Filed 8/14/26 P. v. Ambrocio CA4/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G065021, G065022
v. (Super. Ct. Nos. 96NF2404 &
97NF1156)
JOSE LUIS AMBROCIO,
OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County,
Terri K. Flynn-Peister, Judge. Affirmed.
Johanna Pirko, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Arlene A. Sevidal, Robin Urbanski and Brendon
Marshall, Deputy Attorneys General, for Plaintiff and Appellant.
* * *
This appeal arises from the trial court’s denial of a petition for
resentencing under Penal Code section 1172.7, which permits resentencing
where a defendant is currently serving a prison sentence that imposed a now-
invalid enhancement for prior drug-related convictions.1 The court denied the
petition on the ground that defendant Jose Luis Ambrocio is not currently
serving such a sentence. We affirm.
In 1997, Ambrocio was sentenced to four years on drug charges,
which included a now-invalid enhancement for a prior drug-related
conviction. In 1998, Ambrocio was sentenced in a separate case for attempted
murder and was given an indeterminate sentence of life plus seven years.
There were no drug charges or enhancements in the second case. The
sentences on the two separate cases ran concurrently. Because these were
separate sentences that ran concurrently, Ambrocio completed the sentence
with the invalid drug enhancement over 20 years ago. Accordingly, he was
not currently serving a sentence with an invalid drug enhancement at the
time of his petition and was, therefore, not eligible for resentencing under
section 1172.7.
PROCEDURAL HISTORY
On April 25, 1997, the Orange County District Attorney filed a
two-count felony complaint charging appellant with possession of cocaine for
sale (Health & Saf. Code, § 11351; count 1) and possession of
methamphetamine for sale (id. § 11378; count 2). As to count 1, it was further
alleged that appellant had two prior convictions for possession of cocaine for
sale (id. § 11370.2, subds. (a) and (c)). This was filed as case No.
97NF1156.We refer to this as the Drug Case.
1 All statutory references are to the Penal Code unless stated
otherwise.
2
On July 25, 1997, appellant pled guilty to both counts and
admitted both prior conviction enhancement allegations. Pursuant to the
plea, the trial court sentenced appellant to state prison for four years.
Punishment for the two prior conviction enhancements was ordered stayed.
On September 23, 1997, the People filed a separate complaint
against Ambrocio. A first amended information charged Ambrocio with
attempted murder (§§ 664/187, subd. (a); count 1), aggravated mayhem (§
205; count 2), and assault with a firearm (§ 245, subd. (a)(1); count 3). It was
further alleged that the attempted murder was committed willfully,
deliberately and with premeditation (§ 664, subd. (a)), that appellant
personally used a firearm during the commission of counts 1 and 2 (§
12022.5, subd. (a)), and that appellant personally inflicted great bodily injury
during the commission of counts 1 and 3 (§ 12022.7). This was filed as case
No. 96NF2404. We refer to this as the Attempted Murder Case.
On May 19, 1998, a jury in the Attempted Murer Case found
Ambrocio guilty on counts 1 and 3, but not guilty on count 2. In the
alternative, the jury found appellant guilty of simple mayhem (§ 203), a
lesser included offense to count 2. The jury also found true all enhancement
allegations.
On June 19, 1998, the trial court sentenced Ambrocio in the
Attempted Murder Case to an indeterminate term of life in prison plus seven
years.
Twenty-six years later, on July 2, 2024, appellant filed a petition
for resentencing pursuant to section 1172.7, listing both the Drug Case and
the Attempted Murder Case. On December 13, 2024, the trial court denied
the petition, reasoning that he was not currently serving the sentence in the
Drug Case, and the Attempted Murder Case had no invalid enhancements.
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On December 20, 2024, appellant filed separate notices of appeal
in each case. We subsequently consolidated the appeals.
DISCUSSION
Under former Health and Safety Code section 11370.2, a
defendant convicted of an enumerated drug possession charge was subject to
a consecutive, three-year enhancement for each prior conviction of an
enumerated drug-related charge. Effective January 1, 2018, the Legislature
amended Health and Safety Code section 11370.2 to limit the enhancement
to the crime of employing a minor in the commission of an offense involving
controlled substances. (Sen. Bill No. 180 (2017–2018 Reg. Sess.).) Effective
January 1, 2022, the Legislature enacted section 1172.7 (formerly section
1171), which rendered such enhancements imposed prior to 2018
retroactively invalid (with the same exception for drug offenses employing a
minor).
Section 1172.7, subdivisions (b) and (c), provide a resentencing
mechanism for defendants “currently serving a term for a judgment that
includes [a now-invalid] enhancement.” It requires the Secretary of the
Department of Corrections and Rehabilitation to create a list identifying
eligible defendants. In each such case, the statute requires the court to
review the judgment to confirm that the defendant is eligible, and, if so, to
resentence the defendant. (§ 1172.7, subd. (c).) In his petition for
resentencing, Ambrocio stated that his Drug Case was included on the list
provided by the Secretary, though not his Attempted Murder Case. The
People do not challenge that assertion.
The trial court concluded that Ambrocio was not “currently
serving” the sentence in his Drug Case, and thus he was ineligible for
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resentencing. Ambrocio contends this was error because the sentences in his
two cases were essentially amalgamated into a single sentence. We disagree.
The critical point in this case is that Ambrocio’s sentences ran
concurrently, which he concedes. His sentence on the Drug Case began in
1997 and lasted four years. That sentence was completed in 2001, and he is,
therefore, not currently serving a sentence that includes an enhancement.
Ambrocio’s contention that his two sentences amalgamate into a
single sentence is not well taken. As our high court has explained, “A court
that decides to run terms consecutively must create a new, ‘aggregate term of
imprisonment’ (§ 1170.1, subd. (a)) into which all the consecutive terms
merge, but no principle of California law merges concurrent terms into a
single aggregate term.” (In re Reeves (2005) 35 Cal.4th 765, 773 (Reeves).)
Ambrocio’s only response to Reeves is to suggest that it is dicta.
We disagree. The issue in Reeves was whether two concurrent sentences, a
10-year term for a nonviolent felony, and a five-year term for a violent felony,
triggered a 15 percent limitation on worktime credits for prisoners serving a
term for a violent felony. (Reeves, supra, 35 Cal.4th at p. 768.) The People’s
position was that the two sentences merged and the entire sentence was
subject to the 15 percent limitation. (Id. at p. 770.) The court rejected that
position on the ground that the concurrent terms did not merge. That
conclusion was integral to the court’s rationale and, therefore, was not dicta.
In any event, even if the court’s comments were dicta, we
generally follow dicta from the Supreme Court unless there is good reason to
depart from it. (People v. Rios (2013) 222 Cal.App.4th 542, 563 [“Supreme
Court dicta generally should be followed, particularly where the comments
reflect the court’s considered reasoning.”].) Ambrocio has not provided such a
reason.
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DISPOSITION
The judgment is affirmed.
SANCHEZ, ACTING P. J.
WE CONCUR:
GOODING, J.
SCOTT, J.
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