Filed 12/17/19 P. v. Paez CA5

Opinion following rehearing

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

GUILLERMO GUADALUPE PAEZ, JR.,

Defendant and Appellant.

F076316

(Super. Ct. No. F16907596)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. Arlan L. Harrell, Judge.

Rachel Varnell, under appointment by the Court of Appeal, Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Guillermo Guadalupe Paez, Jr., argues he was improperly convicted of both receiving a stolen motor vehicle and operating a chop shop, as the former is a lesser included offense of the latter. The People concede the issue. We agree with the parties. Paez further argues the trial court’s denial of his Romero motion was an abuse of discretion. We reject this contention.

Finally, Paez argues that two prior prison term sentence enhancements imposed by the trial court must be stricken in light of a new, retroactive amendment to the statute that formerly authorized such enhancements. (Sen. Bill No. 136 (2019-2020 Reg. Sess.) ch. 590, § 1 (Sen. Bill No. 136).) The People agree with Paez on this point, as do we.

Paez’s conviction for receiving a stolen motor vehicle and the related sentence are reversed. The matter is remanded for the trial court to strike the two prior prison term sentence enhancements previously imposed and to resentence Paez. The judgment is otherwise affirmed.

FACTS AND PROCEDURAL HISTORY

Two weeks before Thanksgiving 2016, Jason V. purchased a 1996 Honda Accord under a salvage title, for $750. On Thanksgiving morning, November 24, 2016, Jason walked to the spot where he had parked the car the night before, only to find the car was gone. Jason had not given anyone permission to take his car.

On December 22, 2016, various members of the multi-agency Fresno County Help Eliminate Auto Theft (HEAT) team responded to a call to assist a sheriff’s patrol unit in recovering a stolen Ford Explorer from a house in the county. Paez and another man were at the house. The HEAT team searched the house. They found, among other items, tools, a closet full of car stereos, five live rounds of ammunition, and a shaved key inside an open lockbox in a bedroom Paez indicated was his. Various license plates were also found (albeit not for stolen vehicles).

In a carport outside the house, the HEAT team saw the “remnants of a vehicle.” Detective Timothy Herzog, a member of the HEAT team, described its condition: “It was a silver sedan of some sort. The back half had been cut off. All the doors had been removed. The top had been cut off, fenders. All the interior was gone. Essentially all that was left was the engine compartment, what was left of a dashboard firewall area, and the pan where the seats would have attached to the vehicle.” The “public VIN” or vehicle identification number on the driver’s side had been removed. The “secondary VIN,” which is stamped on the “firewall at the back of the engine compartment,” was also missing. The engine, wheels, tires, rear left strut tower, and the rear suspension of the sedan were strewn around, as were various tools, including air compressors, a reciprocating saw, and an electric welder. Other parts of the sedan were found elsewhere on the property.

Detective Herzog examined the engine that had been taken out of the silver sedan and spotted the engine number. He testified: “Engine number is a – much like the public VIN, it’s specific to that engine and it’s specific to … one vehicle. [¶ ] So if you take the engine number from the Honda VTEC motor that they are showing right there, I can cross-reference that through a database and find out what that vehicle came back to.” In this case, the engine number was traced to the 1996 Honda Accord that was stolen from Jason V.

Paez was charged, by information, with receiving a stolen motor vehicle (count 1; Pen. Code, § 496d, subd. (a)); operating a chop shop (count 2; Veh. Code, § 10801); unlawful vehicle identification number activity (count 3; Veh. Code, § 10802); possession of ammunition by a person prohibited from owning a firearm (count 4; § 30305, subd. (a)(1)); and misdemeanor possession of burglary tools (count 5; § 466). The information further alleged that Paez had served two prior prison terms (§ 667.5, subd. (b)) and had a prior strike conviction. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).

A jury convicted Paez on counts 1, 2, 4, and 5. Paez was acquitted on count 3. The court subsequently found the enhancement allegations to be true. Paez was sentenced to eight years in prison. The aggregate sentence consisted of six years on count 2 (the midterm of three years, doubled); a concurrent term of four years on count 1 (the midterm of two years, doubled); a concurrent term of four years on count 4 (the midterm of two years, doubled); and one year for each of two prior prison term enhancements).

DISCUSSION

I. Receiving Stolen Motor Vehicle is Lesser Included Offense of Operating a Chop Shop

Paez argues he was improperly convicted of both receiving a stolen motor vehicle (§ 496d, subd. (a)) and operating a chop shop (Veh. Code, § 10801), as the former is a lesser included offense of the latter. The People candidly respond: “Respondent agrees with Paez that receiving a stolen motor vehicle (§ 496d, subd. (a)) is a lesser necessarily included offense of operating a chop shop (Veh. Code, § 10801).” The People further explain: “It is not possible to commit the offense of operating a chop shop without also committing the offense of receiving a stolen motor vehicle. (Pen. Code, § 496d; Veh. Code, §§ 10801, 250.) Finally, the People note: “[R]espondent concedes that Paez’s receiving stolen vehicle conviction should be vacated because Paez cannot be convicted of both a greater offense and a lesser necessarily included offense.”

We agree with the parties and reverse Paez’s conviction for receiving a stolen vehicle. (See People v. King (2000) 81 Cal.App.4th 472, 476-479 [receiving stolen property is lesser included offense of operating a chop shop when the stolen property is a stolen vehicle that also constitutes the basis of the chop shop violation]; People v. Sanchez (2003) 113 Cal.App.4th 325, 332-334 [receiving stolen property is a lesser included offense of operating a chop shop when the receiving stolen property charge is predicated upon the chop shop’s possession of the same property]; see also People v. Medina (2007) 41 Cal.4th 685, 702 [multiple convictions cannot be based on lesser included offenses because that “‘“‘“would be to convict twice of the lesser,”’”’” which is unnecessary]; People v. Moran (1970) 1 Cal.3d 755, 763 [“If the evidence supports the verdict as to a greater offense, the conviction of that offense is controlling, and the conviction of the lesser offense must be reversed.”].)

Given our resolution of the issue, we need not address Paez’s alternative claim that defense counsel was ineffective for failing to ensure the jury instructions precluded convictions for both receiving a stolen vehicle and operating a chop shop.

II. Romero Motion

Paez’s instant offenses occurred in 2016 (he was convicted in 2017) and he had a prior serious felony/strike conviction for assault with a deadly weapon from 2007. (§ 245, subd. (a)(1).) Paez filed a Romero motion, requesting the court to strike his serious felony conviction under section 1385. (See Romero, supra, 13 Cal.4th 497.) The trial court denied the motion and Paez now challenges that ruling, arguing the trial court abused its discretion. We detect no abuse of discretion in the court’s ruling.

Romero confirmed that, under the three strikes scheme, the trial court retains the discretion to dismiss or strike one or more of the defendant’s prior serious or violent felony convictions, alleged as a recidivist enhancement under the scheme. (Romero, supra, 13 Cal.4th at pp. 504, 529-530.) More specifically, Romero clarified the court may strike prior “strike” convictions pursuant to section 1385, “in furtherance of justice.” (§ 1385; Romero, supra, at p. 531.)

A request for such relief is commonly referred to as a Romero motion. (People v. Carmony (2004) 33 Cal.4th 367, 375 (Carmony).) The trial court’s ruling on a Romero motion is reviewed for abuse of discretion. (Carmony, supra, at p. 375.) Our Supreme Court has noted this standard of review is deferential but not “empty.” (People v. Williams (1998) 17 Cal.4th 148, 162 (Williams).) “Although variously phrased in various decisions [citation], it asks in substance whether the ruling in question ‘falls outside the bounds of reason’ under the applicable law and the relevant facts.” (Ibid.)

Williams addressed the scope of the inquiry to be undertaken by the trial court in ruling on a Romero motion. The touchstone of the Romero determination is whether “the defendant may be deemed outside the [three strikes] scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (Williams, supra, 17 Cal.4th at p. 161.) Williams clarified that making this assessment requires “balanc[ing]” the defendant’s “constitutional rights,” including “the guaranties against disproportionate punishment of the Eighth Amendment to the United States Constitution and article I, section 17 of the California Constitution” on the one hand, and “society’s legitimate interests,” including “the fair prosecution of properly charged crimes,” on the other hand. (Williams, supra, at pp. 160-161.)

In striking the requisite balance, “preponderant weight must be accorded to factors intrinsic to the [three strikes] scheme, such as the nature and circumstances of the defendant’s present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects.” (Williams, supra, 17 Cal.4th at p. 161; see Romero, supra, 13 Cal.4th at p. 531 [in exercising its discretion as to whether to strike a prior strike conviction, the court must consider the “‘defendant’s background,’” “‘the nature of his present offenses,’” and other “‘individualized considerations’”].) “‘[W]hen the balance falls clearly in favor of the defendant, a trial court not only may but should exercise the powers granted to him by the Legislature and grant a dismissal in the interests of justice.’” (Carmony, supra, 33 Cal.4th at p. 375.)

Here, Paez’s counsel argued at the Romero hearing: “[Paez’s] strike conviction is old, I believe the conviction date was May 8th, 2007. In the last ten years since [that] conviction, there has been no violence. And his family, who [are] in the courtroom today, are here to support him. Submit it.” The court observed: “All right. The conviction was in 2007 but [Paez] wasn’t paroled until 2013. The fact that he was in custody for six years kind of mitigates the argument of it [a]s remote, because basically he was unable to commit crimes, presumably, while in the California Department of Corrections and Rehabilitation.”

The trial court then explained its ruling on Paez’s Romero motion:

“[C]oncerning the Romero motion, the Court’s denying the motion. The Court has not heard anything that suggests that Mr. Paez is outside of the spirit of the Three Strikes law. I have been provided nothing concerning the underlying circumstance[s] of the serious felony prior from 2007. But that isn’t critical. What is critical is that since that time the defendant has seemingly not made an attempt to remain free of lawlessness. While the 2014 driving on a suspended license is not the crime of the century, it is indicative of a willingness to violate the law, as [are] the two 2015 violations of parole, as well as the 2016 violation of parole, not to mention the current case. [¶ ] And I agree with the Defense that this case itself is not the most serious of offenses. But clearly it shows that Mr. Paez continues to engage in lawless activity which puts him squarely within the spirit of the law.”

Here, as the court noted, the record did not disclose evidence to suggest that Paez was outside the spirit of the three strikes law. At the same time, it was clear Paez had committed multiple violations of the law close in time to the instant offenses, following his release from prison in 2013 (upon serving the sentence for his strike prior). Under these circumstances, we cannot say the court abused its discretion in denying Paez’s Romero motion.

III. Prior Prison Term Sentence Enhancements

The trial court imposed two prior prison term sentence enhancements. In supplemental briefing, Paez argues these enhancements must be stricken in light of Senate Bill No. 136, which amended section 667.5, subdivision (b), effective January 1, 2020. (Sen. Bill No. 136 (2019-2020 Reg. Sess.) ch. 590, § 1.)

Under section 667.5, subdivision (b), as amended by Senate Bill No. 136, a one-year prison term is to be imposed for each prior, separate, prison term served for a conviction for a sexually violent offense as defined in Welfare and Institutions Code section 6600, subdivision (b). Prior to this amendment, section 667, subdivision (b), authorized the imposition of an additional one-year sentence enhancement based on prior prison terms served for a broader range of underlying felony convictions.

The parties agree that the amendment effected by Senate Bill No. 136 is retroactive because it potentially reduces punishment, and that the amendment applies here because this case will not be final before the amendment’s effective date. (See People v. Brown (2012) 54 Cal.4th 314, 323-324; In re Estrada (1965) 63 Cal.2d 740, 745 [for a nonfinal conviction, “where the amendatory statute mitigates punishment and there is no saving clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed”]; People v. Vieira (2005) 35 Cal.4th 264, 306 [“‘for the purpose of determining retroactive application of an amendment to a criminal statute, a judgment is not final until the time for petitioning for a writ of certiorari in the United States Supreme Court has passed’”].)

Paez notes the prior felony convictions underlying the prior prison term enhancements imposed here were not sexually violent felonies as contemplated by section 667.5, subdivision (b), as amended by Senate Bill No. 136. He contends the prior prison term enhancements must therefore be stricken. The People agree, as do we. Accordingly, the matter is remanded for the trial court to strike these enhancements after Senate Bill No. 136 goes into effect on January 1, 2020.

DISPOSITION

Paez’s conviction for receiving a stolen motor vehicle and the related sentence are reversed. The matter is remanded for the trial court, after January 1, 2020, to strike the two prior prison term sentence enhancements previously imposed and to resentence Paez. The judgment is otherwise affirmed.