Opinion
B300708
03-18-2020
THE PEOPLE, Plaintiff and Respondent, v. AGUSTIN PEREZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. KA104290)
ASHMANN-GERST, Acting P.J., CHAVEZ, J., HOFFSTADT, J.
Agustin Perez (defendant) stands convicted of several crimes for pistol whipping a woman in the head when she refused to disclose the location of her friend, for vandalizing the friend's car with gang-related graffiti, and for urging fellow gang members and others to dissuade his victim and her friend from testifying against him. In this appeal (his fourth), he argues that the trial court erred in not striking the serious felony enhancement imposed pursuant to Penal Code section 667, subdivision (a)(1). (Senate Bill 1393 (2017-2018 Reg. Sess.) (SB 1393).)
All further statutory references are to the Penal Code unless otherwise indicated.
After reviewing the record, defendant's court-appointed counsel filed an opening brief requesting this court independently review the record pursuant to People v. Wende (1979) 25 Cal.3d 436. By letter on January 15, 2020, we invited defendant to submit a supplemental brief, and he has, arguing that the trial court made "a very bad decision." His conclusion appears to be based on three grounds: (1) the serious felony "resulted from a crime committed when [he] was a minor"; (2) he attributes the crime spree leading to the crimes charged in this case to methamphetamine use which "might never have happened if the Court back at the time of [his] juvenile crime had thought about juveniles' immaturity, impetuosity, and failure to appreciate risks and consequences"; and (3) his current sentence "is long enough" without the five-year enhancement. We reject his arguments and affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
In December 2013, defendant, while accompanied by an accomplice, kicked and pistol-whipped a woman into unconsciousness when she refused to disclose the whereabouts of a rival gang member. A few hours later, defendant returned to the same location to vandalize the rival gang member's car out in front of the friend's house.
After his arrest for these crimes, defendant made 136 calls in the span of two months to various people directing them to track down the victim and the rival gang member, to "'get ahold of'" and "'talk to'" the victim, and to disseminate the police reports documenting the rival gang member's cooperation with the police (which would prompt retaliation from the rival gang member's fellow gang members).
II. Procedural History
The People charged defendant with (1) robbery (§ 211); (2) assault with a semiautomatic firearm (§ 245, subd. (b)); (3) assault by means of force likely to cause great bodily injury (§ 245, subd. (a)(4)); (4) felony vandalism (§ 594, subd. (a)(4)); (5) conspiring to attempt to dissuade a witness (§ 182, subd. (a)(1)), and (6) attempting to dissuade a witness with malice and in furtherance of a conspiracy (§ 136.1, subd. (c)(2)). The People further alleged that the crimes were gang-related, that defendant personally used a firearm, and that he inflicted great bodily injury. The jury found defendant guilty of all crimes and found all allegations to be true. In a subsequent proceeding, the trial court found that defendant's 1993 conviction for attempted murder constituted a "strike" as well as a prior "serious felony" (§ 667, subd. (a)(1)), and that defendant had served three prior prison terms for (1) the 1993 attempted murder conviction, (2) a 2008 conviction for possessing a firearm (former § 12021, subd. (a)(1)), and (3) a 2008 conviction for possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a)).
The trial court initially sentenced defendant to prison for a term of 56 years, and four months to life, comprised of: (1) 40 years for the assault with the semiautomatic firearm-a 12-year base sentence (six years, doubled because of defendant's prior strike), plus 20 years (10 years each, for the personal use of the firearm and gang enhancements), plus five years for his prior "serious" felony conviction, plus three years because defendant inflicted great bodily injury; (2) 14 years to life on the conspiracy count; and (3) two years and four months for the vandalism count. The court imposed but stayed, under section 654, prison sentences on the robbery count, the assault by means likely to produce great bodily injury count, and the attempted dissuasion count.
Defendant appealed, and on September 1, 2016, we affirmed his convictions but identified sentencing errors with respect to the 10-year enhancement for personal use of a firearm, and the witness intimidation counts. The matter was remanded for resentencing. (People v. Perez (Sep. 1, 2016, B263400) [nonpub. opn.] (Perez I).)
Upon remand, on February 15, 2017, the trial court held a second sentencing hearing and sentenced defendant to 54 years and four months to life in prison. Defendant again appealed, and on November 20, 2017, we again reversed defendant's sentence and remanded the matter for resentencing. (People v. Perez (Nov. 20, 2017, B281529 c/w B281981) [nonpub. opn.] (Perez II).)
At defendant's third sentencing hearing in February 2018, the trial court sentenced defendant to prison for 42 years and four months, which included enhancements for gang and firearm use (10 years each), inflicting great bodily injury (three years), plus five years for the prior "serious" felony. Defendant again appealed, arguing the trial court erred in not dismissing the allegations regarding his personal use of a gun, his gang affiliation, and his "prior strike" offense under our Three Strikes Law (§§ 667, subds. (b)-(j), 1170.12, subds. (a)-(d)). We found no error in the trial court's denial of defendant's motions to strike the gun, gang, and strike allegations but remanded for the trial court to consider whether to exercise its discretion under Senate Bill 1393 to strike his prior "serious" felony allegation. (People v. Perez (Feb. 28, 2019, B289956) [nonpub. opn.] (Perez III).)
On August 14, 2019, the trial court declined to strike the prior "serious" felony allegation (§ 667, subd. (a)).
Defendant filed a timely notice of appeal.
DISCUSSION
We review the trial court's sentencing decision for abuse of discretion and generally presume the court properly exercised its broad discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) In the absence of a clear showing that the sentence is "arbitrary or irrational," the trial court's sentencing discretion will not be disturbed on appeal. (People v. Ogg (2013) 219 Cal.App.4th 173, 185.)
Defendant does not explain how the court abused its discretion in declining to strike the prior serious felony allegation. At best, he makes the same arguments his counsel made below—namely, his relative youth at the time of his 1993 crime, and his drug use triggering the crimes charged in this case. The court heard extensive argument at the July 2019 hearing before taking the matter under submission. One month later, the court permitted further argument on the issue. The court's comments at the second hearing indicate it thoughtfully, thoroughly, and carefully considered the relevant factors before rendering its decision. The court concluded "in evaluating the totality of the circumstances" it could not "in good conscience, exercise its discretion favorably" based on defendant's prior criminal history. "Where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court's ruling . . . ." (People v. Myers (1999) 69 Cal.App.4th 305, 310.) Such is the case here.
We have examined the entire record and are satisfied that defendant's attorney has fully complied with her responsibilities and that no arguable issues exist. We conclude that defendant has, by virtue of counsel's compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 123-124.)
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.