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Filed 8/16/21 P. v. Gonzalez CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(San Joaquin)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

ALEJANDRO RANGEL GONZALEZ,

Defendant and Appellant.

C087851

(Super. Ct. No. 

TRACRFE20000017521, 

TF030490A)

In 2001, defendant Alejandro Rangel Gonzalez was sentenced to 35 years four 

months after he fired a shotgun from the passenger side of a speeding car through the 

window of another car occupied by a mother and her two young children. We affirmed 

his conviction on appeal and incorporate by reference our unpublished opinion. (People 

v. Gonzalez (Mar. 19, 2003, C038852) [nonpub. opn.] (Gonzalez).) In 2018, California 

Department of Corrections and Rehabilitation (CDCR) recommended the trial court 

review and correct defendant’s unauthorized sentence, which the trial court did through 
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an ex parte order. On appeal, defendant argues that the letter authorized the trial court to 

resentence defendant, yet the trial court failed to consider exercising its discretion to 

dismiss or reduce defendant’s 20-year firearm enhancement under Penal Code section 

12022.53 (statutory section citations that follow are to the Penal Code). Defendant 

further argues, relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), that 

imposing fines and fees without considering his ability to pay violated his due process 

rights. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

No discussion of the facts underlying the offense is necessary to the issues raised 

by defendant on appeal. Instead, we summarize the relevant procedural history.

A jury found defendant guilty of three counts of attempted murder (§§ 664/187; 

counts one, two, and three) and two counts of shooting at an occupied vehicle (§ 246; 

counts four, five). The jury found the charged firearms enhancements true (§§ 12022.53, 

subd. (c), 12022.5, subd. (a)(1), 12022, subd. (a)(1)) but rejected the charge that 

defendant committed the attempted murder with deliberation and premeditation. (People 

v. Gonzalez, supra, C038852 at pp. 1-2.)

The trial court sentenced defendant to an aggregate term of 35 years four months 

in state prison as follows: the upper term of nine years on count one; 28 months each 

(one-third the midterm) on counts two and three, plus 20 years consecutive on count three 

for the firearm enhancement (§ 12022.53, subd. (c)); and 20 months (one-third the 

midterm) on count five. The trial court stayed the sentence on count four under section 

654 and stayed the lesser firearm enhancements. It further ordered defendant to pay 

$1,800 in restitution. (§§ 1202.4, subd. (b), 1202.45.) We affirmed defendant’s 

judgment in a March 19, 2003 nonpublished opinion. (People v. Gonzalez, supra, 

C038852 at p. 21.) 
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On August 8, 2018, CDCR sent a letter to the trial court stating that the “Abstract 

of Judgment and/or Minute Order may be in error or incomplete” because count one, 

rather than count three, was erroneously designated the principal term. The letter noted 

that count three should be the principal term and be fully imposed with count one as the 

subordinate term. The letter further stated: “Please review your file to determine if a 

correction is required. When notified by the Department of Corrections and 

Rehabilitation that an illegal sentence exists, the trial court is entitled to reconsider all 

sentencing choices, People v. Hill, 185 Cal.App.3d 831.” (Italics in original.) 

Two weeks later, the trial court issued an ex parte order in response to the letter, 

which said, “Original sentence of 07/06/2001 to remain in full force and effect except as 

modified herein.” The trial court then imposed the firearm enhancement (§ 12022.53, 

subd. (c)) under count one, which had previously been stayed, and stayed the firearm 

enhancement under count three, which had previously been imposed. It noted that the 

total term remained 35 years four months. 

DISCUSSION

I

Firearm Enhancement

Defendant argues that the CDCR letter opened the matter for resentencing, which 

in turn required the trial court to consider whether to strike defendant’s firearm 

enhancement per the newly enacted Senate Bill No. 620 (Stats. 2017, ch. 682, §§ 1-2) 

(SB 620). Noting the trial court simply resentenced defendant in an ex parte order, 

without any reference to its newly bestowed discretion under SB 620, defendant argues 

the trial court was not aware that it had the discretion to strike defendant’s firearm 

enhancement when it resentenced defendant. Thus, defendant asks us to remand the 

matter to the trial court to consider whether to exercise its discretion under SB 620. The 

People counter that the trial court did not resentence defendant in August 2018, but rather 
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used its inherent authority to correct an unauthorized sentence, which they characterize as 

correcting a clerical error. Because the trial court did not resentence defendant, the 

People argue, defendant is not entitled to remand for the court to consider whether to 

grant relief under SB 620. 

The People’s argument relied primarily on People v. Abdullah (2019) 

38 Cal.App.5th 218, which the California Supreme Court ordered depublished shortly 

after the People submitted their responsive brief. (People v. Abdullah (2019) 

38 Cal.App.5th 218, review denied and depublished Oct. 30, 2019, S257756.) We 

therefore ordered supplemental briefing providing additional authority, if any, supporting 

the People’s argument that defendant is not entitled to remand because the trial court 

merely corrected an unauthorized sentence and did not resentence defendant under 

section 1170, subdivision (d)(1). Having reviewed the authority proffered by the parties, 

we conclude the trial court did, in fact, resentence defendant. However, as we will 

explain, defendant is still not entitled to remand.

A trial court typically lacks jurisdiction to change a defendant’s sentence once 

execution of the sentence begins. (People v. Karaman (2001) 4 Cal.4th 335, 344.) 

However, there are exceptions to this rule. First, section 1170, subdivision (d)(1) 

authorizes a trial court to, “within 120 days of the date of commitment on its own motion, 

or at any time upon the recommendation of the secretary or the Board of Parole Hearings 

in the case of state prison inmates . . . recall the sentence and commitment previously 

ordered and resentence the defendant in the same manner as if they had not previously 

been sentenced, provided the new sentence, if any, is no greater than the initial sentence.”

Under section 1170, subdivision (d)(1), the prior sentence and order of 

commitment is effectively “vacate[d],” and the trial court may sentence defendant anew, 

to an equal or lesser sentence. (Dix v. Superior Court (1991) 53 Cal.3d 442, 456.) 

Separate and apart from correcting an unauthorized sentence or illegal sentence, a 

trial court has the inherent power to correct clerical errors in the judgment “so as to make 
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these records reflect the true facts.” (In re Candelario (1970) 3 Cal.3d 702, 705.) A 

clerical error in the judgment includes a mismatch between the minutes or abstract of 

judgment and the judgment pronounced by the court, or the erroneous calculation of 

presentencing credits. (People v. Humphrey (2020) 44 Cal.App.5th 371, 379 

(Humphrey).)

We agree with defendant that the CDCR letter triggered defendant’s resentencing, 

and did not merely advise the trial court to correct a clerical error on its own authority. 

Here, the CDCR letter stated that defendant’s sentence was “illegal” and advised the trial 

court it could “reconsider all sentencing choices,” citing to People v. Hill, supra,

185 Cal.App.3d 831. Hill held that upon receipt of a letter from the CDCR advising the 

court that a sentence was illegal, the trial court is authorized by section 1170, subdivision. 

(d)(1) to rethink the entire sentencing scheme and wholly resentence the defendant. (Hill, 

at p. 834.) As the letter here advised the trial court that defendant’s sentence was 

illegally imposed – rather than legally imposed but incorrectly transcribed into the record 

– the letter disclosed an illegal sentence rather than a clerical error, which authorized the 

trial court to resentence defendant. 

Indeed, the trial court responded to the letter by changing defendant’s unlawful 

sentence, exchanging the principal and subordinate terms and applying the firearm 

enhancement to the new principal term. This correction involved the exercise of judicial 

discretion and thus constituted a resentencing. On this record, we must conclude that the 

CDCR letter triggered defendant’s resentencing under section 1170, subdivision (d)(1), 

and the court resentenced defendant rather than simply correcting a clerical error on its 

own authority. (See, e.g., People v. Arias (2020) 52 Cal.App.5th 213, 217, 219 [CDCR 

letter recommending recall of the defendant’s sentence based on trial court’s illegal 

imposition of two enhancements triggered resentencing under section 1170, subd. 

(d)(1)].) 
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The cases relied upon by the People in their supplemental brief are distinguishable 

on this point, as in both cases the trial court corrected clerical errors rather than fixing 

unauthorized sentences per section 1170, subdivision (d)(1). Specifically, in Humphrey,

supra, 44 Cal.App.5th 371, the trial court corrected its erroneous calculation of the 

defendant’s presentence credits in the abstract of judgment, while keeping the 

defendant’s sentence intact. The appellate court concluded that the trial court’s actions 

resolved a clerical error and the defendant was not entitled to resentencing. (Id. at 

p. 378.) Similarly, in People v. Magana (2021) 63 Cal.App.5th 1120, also discussed by 

the People, the CDCR letter notified the trial court that the clerk erroneously doubled the 

prior prison terms on the abstract of judgment, resulting in a faulty transcription of the 

sentence. (Id. at p. 1125.) Therefore, Magana found that the trial court’s correction 

rectified a clerical error and did not constitute resentencing. (Id. at pp. 1125-1127.) 

Here, unlike in Humphrey and Magana, the CDCR letter informed the trial court that the 

sentence was unauthorized, rather than improperly transcribed or miscalculated. The trial 

court then, in an exercise of judicial discretion, resentenced defendant by changing the 

principal and subordinate terms and imposing the firearm enhancement with the new 

principal term, while staying the firearm enhancement that was previously imposed. 

Thus, the People’s cases are not persuasive. 

As we conclude defendant was resentenced, we turn to the question of whether the 

trial court considered striking his firearm enhancement when it resentenced defendant. 

When the trial court first sentenced defendant in 2001, section 12022.53, subdivision (c) 

mandated an additional 20 years added to a prison sentence where, as here, the factfinder 

found the allegation true. However, on January 1, 2018, SB 620 became effective. 

(Stats. 2017, ch. 682, §§ 1-2.) That measure vested the court with authority to exercise 

its discretion to strike firearm enhancements imposed under section 12022.53. 

(§ 12022.53, subd. (h).) Senate Bill 620 applies retroactively to cases that are not yet 
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final, and the law “applies to any resentencing that may occur pursuant to any other law.” 

(§ 12022.53, subd. (h); People v. Woods (2018) 19 Cal.App.5th 1080, 1090-1091.)

Senate Bill 620 became effective prior to defendant’s resentencing and thus the 

trial court had the authority to strike defendant’s firearm enhancement when it 

resentenced defendant. “Generally, when the record shows that the trial court proceeded 

with sentencing on the erroneous assumption it lacked discretion, remand is necessary so 

that the trial court may have the opportunity to exercise its sentencing discretion at a new 

sentencing hearing. [Citations.]” (People v. Brown (2007) 147 Cal.App.4th 1213, 1228.) 

“Remand for resentencing is not required, however, if the record demonstrates the 

trial court was aware of its sentencing discretion. (People v. Belmontes[ (1983)]

34 Cal.3d [335,] 348, fn. 8; People v. White Eagle (1996) 48 Cal.App.4th 1511, 1523.) 

Further, remand is unnecessary if the record is silent concerning whether the trial court 

misunderstood its sentencing discretion. Error may not be presumed from a silent record. 

(People v. White Eagle, supra, 48 Cal.App.4th at p. 1523.) ‘ “[A] trial court is presumed 

to have been aware of and followed the applicable law.” [Citations.]’ (People v. 

Martinez (1998) 65 Cal.App.4th 1511, 1517.)” (People v. Brown, supra, 

147 Cal.App.4th at pp. 1228-1229.)

Here, the record is silent. Nothing indicates the trial court did not understand its 

discretion under SB 620. Defendant bore the burden to show affirmatively that the trial 

court did not understand its sentencing discretion, and this burden was not met. (See 

People v. Davis (1996) 50 Cal.App.4th 168, 172.) We accordingly presume the trial

court exercised its discretion under SB 620 when it did not strike the firearm 

enhancement, and we will not ask the trial court to repeat that undertaking.
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II

Fines and Fees

Defendant next argues, relying on Dueñas, that he is entitled to remand for a 

hearing on whether he has the ability to pay the fines, fees, and assessments imposed by 

the trial court. The Dueñas court held that “due process of law requires the trial court to 

conduct an ability to pay hearing and ascertain a defendant’s present ability to pay before 

it imposes court facilities and court operations assessments under [ ]section 1465.8 and 

Government Code section 70373.” (Dueñas, supra, 30 Cal.App.5th at p. 1164.) That 

court also held that, “although [ ]section 1202.4 bars consideration of a defendant’s 

ability to pay [a restitution fine] unless the judge is considering increasing the fee over 

the statutory minimum, the execution of any restitution fine imposed under this statute 

must be stayed unless and until the trial court holds an ability to pay hearing and 

concludes that the defendant has the present ability to pay the restitution fine.” (Dueñas, 

at p. 1164.) Defendant insists his claim is not forfeited, because Dueñas had not yet been 

decided at the time he was resentenced. The People argue that defendant’s due process 

claim under Dueñas is not cognizable because his conviction is final. 

Even assuming defendant’s Dueñas claim is not forfeited and is cognizable on 

appeal, we reject defendant’s argument because we are not persuaded the analysis used in 

Dueñas is correct.

Our Supreme Court is now poised to resolve this question, having granted review 

in People v. Kopp (2019) 38 Cal.App.5th 47, review granted November 13, 2019, 

S257844, that agreed with the court’s conclusion in Dueñas, supra, 30 Cal.App.5th 1157

that due process requires the trial court to conduct an ability to pay hearing and ascertain 

a defendant’s ability to pay before it imposes court facilities and court operations 

assessments under section 1465.8 and Government Code section 70373, but not 

restitution fines under section 1202.4. (Kopp, at pp. 95-96, review granted.)
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In the meantime, we join those authorities that have concluded the principles of 

due process do not require determination of a defendant’s present ability to pay before 

imposing the fines and assessments at issue in Dueñas and in this proceeding. (People v. 

Kingston (2019) 41 Cal.App.5th 272, 279; People v. Hicks (2019) 40 Cal.App.5th 320, 

329, review granted Nov. 26, 2019, S258946; People v. Aviles (2019) 39 Cal.App.5th 

1055, 1069; People v. Caceres (2019) 39 Cal.App.5th 917, 928.) Accordingly, we 

conclude the imposition of fines, fees, and assessments on an indigent defendant without 

consideration of ability to pay does not violate due process or equal protection and there 

is no requirement that the trial court conduct an ability to pay hearing prior to imposing 

these fines, fees, and assessments.

DISPOSITION

The judgment is affirmed. 

 

HULL, J.

We concur:

 

RAYE, P. J.

 

MURRAY, J.