Opinion
B325968
11-28-2023
THE PEOPLE, Plaintiff and Respondent, v. SERGIO DELACRUZ, Defendant and Appellant.
Leonard J. Klaif, 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, Michael C. Keller and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from the judgment of the Superior Court of Los Angeles County No. KA107313, Rogelio Delgado, Judge. Affirmed with directions.
Leonard J. Klaif, 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, Michael C. Keller and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.
ROTHSCHILD, P. J.
In 2014, Sergio Delacruz (Delacruz) served as the driver in a gang-related drive-by shooting. A jury convicted Delacruz of attempted murder (Pen. Code, §§ 187, subd. (a), 664) (count 1) and discharging a firearm from a motor vehicle (§ 26100, subd. (c)) (count 2). In addition, the jury found true firearm enhancements charged under section 12022.53, subdivisions (b) through (e) in connection with both counts. The trial court sentenced Delacruz to 32 years to life in prison.
All subsequent statutory references are to the Penal Code.
In his prior appeal, Delacruz argued that then-recent amendments to section 12022.53 affording the trial court discretion to strike firearm enhancements entitled him to resentencing on count 1. (See People v. Delacruz (Mar. 23, 2022, B310540) [nonpub. opn.] (Delacruz).) He argued further the trial court had erred in imposing firearm enhancements on count 2. (Ibid.) We agreed, and therefore remanded the case for resentencing on count 1. (Ibid.) We also struck the count 2 firearm enhancements. (Ibid.) On remand, the trial court declined to exercise its new discretion to strike the enhancements on count 1, but-consistent with our direction-noted orally at the resentencing hearing that the count 2 firearm enhancements were stricken.
Delacruz now asks us to remand his case for resentencing a second time, urging that the trial court failed to consider relevant mitigating factors in declining to strike or reduce the 25-year section 12022.53, subdivision (d) firearm enhancement imposed on count 1. Delacruz also requests that we direct the trial court to correct the abstract of judgment, which states the court "stayed," rather than struck, the firearm enhancements on count 2.
Although we agree the trial court must correct the clerical error in the abstract of judgment with respect to count 2, we conclude the court acted within its discretion in declining to strike or reduce the count 1 firearm enhancement. We therefore affirm the judgment, with directions to the trial court to prepare an amended abstract of judgment.
FACTUAL SUMMARY AND PROCEDURAL HISTORY
We summarize here only the facts and procedural history relevant to our resolution of this appeal.
A. The Crime and Delacruz's Original Sentence
"On September 14, 2014, Alexis Gonzalez was standing outdoors in a residential area of Pomona[, California,] when a red minivan pulled up nearby. Delacruz was the driver of the minivan, and his codefendant Carlos Monge was in the passenger seat. Monge fired three shots at Gonzalez, striking him twice in the arm and once in the back. The van then sped away. Police officers followed the van, forced it to stop, and apprehended Delacruz and Monge after a foot pursuit.
"Gonzalez was hospitalized for several days but ultimately recovered from his injuries. Delacruz and Monge were both members of the West Side Pomona gang, and Gonzalez was a member of the rival Happy Town gang.
"After Delacruz was convicted in 2016, the trial court imposed an aggregate sentence of 32 years to life, consisting of seven years to life for attempted murder, plus an enhancement of 25 years to life because a principal intentionally discharged a firearm and proximately caused great bodily injury. (§ 12022.53, subds. (d) &(e).) The court stayed sentence on the remaining charges and enhancements under section 654. These consisted of lesser firearm enhancements under section 12022.53, subdivision (b) and (c) on count 1, as well as the base sentence and firearm enhancement[s] on count 2. The court also struck the gang enhancements under section 186.22, subdivision (b) on both counts because these enhancements cannot be imposed in addition to a firearm enhancement in a case where the defendant did not personally use a firearm. (See § 12022.53, subd. (e)(2).)" (Delacruz, supra, B310540.)
B. Delacruz's Prior Appeal and Resentencing
"In 2017, after Delacruz's trial, the Legislature enacted Senate Bill No. 620, which amended section 12022.53 to provide that '[t]he court may, in the interest of justice pursuant to [s]ection 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section....' [Citation.] Previously, the law provided that 'the court shall not strike an allegation under' section 12022.53. [Citation.]" (Delacruz, supra, B310540.)
Delacruz appealed his sentence, arguing (1) the change in the law effected by Senate Bill No. 620 entitled him to resentencing on count 1, and (2) the trial court erred in imposing firearm enhancements in connection with count 2. (Delacruz, supra, B310540.) We agreed with both contentions. We therefore struck the firearm enhancements on count 2 and remanded the case "for a new sentencing hearing . . . to consider whether any or all of [Delacruz's section 12022.53] firearm use enhancements on count 1 should be stricken." (Delacruz, supra, B310540.)
At the resentencing hearing following remand, Delacruz argued that six mitigating factors counseled in favor of striking or reducing the 25-year firearm enhancement imposed on count 1 under section 12022.53, subdivision (d): (1) He had been "cooperative, polite, respectful and gracious" throughout the underlying proceedings; (2) He had strong family support; (3) He had been "cooperative and forthcoming" with police; (4) He had attempted a pretrial resolution of the case, but his efforts were thwarted by his codefendant's desire to proceed to trial; (5) He was not the shooter; and (6) He was only 21 at the time he committed the crime and had a minor criminal history.
The trial court, however, found Delacruz's arguments unpersuasive, explaining: "[W]hen I look at the factors in aggravation, specifically [California Rules of Court, rule] 4.421, I think this crime involved great violence, great bodily harm and a high degree of cruelty. This was basically an ambush.... [T]his requires some planning and sophistication where the van, I believe, drove up and down a couple of times before it finally drove down where the shooting happened....[The] defendant engaged in violent conduct which is a very serious danger to society . . . [and he] was on probation at the time the crime was committed.... [A]nd the only mitigating factor, he was 21. So when I balance those factors, in light of the crime that was committed, the seriousness of it, the fact that a firearm was used by the codefendant, and the factors surrounding this offense, I am going to deny the defendant's motion or request . . . [and] re-affirm . . . the 25 years to life [enhancement pursuant to section] 12022.53[, subdivision] (d)." Delacruz did not object to the court's statement of its reasoning.
Consistent with our opinion in Delacruz, supra, B310540, the trial court also stated during the hearing that the firearm enhancements imposed on count 2 were "stricken." The abstract of judgment issued following the hearing, however, states these enhancements were "stayed." (Capitalization omitted.)
Delacruz timely appealed.
DISCUSSION
A. Delacruz's Count 1 Challenge Fails
Delacruz contends the trial court abused its discretion by failing to consider relevant mitigating factors in rejecting his request to strike the 25-year firearm enhancement imposed on count 1. We disagree.
As an initial matter, we note that Delacruz has forfeited this argument on appeal. After the trial court articulated its reasons for declining to strike or reduce the count 1 enhancement-including that Delacruz's age was "the only mitigating factor"-Delacruz failed to object. (See People v. Boyce (2014) 59 Cal.4th 672, 730-731 [" '[c]laims involving the trial court's failure to properly make or articulate its discretionary sentencing choices' are subject to forfeiture, including '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 to give a sufficient number of valid reasons' "]; People v. Sperling (2017) 12 Cal.App.5th 1094, 1100-1101 [defendant waived claim court failed to consider several mitigating factors by failing to object at sentencing hearing].) And Delacruz neglects to explain why we should excuse his failure to do so; indeed, he filed no reply brief in this appeal and thus failed entirely to address the Attorney General's forfeiture argument.
Moreover, Delacruz's argument fails on its merits. "In determining whether to dismiss a firearm enhancement under section . . . 12022.53, a court considers the same factors considered' "when handing down a sentence in the first instance."' [Citations.] These factors include those listed in California Rules of Court, rule 4.410 (general objectives in sentencing), rules 4.421 and 4.423 (circumstances in aggravation and mitigation), and rule 4.428(b) (discretion in striking an enhancement and punishment for an enhancement under [section] 1385). These rules refer to circumstances specific to the crime and the defendant's criminal history, as well as to broader societal objectives, such as '[d]eterring others from criminal conduct by demonstrating its consequences' and '[i]ncreasing public safety by reducing recidivism through community-based corrections programs and evidence-based practices.' [Citation.] The rules state the trial court 'should be guided by statutory statements of policy, the criteria in [the California Rules of Court], and any other facts and circumstances relevant to the case.' [Citation.]" (Nazir v. Superior Court (2022) 79 Cal.App.5th 478, 497.) We review a trial court's decision to deny a defendant's request to strike a sentencing enhancement for abuse of discretion. (See People v. Pearson (2019) 38 Cal.App.5th 112, 116.)
Here, the record does not support Delacruz's contention that the trial court failed to consider relevant mitigating factors. The transcript of the resentencing hearing reflects that the court provided an opportunity for defense counsel to raise any relevant sentencing-related arguments. The court then listened to defense counsel's argument concerning the alleged mitigating factors, as well as the prosecutor's arguments in response, before explaining its reasons for denying Delacruz's request to strike or reduce the count 1 enhancement. Thus, nothing in the record indicates the court failed to consider the six allegedly mitigating factors Delacruz identifies. (See Cal. Rules of Court, rule 4.409 ["[r]elevant factors enumerated in these rules must be considered by the sentencing judge, and will be deemed to have been considered unless the record affirmatively reflects otherwise"]; People v. Myers (1999) 69 Cal.App.4th 305, 310 (Myers) ["[t]he court is presumed to have considered all of the relevant factors in the absence of an affirmative record to the contrary"].)
The trial court's statement at the resentencing hearing that Delacruz's age was "the only mitigating factor" does not alter our conclusion. That statement does not demonstrate the court failed to consider Delacruz's arguments concerning the five other mitigating factors he identifies; rather, it indicates the court did not find Delacruz's arguments concerning those other alleged mitigating factors sufficiently persuasive to warrant striking or reducing the enhancement. (See Myers, supra, 69 Cal.App.4th at p. 310 ["the fact that the court focused its explanatory comments on [a particular sentencing factor] . . . does not mean that it considered only that factor"]; People v. Avalos (1996) 47 Cal.App.4th 1569, 1582 [a trial court need not explain its reasons for rejecting alleged mitigating factors].) And we cannot conclude the trial court abused its discretion in so finding-particularly because the record contains facts undermining Delacruz's arguments concerning certain of the alleged mitigating factors. For example, although Delacruz argues he was "cooperative and forthcoming" with police, the record discloses that he engaged police in a foot pursuit following the shooting.
Nor are we persuaded by Delacruz's contention that the court abused its discretion because the recent addition of subdivision (c) to section 1385 demonstrates "the [L]egislature favors dismissal of enhancements." Section 1385, subdivision (c)(1) provides, in relevant part, that a court "shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute." (§ 1385, subd. (c)(1).) Subdivision (c)(2) of that section, in turn, provides that "[i]n exercising its discretion under [subdivision (c)(1)], the court shall consider and afford great weight to evidence offered by the defendant to prove" the presence of certain enumerated mitigating circumstances. (§ 1385, subd. (c)(2).) Delacruz concedes, however, that "none of the factors in mitigation set out by [defense] counsel [at the resentencing hearing] . . . fit[s] with[in]" the mitigating circumstances identified in section 1385, subdivision (c)(2).
Accordingly, we affirm the judgment. B. The Trial Court Must Correct the Clerical Errors in the Abstract of Judgment
Consistent with our direction in Delacruz, supra, B310540, the trial court noted at the resentencing hearing that the firearm enhancements on count 2 were "stricken." The current abstract of judgment, however, incorrectly states the enhancements were "stayed." (Capitalization omitted.) The parties agree, as do we, that the court must conform the abstract of judgment to reflect that the count 2 enhancements were stricken. (See People v. Mitchell (2001) 26 Cal.4th 181, 185 [the appellate court may direct the trial court to correct clerical errors in an abstract of judgment].) We direct the trial court to do so on remand.
DISPOSITION
We affirm the November 15, 2022 judgment, but remand the case to the trial court with directions to prepare an amended abstract of judgment correcting the clerical errors described in the Discussion ante, part B. We further direct the trial court to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: CHANEY, J. BENDIX, J.