P. v. Ruiz

Filed 12/13/23; REVIEW GRANTED. See Cal. Rules of Court, rules 8.1105 and
8.1115 (and corresponding Comment, par. 2, concerning rule 8.1115(e)(3)).
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and Respondent,
v.
FRANK RUIZ,
Defendant and Appellant.
2d Crim. No. B324477
(Super. Ct. No. 2014011115)
(Ventura County)
This is our third, and hopefully our last, opinion in this
sentencing matter. In our original opinion (People v. Ruiz (Feb.
10, 2020, B291732) [nonpub. opn.] (Ruiz I)), we vacated the trial
court’s unauthorized Penal Code section 654 stay of execution of a
10-year consecutive sentence for a firearm-use enhancement. 1
(§ 12022.5, subd. (a).) As a result, appellant’s unstayed aggregate
sentence was increased from 18 years to 28 years. Out of fairness
to appellant, we directed the trial court to exercise its discretion
whether to strike the firearm-use enhancement as well as a five-
year enhancement for a prior serious felony conviction. (§ 667,
subd. (a)(1).) The trial court refused to strike either
1 All statutory references are to the Penal Code.

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enhancement. It resentenced appellant to prison for an
aggregate term of 28 years.
A second appeal followed. In People v. Ruiz (March 29,
2022, B307717) [nonpub. opn.] (Ruiz II), we rejected appellant’s
claims that (1) the trial court abused its discretion in refusing to
strike the prior serious felony conviction and firearm-use
enhancements, and (2) the cause must be remanded to the trial
court for resentencing in light of Assembly Bill No. 518, which
amended section 654 (Stats. 2021, ch. 441). Again out of fairness
to appellant, we vacated the sentence and remanded the cause for
resentencing in light of Senate Bill No. 567 (S.B. 567), which
amended section 1170 (Stats. 2021, ch. 731). (See pp. 5-6, post.)
On remand the trial court resentenced appellant to an
aggregate term of 23 years, calculated as follows: assault with a
firearm (§ 245, subd. (a)(2)) – the upper term of four years,
doubled to eight years because of a prior strike; plus the upper
term of 10 years for the firearm-use enhancement; plus five years
for the strike/serious felony conviction. The court stayed the
sentence imposed for a gang enhancement (§ 186.22, subd. (b)(1)).
Appellant now contends: (1) the true finding on the gang
enhancement allegation must be vacated, (2) in selecting the
upper term for both the conviction of assault with a firearm and
the firearm-use enhancement, the trial court relied on
aggravating factors that are inapplicable pursuant to S.B. 567;
(3) appellant is entitled to additional days of custody credit, (4)
the aggregate sentence imposed on remand could not have
exceeded the 18-year aggregate sentence originally imposed; and
(5) the matter must again be remanded for resentencing because
of a recent amendment of section 1385.

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We accept the People's concession that the true finding on
the gang enhancement allegation must be vacated. We remand
the matter to the trial court to afford the People an opportunity
to retry the allegation. We modify the judgment to award
appellant additional days of custody credit. In all other respects,
we affirm.
Facts
The facts are taken from our first unpublished opinion.
(Ruiz I, supra, slip opn. at pp. 3-4.)
“One night in October 2013, [R.M. (victim)] and his
girlfriend, [J.M], drove to Vons to buy baby supplies. [J.M.]
entered the store while [victim] remained by the vehicle in the
parking lot. A young, skinny man approached [victim] and
asked, ‘[W]here you from?’ [Victim] replied, ‘I ain’t from nowhere,
where you from?’ The man said he was from ‘Southside’ or ‘Sur
Town.’ The man ‘tried to sucker punch’ [victim] and ‘barely
misse[d]’ him.
“[Victim] chased the man, who was not armed. He heard
[his girlfriend] call out that someone had a gun. [Victim]
suddenly saw a bigger, older man about 15 feet away and ‘could
hear him try to cock [the gun], but he couldn’t.’ [Victim] ‘started
running.’ ‘He was zig-zagging in an attempt not to get shot.’ He
heard one shot fired. The bullet did not strike him.
“[Witness E.W. testified that he had seen] the bigger, older
man chase [victim]. The man shot once at [victim]. He ‘was
definitely trying to hit [him].’ ‘He was aiming directly at [him].’
It was not ‘a warning shot.’ The shooter and his companions ran
to a car, entered it, and drove away ‘at a high rate of speed.’
“The shooter was identified as appellant. He was a long-
time member of the Sur Town Chiques (Sur Town) criminal

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street gang. His gang moniker was ‘Villain.’ The trial court took
judicial notice before the jury that in 2002 appellant had been
convicted ‘of a violent felony for the benefit of the Sur Town
criminal street gang against a victim who [was] a documented
member of the Colonia Chiques criminal street gang.’ [Footnote
omitted.] A gang expert opined that appellant was still a
member of Sur Town at the time of the October 2013 Vons
parking-lot shooting.
“The skinny, younger man who threw the punch at [victim]
was identified as [J.H.]. A gang expert opined that [J.H.] ‘was a
Sur Town gang member . . . .’
“A police officer found a spent shell casing in the Vons
parking lot. The shell casing had been ejected from the same 9-
millimeter pistol that had been used in four other gang shootings.
“In response to the prosecutor’s hypothetical question
incorporating the facts of the Vons parking-lot shooting, a gang
expert opined that it had been committed for the benefit of a
criminal street gang.”
Gang Enhancement
The jury found true an allegation that appellant had
committed the assault with a firearm for the benefit of a criminal
street gang (§ 186.22, subd. (b)(1)). Assembly Bill No. 333 (Stats.
2021, ch. 699) (A.B. 333) “amended section 186.22 to, in various
respects, increase the evidentiary burden necessary to prove a
gang-related crime enhancement.” (People v. Rodriguez (2022) 75
Cal.App.5th 816, 822.) The amendment applies retroactively to
cases not yet final on appeal. (People v. Tran (2022) 13 Cal.5th
1169, 1206-1207.)
We accept the People’s concession, which is as follows:
“[T]he elements of the newly amended gang enhancement under

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section 186.22 are not satisfied. Namely, the current record does
not establish that the predicate offenses benefitted appellant’s
gang in a manner that was more than reputational.” We vacate
the true finding on the gang enhancement and remand the
matter “‘to give the People the opportunity to prove the
applicability of the enhancements under the amendments to
section 186.22.’” (People v. Vasquez (2022) 74 Cal.App.5th 1021,
1033.)
S.B. 567: Selection of the Base Term
S.B. 567 became effective on January 1, 2022. It amended
the standards for imposing an upper-term sentence. As
amended, section 1170, subdivision (b)(1) provides that, where a
person is convicted of a public offense, “the court shall, in its
sound discretion, order imposition of a sentence not to exceed the
middle term, except as otherwise provided in paragraph (2).”
Paragraph (2) provides, “The court may impose a sentence
exceeding the middle term only when there are circumstances in
aggravation of the crime that justify the imposition of a term of
imprisonment exceeding the middle term, and the facts
underlying those circumstances have been stipulated to by the
defendant, or have been found true beyond a reasonable doubt at
trial by the jury or by the judge in a court trial.” There is an
exception to this rule for prior convictions: “[T]he court may
consider the defendant’s prior convictions in determining
sentencing based on a certified record of conviction without
submitting the prior convictions to a jury.” (Id., subd. (b)(3).)
S.B. 567 similarly amended section 1170.1, subdivision (d)
to mandate a presumptive middle term for enhancements.
Unlike sentencing for conviction of a public offense, there is no
prior conviction exception [based on a certified record of

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conviction] . . . for imposing an upper term on applicable
enhancements.” (People v. Falcon (2023) 92 Cal.App.5th 911,
956, review granted Sept. 13, 2023, S281242.)
The People Concede that the Trial Court
Considered Inapplicable Aggravating Factors
The trial court said it was imposing the 4-year upper term
for the assault with a firearm charge and the 10-year upper term
for the firearm-use enhancement because appellant “poses a
serious danger to society.”
In concluding that appellant “poses a serious danger to
society,” the trial court relied on seven factual findings. The
People submit that four of the findings “were not found true
beyond a reasonable doubt by the jury, and . . . it cannot be said
with certainty that a jury would . . . conclude [they were true]
beyond a reasonable doubt.” The four findings are: (1)
“[appellant] has a predilection for unprovoked, unpredictable
violent behavior and a disregard for human life”; (2) “[t]his
offense is almost identical in many significant respects to his
prior 2002 violent offense, demonstrating a failure to rehabilitate
or change his violent behavior”; (3) “[t]he present offense was
committed in concert with another person, thereby increasing the
danger to the victims and the public”; and (4) “[appellant] has a
substantial criminal record dating back to the age of 13.”
“[T]o the extent the trial court’s imposition of the upper
term was based on” the above four findings, conceded by the
People to be inapplicable, “it committed error under Senate Bill
567. That is because, contrary to the dictates of the new law,
[appellant] had not stipulated to the facts underlying these
factors, nor were the facts found true beyond a reasonable doubt
by a jury or by a judge in a court trial.” (People v. Ross (2022) 86

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Cal.App.5th 1346, 1353, review granted Mar. 15, 2023, S278266
(Ross).) Moreover, the fourth finding concerning appellant’s
criminal record “dating back to the age of 13” was not “based on a
certified record of conviction.” (§ 1170, subd. (b)(3).)
The People maintain that the trial court properly relied on
three of the trial court’s seven factual findings because they
“were found true beyond a reasonable doubt by a trier of fact or
were supported by a certified record of conviction.” The three
findings are: (1) “[appellant] has engaged in unprovoked violent
conduct under circumstances that indicate that he is a serious
danger to society”; (2) “[l]ess than 5 years [had] elapsed between
[appellant’s] release from prison for his prior violent offense and
less than one month [had] elapsed from his discharge from parole
. . . [when he] committed the present offense[, thus]
demonstrating that a longer period of incarceration is necessary
to protect the public and potentially aid in rehabilitation”; and (3)
“[appellant] served a prior prison term.”
Appellant contends “[t]he only . . . facts supported by the
certified record of conviction are that the charged offense
occurred less than five years from his release from prison, less
than a month after being discharged from parole, and [that he]
served a prior prison term.” Appellant asserts, “No other factor
was proven beyond a reasonable doubt or stipulated to by
appellant.”
People’s Contention that Appellant
Forfeited Claim of Resentencing Error
Appellant’s counsel did not object to the trial court’s
reliance on inapplicable aggravating factors. The People contend
that, by not objecting, appellant forfeited his claim of
resentencing error. (See, e.g., People v. Tilley (2023) 92

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Cal.App.5th 772, 778.) We need not decide whether a forfeiture
occurred. Even if appellant’s failure to object constituted a
forfeiture, we would again extend fairness to appellant and
exercise our discretion to reach the merits of his claim of
sentencing error. (See People v. Williams (1998) 17 Cal.4th 148,
161-162, fn. 6.)
Harmless Error
“Courts . . . have concluded this type of [sentencing] error is
subject to harmless error review.” (Ross, supra, 86 Cal.App.5th
at p. 1353.) The appellate courts are divided on the standard for
assessing prejudice. (See, e.g., People v. Flores (2022) 75
Cal.App.5th 495, 500; Ross, supra, at p. 1353.) The issue is
pending before our Supreme Court in People v. Lynch (May 27,
2022, C094174) [nonpub. opn.], review granted Aug. 10, 2022,
S274942.
Our Supreme Court recently considered the standard for
assessing prejudice where, before the effective date of S.B 567,
the trial court did not impose the lower term for an offense as
provided by new subdivision (b)(6) of section 1170. 2 (People v.
Salazar (Nov. 20, 2023, S275788) __ Cal.5th __ [2023 Cal. LEXIS
6529] (Salazar).) The Supreme Court did not consider the
standard for assessing prejudice where, as here, after the
effective date of S.B. 567 the trial court imposed the upper term
instead of the middle term under section 1170, new subdivisions
2 Section 1170, subdivision (b)(6) provides, “[U]nless the
court finds that the aggravating circumstances outweigh the
mitigating circumstances that imposition of the lower term would
be contrary to the interests of justice, the court shall order
imposition of the lower term if any of the following was a
contributing factor in the commission of the offense: . . . .”

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(b)(1) and (b)(2). (See Salazar, supra, 2023 Cal. LEXIS at *19, fn.
7 [“We do not address” the issue of “what prejudice standard
applies on appeal when determining whether a case with an
upper term sentence should be remanded for resentencing under
Senate Bill 567”].)
We assess prejudice through a two-step process. The first
step is whether 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.” Section 1170,
subdivision (b)(2) provides that the court “may impose a sentence
exceeding the middle term” when “the facts underlying [the
aggravating circumstances justifying imposition of the upper
term] have been . . . found true beyond a reasonable doubt at trial
by the jury . . . .”
We are 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.” Appellant’s
assault with a firearm was “unprovoked violent conduct.” The
victim was unarmed and had not attacked or threatened
appellant. When appellant committed the assault, the victim
was running away from him. “‘[The victim] was zig-zagging in an
attempt not to get shot.’” A witness testified that appellant “‘was
definitely trying to hit [the victim].’ ‘He was aiming directly at
[the victim].’”
The evidence presented to the jury, together with
appellant’s criminal record based on a certified record of
conviction, makes clear that “he is a serious danger to society.”
The pistol used in the shooting “had been used in four other gang

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shootings.” (Ruiz I, supra, slip opn. at p. 4.) “The trial court took
judicial notice before the jury that in 2002 appellant had been
convicted ‘of a violent felony for the benefit of the Sur Town
criminal street gang against a victim who [was] a documented
member of the Colonia Chiques criminal street gang.’” (Id. at pp.
3-4.) Appellant’s prison sentence for the prior conviction and
parole supervision had been ineffectual in rehabilitating him. He
committed the present offense less than a month after his
discharge from parole. Whether the error is harmless or not, is
addressed to the appellate court’s discretion and we are,
according to Bernard Witkin, allowed to “weigh the evidence to
some extent.” (9 Witkin, Cal. Procedure (6th ed. 2021) Appeal, §
439, p. 475; see also People v. Cahill (1993) 5 Cal.4th 478, 490,
493.) If we had any doubt about our conclusion, we would rule in
appellant’s favor.
The second step in assessing prejudice is whether the trial
court would have selected the upper term had it known that it
could rely solely on the following four applicable aggravating
factors: appellant’s (1) 2002 strike conviction, (2) service of a prior
prison term for that conviction, (3) commission of the new offense
less than five years after his release from prison and less than
one month after his discharge from parole, and (4) commission of
“unprovoked violent conduct under circumstances that indicate
that he is a serious danger to society.”
In Salazar, supra, 2023 Cal. LEXIS 6529, at *12-13, our
Supreme Court concluded that, where a court “‘“is unaware of the
scope of its discretionary [sentencing] powers,”’” 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

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discretion.”’” We see no reason why we should apply a stricter
standard of prejudice than the one selected by our Supreme Court
in Salazar. Accordingly, the matter should not be remanded for
resentencing if the record clearly indicates that the trial court
would have imposed the upper term had it known that it could
rely solely on the four applicable aggravating factors listed above.
The record clearly so indicates. This is the third time that
the same trial court judge sentenced appellant to the upper
terms. In its ruling the court mentioned only aggravating
factors. It did not refer to a single mitigating factor. Appellant
contends that “any formal objection” to the trial court’s reliance
on inapplicable aggravating circumstances “would have been
futile” because “the court’s comments indicate that it would not
consider reimposing a different sentence,” i.e., a sentence other
than the upper term on the firearm-use enhancement and the
conviction of assault with a firearm.
In Salazar the trial court sentenced the defendant before
the effective date of S.B. 567. Our Supreme Court noted, “When
the applicable law governing the defendant’s sentence has
substantively changed after sentencing, it is almost always
speculative for a reviewing court to say what the sentencing court
would have done if it had known the scope of its discretionary
powers at the time of sentencing.” (Salazar, supra, 2023 Cal.
Lexis 6529 at *28.) Unlike Salazar, here S.B. 567 became
operative months before the trial court resentenced appellant. In
the second appeal (Ruiz II) we vacated the sentence and
remanded the cause for resentencing in light of S.B. 567.
Appellant asserts, “There was no indication here that the [trial]
court did not understand its discretion or the law, and SB 567
was the only issue at resentencing.”

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The trial judge is a seasoned veteran, well versed in
criminal law and procedure. He was well aware that S.B. 567
had “amended section 1170, subdivision (b) ‘to make the middle
term the presumptive sentence for a term of imprisonment . . . .’”
(People v. Mitchell (2022) 83 Cal.App.5th 1051, 1057.) He
reasonably concluded that appellant is a “serious danger to
society.”
Thus, reversal for a fourth sentencing hearing would be an
unwarranted exaltation of form over substance. (See People v.
Blessing (1979) 94 Cal.App.3d 835, 839; United States v.
DiFrancesco (1980) 449 U.S. 117, 142 [“The exaltation of form
over substance is to be avoided”].) It would be a waste of judicial
resources to afford the trial court a fourth opportunity to impose
the middle term.
Appellant’s Custody Credits
Appellant contends he should have received credit for his
actual days of presentence custody plus the time he had actually
served in prison for a total of 1,693 days. We agree.
Appellant’s Sentence on Remand Could
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 the firearm-use enhancement pursuant to section 654.
Therefore, appellant’s unstayed aggregate sentence was reduced
to 18 years. (Ruiz I, supra, slip opn. at pp. 16-20.) In Ruiz I we
corrected the error “under the unauthorized sentence concept.”
(Id. at p. 18.) We increased appellant’s unstayed aggregate
sentence from 18 years to 28 years.
Appellant contends that “because [at the original
sentencing] the court could have reached the same total [an

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unstayed aggregate sentence of 18 years] in an authorized
manner” by striking the firearm-use enhancement, “the
resentencing court was limited to the total of the original [18-
year unstayed aggregate] sentence on remand.” Thus, “remand is
required with instructions for the trial court to impose a term
totaling 18 years or less.”
We disagree. “Under the general rule of state
constitutional law that the California Supreme Court has
referred to as 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.) “However, in
People v. Serrato (1973) 9 Cal.3d 753, 764 . . . , disapproved on
another point in People v. Fosselman (1983) 33 Cal.3d 572,
583 . . . , the California Supreme Court ‘set out an exception to
this general [Henderson] rule.’ [Citation.] In Serrato . . . the
Supreme Court explained that ‘[t]he rule is otherwise when a
trial court pronounces an unauthorized sentence. Such a 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.) “[T]he fact that the trial court at the original
sentencing theoretically could have imposed an [authorized
sentence that was the same length as the unauthorized sentence]
does not mean that the . . . sentence the court actually imposed at
the original sentencing was an authorized sentence.” (Id. at
p. 438.) 3
3 After this appeal had been taken under submission, we
received a letter from appellant informing us of a newly filed

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The Trial Court Did Not Abuse Its Discretion
Under the Recent Amendment to Section 1385
In his supplemental brief, appellant contends that the
matter must again be remanded for resentencing so the trial
court can consider new mitigating factors in determining whether
the enhancements should be dismissed pursuant to section 1385.
The new factors were established by Senate Bill No. 81 (S.B. 81).
(2021-2022 Reg. Sess., Stats. 2021, ch. 721, § 1.) Effective
January 1, 2022, S.B. 81 “amended section 1385 to specify
mitigating circumstances that the trial court should consider
when deciding whether to strike enhancements from a
defendant's sentence in the interest of justice.” (People v.
Lipscomb (2022) 87 Cal.App.5th 9, 16.)
Appellant asserts that “[t]hree mitigating circumstances
from the newly amended section 1385 apply to [him].” The
opinion, People v. Trammel (Nov. 21, 2023, A166756) __
Cal.App.5th __ [2023 Cal.App. Lexis 903] (Trammel). Appellant
contends Trammel “is relevant to whether [his] sentence on
appeal can exceed his original sentence.” We grant permission to
file the letter.
Trammel is contrary to appellant’s position. In Trammel
the question was “whether an erroneous sentence under section
654 which improperly inflated Trammel's aggregate sentence
falls within the Serrato exception, thus allowing a harsher
sentence on remand.” (Trammel, supra, 2023 Cal.App. Lexis at
*36.) The Court of Appeal held that such a sentence does not fall
within the exception. (Id., at *36-37.) “[T]he Serrato exception
only applies to unauthorized sentences which were unlawfully
lenient to the detriment of the People.” (Id., at *37.) Here, the
trial court’s erroneous original sentence under section 654 was
unlawfully lenient. It reduced appellant’s aggregate unstayed
sentence by 10 years. Therefore, the Serrato exception applies.

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circumstances are: (1) “[m]ultiple enhancements are alleged in a
single case” (§ 1385, subd. (c)(2)(B)); (2) “[t]he application of an
enhancement could result in a sentence of over 20 years” (id.,
subd. (c)(2)(C); and (3) “[t]he enhancement is based on a prior
conviction that is over five years old” (id., subd. (c)(2)(H)). “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. ‘Endanger public safety’ means there is a likelihood that
the dismissal of the enhancement would result in physical injury
or other serious danger to others.” (Id., subd. (c)(2).)
Appellant claims: “Because the record makes no mention of
the specific [mitigating] factors enumerated in section 1385, the
case must be remanded for consideration of whether the trial
court shall dismiss the enhancements in the furtherance of
justice.” “The trial court abused its discretion by not considering
whether to dismiss all but one of appellant’s enhancements based
on these mitigating factors pursuant to section 1385.”
The amendment to section 1385 was in effect when the trial
court resentenced appellant on October 19, 2022. “‘The general
rule is that a trial court is presumed to have been aware of and
followed the applicable law. [Citations.] These general rules
concerning the presumption of regularity of judicial exercises of
discretion apply to sentencing issues. [Citations.]’” (People v.
Martinez (1998) 65 Cal.App.4th 1511, 1517.) Moreover, “it is
settled that: ‘A judgment or order of the lower court is presumed
correct. All intendments and presumptions are indulged to
support it on matters as to which the record is silent, and error
must be affirmatively shown. . . .” (Denham v. Superior Court
(1970) 2 Cal.3d 557, 564.)

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Accordingly, we presume the trial court was aware of the
section 1385 amendment and properly applied it in resentencing
appellant. It is reasonable to infer that the court found “that
dismissal of the enhancement would endanger public safety.”
(§ 1385, subd. (c)(2).) In justifying its imposition of the 10-year
upper term for the firearm-use enhancement, the trial court
found that appellant “has engaged in unprovoked violent conduct
under circumstances that indicate that he is a serious danger to
society.”
We cannot 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).
We have given the trial court two opportunities to extend
leniency. It has declined to do so. This is a clear indication that
the trial court would not now extend leniency to appellant.
(People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.)
Disposition
The true finding on the gang enhancement (§ 186.22, subd.
(b)(1)) is vacated. The matter is remanded to the trial court with
directions to afford the People an opportunity to retry the
enhancement and meet its burden of proof pursuant to A.B. 333’s
new requirements. The judgment is modified to award appellant
1,693 days of actual custody credits, consisting of 101 days in jail
and 1,592 days in prison through the resentencing date of
October 19, 2022. In all other respects, the judgment is affirmed.
The trial court shall prepare a corrected abstract of judgment and
shall transmit a certified copy to the Department of Corrections
and Rehabilitation.

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CERTIFIED FOR PUBLICATION.
YEGAN, Acting P. J.
We concur:
BALTODANO, J.
CODY, J.

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YEGAN, Acting P. J., Concurring:
There is a price to be paid in the quest for perfect justice.
Here, by reason of the Legislature’s constant tinkering with
sentencing rules, we are asked to reverse/remand for a fourth
sentencing hearing. And, of course, if appellant is not satisfied,
he will appeal for the fourth time. This is an undue burden upon
the criminal justice system, the Superior Court and the Court of
Appeal. It also adversely impacts the civil justice system. And,
perfect justice, while an admirable goal, is unattainable despite
our best efforts.
This appeal is not an outlier. Resentencing issues now
dominate our appellate calendars. There are, undoubtedly,
jurists who believe that there should be no limitation on how
many resentencing hearings and appeals should transpire. This
is a purely academic view of criminal procedure. It ignores
practical and “workable” sentencing procedures, as well as the
California constitutional harmless error rule. It also erodes the
concept of “Finality of Judgment.”
Appellant is lucky to be serving a 23-year determinate
term. He could have easily been charged with and convicted of
willful, deliberate, and premeditated attempted murder with a
firearm. Such a conviction would have been punishable by life
imprisonment with the possibility of parole. (§ 664, subd. (a).)
Could any objective reader reasonably believe that appellant did
not intend to kill the fleeing victim? Was he trying only to wound
the victim? Was he intending only to scare the victim? A witness
testified that appellant “‘was aiming directly at [the victim]’” and
“‘was definitely trying to hit [him].’” But for the grace of God,
appellant’s faulty marksmanship, and the victim’s serpentine

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running, the victim would have suffered a gunshot wound to his
back that could have been fatal.
Ah!, those dear dead days of the indeterminate sentence
law. Then, sentencing was pretty easy upon denial of probation.
The only significant “choice” was whether to impose consecutive
or concurrent terms. There were few sentencing disputes on
appeal and I recall no instance where the superior court was
called upon to resentence a defendant three times. The
sentencing court would say: “You are sentenced to state prison
for the term prescribed by law.” That was it. Sentencing was
simple and the Adult Authority would either keep the defendant
in prison “for the term prescribed by law,” or grant parole after a
suitable period of confinement. The indeterminate sentence law
was repealed by the enactment of the Uniform Determinate
Sentencing Act of 1976, which became operative on July 1, 1977.
Because of the Legislature’s constant tinkering with the
already complex sentencing rules, the law has become an
unsettled minefield. 1 The goal of the Determinate Sentence Law
1 See this court’s opinion in People v. Neely (2009) 176
Cal.App.4th 787, 791: “For over 30 years, opinions of the
California Courts of Appeal have commented on the frustrating
and needless complexity of the Determinate Sentencing Law
(DSL). Reversals and remands for resentencing resulting from
the misapplication of the DSL litter the pages of appellate
decisions, both published and unpublished. This is yet another
such case to fall victim to the ‘labyrinthine procedures,’ of the
‘legislative monstrosity’ whose ‘mind-numbingly complicated’
statutes are ‘capable of ensnaring even its most erudite
afficionados.’” (Fns. omitted.)

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3
is to impose “terms that are proportionate to the seriousness of
the offense with provisions for uniformity in the sentences of
people incarcerated for committing the same offense under
similar circumstances.” (§ 1170, subd. (a)(1).). Does anyone
think that this goal is now being achieved?
CERTIFIED FOR PUBLICATION.
YEGAN, Acting P. J.

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David R. Worley, Judge
Superior Court County of Ventura
______________________________
Richard Lennon, Executive Director, Cheryl Lutz and
Sydney Banach, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Julie A. Harris, Stephanie C.
Santoro, Deputy Attorneys General, for Plaintiff and Respondent.

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