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SB 1437 – If Motion Granted, Do Enhancements Remain?

In January 1992, in Santa Clara County, J. Sacramento Benitez was killed during a residential burglary and attempted robbery.
Nine months later, the Santa Clara County District Attorney filed a second amended felony complaint charging Luis Ramon Manzano Arellano and two codefendants with murder “with malice aforethought (Penal Code § 187), attempted robbery (Penal Code §§ 664, 211, 212.5(a)), and first degree burglary (Penal Code §§ 459, 460(a)).  The murder and attempted robbery counts further alleged that each defendant personally used a firearm during the commission of the offense (Penal Code §§ 12022.5(a), 1203.06).

In October 1992, prior to the preliminary hearing, the prosecutor agreed to strike the “with malice” charge as to Mr. Arellano and amend the complaint to allege second degree murder, do which Mr. Arellano agreed to plea guilty including that the firearm enhancement attached to that count would be stricken and the attempted robbery and first degree burglary charges would be dismissed.

In November 1992, the court sentenced Mr. Arellano to 15 years to life for second degree murder.

Twenty-eight years later, in October 2020, Mr. Arellano, through counsel, filed a petition for resentencing under then-current Penal Code § 1170.95 (now 1172.6) under the new felony murder rule (SB 1437).

The trial court judge granted the petition and resentenced Mr. Arellano for attempted robbery with a firearm enhancement that had originally been charged with attempted robbery but was dismissed after he pleaded guilty to just second degree murder.  The court then sentenced Mr. Arellano to seven years, composed of three years for the attempted robbery and four years for the firearm enhancement.  Mr. Arellano had satisfied the sentence by his time served.  The court then sentenced Mr. Arellano to three years of parole. 
Mr. Arellano appealed the new sentence to the Sixth Appellate District, arguing that the trial court erred in imposing a sentence enhancement from a charge that had been dismissed.  He also argued that due to excess custody credit far exceeding three years of parole, he should not be placed on parole.

The Sixth Appellate District agreed with Mr. Arellano on the sentence enhancement argument, but disagreed on his argument that the court could not place him on parole due to excess custody credits.

The scope of this article will be limited to the issue of whether a trial court may, in resentencing under Senate Bill 1437, sentence defendant to previously dismissed count-specific enhancements.

The Sixth Appellate Court began its analysis by reminding that Penal Code § 1172.6(d)(1) (the renumbered 1170.95 first associated with SB 1437) requires the court to hold a hearing to determine whether to vacate the “conviction and to recall the sentence and resentence the petitioner on any remaining counts in the same manner as if the petitioner had not been previously sentenced.”  If the prosecution fails to sustain its burden of proof at the hearing, “[t]he petitioner’s conviction shall be redesignated as the target offense or underlying felony for resentencing purposes if the petitioner is entitled to relief pursuant to this section, murder or attempted murder was charged generically, and the target offense was not charged.”

Here, however, the defense and the prosecution agreed that the judge had authority to redesignate Mr. Arellano’s murder conviction using the attempted robbery as the target offense. 

However, resentencing may not include count-specific enhancements unless the People establish them as related to the underlying felony at the 1172.6 hearing. 

The plain meaning of the phrase, “[t]he petitioner’s conviction shall be redesignated as the target offense or underlying felony for resentencing purposes” did not authorize enhancements to be attached to the redesignated conviction because a sentence enhancement is not equivalent to a substantive offense. 

We find this ruling much-needed because this situation is common: a person will enter into a plea to an amended charge and pursuant to the plea bargain, other charges will be dismissed and enhancements dismissed as well.  In resentencing, the court may only look to other counts defendant was convicted of (which may be several if the matter went to trial, but may be none if the case plea bargained) or sentence defendant on the underlying, uncharged felony for the felony murder, without enhancements unless they can be proven.

Here, the gun enhancement could not be proven by the prosecution (and indeed was dismissed in the plea bargain) but the judge sentenced Mr. Arellano to it anyways on resentencing, which was an error.

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