Opinion
B297440
04-10-2020
THE PEOPLE, Plaintiff and Respondent, v. PHILLIP PLASENCIA, Defendant and Appellant.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, Zee Rodriguez, Supervising Deputy Attorney General, Nicholas J. Webster, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. VA056390) APPEAL from a judgment of the Superior Court of Los Angeles County, Debra Cole-Hall, Judge. Vacated and remanded, in part; affirmed, in part. John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, Zee Rodriguez, Supervising Deputy Attorney General, Nicholas J. Webster, Deputy Attorney General, for Plaintiff and Respondent.
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The jury found defendant and appellant Phillip Plasencia guilty of first degree residential burglary (Pen. Code, § 459 [count 3]); first degree robbery of Juan Jauregui (§ 211 [count 5]); and carjacking and second degree robbery of Leticia Amezcua (§§ 215, subd. (a) [count 11], 211 [count 8]). In each count the jury found true the allegation that Plasencia personally used a firearm under sections 12022.5, subdivision (a)(1) and 12022.53, subdivision (b). Following his admission that he suffered a prior serious felony conviction within the meaning of § 667, subdivision (a)(1) and the three strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and served a prior prison term within the meaning of section 667.5, subdivision (b), the trial court sentenced Plasencia to state prison for a term of 47 years 4 months.
All further statutory references are to the Penal Code.
The jury acquitted Plasencia of first degree robbery of Cesar Beltran (§ 211), and assault with a firearm on Guillermo Beltran (§ 245, subd. (a)(2)).
On appeal, we ordered the trial court to strike the one-year enhancement imposed under section 667.5, subdivision (b), which cannot be imposed in conjunction with a five-year enhancement under section 667, subdivision (a)(1) when based on the same conviction, but otherwise affirmed the judgment.
In 2018, Plasencia moved to strike as unauthorized a firearm enhancement (§ 12022.53, subd. (b)) that was imposed in connection with his burglary conviction in count 3. He requested full resentencing, including resentencing under recently enacted Senate Bill Nos. 620 and 1393, which permit the trial court to strike firearm and prior serious felony conviction enhancements in the interest of justice. (Sen. Bill No. 620 (2017-2018 Reg. Sess.) § 2; Sen. Bill No. 1393 (2017-2018 Reg. Sess.) § 1.)
In 2019, the trial court struck the unauthorized section 12022.53, subdivision (b) firearm enhancement in count 3, and resentenced Plasencia to a term of 44 years 4 months in prison. The trial court declined Plasencia's requests to exercise its discretion to strike any other firearm or prior serious felony enhancements. It also declined to strike his prior strike conviction under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530 (Romero), and did not otherwise reduce his sentence. The trial court did not strike the section 667.5, subdivision (b) enhancement as our prior opinion instructed.
In the instant appeal, Plasencia contends that the trial court abused its discretion at resentencing by (1) relying on his gun use in a prior juvenile adjudication as an aggravating factor although there was no evidence in the record demonstrating that he had used a gun in commission of that offense, and (2) ignoring mitigating evidence of his rehabilitation and prospects for success upon release. He also contends, and the People agree, that the one-year section 667.5, subdivision (b) prior prison term enhancement must be stricken in compliance with our prior opinion, as it cannot be imposed in conjunction with the five-year prior serious felony enhancement (§ 667, subd. (a)) for the same prior felony.
We vacate Plasencia's sentence and remand for resentencing. Upon review, we have been unable to locate evidence in either the appellate or superior court record that Plasencia used a firearm to commit his juvenile offense. We therefore remand the matter to the trial court to resentence Plasencia omitting this aggravating factor from its consideration. It is unclear from the transcript whether the trial court considered Plasencia's rehabilitation and future prospects. Both are appropriate considerations that the trial court should take into account upon resentencing. We agree with the parties that imposition of a section 667.5, subdivision (b) enhancement is unauthorized if imposed on the basis of the same prior felony in conjunction with a five-year prior serious felony enhancement under section 667, subdivision (a).
We take judicial notice of the record in People v. Plasencia (Super. Ct. L.A. County, No. VA056390). (Evid. Code, § 452, subd. (d).)
FACTS
The statement of facts is taken from our prior unpublished opinion. (People v. Plasencia (Feb. 26, 2001, B140461).)
Prosecution
Cesar Beltran and his brother, Guillermo, lived with several extended family members at a residence on McCallum Street in South Gate. Around 6:00 p.m. on March 18, 1999, the Beltrans and their cousin, Silvano Medina, were in front of the residence, washing a car. Plasencia and several other men approached, two armed with guns. Plasencia and the others forced the Beltrans and Silvano into the house. Inside the residence were the Beltrans' mother, Modesta Terrazas, and their sister, Karina Beltran. Plasencia pointed a gun at Modesta and Karina and ordered them to the bedroom. An accomplice ordered Cesar and Silvano to lie face down on the floor. He then took cash from their pockets and a chain from around Cesar's neck.
Juan Jauregui, whose father owned the McCallum Street residence, arrived to collect the rent. When he knocked on the front door, a gunman opened it and ordered him inside. Plasencia appeared, pointed a pistol at Jauregui's head, and pulled him into the living room. Plasencia ordered Jauregui to lie face-down on the floor. After Jauregui complied, he was kicked twice in the head. Plasencia declared that he was looking for money and "weed." He and two others went through Jauregui's pockets, removing $40.
Plasencia moved Jauregui to the main bedroom and ordered him to the floor. Jauregui saw Guillermo lying face-down on the floor, and Karina sitting on the couch. Two other men were laying face-down in the bathroom. Plasencia and two accomplices were asking Guillermo about money, drugs, and jewelry. At some point Plasencia cocked the slide hammer on his pistol and announced that the gun was fully loaded. The robbers searched the house, but declared that they had found nothing. After securing the victims' hands with tape, they left.
Cesar and Guillermo were able to free themselves and pursue the robbers. Armed with a rifle that had been hidden in the house, Guillermo exchanged gunfire with the assailants.
When the shots were fired, Amezcua was in her car at her nearby residence on McCallum Street, preparing to back out of the garage. Her two-year-old daughter was with her. In the trunk of the vehicle was a bag containing jewelry belonging to her mother. Plasencia suddenly appeared, bleeding slightly from his forehead. He pointed a pistol at her and demanded the car keys. After she complied and removed her daughter from the car, Plasencia drove off.
Mrs. Amezcua's husband, Hugo Amezcua, was walking home with their son when he heard gunshots. He saw Plasencia driving his wife's Oldsmobile down the street. Plasencia stopped, picked up two men who were walking in the street, and continued driving.
When South Gate Police Detectives Lee Smith and Darren Arakawa arrived at the robbery scene on McCallum Street, they found a white Toyota pickup truck parked in the street 50 to 60 feet from the residence. It had seven or eight bullet holes in various locations. On the ground near the passenger side of the truck were several .45 caliber shell casings, likely from a semiautomatic pistol. A knife lay on the ground at the rear of the truck, and blood was spattered near the knife and truck. Inside the truck, Detective Arakawa found a piece of paper on which was written a phone number that was crossed off, a second phone number, and the word, "Spanks." Detective Arakawa knew Plasencia by the nickname Spanks.
The McCallum Street residence had been ransacked. Detective Arakawa found a digital scale, and 53 grams of marijuana that had an estimated street value of $50 to $150.
A few months later the police recovered the Amezcuas' Oldsmobile. The car had been stripped, and the bag containing the jewelry was missing.
Defense
Plasencia testified in his own defense. An admitted drug dealer known as "Spanks," he had once bought ten pounds of marijuana from Guillermo Beltran, whom he had met through a friend, David Acosta. On March 18, 1999, Plasencia accompanied Acosta and another friend, "Raul," to the Beltran home. Using counterfeit bills to pay for part of the cost, Acosta and Raul intended to buy a kilogram of marijuana from Guillermo. Acosta drove Plasencia and Raul in a white Toyota pickup truck. Plasencia did not intend to participate in the transaction.
When they arrived at the Beltrans' residence on McCallum Street, Cesar Beltran opened the gate, and Acosta parked in the driveway. There were three people in the garage drinking beer, including Cesar and Guillermo. While Plasencia remained in the truck, Acosta and Raul got out, one of them carrying a moneybag. Acosta and Raul shook hands with the Beltrans. Cesar then closed the garage door.
Plasencia sat in the truck listening to music on the radio. Perhaps 20 minutes later, Acosta and Raul bolted from the house and entered the truck. Acosta hurriedly backed the truck out of the driveway. Believing something was wrong, Plasencia removed a gun from the glove compartment. Suddenly Guillermo appeared. Armed with an assault rifle, he sprayed the truck with bullets. Plasencia ducked, but was shot underneath his left armpit. The truck stalled. Acosta and Raul jumped out and fled on foot. When Guillermo's rifle jammed, Plasencia got out of the truck and fired at him, emptying his pistol.
Plasencia fled on foot. Wounded and about to black out, he encountered Amezcua in her vehicle. He opened the car door and demanded the keys. He intended to escape and drive himself to the hospital. After she got out and removed her daughter, he drove off in the car. He saw Acosta and Raul running and stopped to let them in. Acosta drove the men to Plasencia's mother's house in Lynwood a few minutes away. From there a neighbor drove Plasencia to Martin Luther King Hospital, where he underwent surgery. He remained in the hospital for six days before being transferred to the county jail.
Plasencia never entered the Beltran residence and never saw Juan Jauregui.
Rebuttal
Plasencia spoke to police officers twice while he was in the hospital. On March 23, 1999, he spoke to Detective Arakawa. Asked what he had been up to, Plasencia said that they did not have a case on him. He believed the witnesses were drug dealers and would not testify. Plasencia said he would "skate" in three or four months. When Detective Arakawa commented that they had the victim of the carjacking, Plasencia responded that they would "get [him]" that way.
On March 24, 1999, Officer Craig Montierth was assigned to guard Plasencia at the hospital. Plasencia told the officer that he thought he could "beat the case." The guys who shot him were drug dealers and would not testify. He also said that he had remained in the truck while Acosta and Raul entered the house.
PROCEDURAL HISTORY
Prior to the 2019 resentencing hearing, Plasencia filed two sentencing memoranda. He argued that the section 12022.53, subdivision (b) firearm enhancement imposed in connection with his burglary conviction in count 3 must be stricken as unauthorized. He requested full resentencing, arguing that Senate Bill No. 620 and Senate Bill No. 1393 retroactively applied to his case, such that the trial court could exercise its discretion to strike some or all of the firearm enhancements (§§ 12022.53, subd. (b), 12022.5, subd. (a)(1)) and/or the prior serious felony enhancement (§ 667, subd. (a)(1)). Plasencia argued that the trial court should consider the evolution in understanding of the mental development of youth. He submitted multiple letters demonstrating his good character, family support, and future job prospects, as well as multiple certificates evidencing his accomplishments while incarcerated.
The People's sentencing memorandum urged the trial court to correct the sentencing error in count 3, but to otherwise deny Plasencia's requests for leniency. It argued that there were no mitigating factors in Plasencia's favor, but instead several aggravating factors, including the violence involved in the commission of the crimes; weapon use; the vulnerability of several of the victims, including a mother and two-year-old child; Plasencia's leadership role; the planning and sophistication involved; and Plasencia's pattern of increasingly violent conduct, including a prior strike as a juvenile, as well as a prior prison term served in the California Youth Authority. The memorandum stated that Plasencia had used a gun in his prior robbery conviction: "On January 25, 1994, Defendant Plasencia and two companions robbed three juveniles who were waiting at a bus stop. Defendant Plasencia used a handgun and threatened the victims with bodily harm if they did not hand over their jewelry and money. For this offense Defendant Plasencia was found unfit for Juvenile court. He was sentenced to serve three years in prison, housed at the California Youth Authority."
At the resentencing hearing, the court expressly stated that it had reviewed the parties' resentencing memoranda, our prior opinion, the preliminary hearing transcript, and the transcript of the original sentencing hearing.
Defense counsel argued that Plasencia was an adolescent at the time of the crimes, and that in the two decades since he was incarcerated society's understanding of adolescent development had evolved. As an adult, Plasencia had worked to rehabilitate himself and was entitled to a second chance.
Plasencia addressed the court. He expressed his remorse to the victims and his family, and he asked for leniency. He stated, "Today I am no longer that young, naïve, criminal-minded kid that was lacking in spiritual wisdom and good judgment. That young man of twenty years ago has been long gone out of my life . . . [¶] I have taken the steps to change my path and always trying to make sure that I keep walking into the path of righteousness. Some days I fall a little short. I understand I am human and I will never be perfect, but my goal is to keep becoming a better person today."
Defense counsel urged the court to reduce Plasencia's sentence in a variety of ways, including imposing the middle term in the base offense, running terms concurrently, striking strikes, and striking enhancements. He argued that Plasencia's youth and efforts at rehabilitation should be considered. Plasencia had already served 20 years. Courts and the Legislature had an evolved understanding of the culpability of youth as compared to 20 years ago. Plasencia had served sufficient time in prison by today's standards. Plasencia took responsibility for the crimes, made significant efforts to better himself, and should be released so that he could be a father and a grandfather to his children and grandchildren.
With respect to the statement in the People's sentencing memorandum that Plasencia had used a gun in his prior juvenile case, defense counsel stated, "At the time, in front of the court in 2000, and even before, I made a motion to strike the strike under Romero. We don't have documentation. I know the People have referenced a report where there was an allegation that my client, and two others, pulled some guns out on some other individuals. [¶] My understanding of the incident and even back in 2000 there wasn't much in the way of a record was that there was an allegation that somebody had a gun, but there was never a gun used. This was a robbery when my client was 16, I think, in 1994. Bottom line is, he pled to a robbery. That is, he admitted, a petition for robbery. Actually, it was a plea because it went to adult court and there was no allegation. And he did his time in the Youth Authority. [¶] Your honor, I think you should seriously consider striking that strike and fashion a sentence without having to double everything."
The prosecutor counter-argued that she was "certain that [Plasencia's] remorsefulness was heartfelt and genuine; that in the past twenty years he has come to realize the pain that he has wrought upon the victims and their families," but reiterated that his sentence was deserved. She argued that Plasencia had served time for a robbery as a juvenile and understood the seriousness of his crimes and the impact they had on his family. He went into the home of drug dealers with a weapon, knowing it was likely that they would have guns. When the victims shot at him, he returned fire without concern for others in the neighborhood. The crimes involved violence. It was not necessary to involve the landlord. Plasencia could have easily turned him away. He could have asked the driver of the car that he stole to call 911, but he chose to threaten her instead. He used a gun to commit each separate crime. Although it was true that science had confirmed young people's brains require a longer time to develop than previously thought, many people younger than Plasencia had risen above their circumstances. He made a choice to continue committing violent crimes. The prosecutor stated, "It is not something that brings me joy in any way to ask that this man spend an additional twenty years in prison, but that was the original sentence handed down by the judge who heard these people firsthand. And that was the sentence that that bench officer believed was just and appropriate."
The trial court stated, "When I read the letters from the defendant and his family, they were moving. They show or articulate redemption . . . [¶] . . . I believe you have made some changes in your mind, but that's not the issue for the court today. [¶] It is not whether or not there are any redeeming qualities that you have. As a judge, I believe we all have redeeming qualities . . . . [¶] I don't believe just because you commit a crime that means there is nothing good about you. That's not my issue for today. My issue for today is to look at the facts the best way I can and to make a determination as to what I think is just. [¶] One of the things I looked at was the judge's sentencing the state prison sentencing transcript. The judge discussed the [section] 211 that the defendant committed when he was a juvenile, and he believed it involved a degree of violence. He was not willing to strike the strike. [¶] When evaluating whether or not a court is going to strike a strike, one of the things we look at is how old the strike is, the facts surrounding the strikes. And just from my reading it appears a gun was involved in that."
Other factors that the court took into account were Plasencia's repeated use of a firearm in the subject crimes, and his decisions to pull the uninvolved landlord into the situation, take a car from a woman with a very young child, and rob drug dealers who he must have known would be armed and dangerous. The court reiterated, "the redemption, the youth, I understand all of that." The court did not believe that striking the strike or the enhancements would be appropriate, however. As to the juvenile strike, it stated, "I will not strike because of the violence involved in that strike, and a gun used."
The trial court struck the 12022.53, subdivision (b) enhancement in count 3, but otherwise declined to reduce Plasencia's sentence. It imposed a total term of 44 years 4 months, calculated as follows: In count 7, the trial court imposed the upper term of 9 years, doubled to 18 years pursuant to the three strikes law, plus a consecutive 10-year term under section 12022.53, subdivision (b). It stayed the section 12022.5, subdivision (a) enhancement in count 7 pursuant to section 654. In count 3, the trial court imposed a consecutive sentence of 32 months (one-third the midterm of 16 months doubled pursuant to the three strikes law), plus 16 months for the 12022.5, subdivision (a)(1) enhancement. In count 5, Plasencia was sentenced to four years (one-third the midterm of three years doubled pursuant to the three strikes law), plus three years four months for the 12022.53, subdivision (b) enhancement. The court stayed the section 12022.5, subdivision (a) enhancement in count 5 pursuant to section 654. Also pursuant to section 654, the court stayed the sentence in count 8, as well as the associated enhancements under sections 12022.53, subdivision (b), 12022.5, subdivision (b)(1), and 667.5, subdivision (b). Finally, the court imposed a consecutive sentence of five years under section 667, subdivision (a).
The court noted that the section 12022.53, subdivision (b) enhancement was not applicable in count 3.
DISCUSSION
Prior Strike Conviction and Enhancements
At the resentencing hearing, the trial court declined to exercise its discretion to strike Plasencia's prior strike conviction, the firearm enhancements, or the prior serious felony conviction enhancement in the interests of justice. Plasencia argues that the trial court abused its discretion because it: (a) relied on the purported fact that Plasencia, at age 16 in 1994, used a gun in the robbery he committed, where no evidence of gun use exists in the record; and (b) discounted his youth, rehabilitation, and prospects when weighing factors in aggravation and mitigation.
With respect to the alleged gun use in the 1994 juvenile adjudication, we have reviewed the appellate and superior court records and have been unable to identify evidence to support the assertion that Plasencia used a firearm in that crime. The only mention of gun use that we are able to find appears in the People's sentencing memorandum, which is not evidence. The People argue that the judgment is presumed correct and that the burden is on Plasencia to produce evidence to the contrary. While we agree, it must be acknowledged that it is impossible to prove that a fact is absent from the record by providing a specific cite. As Plasencia argued, the appellate record does not support the allegation that he used a gun in the 1994 robbery, and when, in an abundance of caution, we reviewed the superior court record, we were unable to find support for it there, either. We cannot allow a sentencing determination to stand where it rests expressly upon a fact that cannot be confirmed by any evidence in the record. (People v. Eckley (2004) 123 Cal.App.4th 1072, 1080 ["A court's reliance, in its sentencing and probation decisions, on factually erroneous sentencing reports or other incorrect or unreliable information can constitute a denial of due process"].) Because we are unable to confirm Plasencia's gun use on the record, we remand for resentencing.
With respect to Plasencia's contention that his rehabilitation and prospects should be considered, it is not clear from the sentencing transcript whether the trial court found these mitigating factors were outweighed by the aggravating factors, or found that they were not relevant to the decision. Plasencia showed significant progress in his rehabilitation efforts and appears to have strong prospects for a job and family support upon release. On remand, the trial court should expressly consider these factors in Plasencia's favor. (See People v. Williams (1998) 17 Cal.4th 148, 161 [trial court must consider, among other factors, "the particulars of [a defendant's] background, character, and prospects" when determining whether to strike or vacate an allegation or finding in the interests of justice].) Section 667.5 , Subdivision (b) Enhancement
In his prior appeal, Plasencia challenged the imposition of a one-year prior prison term enhancement under section 667.5, subdivision (b), based on the same prior conviction used to impose a five-year serious felony enhancement under section 667, subdivision (a). We ordered the trial court to strike the section 667.7, subdivision (b) enhancement because, as Plasencia notes, and the People concede, a trial court may not impose enhancements under both provisions based on the same prior conviction. (People v. Jones (1993) 5 Cal.4th 1142, 1149-1150; People v. Gonzales (1993) 20 Cal.App.4th 1607, 1610.) Upon remand, the trial court may not impose the one-year enhancement under section 667.5, subdivision (b).
We note that, following the enactment of Senate Bill No. 136, which became effective on January 1, 2020, section 667.5, subdivision (b)'s one-year enhancement is now only imposed if the prior prison term was served for a sexually violent offense, as defined in the statute. (§ 667.5, subd. (b); Sen. Bill No. 136 (2019-2020 Reg. Sess.) § 1.) Plasencia's prior conviction for robbery is not a sexually violent offense, and his appeal was not yet final on January 1, 2020, when Senate Bill No. 136 became effective. Accordingly, Senate Bill No. 136 applies in his case, and the prior prison term enhancement is unauthorized on that basis as well. --------
Errors in the Abstract of Judgment and Minute Order
In our review of the record it has come to our attention that Plasencia's name is misspelled in the abstract of judgment and minute order dated April 9, 2019. Future minute orders and the amended abstract of judgment should reflect the correct spelling.
DISPOSITION
Plasencia's sentence is vacated and the matter is remanded for resentencing in accordance with this opinion. The clerk of the superior court is directed to prepare an amended abstract of judgment, reflecting defendant's true name as Phillip Plasencia. The superior court clerk is then to deliver the corrected abstract of judgment to the Department of Corrections. In all other respects, the judgment is affirmed.
MOOR, J. We concur:
BAKER, Acting P. J.
KIM, J.