Limited Scope Resentencing on Appellate Remand, AB333

There are multiple articles on this website summarizing how a trial court must apply the various new sentencing laws to a particular case when the Secretary of the California Department of Corrections and Rehabilitation (CDCR) or the Board of Parole Hearings recommends recall and resentencing of a particular sentence.

Is there a difference in how resentencing must proceed if a California Court of Appeal district court remands a case for resentencing on specific areas of a sentence and a new relevant law, for example Assembly Bill (AB) No. 333 (regarding gang participation), is passed in after the remand order but before resentencing?  Is the trial court obligated to consider the new law? 

The California Court of Appeal for the Fourth District (in Riverside) said no, although a dissent by Justice Raphael suggested the trial court should do so.

To understand the Fourth District’s ruling, it is good to understand the basic facts of the case at issue, People v. Oscar Lopez.  In 2017, a San Bernardino County Superior Court jury found Mr. Lopez guilty of violating Penal Code § 187(a) (first degree murder) and found true the enhancement allegation under Penal Code §§ 12022.53(d) and (e)(1) that he discharged a firearm as a principal in a gang related crime.  The jury also found he violated Penal Code §§ 664, 187(a) (attempted murder) while discharging a firearm.  The jury further found that he violated Penal Code § 246 (shooting at an occupied motor vehicle) with an enhancement for personally using a firearm.

In a bifurcated proceeding, wherein Mr. Lopez waived a jury, the judge also found true that Mr. Lopez had suffered a prior strike offense, one prior serious felony conviction and had served three prior prison terms (Penal Code § 667.5(b)).

Mr. Lopez was then sentenced to 141 years to life in prison.

On direct appeal, the Fourth District then modified the judgment, staying the sentence on the Penal Code § 246 charge, struck the firearm enhancement on the § 246 charge and the three prior prison enhancements under Penal Code § 667.5(b).

The Fourth District then said, “The judgment as thus modified is conditionally reversed.  On remand, the trial court shall consider . . . whether to strike . . . the prior serious felony conviction enhancement or any of the firearm enhancements.  If it does so . . . it must resentence . . . defendant.  Otherwise, it must reinstate the modified judgment.”

On remand, the trial court then struck the prior serious felony enhancement, but refused to strike any of the firearm enhancements.  It then resentenced Mr. Lopez to 101 years to life in prison.

After the remand order, but before the trial court resentenced him, AB 333 was passed, which raised the requirements for imposing a gang enhancement.

Mr. Lopez appealed again, arguing that the trial court erred by not resentencing him under AB 333 (to reconsider the sufficiency of the evidence and bifurcating the trial (trifurcating in this case because of his prior conviction enhancements) on the gang enhancements) and Senate Bill (SB) 567, insofar as the trial court imposed the upper term (three years, doubled for the prior strike) on the unlawful possession of a firearm charge (Penal Code § 29800(a)(1)) without a jury finding that certain supporting aggravating facts were true nor admitted by him.

The Fourth Appellate District Court affirmed the trial court, explaining, “When there has been a decision upon appeal, the trial court is reinvested with jurisdiction of the cause, but only such jurisdiction as is defined by the terms of the remittitur.  The trial court is empowered to act only in accordance with the direction of the reviewing court; action which does not conform to those directions is void.” Hampton v. Superior Court (1952)  38 Cal. 2d 652, 655; accord, Medina v. Superior Court (2021) 65 Cal. App. 5th 1197, 1226; People v. Ramirez (2019) 35 Cal. App. 5th 55, 64.

Justice Raphael dissented, criticizing the majority for focusing on caselaw involving completed direct appeals where the judgments are final, but then remanded for resentencing from the first sentencing.  Justice Raphael argued that the trial court should have reconsidered the whole sentence since the Legislature introduced such new laws to apply to any case which has not reached a final judgment, like Mr. Lopez’s here. 

 

He pointed out – and we agree – that AB 333 and SB 567 should have been applied because Mr. Lopez’s sentence never became final.  It went up on direct appeal after the original verdict and sentence from the trial court, then was remanded to the trial court for resentencing on certain parts of the sentence and then Mr. Lopez appealed again, so the judgment never became final and the sentence never became final. 

 

We think Justice Raphael’s evaluation of the case status is correct, however, if the matter is appealed to the California Supreme Court and it agrees with Justice Raphael, it seems unlikely that on remand to the trial court that Mr. Lopez will have his sentence reduced further, given the facts.  In other words, the Fourth District’s error may have been, for practical purposes, harmless in Mr. Lopez’s case.