Opinion
B324973
01-22-2024
THE PEOPLE, Plaintiff and Respondent, v. ANGEL GARCIA AGUIRRE, Defendant and Appellant.
Sarah S. Sanger, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven E. Mercer and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Superior Court County of Ventura No. 2010007713 Bruce A. Young, Judge
Sarah S. Sanger, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven E. Mercer and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
BALTODANO, J.
Angel Garcia Aguirre appeals from the trial court's order denying a recall and resentencing recommendation from the California Department of Corrections and Rehabilitation (CDCR). (Pen. Code, § 1172.1.) He contends, and the Attorney General concedes, the court failed to consider the new provisions of section 1172.1 and make the required "super strike" finding when it denied resentencing. We agree and vacate the order.
Unlabeled statutory references are to the Penal Code.
Section 1172.1 was added as section 1170.03 by Assembly Bill No. 1540 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 719, § 3.1). It was subsequently renumbered without substantive change. (See Assem. Bill No. 200 (2021-2022 Reg. Sess.); Stats. 2022, ch. 58, § 9.) We use the statute's current designation throughout this opinion.
FACTUAL AND PROCEDURAL HISTORY
In 2016, Aguirre pleaded guilty to one count of second degree robbery (§§ 211, 212.5, subd. (c)), two counts of being a felon in possession of a firearm (former § 12021, subd. (a)(1)), two counts of being a felon in possession of ammunition (former § 12316, subd. (b)(1)), and one count of sale of a controlled substance (Health &Saf. Code, § 11379, subd. (a)). Aguirre also admitted that he personally used a firearm while committing robbery (§ 12022.53, subd. (b)) and suffered a prior serious felony conviction (§ 667, subd. (a)(1)). The trial court sentenced him to 18 years in state prison: three years on the robbery, a consecutive 10 years on the firearm enhancement, and a consecutive five years on the prior serious felony. The sentences on Aguirre's remaining convictions were run concurrently.
Six years later, CDCR sent a letter to the trial court stating that there had been a change in the law that provided the court with the discretion to strike the five-year serious felony enhancement from Aguirre's sentence. CDCR provided the court "with the authority to resentence" Aguirre and recommended recalling his sentence and resentencing him.
At the hearing on CDCR's recommendation, Aguirre asked the trial court to strike the enhancement. He also asked the court to consider three letters submitted by members of his family. Prosecutors countered that Aguirre had already received lenience at his 2016 sentencing hearing.
The trial court declined to strike the serious felony enhancement from Aguirre's sentence:
"I've read the CDC[R] letter received in this matter back on May 13th of this year. I've reviewed the record of the sentence that I imposed of 18 years with striking strikes and certain other offenses. And I also noticed that in that case, several counts, the 16, 2, 3 counts, I ran-I ran those concurrent as part of his sentence. So I'm obligated to give some of those factors great weight.
"[I'm] satisfied in this particular case, based on the criminal history and the nature of this offense with the firearms, that in the interest of justice and the safety of the community that the sentence as [imposed] is appropriate. It's not violating Penal Code section 1385, and the revision thereof, and I've balanced those factors and considered that in the interest of justice and the potential safety of the community justify that, and I decline to reduce the sentence per the letters suggesting that by the CDC[R]. It remains imposed with the credits award. It's denied."
DISCUSSION
Aguirre contends, and the Attorney General concedes, the matter must be remanded because the trial court failed to consider the new provisions of section 1172.1 and make the required super strike finding when it rejected CDCR's resentencing recommendation. We agree.
If a defendant has been committed to state prison, a trial court has the discretion to recall their sentence and resentence them upon receiving a recommendation from CDCR. (§ 1172.1, subd. (a)(1).) After receiving such a recommendation, the court must provide notice to the defendant, appoint counsel, and set a status conference. (§ 1172.1, subd. (b)(1).) When deciding whether to resentence the defendant, the court must "apply any changes in law that reduce sentences or provide for judicial discretion." (§ 1172.1, subd. (a)(2).) It must also "consider if the defendant has experienced psychological, physical, or childhood trauma . . . and whether [that trauma was] a contributing factor in the commission of the offense." (§ 1172.1, subd. (a)(4).) It may additionally consider whether postconviction factors "have reduced the defendant's risk for future violence, and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice." (Ibid.)
Resentencing "shall not be denied . . . without a hearing where the parties have an opportunity to address the basis for the intended denial or rejection." (§ 1172.1, subd. (a)(8).) Additionally, where, as here, CDCR requests resentencing, there is a "presumption favoring recall and resentencing . . . [that] may only be overcome if a [trial] court finds [that] the defendant is an unreasonable risk of danger to public safety." (§ 1172.1, subd. (b)(2).) A defendant poses an unreasonable risk of danger to public safety if there is an unreasonable risk they will commit a super strike offense. (§ 1172.1, subd. (b)(2); see also § 667, subd. (e)(2)(C)(iv); People v. Valencia (2017) 3 Cal.5th 347, 351, fn. 3 [defining super strike offenses].)
The presumption favoring recall evinces the Legislature's intent that trial courts generally accept CDCR's recommendations. (People v. McMurray (2022) 76 Cal.App.5th 1035, 1040.) If the court finds that a defendant poses an unreasonable risk of committing a super strike, the court must "state on the record the reasons for its decision to grant or deny recall and resentencing." (§ 1172.1, subd. (a)(6).) We review this decision for abuse of discretion. (People v. Frazier (2020) 55 Cal.App.5th 858, 863-864.)
The trial court abused its discretion here." 'Defendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court.'" (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.)" 'A court [that] 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.'" (Ibid.) In such situations, "the appropriate remedy is to remand for resentencing unless the record 'clearly indicates' that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion.'" (Ibid, alterations omitted.)
Here, we cannot confidently say that the trial court understood the scope of its discretion because there is no indication that it considered the factors in subdivisions (a)(2), (a)(4), or (b)(2) of section 1172.1. (Cf. People v. Superior Court (Brim) (2011) 193 Cal.App.4th 989, 991 [failure to apply the law is an abuse of discretion].) The court did note that it considered the "safety of the community" when denying resentencing, but it made that statement in a general sense with no indication that it believed there is an unreasonable risk that Aguirre will commit a qualifying super strike offense in the future. And neither the prosecutor nor defense counsel ever mentioned the super strike issue. Additionally, nothing in the record demonstrates that the court considered changes in law, mitigating factors, or postconviction factors, as required by section 1172.1.
We also cannot say that the record clearly indicates that the court would have rejected CDCR's resentencing recommendation had it properly understood the scope of its discretion. "[W]hen 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." (People v. Salazar (2023) 15 Cal.5th 416, 425.) Here, the court said that it gave "great weight" to the fact that it originally imposed concurrent sentences when it declined to strike the prior serious felony from Aguirre's sentence. But whether to run sentences concurrently and whether to strike a serious felony enhancement "in the furtherance of justice" require different inquiries. (Id. at pp. 428-430; compare Cal. Rules of Court, rule 4.425, with § 1385.)" 'We cannot speculate from the court's statements and decision as to one sentencing issue to divine what the court would have done if it had broadened discretion on another sentencing issue.'" (Salazar, at p. 429.) Remand is required.
DISPOSITION
The trial court's order rejecting CDCR's recommendation to recall Aguirre's sentence and resentence him, entered October 14, 2022, is vacated, and the matter is remanded for proceedings consistent with this opinion. We express no opinion as to whether the court should accept or reject CDCR's recommendation.
I concur: GILBERT, P. J.
YEGAN, J., DISSENTING:
I respectfully dissent. Appellant, a documented "12th street" gang member, is a recidivist robber who uses firearms in the commission of his robberies. The trial court did not expressly state that appellant was at risk to commit a "super strike" (maj. opn. at p. 3), but this is the reasonable inference that can be, and should be, drawn from its statement. How can I say this with a degree of confidence? Appellant committed the armed robbery with a firearm in the instant case. In 2010, he was convicted of another armed robbery in federal court. He used a firearm in that robbery as well. He was shot by a federal law enforcement officer when arrested. In addition, in 1998, appellant was convicted of two more robberies where a firearm was used by a cohort on both occasions. So, that is four armed robberies where firearms were used. These multiple armed robberies are not mentioned in the majority opinion. Do they not shed light upon, and support, the trial court's statement that appellant is a danger to the community? And, by inference, does this not show that appellant posed an unreasonable risk for committing a "super strike."
Error is never presumed. (People v. Carpenter (1999) 21 Cal.4th 1016, 1046; People v. Nitschman (1995) 35 Cal.App.4th 677, 684.) The order of the Superior Court is presumed to be correct. (People v. Harring (2021) 69 Cal.App.5th 483, 495.) We do not rule upon the trial court's rationale. We rule upon the trial court's order. Whether or not the lawyers argued the "super strike" issue is irrelevant. It is presumed that the trial court was aware of, and applied, the "super strike" rule. Until today, there has never been a requirement that a trial court must utter the magic words, "risk of a super strike."
Given the trial court's statement, and the reasonable inference to be drawn therefrom, the trial court's statement is tantamount to finding that appellant is at risk to commit another armed robbery, a "super strike." The majority draws inferences away from the trial court's order. All "intendments" are in favor of the trial court's order denying relief. The majority opinion violates the time-honored rules on appeal. (E.g., People v. Superior Court (Ramos) (1991) 235 Cal.App.3rd 126l, 1266, fn. 2; People v. Lewis (1990) 50 Cal.3d 262, 277; see also Jessup Farms v. Baldwin (1983) 33 Cal.3d 639, 660.) The Court of Appeal should not micromanage discretionary sentencing choices. And when the superior court again denies relief, we will have yet another appeal.