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California Supreme Court:
Unproven Enhancement May Not Be Added in Resentencing
Statutory Scheme Allowing for Redesignation of Felony Murder as Underlying Felony Does Not Give Discretion to Add Allegations Neither Pled nor Found True by Jury
By Kimber Cooley, Staff Writer
The California Supreme Court held yesterday that the resentencing scheme established by Penal Code §1172.6—allowing defendants who were convicted under now-defunct aspects of the felony-murder rule to have their murder convictions redesignated as the underlying felony—does not authorize a court to impose a sentencing enhancement or allegation that was neither pled nor found true by a jury.
The dispute arose in a case where a defendant, Luis Arellano, successfully petitioned for resentencing before Santa Clara Superior Court Judge Daniel Nishigaya.
Nishigaya vacated Arellano’s second-degree felony murder conviction and redesignated the count as attempted robbery with a firearm enhancement, reducing his sentence from life imprisonment to a term of seven years—three years for the robbery conviction and four years based on the gun allegation.
The seven-year term was satisfied by time served and Arellano was released on parole.
Justice Kelli Evans wrote the opinion for a unanimous court which affirms the striking of the enhancement ordered by the Sixth District Court of Appeal. Evans said:
“We hold that the limited resentencing procedure under section 1172.6, subdivision (e) does not permit a court to impose a sentencing enhancement or allegation unless the enhancement or allegation was pled and either proven to the trier of fact or by the defendant’s admission in open court….We therefore affirm the judgment of the Court of Appeal to the extent it ordered stricken a firearm use enhancement that was neither found true by the jury nor admitted by defendant.”
Resentencing Scheme
In 2018, the Legislature enacted Senate Bill 1437 which narrows the scope of the felony-murder rule such that a participant in a felony may only be found liable for murder if he or she was the actual killer, aided and abetted the actual killer while harboring the intent to kill, or acted as a major participant in the underlying felony with reckless indifference to human life.
The bill eliminates liability for murder as an aider and abettor under the natural and probable consequences doctrine and provides that “[m]alice shall not be imputed to a person based solely on his or her participation in a crime.”
Sec. 1172.6 was added to the Penal Code to establish procedures for petitioning for resentencing for those defendants convicted under the former theories of murder liability. Subsection (e) provides:
“The 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. Any applicable statute of limitations shall not be a bar to the court’s redesignation of the offense for this purpose.”
In January 1992, J. Sacramento Benitez was killed during a residential burglary and attempted robbery. Arellano and codefendants Arturo Mendoza and Jesus Mandujano were charged with Benitez’s murder, attempted robbery, and first degree murder.
The murder and attempted robbery counts further alleged that each defendant personally used a firearm during the crimes.
In October 1992, before the preliminary hearing, Arellano pled guilty to second-degree murder. Pursuant to his plea, the firearm use enhancement was stricken and the attempted burglary and attempted robbery counts were dismissed.
In October 2020, Arellano filed a petition for resentencing. Nishigaya opined that the court had the authority to impose the previously dismissed allegation as there was “evidence on the record” to “suggest” that the defendant was armed.
In an opinion by Justice Allison M. Danner, the Sixth District ordered the enhancement stricken, reasoning that excluding enhancements “simply limits a petitioner’s exposure in a relatively definite manner to only a specific offense and avoids the complexities that could arise in deciding which of the myriad sentencing enhancements in our penal law might be applicable to a particular factual scenario.”
Careful Review
Evans agreed with the Sixth District that Nishigaya erred in adding the enhancement to the redesignated attempted robbery conviction, saying “[t]his conclusion rests on a careful review of section 1172.6’s text, structure, and purpose.”
Looking to the language of §1172.6, she said:
“Nothing in the text of section 1172.6 indicates that a court may add an uncharged and unproven allegation or enhancement. To the contrary: when a trial court resentences a petitioner under section 1172.6, subdivision (d)(3), the court must vacate ‘any allegations and enhancements attached to the conviction.’ The court shall then resentence the petitioner on the ‘remaining charges’…, which is a clear reference only to the charges that remain—not charges that could have been established by the evidence.”
She continued:
“Nothing in the statutory text suggests there should be a different outcome under section 1172.6, subdivision (e). Subdivision (e) applies when the murder was charged ‘generically,’ and the underlying felony or target offense was not charged….[U]nder subdivision (e), a trial court redesignates the murder conviction ‘as the target offense or underlying felony for resentencing purposes.’ Because an enhancement or an allegation is not a target offense or an underlying felony…it follows from the statutory text that resentencing under subdivision (e)…does not contemplate the addition of an enhancement or an allegation that was not previously found to be true.”
Legislative Purpose
Evans pointed out that the legislative purpose behind Senate Bill 1437 was to address overcrowding and mass incarceration concerns and remarked that “[w]e see nothing in these legislative materials to suggest the Legislature contemplated a rule that would permit resentencing courts to augment sentences by imposing previously uncharged and unproven enhancements.”
She found the legislative silence on the matter similarly weighed against the discretion to add enhancements at resentencing and wrote:
“That the Legislature did not even mention uncharged and unproven allegations and enhancements—let alone articulate any procedures for identifying and proving the truth of such allegations and enhancements—is a significant indication that courts lack the authority to litigate and then impose such allegations and enhancements during the redesignation and resentencing phase.”
Flexibility in Resentencing
The prosecution pointed to the 2020 decision by Div. Five of the First District Court of Appeal in People v. Howard as standing for the proposition that resentencing courts have flexibility in determining the appropriate sentence.
The Howard court, in an opinion by then-Presiding Justice Barbara J.R. Jones (now retired and acting as a finance officer for the Trump Organization), reasoned that “the absence of a first degree burglary instruction and verdict did not preclude the court from redesignating Howard’s conviction as first degree burglary, because the evidence at trial demonstrated beyond any dispute the building was a residence.”
Evans said that “even assuming that courts must have ‘flexibility’…in redesignating the underlying felony or target offense, it does not follow that courts have the separate authority to search out and impose sentence allegations and enhancements that were not charged and proven at trial.”
She added:
“We deem it unlikely the Legislature intended to allow the prosecution to effectively revisit its charging decisions for the entire range of offense-specific sentencing allegations and enhancements every time a petitioner succeeds in setting aside a murder conviction under section 1172.6. We also are skeptical the Legislature intended, without any warning or suggested procedures, to burden superior courts with this degree of factfinding in section 1172.6 resentencing proceedings.”
The court reversed the judgment “to the extent it ordered a remand to the trial court for redesignation of the underlying felony or felonies” and let the attempted robbery conviction stand.
The case is People v. Arellano, 2024 S.O.S. 2314.
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