People v. Salgado

Filed 7/26/22; Certified for Publication 8/18/22 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G060656

v. (Super. Ct. No. 99NF0291)

VICTOR HUGO SALGADO, OPINION

Defendant and Appellant.

Appeal from a judgment order of the Superior Court of Orange County, Elizabeth G. Macias, Judge. Reversed and remanded with directions. Request for judicial notice. Grant. Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Daniel Rogers and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.

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Victor Hugo Salgado appeals from a recall and resentencing under former 1 Penal Code section 1170, subdivision (d)(1). Salgado argues the trial court erred in imposing a one-year determinate sentence on a gang enhancement, improperly calculated his custody credit, and requests this court correct clerical errors in the sentencing minute order and the abstract of judgment. The Attorney General concedes these errors, but argues the sentencing court should have imposed higher, statutorily prescribed terms on the enhancements. While this appeal was pending, Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 699, § 3) came into effect on January 1, 2022. Assem. Bill 333 “amended section 186.22 to impose new substantive and procedural requirements for gang allegations.” (People v. Sek (2022) 74 Cal.App.5th 657, 665 (Sek).) Additionally, on the same day, Assembly Bill No. 1540 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 719, §§ 1-7) (Assem. Bill 1540) came into effect, and moved the recall and resentencing provisions of former section 1170, subdivision (d), to new section 1170.03. Assem. Bill 1540 also clarified the Legislature’s intent that the resentencing court would “apply ameliorative laws . . . that reduce sentences or provide for judicial discretion, regardless 2 of the date of the offense of conviction.” (Stats. 2021, ch. 719, § 1(i).) Subsequently, Salgado moved for permission to file supplemental briefing to address the effect of the recent amendments to the law, including Assem. Bill 333, on this case. We granted the motion, accepted for filing his supplemental opening brief, and invited the Attorney General to file a supplemental respondent’s brief, which he did. We conclude Salgado is entitled to the benefit of Assem. Bill 333 because his criminal judgment is no longer final following the recall and resentencing. Accordingly, we reverse the gang offense conviction and vacate the jury’s true findings