by Sam Rutherford

The Supreme Court of California held that a trial court may not impose a sentencing enhancement that was neither pleaded and found true by the trier of fact nor admitted to by the defendant in open court when resentencing the defendant pursuant to California Penal Code § 1172.6.

Background

In 1992, Luis Ramon Manzano Arellano and two co-defendants were charged in Santa Clara County with murder, attempted robbery, and first-degree burglary. The murder and attempted robbery counts further alleged that each defendant personally used a firearm during the commission of those offenses. Arellano did not actually commit the murder, and the evidence did not clearly indicate whether he knew his co-defendants planned to kill the victim.

Before a preliminary hearing could be held, Arellano agreed to plead guilty to second-degree murder in exchange for the prosecutor’s promise to dismiss the robbery and burglary charges and strike the firearm use enhancements. Arellano was sentenced to 15 years to life in prison.

In 2018, the California Legislature changed the substantive law of murder for accomplices in two respects. First, with certain exceptions, it narrowed the scope of the felony murder rule to defendants who were the “actual killer;” who with intent to kill “aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer;” or who were major participants in the underlying felony and “acted with reckless indifference to human life.” Cal. Penal Code § 189(e)(1)-(3).

Second, except in felony murder cases, the law now requires that a defendant act with “malice aforethought” to be convicted of murder, and that malice may not be imputed to a person “based solely on his or her participation in a crime.” Cal. Penal Code § 188(a)(3). This second provision specifically eliminates liability for murder as an aider or abettor under the natural and probable consequences doctrine. People v. Curiel, 538 P.3d 993 (Cal. 2023).

The Legislature also created a procedure for defendants who could not be convicted of murder under these amendments to seek relief. See Cal. Penal Code § 1172.6. Under that statute, “A person convicted of felony murder or murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person’s participation in a crime … may file a petition with the court that sentenced the petitioner to have the petitioner’s murder … conviction vacated and to be resentenced on any remaining counts.” Cal. Penal Code § 1172.6(a). Where, in cases like the present one, the murder was “charged generically” and the underlying felony “was not charged,” the defendant’s “conviction shall be redesignated as the target offense or underlying felony for resentencing purposes.” Cal. Penal Code § 1172.6(e).

In October 2020, Arellano, through counsel, filed a petition for resentencing pursuant to § 1172.6. The district attorney’s office eventually stipulated that Arellano was entitled to be resentenced for attempted robbery as originally charged but also argued that the charge should include a firearm use enhancement. Several hearings were held on the petition, at which defense counsel objected to the addition of the firearm sentence enhancement. Counsel argued that § 1172.6 does not permit the trial court to impose an enhancement that was not “previously admitted or found true by a trier of fact” and that doing so at resentencing would violate Arellano’s constitutional rights under Apprendi v. New Jersey, 530 U.S. 466 (2000). Counsel also argued that the record did not conclusively establish that Arellano possessed a firearm.

The trial court disagreed. It asserted that it had authority to impose the previously dismissed enhancement and that there was some “evidence in the record” to “suggest” that Arellano was armed. The court therefore vacated Arellano’s murder conviction and redesignated it as attempted robbery with a firearm enhancement. The court sentenced him to three years on the robbery and four years on the firearm enhancement, for a total of seven years in prison. Based on credit for time served, the court released Arellano on parole.

The California Court of Appeal reversed and remanded for resentencing, holding that the trial court erred by imposing the firearm enhancement because § 1172.6 specifically limits a court’s authority to resentence on only the target offense or underlying felony. The California Supreme Court granted discretionary review and affirmed.

Analysis

The Court agreed that nothing in the text of § 1172.6 “indicates that a court may add an uncharged and unproven allegation or enhancement.” Under subsection (d)(3), for example, the trial court must vacate both the murder conviction and any underlying enhancement and then resentence the defendant on the remaining charges. According to the Court, this provision is “a clear reference only to the charges that remain—not charges that could have been established by the evidence.”

Moreover, the Court stated that noting in subsection (e) compels a different result, which applies when the defendant was convicted of a generic murder offense and no target offense or underlying felony was charged. Although the statute does not define those terms, their meaning is clear, according to the Court. “Underlying felony” refers to a felony underlying a felony-murder charge, whereas “target offense” refers to any offense the natural and probable consequence of which was murder. Citing People v. Cavitt, 91 P.3d 222 (Cal. 2004); People v. Medina, 209 P.3d 105 (Cal. 2009). Notably, an enhancement is not part of an underlying felony or target offense, People v. Superior Court (Mendella), 661 P.2d 1081 (Cal. 1983), so “it follows from the statutory text that resentencing under subdivision (e), like resentencing under subdivision (d)(3), does not contemplate the addition of an enhancement or an allegation that was not previously found to be true,” the Court reasoned.

Conclusion

Thus, the Court held that trial courts “may not impose uncharged and unproven sentence allegations or enhancements when resentencing a successful petitioner under section 1172.6, subdivision (e).”

Accordingly, the Court affirmed the Court of Appeal’s decision “to the extent it ordered the firearm use enhancement stricken.” See: People v. Arellano, 550 P.3d 1073 (Cal. 2024). 

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