Filed 9/16/24 P. v. Moreno CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

EDDIE F ERNANDO MORENO,

Defendant and Appellant. B333875

(Los Angeles County Super. Ct. No. LA039438)

APPEAL from an order of the Superior Court of Los Angeles County, Gregory A. Dohi, Judge. Affirmed

. James Koester, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Jason Tran and Kristen J. Inberg, Deputy Attorney s General, for Plaintiff and Respondent.

_____________________ _2 This appeal require s that we opine on the interplay
between Penal Code 1 sections 1170.126 and 1172.75, an issue currently pending before our Supreme Court

. Section 1170.126

was enacted when voters pas sed Proposition 36

, also known as

t he Three Strikes Reform Act of 2012 (Reform Act )

. Proposition
36 amended the Three Strikes law to provide that going forward a defendant with two or more prior serious or violent felony convictions, whose current conviction was for a nonserious or nonviolent felony, would no longer receive a life sentence unless the prosecutio n pleaded and proved certain aggravating factors. (§§ 667, subd. (e)(2)(C), 1170.12, subd. (c)(2)(C) .) Section
1170.126 sets forth a procedure for person s serving a life term pursuant to the Three Strikes law that was imposed prior to the
Reform Act ’s effective date to petition for resentencing if their
third conviction was for a no n serious and non violent felony. (§ 1170.126, subd. (b).) Upon such a petition, the trial court must reduce such a third strike sentence to double the term for the
current off

ense “unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.” ( Id ., subd. (f).) Section 1172.75, subdivision (a) provides that most prior prison term enhancement s ( former § 667.5, subd. (b)) imposed
before January 1, 2020 , are invalid . S ubdivision (c) of section
1172.75 states that if a current judgment includes an invalid prior prison term enhancement, the court must recall the
sentence and resentence the defendant . S ection 1172.75,

s ubdivision (d) (2) requires that

, in addition to removing the prior prison enhancements , at resentencing th e court must “ apply any

1 All unspecified statutory references are to the Penal Code.3

other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing

. ” T he resentencing must result in a lesser sentence than was originally imposed “ unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety .” ( Id ., subd. (d)( 1).) A question has arisen over whether section 1170.126 provides the exclusive method to reduce a third strike component of any pre

- Reform Act sentence , or whether a court resentencing pursuant to section 11 72.75 must reduce a pre

- Reform Act third strike sentence for a nonserious and nonviolent felony unless the prosecution pleads and proves disqualifying factors to support the existing sentence. Every single Court of Appeal to consider this question has held that the resentencing provisions of section 1170.126 provide the exclusive mechanism for reducing a third strike sentence for a nonserious and nonviolent felony , and that

“ applying the revised penalty provisions of the

. . . Reform Act to reduce a defendant’s indeterminate life term to a determinate term when the defendant is being resentenced under section 1172.75 due to an invalid prior prison term enhancement unconstitutionally amends the resentencing procedure and requirements set forth in section 1170.126 of the voter

- approved

. . . Reform Act. ” ( People v. Superior Court (Williams) (2024) 102 Cal.App.5th 1242

, 1250 , review granted Aug. 28, 2024, S 286128 ; accord

, People v. Santos 2024) 100 Cal.App.5th 666, review granted May 29, 2024, S284341; People v. Kimble (2024) 99 Cal.App.5th 746 , review granted Apr. 24, 2024, S284259; People v. Superior Court (Guevara) (2023) 97 Cal.App.5th 978, review granted Mar. 12, 2024, S283 305.)4 D efendant Eddie F ernando Moreno and the Attorney General both urge us to adopt the view of the lone justice that
has dissented from this view

. ( People v. Superior Court (Guevara)

, supra , 97 Cal.App.5th at pp. 988

- 995 ( d i s

. opn. of
Baltodano , J. ) .) We decline to do so for the reasons explained
below.

FACTUAL AND PROCEDURAL BACKGROUND

In November 2001, while Elena H iller was packing her belongings into her truck, Moreno approached her with a knife
and demanded she hand over her wallet to him. When Hiller told him she only had one dollar, Moreno demanded the keys to her truck, made her get into the vehicle with him

, and drove away
with her in the truck

. After driving a few blocks, Moren o took
Hiller ’s wallet

, forced her out of the truck

, and drove away. About a week later, officers observed Moreno driving the truck. They tried to initiate a traffic stop but Moreno sped away and evaded the pursuing police vehicle for five or six miles before the
chase ended. When Moren o was arrested police found a knife and cocaine on his person. In 2003, a jury convicted Moreno of carjacking ( § 215, subd. (a); count 1), robbery ( § 211; count 2), unlawful driving or taking of a vehicle ( Veh. Code, § 10851, subd. (a); count 3), evading an officer ( id

. , § 2800.2, subd. (a); count 4), and possession of a controlled substance ( Health & Saf. Code, § 11350 , subd. (a) ; count 5). As to counts 1 and 2 , the jury also found that Moren o used a knife (§ 12022, subd. (b)(1)

- (2)).
The trial court found true the allegations that Moreno had suffered two prior serious or violent felony juvenile adjudications for robbery with the use of a firearm and robbery with the use of a deadly weapon which both qualified as strikes within the5

meaning of the Three Strikes law (§§ 667, subds. (b)

- (i), 1170.12, subds. (a)

- (d))

, and that he had served three prior prison terms (§ 667.5, subd. (b)). The court sentenced Moreno to an aggregate prison term of 80 years to life, composed of third

- strike terms of 26 years to life on count 1, 26 years to life on count 2, and 25 years to life on count 4, as well as three years for the thre e prior prison term enhancements. 2 In March 2014, Moreno timely petitione d for relief under
section 1170.126. The court denied the petition, finding that
Moreno was ineligible for relief. T he court construed language in
section 1170.126 which stat es th at “ [ a ] n inmate is eligible for resentencing if: [ ¶ ] .

. . [¶]

. . . [t] he inmate ’s current sentence was not imposed for any of the offenses ” in cluded in the list of violent
and serious felonies ( id ., subd. (d)(2) , italics added ) to mean that
Moreno was eligible for relief only if all his current commitment
offenses were nonserious and nonviolent

. Because Moreno’s
current counts of conviction includ ed serious and violent felon ies

, the court found him ineligible for relief. The record does not
indicate Moreno sought review of this determination. In 2015, our Supreme Court rejected th e notion that section 1170.126, subdivision (d)( 2 ) disqualifies an inmate from resentencing relief under the Reform Act unless all of the prisoner ’ s current commitment offenses are non serious and

non violent . ( People v. Johnson (2015) 61 Cal.4th 674, 688

- 695.)
A fter a cknowledging the statute’s ambiguity, the court held

“ resentencing is allowed with respect to a count that is neither serious nor violent, despite the presence of another count that is

2 Moreno received a stayed term of 25 years to life on
count 3 and a concurrent term of 25 years to life on count 5.6

serious or violent .” ( Id . at p. 695.) The record does not indicate
that Moreno sought to challenge the trial court’s prior ruling regarding his eligibility for resentencing under section 1170.126 after the Supreme Court decided Johnson

. In 2022, Moreno moved for resentencing under section
1172.75 following a referral by the Department of Corrections
and Rehabilitation recommending the court recall his sentence

. Moreno request ed dismissal of the three one

- year prior prison
term enhancements imposed as part of his sentence

, reduction of

count 5 to a misdemeanor pursuant to Proposition 47, and
dismissal of one or more of his prior strikes pursuant to section
1385

. He also requested “a full rese n tencing” where he would receive the benefit of any other ameliorative sentencing provisions en acted after his prior sentence became final

. Nothing in the record indicates, however, that he request ed that the court
resentence him in accord with the Reform Act ; as noted above, his only requests with rega rd to his third strike sentence s were the
Romero 3 motion to strike one of his prior strikes and his request

to stay the sentence on count 2 so that it did not run consecutively. The trial court recalled Moreno’s sentence and, o n August 28, 2023, resentenced him. The court struck the th r ee

one

- year prior prison term enhancements, reduced count 5 to a misdemeanor, and stayed the sentence on count 2 pursuant to section 654. The court denied Moreno’s Romero motion to dismiss his prior strikes pursuant to section 1385

. The court effectively
left the remainder of Moreno’s sentence in place, imposi ng a new
sentence of 51 years to life.

3 People v. Superior Court (Romero) (1996) 13 Cal.4th 497

.7 DISCUSSION

Moreno does not contend the trial court erred in resentencing him to 2 6 years to life on count 1 , as carjacking is
both a serious (§ 667 .5 , subd. (c) (17) ) and violent ( § 1192.7, subd. (c)(27)) felony and therefore not subject to the Reform Act provisions regarding nonserious, nonviolent third strike
convictions

. Moreno instead argues, and the Attorney General agrees, that the trial court erred in fail ing to reduce Moreno’s

sentence for evading an officer (count 4 ) , which is not a serious or violent felony, to a second

- strike determinate term

. In the parties’ view, current law states that a defendant with two or more prior serious or violent felony convictions canno t receive a life sentence for a current felony conviction that is a nonserious or nonviolent felony unless the prosecution pleads and proves certain disqualifying fact ors. (§§ 667, subd. (e)(2)(C), 1170.12, subd. (c)(2)(C).) Because the prosecution did plead or prove such
factors he re, the parties argue we should remand this matter for
Moreno to be resentenced on count 4

. 4 We are not bound by the Attorney General’s concession,
and thus independently analyze this issue. ( People v. Kimble

,

4 Although Moreno’s resentencing counsel did not specifically argue section 1170.126 applied to him, Moreno has not waived the issue. An unauthorized sentence, meaning one that “ cannot ‘ lawfully be imposed under any circumstance in the particular case ’ [citation], .

. . is reviewable ‘ regardless of whether an objection or argument was raised in the trial and/or reviewing
court. ’ [Citations.] An obvious legal error at sentencing that is

‘ correctable without referring to factual findings in the record or remanding for further findings ’ is not subject to forfeiture. [Citations.]” ( In re Sheena K . (2007) 40 Cal.4th 875, 887.)8

supra , 99 Cal.App.5th at p. 749 [“ As a general rule, we are not bound by concessions made by the People in a criminal case. [Citation.] And here, we are not inclined to give the Attorney General’s concession significant deference, as the issue before us turns on a question of statutory interpretation .”].) We agree with the opinions to date that have analyzed this issue, all of which have rejected the position a dvocated by Moreno an d the Attorney
General. In a nutshell, the parties’ “v iew of section 1172.75, subdivision (d)(2), automatically mandates the trial court to
reduce [Moreno’s] indeterminate life term imposed [on count 4 ]
under the Three Strikes law to a determinate term

. . . . Under this view, section 1172.75, subdivision (d)(2), renders void for those lucky enough to have had a prior prison term enhancement the provisions of section 1170.126, requiring the filing of a petition, the deadline for filing the petition, and the trial court’s discretion to deny the petition on the ground of an unreasonable risk to public safety. ” ( People v. Superior Court (Guevara)

, supra , 97 Cal.App.5th at p. 984.) We have several problems with this position , all of which prior courts have noted

. For starters, such a construction of section 1172.75 would unconstitutionally amend section 1170.126. T he Reform Act

“ allows the Legislature to amend it by statute only if the statute passes each house of the Legislature by a vote of two

- thirds of the membership. (Prop. 36, § 11 , subd. (b).) Senate Bill No. 483 (2021

- 2022 Reg. Sess.), codified as section 1172.75, did not pass
the senate with a two

- thirds vote. [Citation.]” ( People v. Superior Court (Guevara)

, supra , 97 Cal.App.5th at p. 985.) The part ies’ interpretation of section 117 2

. 75 would
unconstitutional ly amen d section 11 7 0.126 in multiple ways

.9 First, it would eliminate the requirement that a resentencing petition for a pre

- Reform Act T hree S trikes sentence be filed within two years of the effective date of the Reform Act (in other words, no later than November 2014) , and only later

upon a showing of good cause . ( People v. Superior Court (Williams)

, supra , 102 Cal.App.5th at p. 1267 .) Second, it improperly expands the scope of retroactivity contemplated by the Reform Act and conflicts with our Supreme Court’s guidance in People v. Conley (2016) 63 Cal.4th 646. ( People v. Kimble

, supra , 99 Cal.App.5th at pp. 753

- 755.) In Conley

, the “ Supreme Court decided ‘ whether third strike
defendants who were sentenced under the Three Strikes law before November 7, 2012, but whose judgments were not yet final as of that date, are entitled to automatic resentencing under the revised penalty provision s of the Reform Act. ’ [Citation.] The court concluded they were not and ‘ instead may seek resentencing by petitioning for recall of sentence under section
1170.126 .’ [Citation.]” ( People v. Santos

, supra , 100 Cal.App.5th at p. 674.) “T hus, we are bound by Conley to conclude that, as to [Moreno] , even during a full resentencing, the Reform Act cannot be applied retroactively to entitle him to automatic resentencing
outside of section 1170.126. ” ( Id

. at p. 675; see also People v. Superior Court (Williams)

, supra , 102 Cal.App.5th at pp. 1262

- 1264 5 ; People v. Kimble

, supra , 99 Cal.App.5th at p. 758.) Put

5 Although she agreed the application of section 1172.75 urged by the parties here would constitute an impermissible amendment to the Reform Act, Justice Mary J. Greenwood dissented from the majority’s retroactivity analysis and would have read section 1172.75 to allow defendants a renewed opportunity to petition for relief under section 1170.12 6 in10

differently, with regard to any third strike component of his
sentence, Moreno had to file a petition to recall that sentence and request rese ntencing under section 1170.126

. ( People v. C onley

, supra , 63 Cal.4 th at pp

. 65 7

- 659 .) Third, the parties’ interpretation would unconstitutionally
amend the trial court’s discretion not to reduce a t hird s trike

sentence if “resentencing the petitioner would pose an unreasonable risk of danger to public safety.” (§ 1170.126, subd. (f).) Moreno points out that in most of the prior published cases , the Three Strike s defendants being resentenced under section 1172.75 had previously be en denied relief under section 1170.126 based on findings that they posed a danger to society

. ( People v. Superior Court (Williams)

, supra , 102 Cal.App.5th at p. 1249 ; People v. Kimble

, supra , 99 Cal.App.5th at p. 750 ; People v. Superior Court (Guevara)

, supra , 97 Cal.App.5th at p. 982 ; but

see People v. Santos

, supra , 100 Cal.App.5th 666 [ no indicat ion
that the defendant previously petitioned for relief under § 1170.12 6 ] .) Moreno asserts the court’s failure to make a finding
of dangerous ness when ruling on his prior section 1170.126 petition means the question of whether section 1172.75 unconstitutionally amends the court’s discretionary authority

connection with a resentencing request under section 1172.75. ( People v. Superior Court (Williams)

, supra , 102 Cal.App.5th at

pp. 12 68

- 1274 ( conc. & dis. opn. of Greenwood, J.). Here, Moreno’s prior section 1170.126 petition was denied on procedural grounds later disapproved by our Supreme Court, and nothing we say here prohibits him from filing a second section 1170.126 petition provided that he can show good cause for his delay in doing so

. (See § 11 70.126, subd. (b).)11

under section 1170.126 to deny relief whe re resentencing would pose an unreasonable risk of public danger is not ripe as to him

. We disagree. Section 1170.126 permits a court to deny resentencing if it finds by a preponderance of the evidence that doing so would pose a danger to the public . ( Id ., s ubd

. (f) .) Section 1172.75, however, ratchets up th at burden up to the higher one of clear and convincing evidence

. ( Id

., subd. (d)(1)

. )
This is not an insignificant change and

, more to the point,

amounts an unconstitutional end run around the requirement of

a two

- thirds vote in the Legislature to amend section 1170.126. ( See People v. Superior Court (Guevara)

, supra , 97 Cal.App.5th at

p. 985 .)
It would also materially alter without the required two

thirds vote the express factors in section 1170.126, subdivision ( g ) governing a court’s discretion in de termin in g whether the petitioner poses a risk to public safety

. Both sections 1170.126
and 1172.75 permit the court to consider the defendant’s disciplinary record and record of rehabilitation while incarcerated. ( Compare § 1170.126, subd . (g) (2) with § 1172.75, subd. ( d)(3).) The overlap , however, ends there

. Section

11 70.126, subdivision (g)(3) permits consider ation of “evidence the court, within its discretion, determines to be relevant in deciding whether a new sentence would result in an unreasonable risk of danger to public safety”; section 1172.75

, subdivision ( d)(3) uses more restrictive lang uage permitting
consideration of evidence that has “ reduced the defendant ’ s risk
for future violence ” as opposed to other type s of public safety
risks. A court in a section 1170.126 proceeding can consider the petitioner’s criminal history in assessing public safety risks ( id

. subd. (g)(1) ); section 1172.75, subdivision ( d ) lists only12

postconviction factors and thus does include prior criminal history as a permissible consideration. A court hearing a section 1172.75 petition may consider “evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice ” ( id

., subd. (d)(3) ) ; section 1170.126 , subdivision (g) does not list this as a permissible consideration. Permitting section 1172.75 to
override these express provisions in section 1170.126 “ woul d conflict with the Reform Act’s intent to protect the public from people who pose an unreasonable risk of danger to public safety

. ” ( People v. Kimble

, supra , 99 Cal.App.5th at p p.754

- 755 , italics
omitted ; see also People v. Superior Court (Williams)

, supra , 102 Cal.App.5th at p p

. 1261

- 1262 [reaching similar conclusion] .) Beyond these constitutionality concerns, the parties’ interpretation of section 1172.75 also fails to promote sentencing uniformity , one of th at statute’s express goals. (§ 1172.75, subd. (d)(2).) Instead, the parties’ interpretation “carv[e s ] out a favorable exception for a specific subset of defendants

— those sentenced under the former Three Strikes law who may be eligible for resentencing as second strike offenders and who received a prior prison term enhancement within the ambit of [section 1172.75]. This exception would grant those defendants mandatory relief under the [Three Strikes] Reform Act, requiring the court to resentence them as second strike offenders, while leaving otherwise similarly situated inmates with only the Reform Act’s (time

- limited) petition process as a path to resentencing, with its assessment of disqualifying factors and discretionary weighing of safety and recidivism considerations.” ( People v. Kimble

, supra , 99 Cal.App.5th at p.755.)13 Despite all of the above, t he parties urge us to adopt the view expressed by Justice Hernaldo Baltodano in his dissent in People v. Superior Court (Guevara)

, supra , 97 Cal.App.5th at

p ages 988

- 995. T hat view rests on the assertion that a resentencing under section 1172.75 is a full resentencing, and
therefore a defendant like Moreno is entitled to be resentenced as
tho ugh he was just convicted of a nonviolent and nonserious
offense. We reject that premise for the same reason the majority
in Guevara did , n amely that the portion of Moreno’s sentence mandated by the Three Strikes law w as not vacated and thus not subject to resentencing in a section 1172.75 proceeding

. ( People v. Superior Court (Guevara)

, supra , at p. 986.) Simply put,

“ because section 1172.75 was not enacted by a two

- thirds vote of
both houses of the Legislature, it is not the mechanism for relief for those serving an indeterminate term pursuant to the Reform
Act. ” ( Id . at p. 987.) With regard to his t hird s trike sentence on

count 4 , Moreno “ is entitled to resentencing only upon a successful petition under section 1170.126. ” ( People v. Santos

, supra , 100 Cal.App.5th at p. 676.)14 DISPOSITION
The judgment is affirmed.

NOT TO BE P UBLISHED

WEINGART, J.

We concur:

BENDIX, Acting P. J.

K ELLEY , J. *

* Judge of the San Luis Obispo County Superior Court

, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.