Opinion
H050825
07-30-2024
THE PEOPLE, Plaintiff and Respondent, v. ROGELIO IVAN ALVAREZ, Defendant and Appellant.
NOT TO BE PUBLISHED
(Monterey County Super. Ct. No. 22CR004818)
Grover, J.
Defendant Rogelio Ivan Alvarez challenges the trial court's imposition of a middle term prison sentence. Alvarez contends that Penal Code section 1170, subdivision (b)(6)(B) required the trial court to sentence him to the low term because his youth contributed to his offense and no properly found aggravating factor supports the court's determination that imposing a low term was contrary to the interest of justice. As explained here, we will affirm the sentence.
I. FACTUAL AND PROCEDURAL BACKGROUND
Alvarez drove his car while intoxicated across the center line of a highway at approximately 55 miles per hour and struck an oncoming vehicle. Alvarez was unharmed, but the other driver was severely injured. Alvarez's blood alcohol content was 0.101 percent. The Monterey County District Attorney charged Alvarez with driving under the influence of alcohol and causing injury (Veh. Code, § 23153, subd. (a)) and driving with a blood-alcohol level of 0.08 percent or higher and causing injury (Veh. Code, § 23153, subd. (b)). Both counts alleged Alvarez personally inflicted great bodily injury (Pen. Code, § 12022.7, subd. (a)).
The parties waived jury. The trial court found Alvarez guilty of both charges and found true the great bodily injury allegations. The trial court also found the aggravating circumstance of "act[ing] in a way that is very dangerous to the community" (California Rules of Court, rule 4.421(b)(1); further rule references are to California Rules of Court).
The probation report recommended the two-year middle term on count 2 (Veh. Code § 23153, subd. (b)), plus a three-year great bodily injury enhancement (§ 12022.7) for an aggregate term of five years. The report cited rule 4.421(a)(1) as an aggravating factor because the "victim received extensive and serious injuries as a result of the collision." The report noted two mitigating factors: Alvarez had no prior criminal record and he was under 26 years of age.
The prosecutor requested the maximum aggregate term of six years, based on the factor in aggravation, proven at trial, that Alvarez had engaged in violent conduct and was a serious danger to society. The court observed that given the great bodily injury enhancement, Alvarez's Vehicle Code section 23153 offense was designated a "violent felony" under Penal Code section 667.5, subdivision (c)(8), but expressed doubt that the conduct at issue was the type of violence contemplated by rule 4.421(b)(1).
Alvarez's trial counsel asked the court to consider probation and argued against the upper term insofar as the court could not use great bodily injury to impose both the aggravated term and the sentencing enhancement. He stated he did not "see why this wouldn't be a mid-term case" and that an aggregate sentence of "five years would be appropriate." Without specifically finding that Alvarez's youth had been a contributing factor in the offense, the trial court considered his eligibility to receive the low term under Penal Code section 1170, subdivision (b)(6)(B) (further statutory references are to the Penal Code), but found that it would not serve the interest of justice.
The trial court sentenced Alvarez to the middle term of two years for driving with a blood-alcohol level of 0.08 percent or higher and causing injury (count 2) plus a consecutive three years for the great bodily injury enhancement. The court imposed an identical term for the remaining count, which it stayed under section 654. The court stated it did not select the middle term due to the victim's injuries, but rather because the crime involved callousness under rule 4.421(a)(1) based on Alvarez's casual demeanor and comments to emergency personnel at the scene, which showed he was concerned about his military enlistment plans and not the injuries he had inflicted. The trial court also cited Alvarez's untruthful trial testimony that the accident had not been caused by his intoxication, but rather by an animal in the road, an account inconsistent with his statements at the scene.
II. DISCUSSION
A. Alvarez has Forfeited Most of his Arguments on Appeal
Alvarez contends that section 1170, subdivision (b)(6)(B) required the trial court to impose the low term because he was a "youth" as defined by section 1016.7, subdivision (b) and his youth was "a contributing factor in the commission of the offense." (§ 1170, subd. (b)(6)(B).) He also argues the trial court abused its discretion by finding he was "callous" under rule 4.421(a)(1) because there was no evidence of such conduct, the prosecution failed to plead or prove that factor and Alvarez received no indication before sentencing that the court intended to rely on "callousness" to impose the middle term. Alvarez contends the court further abused its discretion by finding this factor outweighed the mitigating factors of Alvarez's youth and lack of criminal record.
Alvarez has forfeited these arguments. As the Attorney General points out, trial counsel not only failed to object to any of the trial court's sentencing choices, but affirmatively advocated for the middle term sentence that Alvarez received. Complaints "about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal." (People v. Scott (1994) 9 Cal.4th 331, 356 (Scott).) This includes arguments "involving the trial court's failure to properly make or articulate its discretionary sentencing choices", "cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons." (Id. at p. 353.)
Alvarez's assertion that forfeiture does not apply because the court rendered an "unauthorized sentence" based on "mistakes of law" is unavailing. Arguments that sentencing choices were based on factors that are "inapplicable, duplicative, and improperly weighed" are forfeited by failing to object at the sentencing hearing. (Scott, supra, 9 Cal.4th at pp. 354-355 [distinguishing an "unauthorized" sentence that "could not lawfully be imposed under any circumstance in the particular case" from arguments that "involve sentences which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner."]) Alvarez also complains that the trial court relied on aggravating circumstances it noted before imposing sentence but only after counsel had argued, and that his counsel had no meaningful opportunity to object. But before the court-imposed sentence, Alvarez's counsel argued for the middle term. He therefore had no reason to object to imposition of the sentence he requested or to the factors the court cited in selecting that sentence.
Alvarez argues in his reply brief that "being concerned for one's own welfare and prospects and not wanting to get into trouble" does not rise to the level of "callousness" under rule 4.421(a)(1). But Alvarez did not object on that basis in the trial court and he had argued in his opening brief that there was simply no evidence of callousness. Alvarez also argues for the first time in his reply brief that the trial court improperly based its selection of the middle term on the victim's injuries in violation of People v. Avalos (1984) 37 Cal.3d 216, 233. Alvarez forfeited this argument by not presenting it in his opening brief. (See People v. Peevy (1998) 17 Cal.4th 1184, 1206) [contentions raised for the first time in a reply brief are ordinarily forfeited].) Even if we were to consider the argument, it is not supported by the record. The trial court specifically stated it did not rely on the victim's injuries to impose the middle term, but rather on Alvarez's attitude at the scene and his lack of candor at the scene and at trial.
B. There is no Error Under APPRENDI V. NEW JERSEY
Alvarez asserts that his middle term sentence violates the Sixth Amendment under Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) because the court based its selection on an aggravating factor that was not admitted or proven beyond a reasonable doubt. Acknowledging that he did not raise the issue in the trial court, Alvarez asks us to exercise our discretion to consider the merits of his argument. We agree to do so because Alvarez's assertion of Apprendi error raises an issue of constitutional law. (In re Sheena K. (2007) 40 Cal.4th 875, 887, fn. 7. ["The appellate courts typically have engaged in discretionary review only when a forfeited claim involves an important issue of constitutional law or a substantial right"].)
Effective January 1, 2022, Senate Bill 567 and Assembly Bill 124 amended section 1170 to limit the trial court's sentencing discretion in certain circumstances. (See Sen. Bill No. 567 (2020-2021 Reg. Sess.); Stats. 2021, ch. 731, § 1.3; Assem. Bill No. 124 (2020-2021 Reg. Sess.); Stats. 2021, ch. 695, § 5.) "Under the former law, section 1170 vested the court with 'sound discretion' to simply weigh circumstances in aggravation or mitigation, and any other relevant factors, and then impose any of the three prescribed terms (low, middle, or high) it found to 'best serve[ ] the interests of justice.' (§ 1170, former subd. (b).)" (People v. Salazar (2023) 15 Cal.5th 416, 426 (Salazar).)
Under those amendments, the "court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial." (§ 1170, subd. (b)(1), (2).) The new law now makes the middle term the presumptive sentence. (People v. Todd (2023) 88 Cal.App.5th 373, 377 (Todd), review granted April 26, 2023, S279154.)
The new law "dramatically restrains" the trial court's discretion to impose the middle or upper term, now mandating the lower term if a qualifying circumstance was a contributing factor in the commission of the offense" 'unless the court 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).)" (Salazar, supra, 15 Cal.5th at p. 426.) As relevant here, the court must order imposition of the lower term if the defendant was a "youth" as defined by section 1016.7, subdivision (b) at the time of the offense and the court determines that defendant's youth "was a contributing factor in the commission of the offense," unless the court also finds aggravating circumstances outweigh mitigating circumstances such that imposition of the lower term would be "contrary to the interests of justice." (§ 1170, subd. (b)(6)(B); unspecified subdivision references are to section 1170.)
2. Subdivision (b)(6) does not Make the Lower Term the "Statutory Maximum" Sentence
Alvarez contends that once the court finds youth was a contributing factor in the commitment offense, the lower term becomes the "statutory maximum" as defined in Blakely v. Washington (2004) 542 U.S. 296, 303-304-i.e., the "maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." (Ibid.) Alvarez posits that if the lower term is the "statutory maximum," the trial court may not impose the middle term without finding one or more aggravating factors, which Apprendi requires must be pled and proven at trial or admitted by the defendant.
Two appellate courts have rejected that argument based on statutory construction. In People v. Bautista-Castanon (2023) 89 Cal.App.5th 922, 928-929 (Bautista-Castanon), the court declined "to import [the subdivision (b)(1) and (2)] requirement into ... subdivision (b)(6) as a prerequisite to imposing the middle term." The Bautista-Castanon court reasoned that, unlike subdivisions (b)(1) and (2) of the statute-which explicitly require stipulation or proof beyond a reasonable doubt of the facts relied on to impose an upper term sentence-subdivision (b)(6) "states no such requirement for the equitable balancing determination it entrusts to the trial court." (Bautista-Castanon, at p. 929.)
People v. Hilburn (2023) 93 Cal.App.5th 189 agreed with Bautista-Castonon that "the language and framework of the amended law makes clear the Legislature intended to maintain the sentencing court's discretion to impose the middle term even if it finds the defendant falls into one of the three categories of section 1170, subdivision (b)(6)." (Id. at p. 204 [citing Bautista, supra, 89 Cal.App.5th at p. 929].) Hilburn concluded "if the Legislature wanted to limit the sentencing court's discretion, it knew how to do so as set forth in subdivisions (b)(1) and (2)." (Hilburn, at p. 204.) The Hilburn court also rejected the argument that subdivision (b)(6) creates a new "statutory maximum" under Apprendi and Blakely, because "unlike the middle term," which is the presumptive term authorized by the verdict, "the lower term is presumed only after the court makes additional findings beyond those of the jury." (Hilburn, p. 205.) "Because those findings occur after the defendant is convicted, and are not necessary for imposition of the presumptive middle term, they do not create a new statutory maximum sentence." (Ibid.) The "new law does not implicate the concerns of Apprendi, which precludes only increased punishment based on facts not found by the jury." (Ibid.)
Alvarez does not dispute that subdivision (b)(6) contains no requirement of stipulation or proof beyond a reasonable doubt in order to impose a sentence exceeding the lower term. Rather, he argues Hilburn misconstrued the effect of Apprendi and Cunningham v. California (2007) 549 U.S. 270 (Cunningham), by failing to recognize that the lower term becomes the "statutory maximum" when the trial court finds a defendant's youth was a contributing factor such that the trial court no longer has discretion to impose the middle term.
We are not persuaded that the lower term becomes the "statutory maximum" once the trial court finds that subdivision (b)(6) applies. Subdivision (b)(1) first authorizes and makes presumptive the middle term based on the verdict, giving the trial court discretion to impose either a middle or lower term sentence. (§ 1170, subd. (b)(1) ["the court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term."]; § 1170, subd. (b)(7) ["Paragraph [(b)(6)] does not preclude the court from imposing the lower term even if there is no evidence of those circumstances listed in paragraph (6) present"].) Thereafter, when the court finds subdivision (b)(6) does apply, its discretion is directed to determining whether imposing the lower term would be "contrary to the interests of justice," in which case the already authorized middle term would be imposed.
Apprendi prohibits judicial factfinding to impose a sentence beyond what the sentencing scheme authorizes from the verdict alone; Apprendi does not limit the trial court's discretion to consider "various factors relating both to the offense and offender [] in imposing a judgment within the range prescribed by statute." (Apprendi, supra, 530 U.S. at p. 481.) According to Cunningham, the Sixth Amendment is not violated unless the verdict alone does not authorize the sentence and "instead, the judge must find an additional fact to impose the longer term." (Cunningham, supra, 549 U.S. at p. 290.) The pre-2007 determinate sentencing law invalidated in Cunningham "authorize[d] the judge, not the jury, to find the facts permitting an upper term sentence." (Id. at p. 293.) In contrast here, any aggravating circumstances rendering a subdivision (b)(6) lower term inappropriate lead only to the imposition of the middle term already authorized under subdivision (b)(1).
C. Alvarez Was Not Prejudiced By Counsel'S Performance
Alvarez argues that his trial counsel performed ineffectively by not objecting to the trial court's finding that his offense involved callousness; by not objecting to the court's finding that this factor outweighed mitigating factors; and by not arguing that subdivision (b)(6) required the court to impose the lower term.
A claim of ineffective assistance of counsel requires showing both that counsel's performance fell below an objective standard of reasonableness and that the defendant was prejudiced by the deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 687.) "Unless a defendant establishes the contrary, we shall presume 'that counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy.'" (People v. Ledesma (2006) 39 Cal.4th 641, 746 (Ledesma).) "[C]ompetency is presumed unless the record affirmatively excludes a rational basis for the trial attorney's choice." (People v. Musselwhite (1998) 17 Cal.4th 1216, 1260.) To prove prejudice, a defendant must affirmatively show a reasonable probability that the result would have been different but for trial counsel's errors. (Ledesma, at p. 746.) A reasonable probability is "a probability sufficient to undermine confidence in the outcome." (People v. Williams (1997) 16 Cal.4th 153, 215.)
Alvarez faults trial counsel for not making certain objections, but he fails to show how each would have had merit and would have affected the outcome had it been successful. (People v. Mattson (1990) 50 Cal.3d 826, 876 [ineffective assistance based on failure to make a motion or objection requires the motion or objection to have been meritorious); People v. Terrell (1999) 69 Cal.App.4th 1246, 1252-1253 [counsel not required to make futile motions or engage in idle acts].) It was reasonable for counsel to forego objecting to the court's balancing of factors." 'Sentencing courts have wide discretion in weighing aggravating and mitigating factors, and may balance them against each other in "qualitative as well as quantitative terms." '" (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582.) "[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (People v. Carmony (2004) 33 Cal.4th 367, 377.)
Further, as we have discussed, there was no Apprendi violation here, so it was reasonable not to object on that basis. Nor does any federal or state law require a sentencing court to rely only on factors or circumstances that are pleaded in an accusatory instrument or contained in a probation report. (See People v. Chhoun (2021) 11 Cal.5th 1, 40-41[" 'the Apprendi court expressly declined to address the constitutional implications, if any, of omitting sentencing factors from accusatory pleadings' "]; Chavez Zepeda v. Superior Court (2023) 97 Cal.App.5th 65, 92-93 ("When Senate Bill 567 was enacted, . . . there was already appellate authority noting that 'neither the Legislature nor the courts have ever deemed aggravating facts used to impose the upper term as being equivalent to statutory sentencing "enhancements" . . . that must be alleged in the accusatory pleading and proved at the preliminary hearing' "; rule 4.408(a) ["The listing of factors in these rules for making discretionary sentencing decisions is not exhaustive and does not prohibit a trial judge from using additional criteria reasonably related to the decision being made."])
The court's finding of callousness was supported by the record, specifically the body worn camera recording of Alvarez asking if the accident would affect his military enlistment. But even assuming counsel should have objected to the court's reliance on callousness in its consideration of sentencing factors, we see no prejudice from counsel's silence. Beyond callousness, the trial court also cited Alvarez's lack of candor with police officers and his untruthful trial testimony as an additional aggravating circumstance. Given the court's statement that it would have imposed the upper term of three years "in a heartbeat" if it could, removing callousness from the court's analysis would not have led to a more favorable result, as required to succeed on a claim of ineffective assistance of counsel. (Ledesma, supra, 39 Cal.4th at p. 746.)
III. DISPOSITION
The judgment is affirmed.
WE CONCUR: Greenwood, P. J. Lie, J.