Friday, October 12, 2018
Page 4
Plea Deal Precludes Remand for Consideration of New Discretion
By a MetNews Staff Writer
The Fifth District Court of Appeal has declared that a man who entered a plea bargain is not entitled to a remand for the trial court to consider its newly created discretion to strike firearm enhancements, because there is no reasonable possibility the judge would exercise that discretion given the defendant’s acceptance of the deal.
The unpublished opinion, filed Wednesday, was written by Acting Presiding Justice Herbert I. Levy, who was joined by Justice Jennifer R.S. Detjen. Justice Donald R. Franson Jr. wrote an opinion dissenting in part.
In 2013, defendant Felix C. Ruiz II pled no contest to two counts of attempted murder, as well as enhancements for the use of a handgun by a principal and for the crimes having been committed for the benefit of a street gang. The plea was in exchange for a 35-year sentence.
He was sentenced to five years for the attempted murder, 20 years for the firearm enhancement, and 10 years for the gang enhancement.
Ruiz initially appealed claiming a right to withdraw his plea, which the Fifth District rejected in 2016. The unanimous opinion in that appeal agreed with both parties that the gang enhancement was unauthorized in addition to the firearm enhancement, because the defendant had not personally used the firearm, but the court declined to remand because Ruiz had “received the benefit of his bargain.”
The Supreme Court affirmed the Fifth District’s dercision on May 17. It declined to consider the issue of whether Penal Code §12022.53—amended in 2017 to grant judges discretion to strike or dismiss firearm enhancements—required a remand, ruling that the Fifth District was free to consider that issue.
Majority’s Opinion
Levy wrote:
“It is undisputed that…the terms of appellant’s plea agreement were amended by the subsequent change to section 12022.53….The issue, however, is whether remand is warranted. Under certain circumstances, appellate courts have denied a remand when it would serve no purpose to have a trial court exercise newly enacted discretionary authority….
“We agree with respondent that a remand in this situation would serve no purpose. The trial court accepted the plea agreement and imposed a 35-year aggregate term. We have already held that appellant received the benefit of his negotiated plea bargain. He avoided a potentially harsher sentence. To implement the parties’ agreement, the court imposed 20 years based on the firearm enhancement. There is no reason to believe the trial court would have exercised its discretion to strike the firearm enhancement if it had such authority. A remand for resentencing under these circumstances would be an idle act and would serve no purpose.”
Franson’s Dissent
In his dissent, Franson relied on the 1996 opinion from this district’s Court of Appeal in People v. Gutierrez. There, Div. Two declined to remand a case for resentencing under an analogous law, because “the trial court indicated that it would not, in any event, have exercised its discretion to lessen the sentence.”
Franson wrote:
“The Gutierrez court stated that remand was necessary “unless the record shows that the sentencing court clearly indicated that it would not, in any event, have exercised its discretion to strike the allegations.”
He cited People v. Billingsley, a 2018 opinion from Div. Seven of this district’s Court of Appeal, which rejected the government’s argument that remand would be futile, relying on the lack of a clear indication by the sentencing judge as to any intent to exercise its discretion.
“While the trial court in Billingsley had suggested it would not strike the firearm allegation even if it had the discretion to do so, the court held such a statement was not determinative because ‘the court was not aware of the full scope of the discretion it now has under the amended statute,’…” Franson wrote.
“In each of the cases discussed above, remand was required absent a clear indication in the record that the sentencing court would not have exercised its discretion to the defendant’s benefit had it known of that discretion. A review of the entire sentencing hearing transcript confirms the trial court’s lack of any indication or mention of whether it might strike the firearm enhancement, if it had the discretion to do so.”
The case is People v. Ruiz, F068737.
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