Opinion
E080821
03-06-2024
THE PEOPLE, Plaintiff and Respondent, v. JORGE DAGOBERTO GILBERT, Defendant and Appellant.
Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Senior Assistant Attorney General, and Collette C. Cavalier and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. INF1800573 Charles J. Koosed, Judge. Affirmed.
Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Senior Assistant Attorney General, and Collette C. Cavalier and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAPHAEL, J.
In 2020, a jury convicted Jorge Dagoberto Gilbert of torture and attempted murder and found multiple enhancements. Gilbert appealed, and we remanded to allow him to be resentenced under a then-new change in the law. On remand, the court resentenced him to his original sentence. Gilbert appeals again, arguing the court abused its discretion by resentencing him to the same sentence. We affirm.
BACKGROUND
In March 2018, Gilbert tied up and physically abused his girlfriend while under the influence of illegal drugs. The abuse ended when his girlfriend escaped. (People v. Gilbert (Apr. 20, 2022, E075637) [nonpub. opn.].)
In March 2020, a jury convicted Gilbert of torture (Pen. Code, § 206) and attempted murder (§§ 664/187, subd. (a)). The jury also found true that he personally used a deadly or dangerous weapon in both crimes (§ 12022, subd. (b)(1)), and that he personally inflicted great bodily injury when committing the attempted murder (§ 12022.7, subd. (e)). The court sentenced him to an indeterminate term of eight years to life, composed of seven years to life for the torture conviction, plus one year for the personal use of a deadly or dangerous weapon enhancement. For the attempted murder conviction and related enhancements, the court imposed and stayed a term of 12 years, composed of seven years for the attempted murder, four years for the great bodily injury enhancement, and one year for the deadly weapon enhancement.
Unlabeled statutory citations refer to the Penal Code.
Gilbert appealed, arguing he was entitled to resentencing based on Assembly Bill No. 518 (2021-2022 Reg. Sess.). (People v. Gilbert (Apr. 20, 2022, E075637) [nonpub. opn.].) We agreed and remanded to allow the trial court to exercise its discretion under that new law.
On remand, Gilbert argued the court should stay the indeterminate term and instead impose a determinate term of 15 years or less, composed of seven years for the attempted murder, seven years for the great bodily injury enhancement, and one year for the deadly weapon enhancement. In support, Gilbert pointed to his exemplary record in prison, which included completing anger management courses, participating in victim impact self-help groups and substance abuse courses, and being enrolled in school to earn an associate degree. Gilbert also argued resentencing would be appropriate because he had a large community support network available upon release, as well as detailed relapse prevention plans to prevent himself from re-engaging in harmful behaviors such as substance abuse and domestic violence.
The court held a resentencing hearing in January 2023 and reimposed the same sentence. In reaching this conclusion, the court stated that "[i]f I were to have sentenced him with the law being as it is now, in other words if I knew I had had that discretion back then, I still would have given him the life term," and that "[t]he only thing that's causing me to reconsider . . . is all of the things that Mr. Gilbert has done while he's been incarcerated." The court commended Gilbert for his efforts, saying it had rarely seen efforts as comprehensive as Gilbert's and telling him to keep up the good work. However, it also considered "the words of the victim in this case." This included that she was bound and physically abused, that her escape may have been the difference between Gilbert murdering her rather than only attempting to do so, and that this was not the first time he had physically abused her. The court acknowledged "I don't think these are easy issues and questions. It was certainly a lot easier when I had no discretion and the law just told me what to do." Nevertheless, it concluded "the statements from the victim and the impact it's had on her is just overwhelming," and told Gilbert that "although you've done a lot of great things . . . I don't see any reason . . . to stray from," the original sentence.
DISCUSSION
Gilbert argues the court abused its discretion by reimposing the same sentence on remand. We disagree.
"[E]ffective January 1, 2022. [Assembly Bill No.] 518 amended Penal Code section 654, subdivision (a) to provide, in pertinent part: 'An act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision.' (Italics added.) Previously, where Penal Code section 654 applied, the sentencing court was required to impose the sentence that 'provides for the longest potential term of imprisonment' and stay execution of the other term. [Citation.] As amended by [Assembly Bill No.] 518, Penal Code section 654 now provides the trial court with discretion to impose and execute the sentence of either term, which could result in the trial court imposing and executing the shorter sentence rather than the longer sentence." (People v. Mani (2022) 74 Cal.App.5th 343, 379.)
"A trial court's decision to impose a particular sentence is reviewed for abuse of discretion and will not be disturbed on appeal 'unless its decision is so irrational or arbitrary that no reasonable person could agree with it.'" (People v. Jones (2009) 178 Cal.App.4th 853, 860-861.) "In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, '"[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review."' [Citation.] Second, a '"decision will not be reversed merely because reasonable people might disagree. 'An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.'"'" (People v. Carmony (2004) 33 Cal.4th 367, 376-377.) "The trial court's sentencing discretion must be exercised in a manner that is not arbitrary and capricious, that is consistent with the letter and spirit of the law, and that is based upon an "individualized consideration of the offense, the offender, and the public interest.... [A] trial court will abuse its discretion . . . if it relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision." (People v. Sandoval (2007) 41 Cal.4th 825, 847.)
We see no abuse of discretion here. The court expressly weighed all the relevant factors-including Gilbert's accomplishments while incarcerated and the impact of his crimes on his victim-and explained how it weighed those factors. Far from ignoring Gilbert's efforts at rehabilitation, the court said this was a close call only because of those efforts. The court was clear that if it had its current discretion at his original sentencing, it would have imposed the same sentence. It had pause about imposing the sentence because of Gilbert's successful attempts to improve himself while in prison, but it concluded that conduct did not outweigh his crime's impact on the victim. This is not an abuse of discretion; it is exactly how exercising that discretion should work. Even if we thought we would reach a different decision than the court's decision, we cannot disturb it on appeal.
Gilbert argues that the decision is not in accord with the spirit of Assembly Bill No. 518 and other ameliorative sentencing laws. Assembly Bill No. 518 does not command trial courts to offer relief, it merely gives them the option to offer it. As amended, section 654 still permits courts to impose the most severe penalty where circumstances justify it. Here, the court concluded that the circumstances justified it. Just because it did not take the offer to ameliorate Gilbert's sentence does not mean the court abused its discretion. It merely means it exercised its discretion.
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ P. J., MENETREZ J.