appellant. |
A164325
(Lake County Super. Ct. No. CR960874) |
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Defendant Ramiro Samuel Gonzales appeals from the trial court’s sentencing order, imposing a six-year prison term for his assault on C.P. Gonzales contends on appeal that recent amendments to Penal Code section 1170 apply to his case, requiring modification of his sentence. He also asserts that the trial court erred by relying on the same facts underlying the offense and enhancement to find aggravating circumstances and that his attorney ineffectively failed to object. Finally, Gonzales complains that his custody credits were incorrect and makes the related ineffective assistance claim. We remand for resentencing, during which the trial court may consider applicable legislative changes, Gonzales may make any arguments with respect to aggravating and mitigating circumstances under the new statutory framework, and the custody credit issue can be addressed.
- FACTUAL AND PROCEDURAL BACKGROUND[†]
On August 6, 2021, the Lake County District Attorney filed an information charging Gonzales with the attempted murder of C.P. (§§ 187, subd. (a) & 664, count I), felony assault with a deadly weapon, a knife (§ 245, subd. (a)(1), count II), and battery causing serious bodily injury (§ 243, subd. (d), count III). Count I was enhanced by allegations that Gonzales personally used a deadly and dangerous weapon. (§ 12022, subd. (b)(1).) As to all three counts, the information alleged that Gonzales personally inflicted great bodily injury on the victim within the meaning of section 12022.7, subdivision (a).
The charges arose from an incident on June 11, 2021, in which Gonzales and his housemate, C.P. fought outside their mobile home because Gonzales thought C.P. was “trying to get with [Gonzales’s] ex-girlfriend.” Punches were exchanged, C.P. tackled Gonzales to the ground, and Gonzales kicked C.P. in the face. After the fight, C.P. left the home for approximately an hour. When he returned, he went into his mother’s room and apologized for fighting. Then, as he walked past Gonzales’s room, Gonzales exited and stabbed C.P. in the back. C.P. ran back into his mother’s room and Gonzales followed, attempting to stab C.P. again. It took multiple people from inside the house to get Gonzales away from C.P.
C.P. was hospitalized in critical condition from the four millimeter stab wound near the center of his back, which caused significant internal bleeding and the collapse of his right lung. C.P. almost succumbed to his injury. Gonzales admitted the assault.
On September 14, 2021, pursuant to a negotiated agreement, Gonzales pleaded no contest to assault with a deadly weapon (count II) and admitted he personally inflicted great bodily injury with respect to that count. In return, the remaining counts were dismissed. Gonzales’s plea was open, with a possible sentence of five to seven years. He was sentenced to a total of six years in prison on November 1, 2021—three years on the assault count and three years for the great bodily injury enhancement. Gonzales timely appealed.
II. DISCUSSION
Gonzales argues that recently enacted Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731, § 1.3) and Assembly Bill No. 124 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 695, §§ 4 & 5), which became effective January 1, 2022, apply retroactively to his case. Pursuant to this legislation, section 1170 has been amended to, among other things, create a presumption in favor of a low prison term for certain youthful offenders. Specifically, subdivision (b)(6) of section 1170 requires the court to impose the low term “unless the court finds that the aggravating circumstances outweigh the mitigating circumstances [so] that imposition of the lower term would be contrary to the interests of justice,” if the defendant “is a youth, or was a youth as defined under subdivision (b) of Section 1016.7 at the time of the commission of the offense” and the defendant’s youth “was a contributing factor in the commission of the offense.” (§1170, subd. (b)(6)(B); see also § 1016.7, subd. (b) [defining a “youth” as “any person under 26 years of age on the date the offense was committed”].) Gonzales was 20 years old at the time he stabbed C.P.
The Attorney General concedes, and we concur, that this ameliorative change in the law applies retroactively to Gonzales’s case because it is not yet final. (See People v. Flores (2022) 73 Cal.App.5th 1032, 1038–1039 [finding Assembly Bill No. 124’s youthful offender provisions retroactive].) We must therefore vacate Gonzales’s three-year midterm sentence. Although Gonzales initially argued we should simply impose the lower term, he seems to concede in his reply brief that remand for resentencing is the appropriate course of action, and we agree. The new amendments do not “require imposition of the lower term in every case in which the defendant was under age 26 at the time the crime was committed. Rather, this provision establishes a presumption of the lower term if the defendant's youth was ‘a contributing factor’ in his or her commission of the crime ‘unless the court finds that the aggravating circumstances outweigh the mitigating circumstances [such] that imposition of the lower term would be contrary to the interests of justice.’ ” (Flores, at p. 1039, quoting § 1170, subd. (b)(6).) Thus, we remand this case to the trial court to make these determinations in the first instance.
Under such circumstances, the trial court must conduct a full resentencing (People v. Buycks (2018) 5 Cal.5th 857, 893), and this process will necessarily require the trial court to apply “the law in effect at the time of that resentencing” (People v. Walker (2021) 67 Cal.App.5th 198, 205). Thus, in addition to considering any applicable legislative changes, Gonzales will be able to make all arguments regarding relevant aggravating and mitigating circumstances directly to the trial court.[‡] The Attorney General also concedes the calculation of custody credits was in error. On remand the trial court should reconsider the custody credits.[§]
III. DISPOSITION
The matter is remanded to the trial court for resentencing in accordance with this opinion. In all other respects, the conviction is affirmed.
WISS, J [**]
WE CONCUR:
HUMES, P. J.
MARGULIES, J.
(A164325N)
All statutory references are to the Penal Code unless otherwise specified.
[†] Because there was no preliminary hearing or trial in this case, we take our summary of the facts underlying the offense from the probation report.
[‡] We decline Gonzales’s request that we order the trial court to disregard certain aggravating circumstances on remand under a “dual use” theory. The dual use argument was not made below, and we find it more appropriate for the trial court to consider it first during resentencing.
[§] Because we agree the matter must be remanded for resentencing due to legislative changes and to correct the calculation of custody credits, we need not address Gonzales’s arguments regarding ineffective assistance of counsel.
[**] Judge of the San Francisco Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
