Opinion
A165772
02-26-2024
THE PEOPLE, Plaintiff and Respondent, v. DANIEL JOE GONZALEZ, Defendant and Appellant.
NOT TO BE PUBLISHED
Napa County Super. Ct. No. 21CR000161
OPINION ON TRANSFER
RODRÍGUEZ, J.
The California Supreme Court granted review of this case and transferred it to this court, with directions to vacate our prior decision and reconsider the cause in light of People v. Salazar (2023) 15 Cal.5th 416 (Salazar). In People v. Gutierrez (2014) 58 Cal.4th 1354, 1391, the Supreme Court held that, when a trial court is unaware of its full sentencing discretion, the proper remedy is to remand "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.'" Salazar concluded the circumstances in that case did not satisfy the standard set forth in Gutierrez. (Salazar, at p. 432.) Having reconsidered Daniel Gonzalez's case in light of Salazar, we again affirm.
Our prior decision also addressed other issues, and we incorporate by reference our previous discussion: whether the trial court abused its discretion by denying Gonzalez's motion to strike his prior 2006 conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, and whether the case should be remanded for sentencing on Gonzalez's misdemeanor contempt conviction. (People v. Gonzalez (Nov. 16, 2023, A165772) [nonpub. opn.].) Based on our analysis of those issues, we affirm the court's refusal to strike the prior conviction, and we remand for sentencing on the contempt conviction. (Pen. Code, § 166, subd. (c)(1); undesignated statutory references are to this code.)
BACKGROUND
Gonzalez was convicted of corporal injury to his girlfriend, Jane Doe, and misdemeanor contempt for disobeying a protective order in May 2022. (§§ 273.5, subd. (a), 166, subd. (c)(1).) Relevant here, the trial court found true special allegations related to the corporal injury offense - that it involved great violence, bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness (Cal. Rules of Court, rule 4.421(a)(1), undesignated rule references are to these rules); Gonzalez took advantage of a position of trust or confidence given his dating relationship with Doe (rule 4.421(a)(11)); he engaged in violent conduct indicating a serious danger to society (rule 4.421(b)(1)); he served three prior prison terms (rule 4.421(b)(3)); and he committed the offense while on post-release community supervision (rule 4.421(b)(4)). (§ 1170, subd. (b)(2) [facts underlying aggravating circumstances must have been stipulated to by the defendant or found true beyond a reasonable doubt].)
At a July 2022 sentencing hearing, Gonzalez argued the trial court should strike his prior conviction under Romero and impose the lower prison term under section 1170, subdivision (b)(6) because a defense expert concluded his childhood was traumatic and may have been a contributing factor to his offense. The court denied the motion to strike after finding he should not be treated outside the "Three Strikes" law. It imposed the upper term of five years, which was doubled to ten years due to the prior strike conviction. In making this decision, the court noted a variety of aggravating factors were true - Gonzalez had an extensive record of violent behavior, particularly toward women; gang-related violent behavior; this conduct had not diminished as Gonzalez aged; and the conduct in the case was particularly egregious. The court concluded the aggravating factors outweighed any mitigating factors, particularly Gonzalez's traumatic childhood.
In our prior opinion, we concluded the trial court erroneously relied on Gonzalez's dating relationship with Doe to support the aggravating factor that he took advantage of a position of trust. (People v. Gonzalez, supra, A165772 [court improperly used a fact constituting an element of an underlying offense to aggravate the sentence].) We also concluded there was no affirmative indication the court assessed whether to impose the lower presumptive term under section 1170, subdivision (b)(6) in light of Gonzalez's childhood trauma or whether imposing the lower term would be contrary to the interests of justice. (Gonzalez, supra, A165772.) We did not remand on that point, however, because "the record clearly indicates the court would have imposed the upper term even if it had been aware of its discretion under section 1170" based on the court's conclusion the aggravating circumstances outweighed the mitigating circumstances. (Ibid.)
DISCUSSION
In light of Salazar, we reconsider whether the record clearly indicates the trial court would have imposed the same sentence. We conclude it does.
Sentencing choices are reviewed for an abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) A trial court must make sentencing decisions with informed discretion, such as being aware of the scope of its discretionary powers. (Salazar, supra, 15 Cal.5th at p. 424.) When a court is unaware of those powers, the appropriate remedy is "remand for resentencing 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. Gutierrez, supra, 58 Cal.4th at p. 1391.)
Under section 1170, "the court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term." (Id., subd. (b)(1).) Courts may impose the upper term "only when there are circumstances in aggravation of the crime." (Id., subd. (b)(2).) There is also a statutory presumption for imposing the lower term if certain identified circumstances, such as childhood trauma, contributed to the offense. (Id., subd. (b)(6), (A).) But imposing the lower term is not required in every case. (People v. Flores (2022) 73 Cal.App.5th 1032, 1039.) The court can impose a higher term if it "finds that the aggravating circumstances outweigh the mitigating circumstances [so] that imposition of the lower term would be contrary to the interests of justice." (§ 1170, subd. (b)(6), (A); Salazar, supra, 15 Cal.5th at p. 426.) "[T]he Legislature intended to maintain the sentencing court's discretion to impose the middle term even if it finds the defendant falls within one of the three categories of section 1170, subdivision (b)(6)." (People v. Hilburn (2023) 93 Cal.App.5th 189, 204.)
Despite Gonzalez's initial showing that childhood trauma may have been a contributing factor to his corporal injury offense, the record does not affirmatively show the trial court applied the presumptive lower term for sentencing. (People v. Fredrickson (2023) 90 Cal.App.5th 984, 991-992, 994; § 1170, subd. (b)(6)(A).) There is, however, a "clear indication from the sentencing court that it would be idle" to remand for resentencing. (Salazar, supra, 15 Cal.5th at p. 431.)
Salazar does not alter our conclusion. There, the trial court imposed a middle term sentence of three years for the defendant's false imprisonment conviction and a consecutive sentence for a corporal injury conviction before the Legislature passed Senate Bill No. 567 (2021-2022 Reg. Sess.), which amended section 1170 and created the lower presumptive term if certain circumstances applied. (Salazar, supra, 15 Cal.5th at p. 423.) He suffered from a qualifying trauma, triggering the presumptive lower term that was retroactively applicable to his nonfinal case. (Id. at pp. 419, 426.) During sentencing, the court complimented his respectful behavior during trial, emphasized how his drug use affected his criminal history, acknowledged the impact his parents' deaths had on him, expressed hope for his rehabilitation, and imposed only the middle term. (Id. at p. 422.) It expressly imposed the middle term based on the evidence" 'the defendant's criminal history has been drug related.'" (Id. at p. 423.) On that record - a concession the defendant may have suffered from a qualifying trauma that may have been a contributing factor to his offense, the court referencing several mitigating factors in its ruling, and its declining to impose the high term - there was "no clear indication that the sentencing court would impose the same sentence even under the new law." (Id. at p. 432.) Indeed, the Supreme Court noted, "when the applicable law governing the defendant's sentence has substantively changed after sentencing, it is almost always speculative for a reviewing court to say what the sentencing court would have done if it had known the scope of its discretionary powers at the time of sentencing." (Id. at p. 425, italics added.)
Critically, the trial court here sentenced Gonzalez in July 2022, after the section 1170 amendments went into effect. (§ 1170, subd. (b); Stats. 2021, ch. 731, eff. Jan. 1, 2022.) Indeed, the court was aware of section 1170, subdivision (b)(6)'s lower term presumption - Gonzalez urged the court to impose the lower term pursuant to that provision both at the sentencing hearing and in his sentencing brief. The court simply failed to affirmatively indicate whether it applied this lower presumptive term given Gonzalez's initial showing that childhood trauma may have been a contributing factor to his offense. (People v. Fredrickson, supra, 90 Cal.App.5th at pp. 991-992.) There was no substantive change in the law after Gonzalez was sentenced, nor was he being sentenced under a different sentencing statute. (Salazar, supra, 15 Cal.5th at p. 425.) Thus, it is not speculative for us to conclude that the court would have imposed the same sentence if it had been aware of its discretion. (Ibid.)
This is at odds with the conclusion in our prior opinion that the trial court was not aware of the lower term presumption. (People v. Gonzalez, supra, A165772.) There, we failed to acknowledge Gonzalez's apprising the court of the statutory amendment creating the presumption. (Ibid.) Thus, the trial court is presumed to have understood section 1170's lower term presumption limited its discretion. (People v. Mosley (1997) 53 Cal.App.4th 489, 496.)
Moreover, we need not rely on the length of Gonzalez's sentence and the trial court's attendant decisions, such as declining to strike an enhancement, in making this determination. (Salazar, supra, 15 Cal.5th at p. 429 [denial of a Romero motion provides little indication about how the court would exercise its sentencing discretion under § 1170].) Rather, the court expressly noted the "conduct in this particular case was particularly egregious." (Compare with Salazar, at p. 427 [where trial court did not mention the nature of the crime as part of its sentencing determination, the Court of Appeal cannot "substitute its own view of the offenses for the sentencing court's in determining whether remand is appropriate"].) The court did not mention anything positive about Gonzalez's record, instead focusing on his extensive record of violence towards women, and gang-related violent behavior. (Compare with id. at pp. 427, 432 [expressly referencing mitigating factors in sentencing ruling undermines any clear indication court would impose the same sentence].) And significantly, the court expressly weighed the aggravating and mitigating factors in imposing the upper term. (§ 1170, subd. (b)(6); compare with Salazar, at pp. 428 [court's cursory reference to extended duration of the crime and long criminal history does not indicate the court would have concluded aggravating circumstances outweighed the mitigating circumstances to impose a higher term], 430-431 [" '[b]y selecting the middle term [under the former law], the trial court impliedly found the aggravating factors were not sufficient to warrant imposition of the high term' "].) This record here clearly indicates the court would have imposed the same sentence. We thus decline to remand for resentencing the corporal injury offense.
DISPOSITION
We remand to the trial court for it to impose a sentence for Gonzalez's contempt conviction. The judgment is otherwise affirmed.
WE CONCUR: TUCHER, P. J., PETROU, J.