Filed 4/28/22 P. v. Diaz CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of Riverside County. Stephen J. Gallon, Judge. Affirmed in part and reversed in part with directions.

Steven A. Torres, 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, Acting Assistant Attorney General, Eric A. Swenson, Deputy Attorney General, for Plaintiff and Respondent.

INTRODUCTION

This is defendant and appellant Rafael Rodriguez Diaz’s second appeal in this case. At trial, the jury convicted Diaz on various charges and enhancements relating to three separate occasions when he fled from police to avoid arrest, including a conviction for attempted murder of a police officer. Diaz admitted to prior convictions, which included one strike prior (Pen. Code,[1] §§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1)), one serious felony prior (§ 667, subd. (a)), and three prison priors (§ 667.5, subd. (b)). He was sentenced to a total of 64 years four months to life in prison. (People v. Diaz (Sep. 28, 2020, E071215) [nonpub. opn.] (Diaz I).)

In his first appeal, we affirmed Diaz’s convictions but remanded the case with directions to the trial court to exercise its discretion under sections 667, subdivision (a)(1), and 1385, as amended by Senate Bill No. 1393 (Stats. 2018, ch. 1013, §§ 1-2); to strike the enhancements imposed under former section 667.5, subdivision (b); to consider Diaz’s arguments and evidence regarding his inability to pay fines and fees; and to resentence Diaz in light of our conclusion that the 10-year enhancement, which was imposed on count 8, should be stayed under section 654 if punishment for the firearms enhancement of count 6 was again imposed.

On remand, the trial court denied Diaz’s motion to strike the prior strike offense pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). The trial court stayed the 10-year gun enhancement term on count 8, struck the three one-year enhancements pursuant to section 667.5, subdivision (b), and struck all fines and fees, but otherwise imposed the same sentence, for a total of 51 years to life.

In this appeal, Diaz argues that the court abused its discretion when it denied his Romero motion. He also argues several new sentencing laws that went into effect on January 1, 2022, apply retroactively to his case and require that his sentence be vacated: (1) Assembly Bill No. 518 (2021-2022 Reg. Sess.); (2) Senate Bill No. 567 (2021-2022 Reg. Sess.); and (3) Assembly Bill No. 124 (2021-2022 Reg. Sess.). Diaz further claims that the abstract of judgment does not accurately reflect his actual custody credits or the court’s oral pronouncement of judgment waiving fines and fees.

We disagree that the court abused its discretion when it denied Diaz’s Romero motion. We agree with the parties, however, that the matter must be remanded; the postsentencing changes to the law require Diaz to be resentenced, at which time the trial court can recalculate Diaz’s custody credits and correct the abstract of judgment to reflect that fees and fines have been stricken.

BACKGROUND[2]

Diaz’s convictions arise from three separate incidents.

August 6, 2013 Incident

A sheriff deputy saw Diaz standing by a Honda Civic and recognized him as a wanted parolee at large. Diaz fled on foot and evaded arrest. During a search of the Honda, the deputy found Diaz’s identification card and a loaded handgun, which was determined to be stolen.

August 19, 2013 Incident

The same deputy saw Diaz driving the same Honda Civic. After a high-speed chase of 21 minutes and 18 miles, with Hemet police taking over the pursuit, Diaz was apprehended when his car broke down. Police found a box of ammunition in the car’s trunk.

January 24, 2014 Incident

A Hemet police officer attempted to stop Diaz after noticing his car had a modified exhaust and observing it roll through a stop sign. Diaz pulled over briefly but then sped away after the officer came to a stop and opened his door. After a high-speed chase, the officer temporarily lost sight of the vehicle, but then saw sparks in the distance, which he believed were caused by Diaz’s car bottoming out as it went over dips in the road at a high rate of speed. When the officer caught up to the car, he noticed that it was at an angle to the curb on the opposite side of the street. Diaz testified that he lost control of the car and slid into the curb, at which point the car stalled and would not restart.

The officer pulled up alongside the car, believing that Diaz had already fled on foot. As he did so, he shined a spotlight into the car and saw Diaz still sitting in it. As the officer opened his door and stepped out of his car, from 10 or 15 feet, he saw Diaz fumbling with something in the center console and then point a revolver at him. The officer dove backward. As he did, he heard gunfire. It was later determined that Diaz fired the revolver—a .357 Magnum—twice, but the officer was not hit. The officer returned fire, as did two other officers who arrived on scene. Diaz was shot three times. After a standoff of approximately 17 minutes, Diaz surrendered and was taken into custody.

Original Sentencing

Diaz was tried and convicted on nine counts, including: two counts of being a felon in possession of a firearm (Pen. Code, § 29800, subd., (a)(1), counts 1, 9); one count of being a felon in possession of a loaded firearm in a public place (Pen. Code, § 25850, subd. (c)(1), count 2); a misdemeanor count of evading a police officer (Pen. Code, § 148, subd. (a)(1), count 3); two counts of fleeing a pursuing officer with willful and wanton disregard for safety (Veh. Code, § 2800.2, counts 4 & 8); one count of being a felon in possession of ammunition (Pen. Code, § 30305, count 5); one count of attempted murder of a peace officer (Pen. Code, §§ 664, subd. (e), 187, subd. (a), count 6); and one count of assault with a firearm (Pen. Code, § 245, subd. (d)(1), count 7).

Diaz was also convicted on alleged firearm and recidivism-based enhancements. The firearm enhancements included, as to count 6, that Diaz personally discharged a firearm (§§ 12022.53, subd. (c), 1192.7, subd. (c)(8)), and as to counts 7 and 8, that Diaz personally used a firearm during the commission of the crimes (§§ 12022.5, subd. (a), 1192.7, subd. (c)(8)). The recidivism-based enhancements included, as to counts 6 through 9, that the crimes were committed while Diaz was on bail. (§ 12022.1.) Diaz also admitted to one strike prior (§§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1)), one serious felony prior (§ 667, subd. (a)), and three prison priors (§ 667.5, subd. (b)).

The trial court imposed a sentence of several consecutive terms: as to count 6, a term of seven years to life, doubled to 14 years to life by the strike prior conviction, plus a 20-year term for the firearms enhancement; four terms of one year four months for counts 1, 4, 5, and 9; as to count 8, a six-year term, plus 10 years for the firearms enhancement and two years for the on-bail enhancement; five years for the serious felony prior; and two one-year terms for two of the prison priors (the third was stricken). The trial court initially calculated this sentence to add up to 54 years four months to life. It later corrected this error, imposing the same terms but correctly describing the total as 64 years four months to life.

Resentencing

In the first appeal, we remanded to the trial court for resentencing in accordance with Senate Bill No. 1393 (2017-2018 Reg. Sess.) and Senate Bill No. 136 (2019-2020 Reg. Sess.). We ordered that upon resentencing, the trial court strike the prison priors and exercise its discretion to determine whether to strike the prior serious felony conviction pursuant to sections 667, subdivision (a), and 1385, subdivision (b). We also directed the trial court to stay punishment for the firearms enhancement of count 8 if it again imposed punishment for the firearms enhancement in count 6. Finally, we instructed the trial court to, if requested, consider Diaz’s arguments and evidence regarding his inability to pay fines and fees that otherwise would be imposed.

During the August 2021 resentencing hearing, Diaz moved to dismiss his prior strike offense, which was a conviction for violating section 422 (criminal threats) pursuant to Romero. The trial court denied the Romero motion. The court stayed the 10-year gun enhancement term on count 8, struck the three prison prior enhancements pursuant to section 667.5, subdivision (b), and struck all fines and fees. In total, Diaz’s new sentence is 51 years to life.

DISCUSSION

A. Romero Motion

Diaz contends that the trial court abused its discretion by denying his Romero motion. We find no abuse of discretion.

California’s three strikes law was designed “ ‘to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of one or more serious and/or violent felony offenses.’ ” (People v. Sasser (2015) 61 Cal.4th 1, 11.) Section 1385, subdivision (a), however, “permit[s] a court acting on its own motion to strike prior felony conviction allegations in cases brought under the Three Strikes law.” (Romero, supra, 13 Cal.4th at pp. 529-530.) “A court’s discretion to strike prior felony conviction allegations in furtherance of justice is limited.” (Id. at p. 530.) “ ‘ “ ‘n furtherance of justice,’ requires consideration both of the constitutional rights of the defendant, and [i]the interests of society represented by the People, in determining whether there should be a dismissal. [Citations.]” [Citations.] At the very least, the reason for dismissal must be “that which would motivate a reasonable judge.” ’ ” (Id. at pp. 530-531.)

In People v. Williams (1998) 17 Cal.4th 148, the California Supreme Court set forth the factors a court should consider when exercising its section 1385 discretion in a three strikes case. In deciding whether to dismiss a strike “ ‘in furtherance of justice’ . . . or in reviewing such a ruling, the court in question must consider whether, in light of the nature and circumstances of his [or her] present felonies and prior serious and/or violent felony convictions, and the particulars of his [or her] background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he [or she] had not previously been convicted of one or more serious and/or violent felonies.” (Id. at p. 161.) The sentence to be meted out to the defendant “is also a relevant consideration . . . in fact, it is the overarching consideration because the underlying purpose of striking prior conviction allegations is the avoidance of unjust sentences.” (People v. Garcia (1999) 20 Cal.4th 490, 500.)

We review the denial of a Romero motion for abuse of discretion. (Williams, supra, 177 Cal.4th at p. 162.) “In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ‘ “[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.” ’ [Citation.] Second, a ‘ “decision will not be reversed merely because reasonable people might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’ ” ’ [Citation.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (People v. Carmony (2004) 33 Cal.4th 367, 376-377.)

“Because the circumstances must be ‘extraordinary . . . by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack’ [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary.” (People v. Carmony, supra, 33 Cal.4th at p. 378.)

No such extraordinary circumstances exist here. The trial court considered the relevant factors and explained its reasoning for denying Diaz’s Romero motion. Specifically, it stated that it considered the facts and circumstances of the current case, Diaz’s background, the timing of the background, the fact that he previously absconded from parole, and the circumstances of the strike prior. Although the victim here, who is a police officer, was not injured, Diaz’s current convictions are for crimes of violence. His adult criminal history is extensive and, not including the most recent convictions, include felony convictions for second degree burglary (§ 459), criminal threats (§ 422), participation in a criminal street gang (§ 186.22, subd. (a)), and unlawfully and maliciously injuring or obstructing a telephone line “or appurtenances or apparatus connected therewith” (§ 591). Diaz also has a history of probation and parole violations. He served two prison terms—once for four combined cases, including his strike prior, for a total of 16 months beginning in April 2008. He served another prison sentence of two years when he pled guilty to possessing bullets, violating section 186.22, subdivision (a), and violating parole, beginning in January 2012.

The first offenses in this case were committed in August 2013, when Diaz was a parolee at large. The crime spree ended in January 2014, when Diaz was arrested after a dangerous vehicle pursuit and the attempted murder of a police officer. Diaz committed these crimes less than two years after his section 186.22, subdivision (a) conviction, violation of parole, and two-year prison sentence. The current offenses were committed only approximately five years after his conviction for the strike prior and his prison sentence for that charge. This is hardly remote, as the trial court found. The court was well within its discretion to conclude that Diaz’s continuous history of criminal behavior brought him within the spirit of the three strikes law. (See People v. Leng (1999) 71 Cal.App.4th 1, 14 [“The well-recognized purpose of the three strikes law is to provide increased punishment for current offenders who have previously committed violent or serious crimes and have therefore not been rehabilitated or deterred from further criminal activity as a result of their prior imprisonment.”]; see also Williams, supra, 17 Cal.4th at p. 163 [defendant’s criminal history indicated that he “ ‘had been taught, through the application of formal sanction, that [such] criminal conduct was unacceptable—but had failed or refused to learn his lesson’ ”].)

The trial court also weighed the circumstances of the strike prior. Again, not only was it not remote in time, but, contrary to Diaz’s claim, it was not “minimal” in nature. Indeed, while he was convicted of violating section 422 for only threatening the mother of his children, the incident actually involved violence. He hit the victim twice and pulled a necklace off of her neck. Officers retrieved the necklace from Diaz’s pocket and observed that the victim had sustained minor redness to the left side of her face. Additionally, when officers placed Diaz in handcuffs and put him in the rear of the patrol vehicle, he became extremely irate and began yelling and banging his head against the car’s windows and steel cage. He continually tried to kick out the windows. Diaz demonstrated this obstreperous behavior throughout the arrest and in the holding cell area of the Sheriff’s station. This is one part of a larger picture of Diaz’s pattern of defiance toward police officers, which included a history of fleeing from the police.

The court also weighed and considered Diaz’s background. He not only had a longstanding drug problem that began in childhood, but there is no evidence that he pursued treatment or was willing to do so. Diaz started fighting when he was a junior in high school and when he was in high school, he was arrested for fighting and went to juvenile hall. A school pre-expulsion assessment from March 2003 indicated that then 15-year-old Diaz had gotten into a fight with another student because the student looked at him “the wrong way.” Diaz acknowledged he “sometimes” got into trouble with the police; he “often” threatened to hurt others; he would “sometimes” throw tantrums; and he “often” used illegal drugs. He did not show any remorse for his role in the fight or a willingness to change his behavior. When he was 16 or 17 years old, Diaz became a gang member and hung out with gang members who did drugs. Diaz’s mother confirmed that the relationship between Diaz and the mother of his children was dysfunctional, and she saw them involved in a physical fight on one occasion. In light of Diaz’s history of gang involvement, drug use, and violence, we cannot say the trial court’s conclusion that he did not lie outside of the intent of the three strikes law was so irrational or arbitrary that no reasonable person could agree with it. (See People v. Philpot (2004) 122 Cal.App.4th 893, 906-907.)

The trial court also did not abuse its discretion by failing to take into account how old Diaz will be when he is eligible for parole consideration. In addressing whether middle age is a factor in dismissing a prior strike, the court in People v. Strong (2001) 87 Cal.App.4th 328, 345, stated, “middle age, considered alone, does not remove a defendant from the spirit of the Three Strikes law” because “[o]therwise those criminals with the longest criminal records over the longest period of time would have a built-in argument that the very factor that takes them within the spirit of the Three Strikes law—a lengthy criminal career—has the inevitable consequence—middle age—that takes them outside the law’s spirit.” So too here, Diaz’s age did not necessarily warrant a lesser punishment or take him out of the spirit of the three strikes law.

Much of Diaz’s argument boils down to asserting that the trial court should have weighed certain factors more heavily than it did. That does not establish an abuse of discretion. Because the trial court properly “ ‘balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law,’ ” its determination was not erroneous. (People v. Carmony, supra, 33 Cal.4th at p. 378.) Diaz “ ‘is the kind of revolving-door career criminal for whom the Three Strikes law was devised.’ ” (People v. Pearson (2008) 165 Cal.App.4th 740, 749, quoting People v. Gaston (1999) 74 Cal.App.4th 310, 320; see People v. McGlothin (1998) 67 Cal.App.4th 468, 475-476 [defendant falls within the spirit of the three strikes law based on crime’s potential for great bodily injury, the number and seriousness of a defendant’s prior convictions, poor previous performance on probation, additional crimes intervening between the strike offenses and current offense, and multiple convictions for similar behavior.].)

Thus, we conclude the trial court did not abuse its discretion in declining to strike Diaz’s prior strike conviction.

B. Assembly Bill No. 518

Diaz contends that he may be resentenced under Assembly Bill No. 518. (Stats. 2021, ch. 441, § 1.) The People concede the point. We agree.

Assembly Bill No. 518 amended section 654, subdivision (a), to provide: “An act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision.” Previously, under section 654, “the sentencing court was required to impose the sentence that ‘provides for the longest potential term of imprisonment’ and stay execution of the other term. [Citation.] . . . [S]ection 654 now provides the trial court with discretion to impose and execute the sentence of either term, which could result in the trial court imposing and executing the shorter sentence rather than the longer sentence.” (People v. Mani (2022) 74 Cal.App.5th 343, 379.) Because Assembly Bill No. 518 may result in a shorter term of imprisonment, it applies retroactively to Diaz’s nonfinal convictions. (See ibid.) We therefore remand for the court to resentence Diaz under amended section 654.

C. Senate Bill No. 567

Diaz further contends that he may be resentenced under Senate Bill No. 567. (Stats. 2021, ch. 731, § 1.3.) Again, the People have conceded this issue, and we agree.

Under Senate Bill No. 567, the trial court must impose a term of imprisonment not exceeding the middle term unless (1) aggravating circumstances have been established by stipulation or found true beyond a reasonable doubt at trial, or (2) the defendant has suffered prior convictions as established by certified records. (§ 1170, subd. (b), as amended by Sen. Bill No. 567, Stats. 2021, ch. 731, § 1.3.) The new law generally allows for a bifurcated trial on these aggravating circumstances. (§ 1170, subd. (b)(2).)

The amendments to section 1170 apply retroactively here because the judgment was not final when they went into effect and there is no indication that the Legislature intended the amendments to only apply prospectively. (See People v. Flores (2022) 73 Cal.App.5th 1032, 1038-1039; In re Estrada (1965) 63 Cal.2d 740, 745-746.) We therefore remand for the court to resentence Diaz under amended section 1170.

D. Assembly Bill No. 124

Diaz argues that he may also be resentenced under Assembly Bill No. 124 (Stats. 2021, ch. 695, § 4), which became effective January 1, 2022. The People agree, as do we.

Assembly Bill No. 124 added section 1016.7. It also added subdivision (b)(6) to section 1170, which now provides that “unless the court finds that the aggravating circumstances outweigh the mitigating circumstances that imposition of the lower term would be contrary to the interests of justice, the court shall order imposition of the lower term if any of the following was a contributing factor in the commission of the offense: [¶] (A) The person has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence. [¶] (B) The person 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. [¶] (C) Prior to the instant offense, or at the time of the commission of the offense, the person is or was a victim of intimate partner violence or human trafficking.” A “ ‘youth’ ” is defined as “any person under 26 years of age on the date the offense was committed.” (§ 1016.7, subd. (b).)

There is no evidence suggesting the Legislature intended for these changes to the law to apply prospectively only. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 306-308 [absent evidence to the contrary, ameliorative amendments to criminal punishments apply to all cases not yet final on the amendment’s operative date]; People v. Flores, supra, 73 Cal.App.5th at pp. 1038-1039.) Remand is therefore necessary for the court to resentence Diaz under amended section 1170.

E. Custody Credits

Diaz contends that at the resentencing hearing in August 2021, the trial court failed to award him the correct amount of actual presentence and postsentence custody credits. He claims that the court awarded him credits from only the time of his original sentencing hearing in August 2018 until his resentencing hearing in August 2021. He further argues that the court failed to award any presentence conduct credits, including those that were awarded prior to the August 2018 hearing.

This dispute is moot since the matter must be remanded for resentencing in any case, and thus recalculation of Diaz’s presentence custody credits based on the new sentencing date. (See People v. Buckhalter (2001) 26 Cal.4th 20, 41.) We therefore need not and do not decide the matter.

F. Fines and Fees

Finally, Diaz argues that the abstract of judgment needs to be amended to reflect the oral pronouncement of judgment indicating that the court struck all fines and fees. The People agree, as do we. A new abstract will issue after resentencing.

The current abstract of judgment lists two fines even though at the resentencing hearing, the trial court struck all fines and fees other than direct restitution. Because the trial court’s oral judgment controls, neither the minute order nor the abstract of judgment may “add to or modify the judgment it purports to digest or summarize.” (People v. Mitchell (2001) 26 Cal.4th 181, 185.) If at the resentencing hearing, the trial court again strikes all fines and fees other than restitution, the abstract of judgment issued at that time should reflect that all fines and fees have been stricken except for direct restitution.

DISPOSITION

Diaz’s sentence is vacated, and the matter is remanded to the trial court for resentencing in light of Assembly Bill Nos. 518 and 124, and Senate Bill No. 567, including recalculation of Diaz’s presentence custody credits based on the new sentencing date, and if fines and fees are again stricken, the court should ensure that the new abstract of judgment reflects the court’s decision to strike all fines and fees except for direct restitution.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAPHAEL

J.

We concur:

CODRINGTON

Acting P. J.

MENETREZ

J.

[1] Undesignated references are to the Penal Code.

[2] We take judicial notice of the record on appeal filed in this court in Diaz I, as well as this court’s unpublished opinion in that matter. (Evid. Code, §§ 451, subd. (a), 452, subd. (d), 459, subd. (a).) We derive the factual and procedural background in part from our prior opinion.