People v. Morales CA6

Filed 5/17/21 P. v. Morales CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H047313 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. FF513517)

v.

ELADIO CORTEZ MORALES,

Defendant and Appellant.

In 2007, defendant Eladio Cortez Morales pleaded no contest to two counts of assault with a deadly weapon and admitted various allegations including firearm and gang enhancements. The trial court imposed a total term of 22 years four months in prison. In 2018, the Secretary of the California Department of Corrections and Rehabilitation (the Secretary) recommended to the trial court that it recall Morales’s sentence and resentence him under Penal Code section 1170, subdivision (d).1 The trial court declined to do so, and Morales now appeals. For the reasons below, we conclude the trial court did not abuse its discretion in declining to recall the sentence. We will affirm the trial court’s ruling.

1 Subsequent undesignated statutory references are to the Penal Code.

I. FACTUAL AND PROCEDURAL BACKGROUND A. Procedural Background Around 2005, the prosecution charged Morales with four counts: Counts 1 and 2—attempted murder (§§ 664, subd. (a), 187); and count 3 and 4—assault with a deadly weapon (§ 245, subd. (a)(1)). As to all four counts, the information further alleged gang and firearm enhancements (§§ 186.22, subd. (b)(1)(C), 12022.5, subd. (a), 12022.53, subd. (d), 12022.7, subd. (a)). Morales pleaded no contest to two counts of assault with a deadly weapon and admitted enhancements for using a firearm, personally inflicting great bodily injury, acting for the benefit of a criminal street gang, and one additional firearm enhancement. In 2007, the trial court imposed a total term of 22 years four months in state prison. This term consisted of three years for assault with a deadly weapon; one year for the other count of assault with a deadly weapon; three years for the great bodily injury enhancement under section 12022.7, subdivision (a); 10 years for the gang enhancement; four years for a firearm enhancement under section 12022.5, subdivision (a); and one year four months for another firearm enhancement under section 12022.5, subdivision (a). In 2018, the Secretary recommended to the trial court that it recall Morales’s sentence and resentence him under section 1170, subdivision (d). The Secretary’s letter stated, “At sentencing, the trial court imposed two sentence enhancements: 12022.7 and 186.22, subdivision (b)(1)(C). Both sentence enhancements were attached to inmate Morales’s section 245 offense.” The letter cited People v. Gonzalez (2009) 178 Cal.App.4th 1325 (Gonzalez), for the proposition that the trial court should not have imposed both enhancements because they were both based on the same great bodily injury inflicted in the course of the underlying offense. The prosecution filed a written opposition to the recall on the ground that resentencing would deprive the prosecution of the benefit of the bargain it received as part of Morales’s plea agreement. The prosecution further argued that resentencing