Opinion
D080443
11-28-2023
THE PEOPLE, Plaintiff and Respondent, v. OSVALDO APOLO LOPEZ, Defendant and Appellant.
Shay Dinata-Hanson for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Christopher P. Beesley and Michael D. Butera, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCS297472, Garry G. Haehnle, Judge. Affirmed in part, reversed in part, and remanded in part.
Shay Dinata-Hanson for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Christopher P. Beesley and Michael D. Butera, Deputy Attorneys General, for Plaintiff and Respondent.
CASTILLO, J.
INTRODUCTION
Osvaldo Apolo Lopez appeals the denial of his motion for discovery under the California Racial Justice Act of 2020 (RJA) and the sentence imposed on his conviction for voluntary manslaughter with a firearm enhancement.
When the trial court denied Lopez's RJA discovery motion, it erroneously equated the lower good cause showing for discovery with the higher prima facie showing required to establish an RJA violation. These two standards, however, are different. As another appellate court recently explained, good cause for RJA discovery requires only a "plausible factual foundation, based on specific facts, that a violation of the Racial Justice Act 'could or might have occurred' in [the defendant's] case." (Young v. Superior Court (2022) 79 Cal.App.5th 138, 159 (Young).) We reverse the denial of Lopez's RJA discovery motion and agree with the parties that remand is appropriate for the trial court to reconsider it with Young's guidance.
We affirm the judgment in all other respects. Although the trial court questioned the applicability of Penal Code section 1170, subdivision (b)(6)'s presumptive low term, it permissibly imposed the middle term for Lopez's voluntary manslaughter conviction after finding that the aggravating factors outweighed the mitigating factors. We conclude that Lopez waived his challenge to the evidence rebutting the presumptive low term because he did not address on appeal the aggravating facts the trial court relied on. Finally, Lopez forfeited his claims related to the firearm enhancement because he failed to first raise them with the trial court.
BACKGROUND
I.
The state charged Lopez with the murder of Ricardo Sales. Sales had an ongoing affair with Lopez's wife. When he learned of the affair, Lopez called Sales to tell him not to contact his wife anymore. Lopez testified that Sales identified himself as a gang member, threatened Lopez and his family, and demanded to meet.
During that meeting, Lopez shot Sales dead. Witnesses saw Lopez shoot Sales and then stand over the fallen body and continue shooting.
At trial, Lopez offered testimony explaining how his gang-related trauma made him more likely to believe his life was in danger and more "emotionally reactive" to perceived threats. After Sales punched him in the back of the head, making him fall, Lopez thought Sales was going to kill him. In response, Lopez pulled out a gun and "started shooting." He explained feeling "disoriented" and "hazy," with "tunnel vision." Unsure if he had shot Sales, Lopez "kept squeezing [the trigger] until it looked like he wasn't going to get back up."
The jury found Lopez guilty of voluntary manslaughter, a lesser included offense of the murder charge. (Pen. Code, § 192, subd. (a).) The jury also found true that Lopez used a firearm during the offense under Penal Code section 12022.5, subdivision (a).
II.
Before sentencing, Lopez's counsel moved (1) to dismiss the firearm enhancement under the RJA and on other grounds and (2) for RJA discovery. Lopez's counsel argued a prima facie violation of the RJA based on statistical data, a comparison of Lopez's case with a homicide case involving a white shooter, and evidence of implicit bias in the prosecutor's sentencing briefing because it invoked "a very real and insidious stereotype that Latinx men are prone to jealousy." If the trial court disagreed, Lopez's counsel asserted good cause for RJA discovery to obtain copies of all charging documents in homicide cases filed by the San Diego District Attorney's office over the past five years.
The trial court denied both motions. On the substantive motion, it found that Lopez did not make the prima facie showing required to prompt an evidentiary hearing. (Pen. Code, § 745, subd. (c).) On the discovery motion, the trial court acknowledged the good cause standard but stated: "If this Court cannot find a prima facie showing, I don't know how this Court can find a showing of good cause that the discovery in this case should be released."
III.
The trial court sentenced Lopez to a total of nine years in prison.
For the voluntary manslaughter conviction, the trial court imposed the middle term of six years. Both parties agreed that, given Lopez's trauma, Penal Code section 1170, subdivision (b)(6) applied. The trial court, however, questioned why section 1170, subdivision (b)(6) applied when Lopez's trauma "happened after [age] 13" and the statute refers to "childhood trauma." Lopez's counsel explained that the statute is disjunctive, referring to" '[p]sychological trauma, physical trauma[,] or childhood trauma.'" The trial court disagreed, saying the language all "relates to childhood." Nevertheless, it found that the aggravating factors "extremely outweigh any mitigating circumstances," and so the trial court selected the middle term.
For the firearm enhancement, the trial court imposed the low term of three years. Lopez's counsel argued for dismissal under Penal Code section 1385, subdivision (c). The trial court declined to do so because it found that "there is a likelihood that a dismissal would result in physical injury or other serious danger to others."
A few days later, the trial court recalled the sentence for limited purposes that did not change the total sentence imposed. At the resentencing hearing, the trial court again questioned applying section 1170, subdivision (b)(6) to the manslaughter sentence. This time, the trial court asked if it would be a "dual use" for Lopez's trauma to reduce both his verdict as well as his sentence on that reduced verdict. The trial court "wonder[ed]" if the Legislature intended such a result. Regardless, it reaffirmed its previous findings, which took the trial court "out of the low term into the midterm."
ANALYSIS
We address the denial of Lopez's motion for discovery under the RJA before turning to Lopez's challenges to the sentence imposed.
I.
On Lopez's motion for RJA discovery, we agree with the parties that remand is appropriate so that the trial court can assess the motion under the proper good cause standard.
Under the RJA, "[t]he state shall not seek or obtain a criminal conviction or seek, obtain, or impose a sentence on the basis of race, ethnicity, or national origin." (Pen. Code, § 745, subd. (a).) The Legislature enacted the RJA to "purge racial discrimination from our criminal justice system by taking proactive steps designed to 'ensure that race plays no role at all in seeking or obtaining convictions or in sentencing.'" (Young, supra, 79 Cal.App.5th at p. 150.) If a defendant makes a prima facie showing of an RJA violation, the trial court shall hold an evidentiary hearing. (Pen. Code, § 745, subd. (c).) At the hearing, the defendant has the burden of proving a violation by a preponderance of the evidence. (Id., subd. (c)(2).)
The RJA permits a defendant to seek disclosure of "all evidence relevant to a potential violation" that is "in the possession or control of the state." (Pen. Code, § 745, subd. (d).) Through this provision, the Legislature intended for defendants claiming an RJA violation to "have 'access to all relevant evidence, including statistical evidence, regarding potential discrimination in seeking or obtaining convictions or imposing sentences.'" (Young, supra, 79 Cal.App.5th at p. 150.) A court "shall" order the release of records "[u]pon a showing of good cause." (Pen. Code, § 745, subd. (d).)
Good cause for RJA discovery requires only a "plausible factual foundation, based on specific facts, that a violation of the [R]A] 'could or might have occurred.'" (Young, supra, 79 Cal.App.5th at p. 159.) This "minimal standard," referred to as the "plausible justification standard," is less onerous than the prima facie showing under subdivision (c). (Id. at pp. 159, 161.) As a result, it "should not be difficult to meet." (Id. at p. 161.)
Here, the trial court treated the good cause showing under subdivision (d) the same as a prima facie showing under subdivision (c). It found that Lopez fell short of that prima facie standard, and thus denied Lopez's RJA discovery motion. The trial court acted without the benefit of Young.
Because it is unclear if the trial court would have reached the same result had it applied the "minimal" good cause standard outlined in Young, we remand for further proceedings. (In re J.R. (2022) 82 Cal.App.5th 526, 532.) If, on remand, the trial court finds a plausible justification for discovery, it must then decide the appropriate scope of disclosure by weighing the factors identified in City of Alhambra v. Superior Court (1988) 205 Cal.App.3d 1118, 1134. (Young, supra, 79 Cal.App.5th at p. 168.) Those factors include:
• whether the material requested is adequately described;
• the material's relative availability to the responding entity and the defendant;
• the request's timeliness;
• the risk of causing unreasonable delay or imposing an undue burden on the responding entity; and
• the risk of violating third-party confidentiality, privacy rights, or protected governmental interests.
(Ibid.)
II.
Next, Lopez takes issue with the sentences imposed for his (1) voluntary manslaughter conviction and (2) firearm enhancement.
We review sentencing choices for abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) A trial court cannot exercise the required" 'informed discretion'" if it is "unaware of the scope of its discretionary powers." (People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8.) A trial court acts within its informed 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 (Carmony).)
We never presume error. (People v. Davis (1996) 50 Cal.App.4th 168, 172.) Instead, the challenging party must "affirmatively demonstrate that the trial court misunderstood its sentencing discretion." (Ibid.) Likewise, the challenging party bears the burden to "clearly" show that the decision was irrational or arbitrary. (Carmony, supra, 33 Cal.4th at p. 376.)
We independently review questions of law. (People v. Cromer (2001) 24 Cal.4th 889, 894.)
A.
Lopez claims that the trial court "misunderstood" Penal Code section 1170, subdivision (b)(6) and, as a result, failed to apply its presumption in favor of a lower prison term to his voluntary manslaughter conviction. We disagree.
In 2022, the Legislature amended the determinate sentencing law, section 1170, "in several fundamental ways." (People v. Flores (2022) 73 Cal.App.5th 1032, 1038.) Under one amendment, the trial court "shall" impose the lower term if the defendant's "psychological, physical, or childhood trauma" contributed to the commission of the offense. (Pen. Code, § 1170, subd. (b)(6).) This directive, however, has limits. A trial court can impose a higher sentence if it finds that "the aggravating circumstances outweigh the mitigating circumstances" such that the lower term would be "contrary to the interests of justice." (Ibid.) "[T]he Legislature intended to maintain the sentencing court's discretion to impose the middle term even if it finds the defendant falls within one of the three categories of section 1170, subdivision (b)(6)." (People v. Hilburn (2023) 93 Cal.App.5th 189, 204.)
1.
Here, despite the parties' agreement on the issue, the trial court twice queried if Lopez's trauma triggered section 1170, subdivision (b)(6)'s presumptive lower term. First, the trial court stated its belief that "psychological, physical, or childhood trauma" in section 1170, subdivision (b)(6)(A) "relates to childhood" only, which would exclude trauma experienced later in life. We are not aware of any authority that so limits trauma in section 1170. Second, the trial court questioned if using Lopez's previous trauma both as the jury's "basis for the reduced verdict" and as the court's basis for a reduced sentence would constitute an unintended and impermissible "dual use." Dual use of facts, however, prevents courts from increasing a sentence based on a fact that the crime or sentence already accounted for, not decreasing it. (People v. Scott (1994) 9 Cal.4th 331, 350, fn. 12 (Scott).) The People agree that neither of the trial court's interpretations would be correct if applied.
In the end, however, the trial court properly exercised its discretion to impose the middle term because it found that the aggravating factors "extremely outweigh[ed]" any mitigating factors. The trial court explained that its findings "took [it] out of the low term into the mid-term." The record thus shows that, contrary to Lopez's argument, the trial court applied section 1170, subdivision (b)(6), despite its initial hesitation. As a result, the trial court acted with the requisite informed discretion.
2.
Lopez also appears to dispute the extent to which and how the trial court weighed the aggravating factors. He asserts that the trial court discussed aggravating factors only when rejecting a different argument not on appeal. Lopez also contends that "no evidence . . . rebutted the presumption" of the lower term here. But this claim ignores the part of the sentencing hearing where the trial court identified the facts that led it to select the middle term. Lopez did not address these aggravating factors even after the People quoted that section of the record in full in the response brief. Consequently, we reject this challenge as underdeveloped and unsupported and therefore waived. (See Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.)
In sum, Lopez has not met his burden to affirmatively show that the trial court abused its discretion when imposing the middle term.
B.
Lastly, Lopez challenges the firearm enhancement.
First, he argues that the trial court failed to "afford great weight" to mitigating factors as required under Penal Code section 1385, subdivision (c) when declining to strike the firearm enhancement. But those factors are not entitled to great weight if the trial court concludes, as here, that dismissal would endanger public safety. (People v. Mendoza (2023) 88 Cal.App.5th 287, 296.)
Second, Lopez objects to how the trial court applied and weighed the facts in finding that "dismissal would result in physical injury or other serious danger to others." Lopez categorizes this second argument as going to the sufficiency of the evidence. Because Lopez accepts the underlying facts but disagrees with how the trial court applied them, however, his argument is better understood as a dispute over weighing the evidence.
Lopez forfeited these arguments. "[C]omplaints 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." (Scott, supra, 9 Cal.4th at pp. 331, 356.) This rule applies to sentences that, "though otherwise permitted by law, were imposed in a procedurally or factually flawed manner." (Id. at p. 354.) It encompasses cases in which the trial court purportedly erred because it "misweighed the various factors[ ] or failed to state any reasons or give a sufficient number of valid reasons." (Id. at p. 353.)
Lopez's counsel failed to raise these objections after the trial court declined to dismiss the firearm enhancement, imposed a sentence, and explained why. Lopez argues that he preserved the issues through (1) presentencing briefing and (2) his counsel's arguments at the hearing. We disagree. Under Scott, a defendant must object after the trial court states the sentence and the reasons behind it. (Scott, supra, 9 Cal.4th at pp. 351, 356.) Only then will an objection "encourage [a trial court's] prompt detection and correction of error." (Id. at p. 351.) Here, after announcing the sentence at both the original and resentencing hearings, the trial court asked if counsel had anything else to discuss. Despite this opportunity, Lopez's counsel did not assert these objections. Accordingly, "the claim is forfeited on appeal." (People v. Boyce (2014) 59 Cal.4th 672, 731.)
Because we conclude that Lopez forfeited his claims related to the firearm enhancement, we decline to reach the substance of his arguments.
DISPOSITION
We reverse the denial of Lopez's motion for discovery under the RJA and remand for the trial court to reconsider the motion under the "plausible justification standard" for good cause explained in Young v. Superior Court (2022) 79 Cal.App.5th 138. In all other respects, we affirm the judgment.
WE CONCUR: HUFFMAN, Acting P. J., O'ROURKE, J.