Full Opinion

Filed 10/28/26 P. v. Berrelleza CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C102681 Plaintiff and Respondent, (Super. Ct. No. STK-CR-FE- v. 2022-0012454) MARCO ANTONIO BERRELLEZA, Defendant and Appellant. A jury convicted defendant Marco Antonio Berrelleza of murder and found true two special circumstance allegations. The trial court sentenced defendant to life in prison without the possibility of parole. The trial court imposed fines and assessments, including a stayed $300 parole revocation fine, but it did not award any presentence conduct credit, stating that it had no discretion to strike the special circumstances or to award conduct credit in light of the murder conviction. On appeal, defendant contends the trial court (1) misunderstood that it had discretion to strike the special circumstances, (2) improperly denied presentence conduct credit, and (3) should not have imposed the parole revocation fine. Finding merit in defendant’s contentions, we will affirm his convictions, vacate his sentence, remand the matter for a full resentencing, and direct the trial court to correctly state in the amended abstract of judgment that defendant was convicted by a jury. 1 BACKGROUND In 1989, police discovered a deceased woman at a residence, covered in blood. Fingerprints and palm prints were lifted from the scene. An autopsy determined that the victim had been beaten and raped. Analysis of the prints years later indicated that they matched defendant’s. Defendant was charged with murder in 2022. (Pen. Code, § 187, subd. (a) – count 1.) 1 The People subsequently filed an amended information alleging special circumstances for murder during the attempted commission of a rape (§ 190.2, subd. (a)(17)(C)); murder during the commission, attempted commission, or flight following a rape by instrument (§ 190.2, subd. (a)(17)(K)); and murder during the commission of a burglary (§ 190.2, subd. (a)(17)(G)). The case proceeded to trial in 2024. The jury convicted defendant of first degree murder and found two of the special circumstance allegations true. Prior to sentencing, the People submitted a brief arguing that the only possible sentence authorized by law was life without the possibility of parole under section 190.2. The People further argued that defendant was not entitled to any good time or work credits towards his sentence pursuant to section 2933.2. The Probation Department filed a report indicating that defendant lacked accountability or remorse. But the report identified a number of mitigating circumstances, including defendant’s youth at the time of the crime. At sentencing, the trial court stated: “Mr. Berrelleza was found guilty of first degree felony murder and found true of two special circumstances. The Court has no discretion regarding the special circumstances. [¶] So as to Count 1, Mr. Berrelleza will be sentenced to life without the possibility of parole in state prison. He has 732 days of actual credits. Because it’s a murder conviction, the defendant does not get any conduct 1 Undesignated statutory references are to the Penal Code. 2 credits.” The trial court imposed various fines and assessments, including a stayed $300 parole revocation fine under section 1202.45. DISCUSSION I Defendant contends the trial court misunderstood that it had discretion to strike the special circumstances. At the time of defendant’s offense in 1989, trial courts had the authority under section 1385 to strike a special circumstance so that a sentence of life without the possibility of parole could be modified to allow parole. (See People v. Williams (1981) 30 Cal.3d 470, 485.) Section 1385.1, enacted in 1990, now provides that “[n]otwithstanding section 1385,” the trial court “shall not strike or dismiss any special circumstance … found by a jury or court.” The statute “ ‘clearly and unmistakably prohibit[s]’ ” trial courts from striking a first degree murder special circumstance. (People v. Ybarra (2008) 166 Cal.App.4th 1069, 1093, disapproved on another ground in People v. Gutierrez (2014) 58 Cal.4th 1354 (Gutierrez).) However, in Tapia v. Superior Court (1991) 53 Cal.3d 282, the California Supreme Court held that section 1385.1 “may only be applied to prosecutions of crimes committed on or after June 6, 1990” because retroactive application of the statute “would change the legal consequences of the defendant’s past conduct” and “likely violate the rule against ex post facto legislation.” (Tapia, at pp. 299, 298.) Because the crime in this case occurred before section 1385.1’s effective date, the trial court’s statement that it had no discretion regarding the special circumstances was incorrect -- it had the authority to strike or dismiss one or both special circumstances found by the jury. The People nevertheless contend that defendant’s failure to object at the time of sentencing forfeited this contention. We exercise our discretion to address the merits. The People add that in any event, remand is unnecessary because even if the trial court had been aware of its discretion, it would not have stricken either of the special 3 circumstances given the heinous nature of the crime, defendant’s background, and defendant’s lack of remorse. Whether or not that is true, the California Supreme Court has made clear that “ ‘[d]efendants are entitled to sentencing decisions made in the exercise of the “informed discretion” of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that “informed discretion” than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant’s record.’ ” (Gutierrez, supra, 58 Cal.4th at p. 1391.) Here, the trial court expressly indicated it was unaware of its discretion to strike a special circumstance. Under such circumstances, “remand is the default ‘unless the record “clearly indicate[s]” that the trial court would have reached the same conclusion “even if it had been aware that it had such discretion.” ’ ” (People v. Salazar (2023) 15 Cal.5th 416, 431.) While the facts of the crime were awful, there were possible mitigating circumstances that might have been considered. However, the sentencing hearing was relatively brief and the trial court did not discuss the crime or defendant, imposing the sentence it understood was mandated by statute. Under the circumstances, we will remand the matter to permit the trial court to consider its discretion. Our disposition for a full resentencing will require the consideration on remand of an award of presentence credit and the imposition of fines and assessments. (See People v. Valenzuela (2019) 7 Cal.5th 415, 424-425.) We briefly address defendant’s other contentions to provide some guidance. II Defendant next contends the trial court improperly denied presentence conduct credit. The trial court awarded defendant 732 days of actual credit for the time he was in custody prior to sentencing, a calculation not disputed by the parties. However, it did not award any presentence conduct credit, stating that defendant was not entitled to any 4 because of his murder conviction. Defendant argues this was error, and the People agree. We agree with the parties. Section 4019 permits jail inmates to earn conduct credit prior to being sentenced by performing labor (§ 4019, subd. (b)) or by good behavior (§ 4019, subd. (c)). The purpose of such credit “is to foster constructive behavior” while a person is incarcerated. (People v. Lara (2012) 54 Cal.4th 896, 906.) Section 2933.2 denies conduct credit to people convicted of murder, and the trial court apparently relied on that section in denying defendant any conduct credit. However, that statute became effective on June 3, 1998, after the 1989 murder herein. (See People v. Chism (2014) 58 Cal.4th 1266, 1336; People v. Ly (2001) 89 Cal.App.4th 44, 47.) By its terms, the statute applies only to murders “committed on or after the date on which this section becomes operative.” (§ 2933.2, subd. (d).) Thus, it does not justify denial of conduct credits here. (See People v. Flores (2009) 176 Cal.App.4th 1171, 1182 [ex post facto violation to apply § 2933.2, subd. (c) to someone who committed murder before the enactment of the provision].) 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. III In addition, defendant contends the trial court should not have imposed the parole revocation fine. The trial court imposed and stayed a $300 parole revocation fine under section 1202.45. The statute authorizing that fine was enacted after the date the crime was committed. As argued by defendant and conceded by the People, imposing that fine violated defendant’s ex post facto rights. (See People v. Callejas (2000) 85 Cal.App.4th 667, 676-678.) A parole revocation fine must not be imposed on remand. 5 IV The abstract of judgment erroneously states that defendant was convicted by plea, despite the fact that he was found guilty by a jury. When the trial court prepares an amended abstract of judgment on remand, it must correctly state that defendant was convicted by a jury. DISPOSITION Defendant’s convictions are affirmed. The sentence is vacated, and the matter is remanded for a full resentencing. Following resentencing, the trial court shall prepare an amended abstract of judgment, stating, among other things, that defendant was convicted by a jury, and forward a certified copy to the Department of Corrections and Rehabilitation. /S/ MAURO, Acting P. J. We concur: /S/ BOULWARE EURIE, J. /S/ MESIWALA, J. 6