Filed 5/16/22 P. v. Arredondo CA4/2

Opinion following rehearing

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. David A. Gunn, Judge. Affirmed in part; 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, Arlene A. Sevidal, Assistant Attorney General, Eric A. Swenson and Heather M. Clark, Deputy Attorneys General, for Plaintiff and Respondent.

I. INTRODUCTION

Following a prior appeal in this court (People v. Arredondo (2017) 13 Cal.App.5th 950 [E064206]) and review in the California Supreme Court (People v. Arredondo (2019) 8 Cal.5th 694 [S244166]), defendant and appellant, Jason Aaron Arredondo, appeals from the August 12, 2020 judgment resentencing him to 22 years four months plus 200 years to life in state prison. In 2015, defendant was convicted in 14 counts of committing sex offenses against four minor girls—his three stepdaughters and one of their friends. In 2019, our Supreme Court reversed defendant’s convictions in counts 3, 4, and 5—the convictions involving defendant’s oldest stepdaughter. (People v. Arredondo, supra, 8 Cal.5th at p. 712.) On August 12, 2020, the court dismissed the charges in counts 3, 4, and 5 after the People said they would not retry them.

In their original briefing in this appeal, the parties agreed that the August 12, 2020 judgment had to be amended in two respects: to 1) reduce the total per-conviction fees from $980 to $770 to reflect that defendant stood convicted in 11 counts, not 14; and 2) award defendant 1,835 additional days of custody credits for the time he spent in custody between his original sentencing on August 4, 2015 and his August 12, 2020 resentencing. On April 6, 2022, we issued a decision amending the judgment in these two respects. (People v. Arredondo (E077370, April 6, 2022) [non pub. opn.].)

Defendant petitioned for rehearing, claiming the matter must be remanded for resentencing on the determinate counts (1, 12, and 14) so the court can determine whether the lower term must be imposed on count 12, the principal count, in light of the intervening enactment of Assembly Bill No. 124 (2021-2022 Reg. Sess.) (Assembly Bill 124 or the bill), following defendant’s August 12, 2020 resentencing. The bill amended Penal Code section 1170, subdivision (b),[1] effective January 1, 2022, to make the lower term the presumptive term when one or more specified circumstances was a contributing factor in the defendant’s commission of the offense. (§ 1170, subd. (b)(6); Stats 2021, ch. 695, § 5.3, eff. Jan. 1, 2022.)

We granted rehearing, vacating our April 6, 2020 decision, after the People filed a requested answer to the petition. (Cal. Rules of Court, rule 8.268.) In our order granting rehearing, we deemed the petition and answer to be the parties’ supplemental briefs on the effect of Assembly Bill 124 on the August 12, 2020 judgment. The People agree, as do we, that Assembly Bill 124 retroactively applies to defendant’s August 12, 2020 judgment. (People v. Flores (2022) 73 Cal.App.5th 1032, 1038-1939.)

The People argue, however, that remand for resentencing on the determinate counts (counts 1, 12, and 14) would be futile because the court would “certainly” find that the aggravating factors outweigh the mitigating factors, such that imposing the lower term on count 12, the principal count, would be contrary to the interests of justice. (§ 1170, subd. (b)(6).) On August 12, 2020, the court imposed the middle term of six years on count 12, doubled to 12 years based on defendant’s prior strike.

As we explain, remand for resentencing on counts 1, 12, and 14 would not necessarily be futile. Thus, we remand the matter for the court to determine whether any of the circumstances described in section 1170, subdivision (b)(6), was a contributing factor in defendant’s commission of count 12 and, if so, whether imposing the lower term on count 12 would be contrary to the interests of justice because the aggravating factors outweigh the mitigating factors. (§ 1170, subd. (b)(6).)

Although we are remanding the matter for resentencing on counts 1, 12, and 14, we amend the August 12, 2020 judgment to reduce defendant’s per-conviction fees from $980 to $770 and to award defendant 1,835 days of additional presentence custody credits, as we did in our now-vacated April 6, 2020 decision. We do so without prejudice to the court reducing or striking all or any part of the $770 in per-conviction fees or awarding defendant further presentence custody credits. We affirm the August 12, 2020 judgment of conviction and sentence in all other respects.

II. ADDITIONAL BACKGROUND

At his original sentencing on August 4, 2015, defendant was sentenced to 33 years plus 275 years to life in prison on 14 convictions and several sentencing enhancements. On appeal in 2017, this court affirmed each of defendant’s 14 convictions and remanded the matter for resentencing on counts 1, 12, and 14. (People v. Arredondo, supra, 13 Cal.App.5th at p. 981.) Counts 1, 12, and 14 carried determinate terms, and count 12 was selected as the principal count, but the court erroneously imposed full consecutive terms on counts 1 and 14, the subordinate counts, rather than one-third of the middle term. (§1170.1.)

In 2019, our Supreme Court reversed defendant’s convictions in counts 3, 4, and 5, the convictions involving his oldest stepdaughter, and remanded the matter for resentencing on counts 1, 12, and 14, as this court had done. (People v. Arredondo, (2019) 8 Cal.5th 694, 712.) At resentencing on August 12, 2020, the court dismissed the charges in counts 3, 4, and 5 after the People said they would not retry them. The court resentenced defendant on his remaining 11 convictions (including counts 1, 12, and 14) to 22 years four months plus 200 years to life in prison.

Eight of defendant’s 11 convictions (those in counts 2, 6 through 11, and 13) are for oral copulation with a child under age 14. (§ 288, subd. (a).) The court was required to sentence defendant to 25 years to life on each of these counts based on the jury’s one strike law finding that defendant committed the crimes against more than one victim. (§ 667.61, subds. (a), (e)(4).) Thus, defendant’s indeterminate sentence of 200 years to life consists of eight consecutive terms of 25 years to life on counts 2, 6 through 11, and 13. The dismissed charges in counts 3, 4, and 5 were also for lewd acts that carried terms of 25 years to life based on the jury’s one-strike-law finding.[2]

On the determinate counts (1, 12, and 14)) defendant was convicted of a lewd act on a child under age 16 (§ 288, subd. (c )(1); count 1) oral copulation with a child under age 14 (§ 288a, subd. (c)(1)); count 12) and sexual penetration with a child under age 14 (§ 289, subd. (j); count 14). His 22-year-four-month determinate sentence is comprised of the middle term of six years on count 12, the principal count, doubled to 12 years based on the prior strike, plus one-third of the middle term (two years) on count 14, doubled to four years based the prior strike, plus one-third of the middle term (eight months) on count 1, doubled to 16 months based on the prior strike, plus five years for the prior serious felony conviction, for a total of 22 years four months.[3]

III. DISCUSSION

A. Errors in Calculating the Court Fees and Custody Credits

As the parties agree, defendant’s August 12, 2020 judgment of conviction and sentence includes two unauthorized sentences, one concerning the calculation of his per-conviction court fees and the other concerning his presentence custody credits. A sentence that “could not lawfully be imposed under any circumstances in the particular case” constitutes an unauthorized sentence which may be corrected at any time including on appeal. (People v. Scott (1994) 9 Cal.4th 331, 354-355.) Unauthorized sentences present “ ‘pure questions of law,’ ” which are “ ‘ “clear and correctable” ’ ” without regard to factual questions. (People v. Smith (2001) 24 Cal.4th 849, 852.)

1. $210 in Unauthorized Court Fees Must Be Stricken from the Judgment

On August 12, 2020, the court imposed court-facilities fees of $40 (Pen. Code, § 1465.8, subd. (a)(1), and court operations fees of $30 (Gov. Code, § 70373) on each of defendant’s original 14 convictions, including his reversed convictions in counts 3, 4, and 5. A total of $560 in court facilities fees ($40 times 14 equals $560) and $420 in court operations fees ($30 times 14 equals $420), or a total of $980 were imposed.

As the parties agree, the per-conviction fees on counts 3, 4, and 5 must be stricken. This will reduce the per-conviction fees by $210, from $980 to $770. Defendant does not challenge his per-conviction fees on any other ground. Our amendment of the judgment to strike the fees on counts 3, 4, and 5 is without prejudice to the court reducing or striking the fees on defendant’s other 11 convictions at his third sentencing hearing.

2. Defendant Is Entitled to 1,835 Additional Days of Custody Credits

At his original sentencing on August 4, 2015, defendant was awarded 701 days of custody credits for the time he actually spent in custody before August 4, 2015, the date he was originally sentenced. (§ 2900.5.) At his resentencing on August 12, 2020, the court did not award defendant any additional custody credits for the 1,835 days he spent in custody between August 4, 2015 and August 12, 2020. (§ 2900.1.) As the parties agree, defendant is entitled to an additional 1,835 days of custody credits against his August 12, 2020 sentence, for a total of 2,536 days, reflecting the 2,536 days he actually spent in custody before he was resentenced on August 12, 2020. (§§ 2900.5, 2900.1; People v. Buckhalter (2001) 26 Cal.4th 20, 29 [“[W]hen a prison term already in progress is modified as the result of an appellate sentence remand, the sentencing court must recalculate and credit against the modified sentence all actual time the defendant has already served, whether in jail or prison, and whether before or since he was originally committed and delivered to prison custody.”].)

B. Resentencing Is Necessary in Light of Assembly Bill 124 (2021-2022 Reg. Sess.)

On October 8, 2021, while this appeal was pending, the Governor signed Assembly Bill 124 (Reg. Sess. 2021-2022) into law (Stats. 2021, ch. 695, §§ 1-5.3.) The new legislation amended section 1170, effective January 1, 2022, to require courts to impose the lower of three possible terms on a conviction (lower, middle, and upper), if one or more specified circumstances was a contributing factor in the commission of the offense, “unless the court finds that the aggravating circumstances outweigh the mitigating circumstances [such] that imposition of the lower term would be contrary to the interest of justice.” (§ 1170, subd. (b)(6); Stats. 2021, ch. 695, § 5.3.)

Thus, newly revised section 1170, subdivision (b), makes the lower term the presumptive term, if one or more of the circumstances specified in the statute was a contributing factor in the commission of the offense. But the presumption fails, and the court is not required to impose the lower term, if it finds the aggravating circumstances outweigh the mitigating circumstances such that imposition of the lower term would be contrary to the interest of justice. (§ 1170, subd. (b)(6); Stats. 2021, ch. 695, § 5.3.)

Three specified circumstances will make the lower term the presumptive term: 1) the defendant “has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence,” 2) 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 3) “[p]rior 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.” (§ 1170, subd. (b)(6)(A)-(C).)[4]

The record shows defendant was not a youth at the time of the commission of the current offenses; he was in his 30s. Nor does defendant suggest he was ever a victim of intimate partner violence or human trafficking. He argues, however, that “the record suggests [he suffered from] childhood trauma although it is a factor which could be fleshed out in any subsequent hearing,” including at resentencing. Thus, he suggests he suffered childhood trauma and that this trauma contributed to his commission of the oral copulation offense in count 12. (§ 1170, subd. (b)(1)(6)(A).) He adds that he “is certainly a person of color, the group that was aimed at in the statute as being disproportionately impacted by long sentences, such as happened in this case.”[5]

As the People observe, defendant “points to nothing in the record” that might show he suffered childhood trauma that contributed to his commission of the offense in count 12. The People also argue that, even if defendant can show that one or more of the specified circumstances was a contributing factor in his commission of count 12, remand for resentencing on count 12 would be futile or an “idle act” because the record shows the court would “certainly” not impose the lower term on count 12 in any event.

We disagree that remand will necessarily be futile. The record does not “clearly indicate” that the court will necessarily find that aggravating factors outweigh mitigating factors, such that imposing the lower term on count 12 would be contrary to the interests of justice, if defendant shows and the court finds that one or more specified circumstances was a contributing factor in the commission of count 12. (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 [resentencing required when court was unaware of its discretionary sentencing choices unless the record “ ‘clearly indicates’ ” that the court would have imposed the same sentence had it been aware of its discretion].)

As the People point out, defendant spoke at his original sentencing hearing on August 4, 2015, and, in doing so, briefly referred to his 1999 conviction for committing a lewd act on his younger cousin, a child under age 14. (§ 288, subd. (a).) He said: “My prior . . . situation, you know, that I had admitted to and I did my time. The issu[e] with my family back when I was [a] child, and the hatred that became of it, I can’t say that I did that—I mean, I can’t say that there—well, there is a lot of hatred towards me through that side of the family, and the . . . issue was when I did come home, my family especially on that side was understanding and they realized that I wasn’t the same man as [I was] when I went in or even before when I was [a] child. [¶] I didn’t sit there and manipulate anybody in my family, my friends, the people around me, my grandparents, my aunts and my uncles. They all have their own decisions and they have their own assumptions, and they are intelligent enough to make up their own mind[s] about me.” (Italics added.)

The People argue that the words defendant used at his original sentencing hearing do not show that he suffered any childhood trauma that contributed to his prior section 288 offense against his younger cousin. But, as the People themselves point out, defendant “did report to the probation officer that his oldest brother physically abused him” when he, defendant, was between the ages of 10 and 15. The older brother “would punch him repeatedly in the face while he was sleeping, then would kiss him on the forehead.” Defendant also said he later “ ‘gave’ ” his older brother “ ‘a good beating’ ” when the older brother was 18 years old and returned home from the Marines.

Based on defendant’s comments at his original sentencing hearing and his statements to his probation officer about his older brother beating him as a child, the People argue that, “to the extent” defendant “might have suffered any trauma, it appears either that it resulted from the sexual offense he committed [against his younger cousin], or to the extent it was caused by other members of his family [his older brother, e.g.,] he made peace with it” before he committed his current offenses, including count 12. (Added italics.) The People alternatively argue, “there is no indication whatsoever” that defendant either suffered childhood trauma or, if he did, that the trauma “had any bearing” on his commission of count 12.

But as defendant argues, whether he suffered childhood trauma that contributed to his commission of count 12 can be “fleshed out” at resentencing. Further, and contrary to the People’s argument, the record does in fact suggest that defendant suffered childhood trauma—the beatings at the hands of his older brother. Although the record does not reveal whether these beatings were a contributing factor in defendant’s commission of count 12 or any of his other offenses, this too can be determined at resentencing.

The record does not foreclose the possibility that the childhood trauma or beatings that defendant suffered at the hands of his older brother contributed to his commission of the offense in count 12, the principal count. (Cf. People v. Jefferson (2019) 38 Cal.App.5th 399, 409 [remand to consider whether the defendant was eligible for mental health diversion was futile where the court’s prior comments clearly indicated that the court would find the defendant ineligible].) No evidence shows that factors other than childhood trauma were the sole cause or causes of defendant’s commission of count 12. Nor did the court say anything at defendant’s August 12, 2020 resentencing hearing to indicate that, upon resentencing, the court will certainly find that aggravating circumstances outweigh the mitigating circumstances on count 12, such that imposition of the lower term would be contrary to the interest of justice. (§ 1170, subd. (b)(6).)

Thus, we remand the matter for resentencing so the court may determine whether the lower term is the presumptive term on count 12, and if so whether it must impose the lower term on count 12. We remand for full resentencing so as not to preclude the court from exercising its sentencing discretion in light of changed circumstances. (People v. Buycks (2018) 5 Cal.5th 857, 893 [“when part of a sentence is stricken on review, on remand for resentencing ‘a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances’ ”]; People v. Valenzuela (2019) 7 Cal.5th 415, 424-425 [“the full resentencing rule allows a court to revisit all prior sentencing decisions when resentencing a defendant”].)

IV. DISPOSITION

The August 12, 2020 judgment is amended: 1) to strike defendant’s court operations and court facilities fees on counts 3, 4, and 5 thus reducing the total amount of court fees from $980 to $770, and to 2) award defendant 1,835 additional days of presentence custody credits, in addition to the 701 days of custody credits he was previously awarded, for a total of 2,536 days of actual custody credits against his August 12, 2020 sentence. (§§ 2900.5, 2900.1; People v. Buckhalter, supra, 21 Cal.4th at p. 29.) The matter is remanded for full resentencing so the court may (1) determine whether the lower term is the presumptive term on count 12, the principal count, and if so whether imposing the lower term would or would not serve the interests of justice (Pen. Code, § 1170, subd. (b)(6)), and (2) exercise its sentencing discretion anew in light of any changed circumstances. Following resentencing, the court is directed to prepare amended abstracts of judgment reflecting this court’s two changes to the August 12, 2020 judgment, and any other changes the sentencing court makes at resentencing, and to send a copy of the amended abstracts of judgment to the Department of Corrections and Rehabilitation. The August 12, 2020 judgment is affirmed in all other respects.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS

J.

We concur:

RAMIREZ

P. J.

SLOUGH

J.

[1] Undesignated statutory references are to the Penal Code.

[2] The jury also found that defendant engaged in substantial sexual conduct in counts 2 through 11 and 13. (§ 1203.066, subd. (a)(8).)

[3] Although in pronouncing sentence the court said it was sentencing defendant to 21 years four months plus 200 years to life, the court misspoke when it said “21 years” because the determinate portion of defendant’s sentence on counts 1 and 12, adds up to 22 years four months, as the sentencing minute order reflects.

[4] Section 1170, subdivision (b)(6), does not preclude the court from imposing the lower term “even if there is no evidence” that any of the circumstances listed in section 1170, subdivision (b)(6), were present. (§ 1170, subd. (b)(7).)

[5] According to its author, Assembly Bill 124 was necessary to reduce sentencing disparities for certain people, including “individuals of color” and “vulnerable populations.” (Sen Com. on Pub. Saf., Analysis of Assem. Bill No. 124 (2021-2022 Reg. Sess.), July 4, 2021, p. 8.) This analysis of the bill noted that “judges often lack the discretion to dismiss charges, reduce harsh sentences, and strike sentence enhancements to tailor court responses to adequately serve vulnerable populations and the interest of justice. Too often, limited opportunities to present relevant mitigating evidence, and limited judicial discretion to make fair and balanced decisions lead to inequitable outcomes for trauma victims.” (Ibid.)