Opinion
A168576
10-08-2024
THE PEOPLE, Plaintiff and Respondent, v. AGUSTIN DELARIVA, Defendant and Appellant.
NOT TO BE PUBLISHED
(Sonoma County Super. Ct. No. SCR745460-1)
TUCHER, P.J.
Defendant Agustin DeLaRiva challenges his sentence following a plea of no contest to driving under the influence (DUI) causing injury (Veh. Code, § 23153, subd. (a)), with an admission to four allegations of causing great bodily injury (Pen. Code, § 12022.7) and two allegations of causing bodily injury to more than one person (Veh. Code, § 23558). For this crime with these enhancements, he was sentenced to 16 years in state prison. Defendant argues the sentencing court abused its discretion in declining to strike most of the multiple enhancements. Specifically, he asserts the court failed to give great weight to mitigating factors specified in Penal Code section 1385, subdivision (c) (section 1385(c)), and instead relied on a factual finding regarding defendant's post-arrest conduct that was not supported by record evidence. We affirm.
BACKGROUND
On April 10, 2021, as traffic slowed in front of him on the freeway, defendant slammed his Silverado truck into the back of a Toyota Corolla. All five occupants of the Corolla were injured, four of them seriously. The driver of the car in front of the Corolla was also injured, as the Corolla lurched forward under the initial impact. When officers arrived at the scene, defendant showed signs of alcohol impairment, and a records check revealed his license had been suspended for DUI. He was arrested, and his blood-alcohol content was measured at 0.216 percent. A search of his car revealed eight bags of marijuana, collectively weighing eight and a half pounds.
Defendant was charged with, and pleaded no contest to, two counts of DUI causing injury: a felony violation of Vehicle Code section 23153, subdivision (a) and a violation of Vehicle Code section 23153, subdivision (b).Each count further alleged violation of Vehicle Code section 23560, in that defendant had a prior DUI conviction that was not quite ten years old, to which defendant admitted. And each count carried identical enhancement allegations, which defendant also admitted: four separate allegations of causing great bodily injury (Pen. Code, § 12022.7), and two allegations for injury to the other victims (Veh. Code, § 23558). Finally, ten sentencing factors in aggravation were alleged, as to which defendant waived jury trial and the presentation of testimonial evidence; the parties agreed that the sentencing court could determine factors in aggravation and in mitigation by reviewing the presentence report. Defendant entered an open plea, with a maximum term of 17 years in prison.
Count 2 was a misdemeanor, according to the information and the minute order from the sentencing hearing. The plea colloquy and the presentence report characterize it as a felony, but we need not further address this discrepancy since defendant's sentence on that count was stayed pursuant to Penal Code section 654.
In a presentence report dated May 9, 2023, the probation department recommended a sentence of 15 years, four months, based on aggravating factors it thought outweighed the mitigating factors. As aggravating factors, the report cited: the victims were particularly vulnerable because stopped in traffic unable to avoid the crash (Cal. Rules of Court, rule 4.421(a)(3)); defendant's prior convictions were numerous (rule 4.421(b)(2)); defendant was on probation at the time of the crime (in warrant status since 2013) (rule 4.421(b)(4)); defendant's prior performance on multiple grants of conditional sentence and one grant of formal probation had been unsatisfactory, as he continued to reoffend (rule 4.421(b)(5)); and his blood-alcohol content while driving was particularly high (rule 4.408). As mitigating factors, the report noted that multiple enhancements had been alleged (rule 4.423(b)(11)), and that defendant's performance on one grant of conditional sentence had been satisfactory (rule 4.423(b)(15)).
All rule references are to the California Rules of Court.
The trial judge also reviewed a statement in mitigation submitted on defendant's behalf. Defendant's statement urged a sentence of probation or, in the alternative, a low-term sentence with all but one of the enhancements stricken. Defendant urged two mitigating factors enumerated in section 1385(c) in support of striking enhancements: that multiple enhancements were alleged, and that the offense was connected to defendant's prior victimization and childhood trauma. (See Pen. Code, § 1385, subd. (c)(2)(B) &(E).) Defendant reported, in particular, that he was bullied as a child and sexually molested by his grandfather, and he argued that this trauma was a contributing factor to the offense because "alcohol became a coping mechanism." Defendant also reported, in a hand-written letter submitted with his mitigation statement, that he had done as much alcohol and drug rehabilitation programming as possible while in custody; he hoped one day to graduate from college and become a drug counselor; he deeply regretted the harm his drinking had caused; and he "will never drink again." A collection of supportive letters from family and friends echoed these themes.
The prosecution submitted a statement in aggravation, seeking the maximum possible sentence. This statement described the victims' injuries, including major head trauma, fractured ribs, collapsed lungs, a fractured spine, a fractured pelvis, and a traumatic brain injury. It discussed defendant's criminal history, including two prior misdemeanor DUIs, a felony conviction, and five prior non-DUI misdemeanor convictions. And it argued against dismissing enhancements pursuant to section 1385(c) on multiple grounds, urging: defendant had failed to establish with admissible evidence that childhood trauma substantially contributed to the offense; although the multiple enhancements were a mitigating factor, aggravating circumstances substantially outweighed any factor(s) in mitigation; defendant posed a danger to public safety; and the court should not be swayed by any evidence that defendant was attempting while in custody to separate himself from alcohol or drugs.
On the last point, the prosecution provided a three-paragraph long excerpt from an investigation report discussing jailhouse phone calls intercepted in November 2022. According to this report, defendant called his parents to request that they text a person named" 'TJ'" with a phone number for defendant's friend" 'E.'" Then, in a call with his girlfriend, defendant discussed his cellmate's criminal case and reported he had connected his cellmate's friend" 'TJ'" with" 'that dude from Philly.'" When his girlfriend expressed disappointment and concern for TJ's safety, defendant responded the "he didn't 'give a fuck' about what might happen to 'TJ' if things went bad" because defendant needed the" 'extra dough'" to pay bills. Investigators found eleven phone calls placed by defendant's cellmate to E's phone number, one call containing a reference to "[defendant's] boys" and others discussing what appeared to be a potential drug deal. The statement in aggravation concluded, on the basis of these phone calls, that defendant was not pursuing a path of reform but engaging with a murderer to make a profit.
At the sentencing hearing on June 22, 2023, the court heard victim impact evidence and defendant's apology to the victims. The judge then explained his thinking in deciding defendant's sentence, reporting that after he read the statement in mitigation and the probation department's presentence report he had considered striking enhancements, until he read the statement in aggravation. The information there about what defendant had been doing while in custody "blew my mind" and made the "decision easy," the judge explained. It showed that defendant was "really not about what [he] wrote in" his letter to the court, and the court was therefore unwilling to strike any of the enhancements. Instead, the court sentenced defendant to the mid-term of two years on count one, plus three years for each of four enhancements for great bodily injury and one year for each of two Vehicle Code section 235587 enhancements, all running consecutively for a total of 16 years in state prison. The court also imposed restitution, fines, and fees.
This timely appeal ensued.
DISCUSSION
We review the sentencing court's decisions for abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) "A trial court abuses its discretion when the factual findings critical to its decision find no support in the evidence." (People v. Cluff (2001) 87 Cal.App.4th 991, 998.) A court also abuses its discretion when it bases its decision on improper factors or, conversely, when it fails to consider relevant ones. (People v. Avila (2020) 57 Cal.App.5th 1134, 1140-1141.) But it is not enough that a reviewing court might disagree with a sentencing court's decision. An abuse of discretion occurs only if the sentencing court's decision is "so irrational and arbitrary that no reasonable person could agree with it." (People v. Carmony (2004) 33 Cal.4th 367, 377.)
Central to our analysis are the provisions of section 1385(c), which begins, "the court shall dismiss an enhancement if it is in the furtherance of justice to do so." (§ 1385(c)(1).) The statute continues, "[i]n exercising its discretion under this subdivision, the court shall consider and afford great weight to evidence offered by the defendant to prove" certain mitigating circumstances. (§ 1385(c)(2).) Among the mitigating circumstances enumerated in the statute are two that are relevant to this case: "[m]ultiple enhancements are alleged in a single case" (§ 1385(c)(2)(B)), and "[t]he current offense is connected to prior victimization or childhood trauma" (§ 1385(c)(2)(E)). "Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety." (§ 1385(c)(2).)
Defendant initially characterized this statute as "creat[ing] a strong presumption in favor of striking enhancements when certain criteria are met," but a recent decision from the California Supreme Court says otherwise. In People v. Walker (2024) 16 Cal.5th 1024 (Walker), the Court specifically rejected that section 1385(c) requires sentencing courts" 'to rebuttably presume that dismissal of an enhancement is in the furtherance of justice (and that its dismissal is required) unless the court makes a finding that the resultingly shorter sentence . . . "would endanger public safety." '" (Walker, at p. 1032.) Instead, "absent a finding that dismissal would endanger public safety, a court retains the discretion to impose or dismiss enhancements provided that it assigns significant value to the enumerated mitigating circumstances when they are present." (Id. at p. 1029.) This exercise of discretion "will generally result in the dismissal of an enhancement unless the sentencing court finds substantial, credible evidence of countervailing factors that 'may nonetheless neutralize even the great weight of the mitigating circumstance, such that dismissal of the enhancement is not in furtherance of justice.'" (Ibid.)
In this case, the sentencing court made no express finding that striking the enhancements would endanger public safety. It also made no express finding on the presence of the two enumerated mitigating factors discussed in defendant's statement in mitigation, although all agreed that at least one such factor applied: multiple enhancements were alleged in the case. (See § 1385(c)(2)(B).) As to the other mitigating factor, whether defendant had established that the current offense was connected to his prior victimization and childhood trauma, the parties' written submissions took opposite sides, and the court remained silent. (See § 1385(c)(2)(E).) Instead, the court explained that after initially considering the mitigating evidence and the possibility of striking enhancements in light of it, the court changed course upon learning of the recorded phone calls. The question thus becomes whether the evidence of these jailhouse calls was substantial, credible evidence of a countervailing factor sufficient, alongside other aggravating evidence, to" 'neutralize even the great weight of the mitigating circumstance[s].'" (Walker, supra, 16 Cal.5th at p. 1029.)
The sentencing court certainly thought so, and we are unable to conclude that this was an abuse of discretion. The evidence in aggravation was admissible since the parties had stipulated to dispense with testimonial evidence at the sentencing hearing. Indeed, defendant does not contend otherwise. The evidence was credible because the jailhouse conversations were recorded, so the sentencing court could review language drawn verbatim from defendant's multiple phone calls; and discovery was provided to the defense, so defendant had the opportunity to present contextualizing information if doing so would have improved the impression left by the prosecution's account. The sentencing court's comments make clear it agreed with the prosecution's assessment of the jailhouse communications-that defendant was facilitating some kind of scheme that was illegal, likely involved the sale of narcotics, and may have placed another person in some danger, all so that he could "make a buck." For the sentencing court this evidence tipped the scale. In assessing whether it is sufficiently substantial to neutralize the great weight of the mitigating evidence, we review it alongside the other evidence of aggravation, including the horrible circumstances of defendant's crime and troubling aspects of defendant's criminal history.
We cannot say the sentencing court was irrational or arbitrary in concluding that this aggravating evidence sufficiently outweighed even the great weight the court was required to give defendant's evidence in mitigation. Defendant is obviously correct that the multiple enhancements to which he admitted would have an outsized impact on his sentence if not struck. And for present purposes we credit defendant's assertion that his childhood victimization was a catalyst for his heavy drinking as a young adult, although its connection to his more recent decision to drink and drive is more tenuous. But even giving great weight to these two categories of mitigating evidence, a reasonable sentencing court could find the mitigating evidence outweighed by the evidence in aggravation. In particular, the jailhouse evidence strongly suggests that defendant was continuing to put his own interests above the safety of the community and, in spite of what he wrote in his letter to the court, had no qualms about promoting illegal activity, including substance abuse, in the community. At the very moment when the enormity of his crime might have primed defendant to pursue rehabilitation and a law-abiding life, here was evidence he was not turning in that direction.
Defendant contends that the sentencing court abused its discretion because it "failed to consider and 'afford great weight' to the mitigating factors" enumerated in section 1385(c). As an alternative to his no-longer viable argument in favor of a rebuttable presumption, defendant argues the sentencing court was required at least to "engage in a 'holistic balancing' of the mitigating and aggravating factors," and that it failed to do so. (Citing People v. Ortiz (2023) 87 Cal.App.5th 1087, review granted Apr. 12, 2023, S278894.) Defendant is correct on the legal point. The Supreme Court in Walker endorsed the Ortiz court's balancing approach. (Walker, supra, 16 Cal.5th at p. 1029.)
But defendant fails to support his factual assertion that the sentencing court did not engage in the requisite weighing process. The sentencing court made clear that it read and considered the parties' submissions, and defendant's statement in mitigation had quoted extensively from section 1385(c), urging "a strong presumption that enhancements should be stricken" in light of two enumerated mitigation factors (multiple enhancements and childhood victimization). The prosecution's statement in aggravation disputed one of these factors (childhood victimization) and urged that the sentencing court had discretion in deciding whether to strike enhancements, but the prosecution did not dispute that, as defendant had informed the court," '[i]n exercising its discretion . . . the court shall consider and afford great weight to evidence offered by the defendant to prove'" certain mitigating factors. (Quoting § 1385(c).) Trial courts are presumed to know and apply governing law, unless the contrary is affirmatively shown. (People v. Gutierrez (2014) 58 Cal.4th 1354, 1390-1391; see also People v. Fredrickson (2023) 90 Cal.App.5th 984, 988 [" 'defendant must "affirmatively demonstrate that the trial court misunderstood its sentencing discretion"' "]; rule 4.409 ["Relevant 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"].) Here, although the sentencing court's discussion of its weighing process was brief and focused on the jailhouse communications, the record does not suggest that the court failed to give great weight to the mitigating evidence. Rather, the record suggests that, having weighed the aggravating and mitigating evidence before it, the court simply decided that dismissing an enhancement was not "in the furtherance of justice." (§ 1385(c)(1).)
Defendant points out that the court said, at one point in explaining its sentencing decision, "I'm not sure I believe any of it." But there the court was referring specifically to defendant's letter about "what he's been doing in custody" and to the letters others "wrote on his behalf." The court was not registering a blanket refusal to consider any evidence in mitigation. Indeed, the court's statement would make no sense with regard to the undisputed evidence in mitigation, that defendant faced multiple enhancement allegations he had admitted were true. Moreover, nothing about section 1385(c) suggests that a sentencing court should not make credibility determinations in assessing evidence proffered in mitigation.
Defendant also argues that evidence he may have put two possible drug dealers in contact with each other does not support an inference that his progress toward recovery was not genuine. In reviewing for an abuse of discretion we cannot agree. The evidence of defendant's jailhouse communications was sufficiently substantial and concerning that a reasonable sentencing judge could find it fatally undermined the story that defendant, his friends, and family were telling of a man both chastened and committed to his own reform.
DISPOSITION
The judgment is affirmed.
WE CONCUR: FUJISAKI, J., PETROU, J.