Unreported / Non-Citable
Background
In 1989, police discovered a deceased woman at a residence, covered in blood, and an autopsy determined the victim had been beaten and raped. Fingerprints and palm prints lifted from the scene were analyzed years later and indicated that they matched defendant's. Defendant Marco Antonio Berrelleza was charged with murder in 2022, and an amended information alleged special circumstances of murder during the attempted commission of a rape, murder during a rape by instrument, and murder during a burglary.
The case proceeded to trial in 2024. The jury convicted defendant of first degree murder and found two of the special circumstance allegations true. At sentencing, the trial court stated it had no discretion regarding the special circumstances, sentenced defendant to life without the possibility of parole, awarded 732 days of actual custody credit but no presentence conduct credit in light of the murder conviction, and imposed fines including a stayed $300 parole revocation fine under section 1202.45.
The Court’s Holding
The Court of Appeal held the trial court misunderstood its sentencing authority. At the time of the 1989 offense, trial courts had authority under section 1385 to strike a special circumstance so that a life-without-parole sentence could be modified to allow parole. Although section 1385.1, enacted in 1990, now prohibits striking special circumstances, the California Supreme Court held in Tapia v. Superior Court that the statute applies only to crimes committed on or after June 6, 1990, because retroactive application would likely violate the rule against ex post facto legislation. Because this crime predated that effective date, the trial court's statement that it had no discretion was incorrect — it had the authority to strike or dismiss one or both special circumstances found by the jury.
Relying on People v. Gutierrez, the court explained that defendants are entitled to sentencing decisions made in the exercise of the sentencing court's informed discretion, and a court unaware of the scope of its discretionary powers cannot exercise that informed discretion. Because the trial court expressly indicated it was unaware of its discretion, remand was the default unless the record clearly indicated the same conclusion would have been reached anyway. The sentencing hearing was relatively brief, the court did not discuss the crime or defendant, and possible mitigating circumstances might have been considered, so the court remanded to permit the trial court to consider its discretion.
The court also agreed with both parties that presentence conduct credit was improperly denied. Section 2933.2, which denies conduct credit to people convicted of murder, took effect June 3, 1998 and by its terms applies only to murders committed on or after that date, so it could not justify denial for a 1989 murder; on remand the trial court must calculate and award presentence conduct credit based on the law in effect at the time of the 1989 offense. The stayed $300 parole revocation fine under section 1202.45 was likewise enacted after the crime, and its imposition violated ex post facto rights, so it must not be imposed on remand. Finally, the amended abstract of judgment must correctly state that defendant was convicted by a jury, not by plea.
Key Takeaways
- A trial court retains discretion under section 1385 to strike special circumstances for crimes committed before June 6, 1990, because section 1385.1's prohibition cannot be applied retroactively without violating ex post facto principles.
- When a sentencing court expressly states it is unaware of its discretion, remand is the default unless the record clearly shows the court would have reached the same result with full awareness of its powers.
- Section 2933.2's denial of conduct credits for murder convictions applies only to murders committed on or after its June 3, 1998 operative date; on remand the trial court must calculate and award presentence conduct credit under the law in effect at the time of the 1989 offense.
- A parole revocation fine under section 1202.45 may not be imposed for crimes predating the statute's enactment; both parties agreed its imposition violated ex post facto rights.
- An abstract of judgment erroneously stating a conviction was by plea must be corrected on remand to reflect that the conviction was by jury.
Why It Matters
This decision reinforces that sentencing courts must exercise informed discretion, particularly for older offenses governed by prior law. Even in a heinous 1989 murder case, the appellate court declined to find the error harmless because the brief sentencing hearing gave no indication the trial court would have imposed the same sentence had it known it could strike the special circumstances, and possible mitigating circumstances might have been considered.
The ruling provides practical guidance on recurring sentencing errors for pre-1990 offenses: the availability of section 1385 discretion, eligibility for presentence conduct credit notwithstanding section 2933.2, and the ex post facto bar on parole revocation fines under section 1202.45. Trial courts resentencing defendants for decades-old crimes must apply the law in effect at the time of the offense.