Opinion
D075781
07-17-2020
THE PEOPLE, Plaintiff and Respondent, v. JORGE ALBERT RIVERA, JR. Defendant and Appellant.
Justin Behravesh, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD273709) APPEAL from an order of the Superior Court of San Diego County, Kenneth K. So, Judge. Affirmed. Justin Behravesh, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
This is an appeal following a resentencing hearing. On remand from this court, appellant requested the trial court to strike one or more serious felony prior convictions (Pen. Code, § 667, subd. (a)(1)) in the furtherance of justice. The court considered the serious nature of the current offense, appellant's criminal history covering over 25 years (including 10 felony convictions), three prison commitments, the lenient nature of the plea agreement, and appellant's letters of support. The court concluded justice would not be served by striking any of the serious felony priors. Appellant contends the court abused its discretion in denying his motion. Respectfully, this is not a close case. We will affirm the trial court's decision.
All further statutory references are to the Penal Code unless otherwise specified.
FACTS AND PROCEDURAL BACKGROUND
The facts of the offense are set forth in our prior unpublished opinion (People v. Rivera (Jan. 10, 2019, D073929) [nonpub. opn.].) We will not repeat them here.
Jorge Albert Rivera, Jr. pleaded guilty to assault with force likely to cause great bodily injury (§ 245, subd. (a)(4)) and admitted the allegation that he personally inflicted great bodily injury on the victim (§ 12022.7, subd. (a)). Rivera admitted two serious felony prior convictions and admitted one of the alleged strike priors (§ 667, subds. (b)-(i)). The plea agreement also included a stipulated sentence of 14 years.
Rivera was sentenced to the stipulated 14-year term, which was calculated as the low term of two years, doubled for the strike prior, plus 10 years for the two serious felony priors. Rivera appealed. This court affirmed the conviction but remanded the case to the trial court to permit the court to exercise its newly acquired discretion to consider striking any of the serious felony priors.
On remand, the trial court noted it had considered all the materials in the case file, all of Rivera's submitted materials as well as the facts of the case, and River's criminal history. The court specifically found striking the priors would not be in the furtherance of justice and denied the motion. Rivera contends the court erred because one of the priors was old and a reduced sentence would be fairer.
DISCUSSION
The trial court was aware of its discretion to strike serious felony priors as was authorized by Senate Bill No. 1393, effective January 1, 2019, but decided not to strike either of the priors.
We review trial court decisions regarding motions to strike prior convictions under the abuse of discretion standard of review. Under that standard the burden is on the moving party to show the court abused its discretion. (People v. Carmony (2004) 33 Cal.4th 367, 374-375.) The fact other judges might have ruled differently, or that a different ruling might not be an abuse of discretion does not support a challenge to the court's decision. Court's a have broad discretion in sentencing matters. Such discretion is only abused where the record shows the decision to be irrational, arbitrary or that no reasonable person would agree with it. (Id. at p. 377; People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.)
In ruling on a motion to strike a prior in the furtherance of justice, the court should consider the defendant's background, character and prospects, as well as the current offense and the defendant's criminal history. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497; People v. Williams (1998) 17 Cal.4th 148, 161.)
In this case, the experienced trial judge was fully aware of his discretionary authority, the defendant's background, letters of support, and the nature his current offense.
Appellant's request to augment the record on appeal filed October 21, 2019, is denied. --------
While the serious felony priors were 10 and 25 years old, they were only part of a continuous criminal history starting in 1990. From the early 1990s until his current offense, Rivera has either been in custody or committing new crimes. By the time of his current offense, Rivera had amassed a stunning record of 10 felonies, several misdemeanors, three prison commitments, and two serious felony convictions.
The offense in this case was violent in circumstances where Rivera made an unprovoked attack on the victim and inflicted great bodily injury on the victim. Prior to his guilty plea in this case, Rivera was facing a life term if he was convicted as charged. The stipulated term realistically gave Rivera a considerable break.
On this record, it is easy to understand why the trial judge elected not to exercise his discretion to further reduce Rivera's sentence for his third serious felony conviction. What is hard to understand is how one could find this well-informed decision to be arbitrary, capricious, or unreasonable. The decision is supported by the record and was well within the range of legitimate sentencing choices.
DISPOSITION
The order denying Rivera's motion to strike serious felony priors is affirmed.
HUFFMAN, J. WE CONCUR: BENKE, Acting P. J. IRION, J.