Opinion
F087685
10-15-2024
THE PEOPLE, Plaintiff and Respondent, v. JUAN SEBASTIAN ALANIZ, Defendant and Appellant.
Laura Arnold, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F20907965. Alvin M. Harrell III, Judge.
Laura Arnold, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
OPINION
THE COURT [*]
Appellate counsel for defendant Juan Sebastian Alaniz has filed an opening brief summarizing the pertinent facts and raising no issues but asking this court to review the record independently. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) The opening brief also includes a declaration from appellate counsel stating defendant was advised of his right to file a brief of his own with this court. By letter dated June 24, 2024, we also invited defendant to submit additional briefing. After obtaining an extension, defendant filed a response on August 20, 2024, listing issues he wanted to pursue with this court.
Pursuant to Wende, supra, 25 Cal.3d 436 and People v. Kelly (2006) 40Cal.4th 106, we have reviewed the entire record. Following our Supreme Court's direction in Kelly, we provide a brief description of the facts and the procedural history of this case. (Kelly, at p. 110.) Finding no arguable error that would result in a disposition more favorable to defendant, we affirm.
PROCEDURAL SUMMARY
This is the second appeal brought by defendant following his conviction by a jury in 2021 of attempted murder and four other related offenses. In the first appeal, this court found substantial evidence supported the verdict reached by the jury on attempted murder, specifically on the elements of intent to kill, and premeditation and deliberation. (Alaniz I, supra, F082960, at pp. 8-12.) However, due to errors in sentencing and legislative changes made to Penal Code section 654 providing a court more flexibility in sentencing, the case was remanded to the trial court for resentencing. (Alaniz I, supra, F082960, at p. 12.) This court noted defendant's claim that he received an excessive sentence could be raised again after the trial court imposed a new sentence. (Alaniz I, supra, F082960, at pp. 13-15.) In all other respects, defendant's conviction was affirmed.
On this court's own motion, we take judicial notice of the prior opinion in People v. Alaniz (Mar. 22, 2023, F082960) [nonpub. opn.] (Alaniz I), pursuant to Evidence Code sections 452, subdivision (d) and 459. A portion of the procedural and factual summary is derived from this prior opinion.
All further statutory references are to the Penal Code except where otherwise indicated.
To provide context to the resentencing decision the trial court had to make once the case was remanded, we quote from this court's opinion in the prior appeal from the procedural summary:
"By information filed on December 28, 2020, the District Attorney of the County of Fresno charged defendant with attempted premeditated murder (§§ 187, subd. (a), 664, subd. (a); count 1); shooting at an occupied vehicle (§ 246; count 2); assault with a firearm (§ 245, subd. (a)(2); count 3); evading an officer with willful disregard (Veh. Code, § 2800.2, subd. (a); count 4); and misdemeanor resisting, obstructing, or delaying an officer (§ 148, subd. (a)(1); count 5). As to counts 1 through 3, the information alleged that the victim suffered great bodily injury (§ 12022.7, subd. (a)). As to counts 1 and 2, it alleged that defendant had intentionally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)). For counts 1 and 3, it also alleged a firearm enhancement for personal use (§§ 12022.53, subd. (c), 12022.5, subd. (a), respectively). The information further alleged that defendant had suffered a prior 'strike' conviction within the meaning of the 'Three Strikes' law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and a serious felony (§ 667, subd. (a)(1)).
"Following a trial on April 8, 2021, the jury convicted defendant on all charges, finding that the attempted murder was willful, deliberate, and premeditated, and also finding true the various firearm enhancements. In a bifurcated proceeding, the trial court found the prior conviction allegations true as well." (Alaniz I, supra, F082960, at pp. 2-3, fn. omitted.)
The sentence this court reviewed in the prior opinion consisted of the following:
"[O]n count 1, seven years to life, plus five years for the prior serious felony (§ 667, subd. (a)(1)), plus 25 years to life for discharging a firearm resulting in great bodily injury (§ 12022.53, subd. (d)); on count 2, 10 years, consecutive to the term on count 1, stayed pursuant to section 654; and on count 3, six years, consecutive to the term on count 1, stayed pursuant to section 654." (Alaniz I, supra, F082960, at p. 3, fn. omitted.)
Sentences for the convictions contained in counts 4 and 5 were omitted from the oral record, which was noted by this court. However, the felony abstract reflected that the trial court also intended to impose a four-year sentence for count 4. (Alaniz I, supra, F082960, at p. 13.)
Following remand, the trial court acknowledged it had the ability to choose one of the lesser terms and stay the life term under section 654, which was defendant's request in his written memorandum filed with the court. After giving the prosecution the opportunity to respond orally to the arguments raised by defendant, the court sentenced defendant as follows:
"[The] Court is going to reinstate the sentence it imposed earlier, but I'm going to note that with respect to [c]ount 5, he will receive credit for time served.
"With respect to [c]ount 4, that was the middle term of [four] years and that was supposed to be consecutive and that is what the Court is going to do on that. Everything else remains.
"With respect to the restitution fine, I believe it was imposed at $10,000, the Court is going to stay that both under [section] 1202.4 and [section] 1202.45. [Defendant] has been in prison for a period of time and he's going to be in for an additional period of time, and I don't believe he will have the funds to pay that fine of $10,000.
"Everything else remains as originally ordered."
Despite the fact the oral pronouncement of the sentence now reflected the sentences for counts 4 and 5 that were missing from the oral record of sentencing at the time of the prior appeal, defendant's new sentence was again 41 years to life. This full sentence consisted of a sentence of seven years for the attempted murder conviction, plus a consecutive term of 25 years to life for the use of a firearm that caused great bodily injury. Additional consecutive determinate terms totaling nine years were also imposed for evading an officer, and for having a prior conviction for a serious felony. The sentences for the remaining counts and enhancements were stayed.
Defendant filed a timely notice of appeal challenging this new sentence on February 28, 2024.
FACTUAL SUMMARY
The factual summary is taken from this court's prior opinion:
"On the afternoon of August 13, 2020, [T.S.] was driving out of an apartment complex in his black sedan. As he turned out of the parking lot, he saw a car drive by in the other direction and then instantly make a very fast U-turn. [T.S.] kept driving, and the other car followed him down the two-lane road. After a 'couple [of] minutes,' two or three blocks later, the car pulled out into the opposing traffic lane as if to pass [T.S.] on his left. Instead of passing him, the car pulled up even with him, and as soon as [T.S.] looked over, he saw the driver (and sole occupant) pointing a gun at him through the open passenger window. [T.S.] immediately recognized the driver as defendant, based on previous encounters with him. With the gun extended in his right hand, defendant tilted or nodded his head back three times in a gesture of acknowledgement and then within a few seconds started shooting at [T.S.]. [¶] ... [¶]
"Once struck, [T.S.] slowed and stopped while defendant drove on. [T.S.] testified that he kept an eye on defendant's car, which started to slow down. According to [T.S.], defendant turned around in a driveway, came back toward him, and shot at [T.S.] twice more as he drove by again- though none of the shots hit the car (or [T.S.]) on that second pass." (Alaniz I, supra, F082960, at p. 4.)
DISCUSSION
Having carefully reviewed the entire record, we conclude there are no arguable issues in this appeal following defendant's resentencing. (Wende, supra, 25 Cal.3d at pp. 441-443.) We do, however, address the issues raised by defendant in his letter brief to this court.
I. Defendant's Sentence of 41 Years to Life Was Not Constitutionally Excessive
Defendant contends his sentence of 41 years to life is excessive and constitutionally invalid. We interpret this challenge as questioning whether his sentence constitutes cruel or unusual punishment.
Whether a sentence constitutes cruel or unusual punishment is a question of law. (People v. Baker (2018) 20 Cal.App.5th 711, 721.) This court may thus conduct a de novo review to determine the constitutionality of the sentence imposed. (Ibid.) "Cruel or unusual punishment may not be inflicted or excessive fines imposed." (Cal. Const., art. I, § 17.) Layer on top of this dilemma the impact of the Three Strikes law on the overall sentencing scheme.
Recognizing the process of defining punishments for crimes is a distinctly legislative function; our Supreme Court in In re Lynch (1972) 8 Cal.3d 410, 423-424 stated the judiciary should not become involved in this process unless the assigned penalty is"' out of all proportion to the offense.'" However, a "punishment may violate the California constitutional prohibition 'if, although not cruel or unusual in its method, it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.'" (People v. Dillon (1983) 34 Cal.3d 441, 478 (Dillon) [this language from Dillon was cited with approval more recently in In re Palmer (2021) 10 Cal.5th 959, 972].)
When considering whether a sentence is so disproportionate to the crime for which it is imposed, a court will examine" 'the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society.'" (Dillon, supra, 34 Cal.3d at p. 479.) The first part of the analysis looks to the offense, not only in the abstract, but also in terms of the totality of the circumstances leading up to the commission of the crime and its specific facts. (Ibid.) The second part of the analysis considers the offender, balancing factors such as the defendant's "age, prior criminality, personal characteristics, and state of mind," against the actual sentence imposed. (Ibid.) The goal is that each offender is treated as an individual who receives a punishment that fits the crime. (Ibid.)
We cannot conclude the sentence defendant received is out of proportion to the offense that was committed or so disproportionate that it" 'shocks the conscience.'" (See Dillon, supra, 34 Cal.3d at p. 478.) The evidence presented at trial established defendant committed an attempted murder with the use of a firearm that caused great bodily injury. The record also supports the fact defendant suffered a prior conviction for a serious felony. (Alaniz I, supra, F082960, at p. 4.) The various parts of the sentence, including the various terms that were imposed then stayed pursuant to section 654, were imposed in a manner consistent with the statutory scheme enacted by the Legislature. (See In re Lynch, supra, 8 Cal.3d at pp. 423-424.)
II. The Credibility of the Testimony Provided by T.S. and the Sufficiency of the Evidence Supporting Defendant's Conviction for Attempted Murder
In his letter brief to the court, defendant questions the credibility of the testimony offered by T.S. during his trial in a variety of ways. Defendant specifically contends T.S. fabricated his testimony, and was an unreliable witness because of issues in his past and a pending matter involving a woman who was allegedly the cause of the animosity between defendant and T.S.
"Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder." (People v. Jones (1990) 51 Cal.3d 294, 314.)
Furthermore, "when an appellate opinion states a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to through its subsequent progress in the lower court and upon subsequent appeal." (People v. Cooper (2007) 149 Cal.App.4th 500, 524.)
The appropriate place to have addressed the credibility of T.S. and the testimony he offered was in the trial court, during the trial. The sufficiency of the evidence supporting defendant's conviction was already determined by this court in the prior appeal and is now the "law of the case." We do not have the ability to engage in a new assessment of the adequacy of the evidence supporting defendant's conviction or the credibility of the witnesses.
III. The Willingness of a New Witness to Testify to Refute the Testimony of T.S.
Defendant claims in his letter brief to this court that a particular individual is willing to testify that T.S. falsified his testimony or the evidence he provided to the police. We note, initially, there is nothing in the record supporting the conclusion that this evidence was either "newly discover[ed]" or the subject of a motion for new trial following the original trial. Furthermore, our review of the record does not show that a motion for new trial was pursued on behalf of defendant. We cannot consider new evidence on the issue of guilt in this appeal.
DISPOSITION
The judgment is affirmed.
[*]Before Franson, Acting P. J., Pena, J. and Smith, J.