People v. Gutierrez CA3

Filed 11/17/23 P. v. Gutierrez CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication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

THIRD APPELLATE DISTRICT

(Butte)

----

THE PEOPLE, C097551

Plaintiff and Respondent, (Super. Ct. No. CM015323)

v.

PEDRO GUTIERREZ,

Defendant and Appellant.

In 2003, defendant Pedro Gutierrez was convicted of two counts of lewd and

lascivious acts upon a child under the age of 14 years (Pen. Code, § 288, subd. (a))1 and

one count of failing to register as a sex offender (§ 290). He was sentenced to an

aggregate term of 24 years four months, which included enhancements for two prior

prison terms (§ 667.5, subd. (b)) and a prior sexual offense conviction (§ 667.51,

1 Undesignated statutory references are to the Penal Code.

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subd. (a)). In 2022, the trial court found Gutierrez’s sentence included a now invalid

enhancement under section 1172.75 (former section 1171.1) and set the matter for

resentencing. The trial court struck Gutierrez’s prior prison term enhancements and

made no further modifications to the sentence. On appeal, Gutierrez argues the court

erred by failing to strike his prior sexual offense conviction enhancement under section

1385, subdivision (c), as the court did not consider and afford great weight to the fact that

the enhancement was over five years old and resulted in a sentence of over 20 years.

Because the record is ambiguous as to whether the trial court made an informed

sentencing decision not to strike the five-year prior conviction enhancement, we will

vacate the sentence and remand for resentencing.

BACKGROUND

We omit a summary of the facts underlying Gutierrez’s convictions because they

are not relevant to the issue raised on appeal.

In August 2022, the trial court reviewed the records on file in this case and found

Gutierrez “was convicted of an enhancement” described in section 1172.75.2 The trial

court appointed counsel and placed the matter on calendar for resentencing pursuant to

section 1172.75.

At the October 2022 resentencing hearing, defense counsel stated: “I think there is

only one issue . . . on the 667(a) [sic] petition which is the nickel prior. That was

mandatory at originally the sentencing. It’s now discretionary. However, if the

2 The record is silent as to whether the Department of Corrections and Rehabilitation

provided Gutierrez’s name and case number to the trial court prior to the resentencing.

(See § 1172.75, subd. (b).) We presume the Department of Corrections and

Rehabilitation performed its duty by the statutory deadline of July 1, 2022, approximately

one month before the trial court recalled and resentenced Gutierrez in this case.

(See Evid. Code, § 664.)

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prison prior[3] is over five years in the past, then it is no longer valid. [¶] And on that

issue, then, I would be submitting it. So, striking the (b) allegation is mandatory. The

(a) allegation should be stricken based on the fact that it’s over five years in age.” The

prosecutor submitted as to the prior prison terms, but noted “[a]s it relates to the nickel

prior, that should still be valid. . . . At the time of the filing of this case, it was over five

years old, but that does not invalidate it as a nickel prior. [¶] So I would ask the Court to

strike the prior prison terms and keep everything else as stated.” The trial court then

stated, “The Court is going to strike the two prior prison terms under Penal Code 667.5(d)

[sic]. That will be the extent of the modifications of the sentence.”

DISCUSSION

Gutierrez contends the trial court erred in resentencing under section 1172.75 by

failing to dismiss the prior conviction enhancement in accordance with the requirements

of section 1385. Specifically, Gutierrez contends the trial court failed to consider and

afford great weight to two enumerated mitigating circumstances under section 1385,

subdivision (c), that the prior conviction: (1) was over five years old; and (2) resulted in

a sentence over 20 years. The People respond that Gutierrez has failed to demonstrate the

trial court abused its discretion. The People also argue Gutierrez forfeited the claim that

the enhancement should have been dismissed as it resulted in a sentence over 20 years by

failing to raise that claim in the trial court.

Section 1172.75 expressly provides that if a judgment includes a qualifying prior

prison term enhancement, the trial court shall recall the sentence and resentence the

defendant. (§ 1172.75, subd. (c).) At any such resentencing, the court shall “apply any

other changes in law that reduce sentences or provide for judicial discretion so as to

3 It appears defense counsel misspoke in referencing the prison prior and the statutory

reference for the “nickel prior,” in this case that prior conviction enhancement is under

section 667.51, subdivision (a).

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eliminate disparity of sentences and to promote uniformity of sentencing.” (§ 1172.75,

subd. (d)(2).)

One such change in law since Gutierrez’s original sentencing were amendments to

section 1385, which now provides: “(1) Notwithstanding any other law, the court shall

dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of

that enhancement is prohibited by any initiative statute. [¶] (2) In exercising its

discretion under this subdivision, the court shall consider and afford great weight to

evidence offered by the defendant to prove that any of the mitigating circumstances in

subparagraphs (A) to (I) are present. Proof of the presence of one or more of these

circumstances weighs greatly in favor of dismissing the enhancement, unless the court

finds that dismissal of the enhancement would endanger public safety.” (§ 1385, subd.

(c).) The mitigating factors include (1) the application of an enhancement could result in

a sentence of over 20 years (§ 1385, subd. (c)(2)(C)) and (2) the enhancement is based on

a prior conviction that is over five years old (§ 1385, subd. (c)(2)(H)).

As the parties acknowledge, there is currently a split among the Courts of Appeal,

as to the interpretation of the requirement to “afford great weight” to the mitigating

circumstances. (People v. Walker (2022) 86 Cal.App.5th 386, 391 [“mandate to ‘afford

great weight’ to mitigating circumstances erects a rebuttable presumption that obligates a

court to dismiss the enhancement unless the court finds that dismissal of that

enhancement—with the resultingly shorter sentence—would endanger public safety”],

review granted Mar. 22, 2023, S278309; People v. Ortiz (2023) 87 Cal.App.5th 1087,

1096-1098 [ultimate question remains whether dismissal is in furtherance of justice and

trial court retains discretion to impose enhancements without a public safety

determination, even if one or more of the mitigating circumstances are established],

review granted Apr. 12, 2023, S278894; People v. Anderson (2023) 88 Cal.App.5th 233,

239-241 [dismissal is not mandatory, trial court retains discretion to dismiss

enhancements in furtherance of justice], review granted Apr. 19, 2023, S278786.) This

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issue is currently under review and the California Supreme Court will ultimately decide

the parameters of a trial court’s discretion under amended section 1385.

Our resolution of this case, however, does not require us to weigh in on this split

of authority. What is plain in the statutory language of section 1385, subdivision (c) is

that the trial court is now obligated to consider certain mitigating factors when exercising

its discretion whether to dismiss enhancements and compliance with such a statutory

mandate cannot be inferred from an ambiguous record. (People v. Panozo (2021)

59 Cal.App.5th 825, 836-837 (Panozo) [court’s compliance with statutory mandate to

consider qualifying service-related conditions as mitigating factor in sentencing combat

veterans could not be inferred from an ambiguous record].)

“ ‘Defendants are entitled to sentencing decisions made in the exercise of the

“informed discretion” of the sentencing court. [Citations.] A court which is unaware of

the scope of its discretionary powers can no more exercise that “informed discretion”

than one whose sentence is or may have been based on misinformation regarding a

material aspect of a defendant’s record.’ [Citation.] In such circumstances, . . . the

appropriate remedy is to remand for resentencing unless the record ‘clearly indicate[s]’

that the trial court would have reached the same conclusion ‘even if it had been aware

that it had such discretion.’ ” (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.)

Moreover, this type of error may fall within a narrow class of sentencing issues that are

reviewable in the absence of a timely objection. (People v. Leon (2016) 243 Cal.App.4th

1003, 1023.) In the interest of fairness and judicial economy, we will exercise our

discretion to consider the claims as to both mitigating factors. (Ibid.)

We recognize that resentencing in this case took place approximately 10 months

after the effective date of the amendments to section 1385 and, as an appellate court, we

generally presume the trial court was aware of and followed the applicable law. (People

v. Stowell (2003) 31 Cal.4th 1107, 1114.) That presumption may be rebutted, however,

when the record is ambiguous as to whether the court understood its statutory obligations

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to consider mitigating factors before making discretionary sentencing decisions.

(Panozo, supra, 59 Cal.App.5th at p. 839; People v. Ochoa (2020) 53 Cal.App.5th 841,

853.)

There is no evidence the trial court was aware of its statutory obligations under

section 1385 to consider the furtherance of justice, the presence of specified mitigating

circumstances, and danger to public safety. (§ 1385, subd. (c).) The record shows the

parties were primarily focused on the application of section 1172.75. The parties did not

reference section 1385, despite the presence of two mitigating circumstances listed in

section 1385, subdivision (c)(2), or explain the court was required to consider these

factors in mitigation. The only discussion of a mitigating circumstance was defense

counsel’s incorrect assertion that the prior conviction was now “invalid” because it was

over five years old. The prosecutor responded that the prior conviction was not invalid,

but did not refer to section 1385 or argue that dismissal of the enhancement would

endanger public safety or was not in furtherance of justice.

Although there were two mitigating circumstances under section 1385, subdivision

(c)(2), the record does not reflect that the trial court considered public safety or was in

furtherance of justice in exercising its discretion. Nothing in our record supports the

inference that the trial court realized the relevance of the age of the prior conviction to its

sentencing discretion under amended section 1385 or that the court undertook the

analysis that section 1385 now requires. On this record, we cannot say it is clear the trial

court recognized its statutory obligation and the new parameters of its discretion under

section 1385, subdivision (c) and declined to exercise its discretion to dismiss the prior

conviction enhancement. (See Panozo, supra, 59 Cal.App.5th at pp. 838-839.) On such

an ambiguous record, it is appropriate to remand the matter to the trial court for

resentencing to fulfill its statutory obligation under section 1385.

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DISPOSITION

The sentence is vacated. The matter is remanded to the trial court for

resentencing.

/s/

BOULWARE EURIE, J.

We concur:

/s/

HULL, Acting P. J.

/s/

MESIWALA, J.

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