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Name: People v. Ruiz (2023) 97 Cal.App.5th 1068
Case #: B324477
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 12/13/2023
Summary

The resentencing court committed harmless error when it considered inapplicable aggravators to impose upper terms after Senate Bill No. 567 amended Penal Code section 1170. Ruiz was convicted of assault with a firearm with various enhancements, and this is his third appeal. His case had previously been remanded to the trial court for resentencing due to sentencing errors and new laws that applied in his case. At Ruiz’s second resentencing (which occurred after SB 567’s effective date), the trial court imposed a 4-year upper term on the assault with a firearm charge and the 10-year upper term for a firearm-use enhancement because Ruiz poses a serious danger to society. In this appeal, Ruiz argued that, in selecting the upper terms, the trial court relied on aggravating factors that are inapplicable pursuant to SB 567. Held: Reversed in part on another point and remanded. The trial court relied on seven factual findings to conclude that Ruiz poses a serious danger to society. The People conceded that the trial court committed error under SB 567 because four of the findings were not found true beyond a reasonable doubt by a jury and Ruiz had not stipulated to the facts. However, the Court of Appeal concluded the error was harmless, applying a two-step prejudice analysis. The court was “convinced that the jury would have found true beyond a reasonable doubt the aggravating factor that appellant ‘has engaged in unprovoked violent conduct under circumstances that indicate that he is a serious danger to society.’” The court also determined the record clearly indicated that the trial court would have selected the upper term if it had known it could only rely on four aggravating factors related to Ruiz’s criminal history and his unprovoked violent conduct. The court distinguished the Supreme Court’s recent decision in People v. Salazar (2023) 15 Cal.5th 416, which did not consider the standard for assessing prejudice where, as here, the trial court imposed the upper term instead of the middle term under amended section 1170, subdivisions (b)(1) and (b)(2) after the effective date of SB 567. [Editor’s Note: The standard for assessing prejudice for error under SB 567 is pending in the California Supreme Court in People v. Lynch (May 27, 2022, C094174) [nonpub. opn.], review granted 8/10/2022 (S274942/C094174).]

Defendant’s sentence on remand can lawfully exceed the sentence originally imposed. The trial court originally imposed an aggregate sentence of 28 years, but erroneously stayed a consecutive 10-year upper term for a firearm-use enhancement pursuant to Penal Code section 654. As a result, Ruiz’s unstayed aggregate sentence was reduced to 18 years based on the error. In Ruiz’s first appeal, the Court of Appeal corrected the error as an unauthorized sentence. The court increased Ruiz’s unstayed aggregate sentence from 18 years to 28 years. In this appeal, Ruiz argued that, because the original sentencing court could have reached the same total (an unstayed aggregate sentence of 18 years) in an authorized manner, the resentencing court was limited to the original total. The Court of Appeal disagreed. Under the Henderson rule, “[w]hen a defendant successfully appeals a criminal conviction, California’s constitutional prohibition against double jeopardy precludes the imposition of more severe punishment on resentencing.” (People v. Vizcarra (2015) 236 Cal.App.4th 422, 431.) But there is an exception to the Henderson rule when the court imposes an unauthorized sentence, like the sentence here. In this situation, an unauthorized sentence “is subject to being set aside judicially and is no bar to the imposition of a proper judgment thereafter, even though it is more severe than the original unauthorized pronouncement.” (Id. at pp. 431-432.)

The trial court did not abuse its discretion under the recent amendment to Penal Code section 1385 by failing to the mention specific mitigating factors enumerated in the statute. Ruiz also argued that the matter must again be remanded for resentencing so the trial court can consider new mitigating factors in determining whether enhancements in his case should be dismissed pursuant to section 1385. He asserted three of the mitigating circumstances applied to him and the resentencing court did not mention these factors on the record. The Court of Appeal disagreed. The amendment to section 1385 was in effect at the time of Ruiz’s resentencing and the Court of Appeal presumed the trial court was aware of the amendment and properly applied it when resentencing Ruiz. The court could not “presume the trial court ‘failed’ to properly consider the three claimed relevant mitigating factors merely because it did not expressly mention them. Nothing in amended section 1385 requires the sentencing court to state on the record the relevant mitigating factors set forth in subdivision (c)(2).” [Editor’s Notes: (1) The court agreed with the parties that the true finding on Ruiz’s gang enhancement must be vacated based on Assembly Bill No. 333 and remanded the case to give the People an opportunity to prove the enhancement under the amendments to Penal Code section 186.22. (2) The court agreed that Ruiz should have received credit for his actual days of presentence custody plus the time he had actually served in prison.]