People v. Sandoval CA4/2

Opinion

Filed 9/4/20 P. v. Sandoval CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E073516

v. (Super.Ct.No. FVI901482)

PABLO SANDOVAL, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin,

Judge. Affirmed with directions.

Pablo Sandoval, in pro. per.; Erica Gambale, under appointment by the Court of

Appeal, for Defendant and Appellant.

No appearance for Defendant and appellant.

1 Defendant and appellant Pablo Sandoval appeals from a postjudgment order

denying his petition for resentencing pursuant to Penal Code1 section 1170.95 and Senate

Bill No. 1437 (2017-2018 Reg. Sess.). He also appeals from the court’s order declining

to strike his firearm enhancement under section 12022.53, subdivision (h). Based on our

independent review of the record, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND2

A drug dealer identified only as “Max” owed money to a group of other drug

dealers for some methamphetamine that had gone missing. He decided to ambush his

creditors, tie them up, rob them of any drugs and money they might have, and kill them.

Max delegated the actual commission of these planned crimes to at least nine men,

including defendant, who worked for him. According to the prosecution’s designated

gang expert, most, if not all, of the participants, including defendant, were members or

associates of the Sinaloa drug cartel; the victims were members or associates of a

different cell of the same cartel. (Perez, supra, 22 Cal.App.5th at p. 204.)

On November 1, 2013, a jury found defendant guilty on two counts of murder

(§ 187, subd. (a)), one count of premeditated attempted murder (§§ 187, subd. (a), 664)),

1 All further statutory references will be to the Penal Code, unless otherwise noted.

2By order filed on January 31, 2020, we granted defendant’s request to take judicial notice of our prior unpublished opinion in this case. (People v. Perez (April 12, 2018, E060438) [nonpub. opn.].) The opinion was subsequently certified for partial publication. (People v. Perez (2018) 22 Cal.App.5th 201 (Perez), revd. and remanded on other grounds in People v. Perez (2020) 9 Cal.5th 1, 4.) This brief factual overview is taken from the partially published opinion. 2 three counts of kidnapping for ransom (§ 209, subd. (a)), three counts of kidnapping for

robbery (§ 209, subd. (b)(1)), and one count of active gang participation (§ 186.22,

subd. (a)).

In connection with the murder counts, six special circumstances were found true:

financial gain (§ 190.2, subd. (a)(1)), multiple murder (§ 190.2, subd. (a)(3)), lying in

wait (§ 190.2, subd. (a)(15)), robbery murder (§ 190.2, subd. (a)(17)(A)), kidnapping

murder (§ 190.2, subd. (a)(17)(B)), and gang-related murder (§ 190.2, subd. (a)(22)).

(Perez, supra, 22 Cal.App.5th at p. 205.)

In connection with all counts other than active gang participation, an enhancement

for the discharge of a firearm by a principal in a gang-related crime causing great bodily

injury or death (§ 12022.53, subds. (d), (e)(1)) and a gang enhancement (§ 186.22, subd.

(b)) were found true. (Perez, supra, 22 Cal.App.5th at p. 205.) Defendant was sentenced

to a total term of 78 years to life, followed by life with the possibility of parole, and life

without the possibility of parole.

Defendant and his codefendants appealed their convictions. This court reversed

the gang special circumstance and the financial-gain special circumstance. We also

remanded the case with regard to sentencing and directed the trial court to exercise its

discretion with respect to whether to strike any of the firearm enhancements under

section 12022.53. (Perez, supra¸ 22 Cal.App.5th at pp. 212-213.)

On September 30, 2018, the Governor signed Senate Bill No. 1437, which became

effective on January 1, 2019. Senate Bill No. 1437 “was enacted to ‘amend the felony

3 murder rule and the natural and probable consequences doctrine, as it relates to murder,

to ensure that murder liability is not imposed on a person who is not the actual killer, did

not act with the intent to kill, or was not a major participant in the underlying felony who

acted with reckless indifference to human life.’ ” (People v. Martinez (2019) 31

Cal.App.5th 719, 723.) Senate Bill No. 1437 added section 1170.95, “which provides a

procedure by which those convicted of murder can seek retroactive relief if the changes

in the law would affect their previously sustained convictions.” (People v. Gutierrez-

Salazar (2019) 38 Cal.App.5th 411, 417.)

On January 16, 2019,3 defendant filed a petition pursuant to section 1170.95,

claiming he was convicted of murder under the felony murder rule or the natural and

probable consequences doctrine, and he could not now be convicted of murder because of

changes made to sections 188 and 189.

On March 1, 2019, the People filed a motion to dismiss defendant’s petition,

arguing that Senate Bill No. 1437 is unconstitutional; moreover, defendant could not

demonstrate he was entitled to relief, since he was a major participant in a felony murder,

and he was convicted under a theory other than felony murder.

The court held a hearing on August 16, 2019. The prosecutor stated that the case

was back on a remittitur for the court to decide whether it wanted to exercise its

discretion under section 12022.53, subdivision (h) and strike the firearm enhancement; in

3 We note the date stamp on the petition reflects that it was filed on January 16, 2018. However, the year appears to be erroneous, since the petition itself is dated January 14, 2019. 4 addition, defendant filed a section 1170.95 petition. Defense counsel asserted that he

believed the appellate courts would eventually hold that Senate Bill No. 1437 is

constitutional, and then argued defendant was entitled to relief since there was no

significant evidence that he was the actual shooter or that he aided or abetted the actual

shooter with the intent to kill. The prosecutor submitted on his filed motion and argued

that Senate Bill No. 1437 is unconstitutional. He also contended that defendant was

ineligible for relief since multiple special circumstances were found true, where the jury

had to determine that he was the actual killer, an aider and abettor with the intent to kill,

or a major participant who acted with reckless indifference to human life. The prosecutor

further noted that the court was well aware of the facts since it heard the case, and that

defendant was factually ineligible since he clearly was a major participant in the

underlying crimes. The court stated its belief that section 1170.95 is unconstitutional but

acknowledged that others could determine it is constitutional. The court then denied the

petition on the merits, for the reasons stated by the prosecutor.

As to the firearm enhancement, the court stated, “This is not even a close call for

me. I did hear this case, and . . . if I had discretion, if I didn’t have discretion it wouldn’t

have mattered. If I could have imposed more than the 25 years to life consecutive, I

would have. This was a crime that called for that kind of punishment as far as I’m

concerned.” The court exercised its discretion and declined to strike the 25 years to life.

Defendant filed a notice of appeal, appealing the order denying resentencing under

sections 1170.95 and 12022.53.

5 DISCUSSION

Defendant appealed and upon his request, this court appointed counsel to represent

him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d

436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case, a

summary of the facts, and identifying one potential arguable issue: whether the true

findings on the special circumstance allegations prohibit relief under Senate Bill

No. 1437. Counsel has also requested this court to undertake a review of the entire

record.

While we understand that the appellate review procedures under People v. Wende,

supra, 25 Cal.3d 436 and Anders v. California, supra, 386 U.S. 738, in which we review

the record ourselves to determine whether there are any arguable issues, generally apply

“only to a defendant’s first appeal as of right” (People v. Thurman (2007) 157

Cal.App.4th 36, 45), we also recognize that we still retain discretion to conduct a

Wende/Anders review. (See generally Conservatorship of Ben C. (2007) 40 Cal.4th 529,

544, fn. 7 [“The court may, of course, find it appropriate to retain the appeal.”].) In

perusing the record in this case, we observed significant clerical errors. Therefore, we

exercise our discretion to conduct an independent review of the record.

We have now conducted an independent review and find no arguable issues.

However, although not raised by the parties, we will address the clerical errors.

Generally, a clerical error is one inadvertently made. (People v. Schultz (1965) 238

Cal.App.2d 804, 808.) Clerical error can be made by a clerk, by counsel, or by the court

6 itself. (Ibid.) Appellate courts have authority to order the correction of abstracts of

judgment that do not accurately reflect the oral judgments of sentencing courts. (People

v. Mitchell (2001) 26 Cal.4th 181, 185.)

With regard to count 3, the court imposed 25 years to life on the firearm

enhancement. (§ 12022.53, subds. (d), (e)(1).) However, the sentencing minute order

and the abstract of judgment indicate that the court imposed the term on the firearm

enhancement, but stayed it under section 654. The reporter’s transcript does not reflect

that the court stayed that enhancement. Furthermore, on counts 7, 8, and 9, the court

imposed life without the possibility of parole. However, the sentencing minute order and

abstract of judgment indicate that the court imposed life with the possibility of parole on

these counts. The only count that the court imposed life with the possibility of parole was

count 3. The court imposed life without the possibility of parole on counts 1-2 and 4-9.

These clerical errors should be corrected.

We offered defendant an opportunity to file a personal supplemental brief, which

he has done. In a handwritten letter brief, he argued that Senate Bill No. 1437 is

constitutional, and that he could not now be convicted of first degree murder, pursuant to

the changes made to sections 188 and 189 under Senate Bill No. 1437. He cites People v.

Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522 and argues the

evidence in the record does not show that he aided and abetted the murders, that he was

directly involved in the shootings, or that he used a weapon. He further claims the

prosecution failed to prove he acted with reckless indifference to human life. He also

7 asserts that we cannot simply defer to the jury’s pre-Banks and Clark factual findings.

We agree that Senate Bill No. 1437 is constitutional. (See People v. Johns (2020)

50 Cal.App.5th 46 [Fourth Dist., Div. Two].) However, we disagree that defendant could

not now be convicted of first degree murder under Senate Bill No. 1437, since the

evidence demonstrates he was a major participant in the underlying crimes and acted with

the intent to kill. (See Perez, supra, 22 Cal.App.5th 201.)

DISPOSITION

The superior court clerk is directed to modify the sentencing minute order and

abstract of judgment to reflect the following: (1) with regard to count 3, the court

imposed 25 years to life on the firearm enhancement (§ 12022.53, subds. (d), (e)(1)), and

did not stay it under section 654; and (2) defendant was sentenced to life without the

possibility of parole on counts 7 through 9 (along with counts 1, 2, 4, 5, and 6). The clerk

is directed to forward certified copies of the sentencing minute order and amended

abstract of judgment to the Department of Corrections and Rehabilitation. In all other

respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS J. We concur:

MILLER Acting P. J. RAPHAEL J.