Filed 5/15/17 P. v. Valdez CA4/3




NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

JOSE DAVID VALDEZ,

Defendant and Appellant.


G052863

(Super. Ct. No. 04CF1546)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Carla M. Singer, Judge. Reversed and remanded.
Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
* * *

FACTS
Appellant Jose David Valdez was convicted of an array of gang crimes in 2006. This court affirmed his conviction (People v. Valdez (Dec. 20, 2007, G037687) [nonpub. opn.]). No petition for review was filed from that decision, and the merits of his conviction are no longer before us. What is before us is his sentencing.
The jury found Valdez guilty of dissuading a witness by force or threat (Pen. Code , § 136.1; count 1); brandishing a firearm for the benefit of a criminal street gang (§§ 186.22, subd. (c), 417, subd. (a)(2); count 2), street terrorism (§ 186.22, subd. (a)(1); counts 3 and 6), possessing an assault weapon (§ 12280, subd. (b); count 4), and possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 5). The jury found true as to count 1 that he personally used a firearm (§ 12022.5, subd. (a)), and found true that he committed counts 1 and 4 for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)).
On September 15, 2006, at his first sentencing hearing, the trial court imposed an indeterminate term of 16 years, 8 months to life in prison: 5 years 8 months in state prison comprised of the middle term of 2 years on count 4, a 3-year term consecutive to count 4 for the gang enhancement, a consecutive 8-month term (one-third the middle term), on count 8, and consecutive 8-month terms (one-third the middle term) on counts 2, 3 and 6, stayed under section 654, plus an indeterminate term of 11 years to life on count 1, arrived at by imposing 7 years to life for the crime plus a consecutive 4-year term for the personal use of a firearm enhancement.
In 2015, in response to a habeas petition, the federal district court ordered that Valdez be resentenced. It found that his convictions for street terrorism were based on insufficient evidence. His matter was returned to the Orange County Superior Court for a second sentencing, and the judge who had presided over his trial resentenced him. At the resentencing hearing, his counsel asked that the court reconsider his sentence in its entirety, but the court refused. Instead, it vacated the convictions for counts 3 and 6 (the street terrorism counts), and resentenced him to 16 years, 8 months.
DISCUSSION
Valdez filed an appeal, and we appointed counsel to represent him on that appeal. Appellate counsel filed a brief that did not argue against her client, but advised the court she could find no issues to argue on his behalf. Valdez was invited to submit his own objections to the proceedings against him, and did so, along with other documents.
Under the law, this put the onus on us to review the record and see if we could find any issues that might be arguable as error. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) It should be emphasized that our search was not for issues upon which Valdez would prevail, but only issues upon which he might possibly prevail.
In doing so, we were struck by the trial court’s assessment that it had no discretion to revisit Valdez’s sentencing in its entirety. She said she thought it would be “inappropriate” to reconsider the entire sentence. When the subject of recomputing the entire sentencing structure was broached, she said, “I do not believe that I have jurisdiction to entertain that argument.”
We felt she did, but were not about to reverse without giving both sides a chance to argue the issue, so we vacated submission on the Wende brief and ordered appellate counsel and the Attorney General to address the related questions of whether she had discretion and whether she realized she had discretion. It turned out to be a rare instance of unanimity.
Both appellate counsel and the Attorney General submitted letter briefs in which they agreed the trial judge had the discretion to resentence ab initio. Neither law nor the federal district court’s order restricts the discretion of the resentencing court – except for the requirement it obey the federal court’s order to dismiss counts 3 and 6. The only limitation on that power is that the new aggregate sentence cannot exceed the original. (In re Guiomar (2016) 5 Cal.App.5th 265, 273-274 [review granted on different issue; still pending]; People v. Burbine (2003) 106 Cal.App.4th 1250.)
And both parties agreed the record seemed to indicate the trial court was unaware it had such discretion. The Attorney General – in an action that never fails to impress – conceded the matter must be remanded for a complete resentencing. We will do so.
Appellate counsel also argued the trial court should have considered the effect of Miller v. Alabama (2012) 567 U.S. 460 and whether Valdez’s punishment was a violation of the 8th Amendment prohibition of cruel and unusual punishment (Valdez was 17 when he committed the crimes in question). Miller was decided after Valdez was initially sentenced, but before his case became final.
Much has transpired concerning these issues since our court last addressed Valdez’s case – both statutorily (see § 3051), and judicially (see People v. Caballero (2012) 55 Cal.4th 262; People v. Franklin (2016) 63 Cal.4th 261). We have the benefit of law that was not available to the trial judge when she first sentenced him. But we do not have a record for resolving these issues. Appellate courts do not address issues in the first instance; we are required to allow the parties to establish the pertinent facts and explain the application of the law to those facts before we try to determine the proper resolution of a case. The applicability of the developments noted above to Valdez’s case must first be directed to the trial court.

We therefore reverse and remand the matter for a complete resentencing. Valdez will need a lawyer other than appellate counsel – whose appointment extended only to this appeal – to represent him at that proceeding.






BEDSWORTH, J.

WE CONCUR:



O’LEARY, P. J.



MOORE, J.