Opinion
B318316
08-04-2023
THE PEOPLE, Plaintiff and Respondent, v. MOISES GARCIA, Defendant and Appellant.
Aurora Elizabeth Bewicke, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Kenneth C. Byrne and Stephanie C. Santoro, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County Super. Ct. No. GA101286, Michael Villalobos, Judge. Affirmed.
Aurora Elizabeth Bewicke, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Kenneth C. Byrne and Stephanie C. Santoro, Deputy Attorneys General, for Plaintiff and Respondent.
CURREY, P. J.
INTRODUCTION
Defendant and appellant Moises Garcia (Garcia), his brother Victor Garcia (Victor), and the victim, Michael Villar, were involved in a fistfight over a parking space. During the fight, Garcia pulled out a knife and fatally stabbed Villar three times in the chest. The jury acquitted Garcia of murder, convicted him of voluntary manslaughter, and found a weapon use allegation true. After Garcia admitted prior conviction allegations, the trial court sentenced him to 22 years in state prison. On appeal, he argues: (1) the trial court prejudicially erred by not instructing the jury on involuntary manslaughter, and (2) the trial court erred when imposing Garcia's sentence. We reject these contentions and affirm the judgment.
PROCEDURAL BACKGROUND
The Los Angeles County District Attorney filed an information charging Garcia and his brother with murder. (Pen. Code, § 187 subd. (a).) The information alleged Garcia personally used a deadly and dangerous weapon during the commission of the offense. (§ 12022, subd. (b)(1).) It also alleged Garcia sustained three prior strike and prior serious felony convictions. (§ 667, subds. (a)-(e), 1170.12.)
All undesignated statutory references are to the Penal Code.
The information also charged Victor with assault by means of force likely to produce great bodily injury.
The jury acquitted Garcia of first and second degree murder, but convicted him of voluntary manslaughter and found the weapon allegation true. Garcia admitted he sustained two prior strike and serious felony convictions. The court struck one of the two prior strike convictions, the prior serious felony enhancements, and the weapon use enhancement, under section 1385. It sentenced Garcia to an upper term of 11 years in state prison, doubled due to the remaining prior strike conviction, for a total of 22 years.
Although the information alleged Garcia sustained three prior strike and serious felony convictions, the prosecution later clarified to the court that it was alleging Garcia sustained two rather than three of each.
Garcia timely appealed.
FACTUAL BACKGROUND
A. Prosecution case
Garcia and his brother Victor lived together in the same Monterey Park apartment complex as Cynthia Villar. Cynthia had been having issues with Garcia parking his car in a way that made it difficult for her to get her car out of her parking space. Around 8:00 p.m. on the evening of June 9, 2017, Cynthia's younger brother Michael Villar came over to watch television with Cynthia. Michael saw Cynthia's car was blocked and seemed frustrated and annoyed. Michael was also upset because he was having problems with his ex-girlfriend.
Michael and Cynthia celebrated Cynthia's recent work promotion with a shot of vodka. Around midnight, Cynthia's husband messaged her asking for a ride home from work. Michael offered to go with Cynthia. Cynthia and Michael went to Garcia's apartment.
Michael knocked on Garcia's metal security door. When no one responded, he knocked louder. After several minutes, Garcia opened the door. Michael said, "move your [expletive] car. This isn't okay." Garcia replied, "calm the [expletive] down." Michael told Garcia not to ever tell him to calm down. Garcia said, "what the [expletive] are you going to do about it, bro?" Michael said, "don't [ ] [expletive] with me. I grew up in the worst part of L.A." Cynthia grabbed Michael's arm and said they should leave. Both men sounded angry and aggressive.
Cynthia and Michael left to try to move her car. When they were at the car, Garcia and Victor approached them. According to Cynthia, Garcia and Victor were walking aggressively and looked "ready to fight." Victor walked up to Michael so they were face to face. He swung his fist and hit Michael in the left check. Michael swung at Victor, and Victor blocked the punch. As they continued to fight, Garcia watched and looked like he wanted to fight too.
According to Cynthia, once Michael was on the ground with Victor on top of him, Garcia joined the fight. Cynthia was able to pull Garcia up momentarily before he got back on Michael. As Cynthia pulled Garcia up, she saw what looked like a knife or shank in his right hand. Cynthia yelled at Garcia, asking why he had a knife.
Johnny (Cynthia and Michael's brother-in-law) and Rosa (Cynthia and Michael's sister), who were in the apartment and heard the fight, went to the window to see what was happening. According to Rosa, Michael was pinned with his back to the trashcans as Victor and Garcia stood over him side by side. Rosa saw Victor pull back momentarily, and Michael's body, which had been against the trashcans, slid down to the ground. His shirt was covered in blood. Cynthia yelled to Rosa to call 911.
Victor was pacing nearby. Garcia ran to his apartment and returned shortly. Johnny heard Cynthia say, "Is that a knife? Do you have a knife? Did you stab my brother?" Victor said, "No, I don't have a knife." He also said to Cynthia, "You got to stop the bleeding."
Johnny was near the carport calling 911 when Garcia walked out of his apartment. Garcia had a "blank" look on his face and seemed to "look through" Johnny. Garcia did not appear to have any trouble walking.
When the police arrived, detectives asked Garcia what injuries he had sustained. Garcia indicated a scrape on his right knee, a scratch on his chest, and an abrasion on his right arm. They were all minor. Garcia had blood on his pants and shoes. He did not appear to be in medical distress or have difficulty breathing. Victor did not have any visible injuries. He had blood on his shirt, pants, shoes, and hands. The police recovered a knife from one of the trashcans in the carport.
Michael suffered three stab wounds to the heart, one of which was fatal. The injuries were consistent with being caused by a knife. Michael had a contusion on his forehead, consistent with blunt force trauma from being punched. There were no injuries on Michael's hands. The examiner could not definitively say if Michael's non-stab wounds were defensive or offensive. At the time of the incident, Michael was five feet nine inches tall and weighed 160 pounds.
B. Defense case 1. Garcia's testimony
In 2017, Garcia lived in an apartment with his brother Victor. Garcia was overweight and had chronic obstructive pulmonary disease (COPD), asthma, diabetes, and sleep apnea.
On the night of the incident, he was 57 years old, five feet one inch tall, and obese.
On June 9, 2017, Garcia parked his van on the street to save the assigned parking spot for Victor. That evening, Garcia went to sleep. He later woke up to a loud thumping noise at his front door. When Garcia opened the door, Cynthia was there, along with Michael, who started cursing at Garcia. Michael called Garcia names and asked why he was blocking Cynthia's car. Garcia told Michael the residents of a different unit were blocking the car, and told Michael to calm down. Michael responded: "Don't tell me what to do. You [expletive]. I came from the worst part of [ ] east L.A., and I'll bury you[ ] [ ], . . . go move your [expletive] car." Michael and Cynthia walked away to the carport.
Garcia was worried for his safety because he believed Michael's threat was serious. Thinking it could be Victor's van that was blocking the space, Garcia went to Victor's bedroom. Garcia told Victor his van was blocking someone and they had threatened to kill them. Garcia walked to the dining room to wait for Victor to come out. Garcia got distracted by cockroaches on the dining room table, then when he looked up, he saw that the front door was wide open. Garcia called to Victor, but realized Victor was already outside walking toward the carport.
Garcia was worried and "in shock" that Victor was walking into danger without knowing Michael had made threats. Garcia searched his table for something to use to defend himself. He grabbed his fishing knife and put it in his pant pocket. Garcia concealed the knife because he was hoping not to use it, but he wanted it in case he needed to defend himself or Victor. He walked to the carport.
Michael began cursing at Victor, and Victor told Michael to calm down. Garcia was worried Michael might try to kill Victor based on Michael's previous threats to Garcia. Michael rushed at Victor and swung at him six times. Victor put up his hands to try to block the hits. The three men engaged in a fist fight. Michael threw several punches, but none of them hit Garcia. Garcia was having trouble breathing.
Michael put his arms up toward Victor's neck area and pushed Victor toward the area of the trashcans. Victor tripped and fell to the ground with Michael falling on top of him. Michael got up and straddled Victor, with his hands on Victor's neck. Garcia thought Victor had hit his head on a retaining wall when he fell backwards. He thought Victor might be dead. Everything seemed to be moving in slow motion. Garcia decided he needed to do something in case Victor was alive. He took out his knife and was about to approach the men, then someone pushed him from behind, causing him to fall forward. Garcia's knee hit the ground. He had the knife in his hand.
Before Garcia could use the knife, Cynthia grabbed Garcia from behind. She pulled him back and forth and from side to side. She ripped his shirt. Cynthia was not able to pull Garcia off Michael. At some point while Cynthia was pulling on Garcia, Garcia stabbed Michael. Garcia stabbed Michael because he was almost out of breath and feared that if things continued, Michael would have killed him. During this time, Victor was still lying on the ground underneath them, not moving.
Garcia grabbed a trashcan to help himself up. The trashcan started tipping so Garcia let go of it, and the knife in his hand fell into the trashcan. Victor and Michael were not moving. Cynthia said, "What did you do to my brother? Why is he not moving?" Garcia told Cynthia to call an ambulance. Cynthia looked up toward the apartment and said to the people standing there, "Call 911."
Victor started moving. He pushed Michael's body off him. Garcia told Victor to turn on the headlights of the van so they could see what had happened, and Victor complied. Garcia, who was having a hard time breathing, went to his apartment to get his inhaler. Garcia quickly rinsed off a wound on his arm. He was leaving the apartment to go back to the carport when he saw Victor and a police officer approaching. Garcia put his hands up and walked out to the officer.
2. Neighbors' testimony
Gloria Miranda lived in the apartment complex. On the evening of the incident, Miranda heard commotion near the trashcans in the carport area. She woke her husband and they looked out the apartment window. Miranda saw Garcia walking toward the window. His shirt was ripped up and he was breathing heavily and deeply, in rapid succession. She saw a body on the ground next to the trashcan. She heard a female voice ask, "Did you stab my brother?" Miranda's husband, Martine Perez, corroborated much of Miranda's testimony, as did other neighbors, Alphonso Aguilar and Mario Alcala. Aguilar additionally testified that in the four years he lived in the unit next to Garcia, he never heard him curse.
3. Doctors' testimony
Dr. Joshua Rice, a doctor specializing in pulmonary and critical care medicine, saw Garcia as his patient three times from 2016 to 2017. In late 2016, Dr. Rice diagnosed Garcia with severe COPD. COPD causes shortness of breath or difficulty breathing upon limited physical exertion.
Dr. Martin Chenevert, an emergency room doctor, reviewed Garcia's medical records from 2014 to 2017, and testified someone with Garcia's ailments would have difficulty breathing upon slight exertion.
Dr. Chenevert also reviewed Victor's medical records from an emergency room visit on June 10, 2017, the day after the incident. Victor was diagnosed with a fracture of the left ring finger. He also had other injuries, including pain and tenderness in his face and ribs, a black eye, bruising in the lower back, and a possible tailbone fracture.
C. Prosecution rebuttal
In a recorded jail call between Garcia and another man, in October 2017, Garcia stated he had seen pictures of the wounds Michael suffered. According to Garcia, the pictures made "it look[ ] like" the stabbing was intentional. The man asked what caused Michael's death. Garcia described the first wound as occurring as Michael "rushed [them]," the second when they "fell[,] and the third one" when Michael "rolled into it again."
DISCUSSION
I. The evidence did not support an involuntary manslaughter instruction
Garcia argues the trial court prejudicially erred by not instructing the jury on involuntary manslaughter. The Attorney General counters that the evidence did not support an involuntary manslaughter instruction. For the reasons discussed below, we agree with the Attorney General.
A. Relevant Proceedings
During jury instruction discussions, the trial court asked defense counsel if he was requesting an instruction on the lesser included offense of involuntary manslaughter. Counsel said he was not because he believed the facts of the case did not match the elements of that crime.
B. Applicable Legal Principles
Whereas murder is the unlawful killing of a human being with malice aforethought (§ 187, subd. (a)), manslaughter is the unlawful killing of a human being without malice (§ 192). A defendant lacks malice and is guilty of voluntary manslaughter when the defendant: (1) acts in a sudden quarrel or heat of passion; or (2) kills based on an unreasonable but good faith belief in having to act in self-defense. (People v. Blakeley (2000) 23 Cal.4th 82, 87-88 (Blakeley).) Manslaughter is involuntary when it is either "in the commission of an unlawful act, not amounting to a felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution or circumspection." (§ 192, subd. (b).) Although a defendant who kills in unreasonable self-defense may sometimes be guilty of involuntary manslaughter, "a defendant who, with the intent to kill or with conscious disregard for life, unlawfully kills in unreasonable self-defense[,] is guilty of voluntary manslaughter." (Blakely, supra, 23 Cal.4th at p. 91, italics in original.)
C. Analysis
We begin by briefly discussing the invited error doctrine. Under the invited error doctrine, if defense counsel intentionally and tactically caused the trial court to err, the defendant may not challenge the error on appeal. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 49.)
As noted above, Garcia argues the trial court erred by not instructing the jury on involuntary manslaughter. The parties disagree over whether Garcia's trial counsel invited this purported error by stating his belief that the involuntary manslaughter instruction did not match the facts of the case. As discussed in greater detail below, however, we conclude the trial court did not err by omitting the involuntary manslaughter instruction. Rather, it appears the reason trial counsel did not request the involuntary manslaughter instruction, and the trial court did not give it, is that no such instruction was warranted. Because there was no error, the invited error doctrine is inapplicable.
Having addressed the invited error doctrine, we note, as do both parties, that a trial court has a sua sponte duty to instruct on a lesser included offense if there is substantial evidence that only the lesser crime was committed. (People v. Smith (2013) 57 Cal.4th 232, 239 (Smith).) We therefore address the merits of the question presented - whether the trial court erred, based on the evidence presented, by not instructing the jury on involuntary manslaughter.
The Supreme Court has summarized the rationale for this rule as follows: "Just as the People have no legitimate interest in obtaining a conviction of a greater offense than that established by the evidence, a defendant has no right to an acquittal when that evidence is sufficient to establish a lesser included offense." (People v. Breverman (1998) 19 Cal.4th 142, 155.)
Turning to this issue, we reject the contention that the evidence supported an involuntary manslaughter instruction. As noted above, although a defendant who kills in unreasonable selfdefense may sometimes be guilty of involuntary manslaughter, the defendant is guilty of voluntary manslaughter if the killing is done in unreasonable self-defense with conscious disregard for life. (Blakely, supra, 23 Cal.4th at p. 91.) The record does not contain substantial evidence that Garcia acted without conscious disregard for life. (See Smith, supra, 57 Cal.4th at p. 239 [instruction on lesser included offense is required only when substantial evidence shows only the lesser crime was committed].) The record shows Garcia knew that when his brother headed to the carport to move his van, Michael was angry and likely combative. Knowing the situation, Garcia chose to bring a knife. Garcia then used the knife to stab Michael, who was unarmed, three times in the heart. These facts support the reasonable inference that Garcia acted with conscious disregard of the danger that his actions might result in death or serious bodily injury. We, therefore, reject Garcia's argument that the trial court was required to instruct on involuntary manslaughter. (See, e.g., People v. Evers (1992) 10 Cal.App.4th 588, 598 [involuntary manslaughter instruction not required where the defendant intentionally uses violence against victim knowing the probable consequences will be death or serious bodily injury].)
II. The trial court did not err when imposing Garcia's sentence
Garcia next argues the matter should be remanded for resentencing because the trial court: (1) abused its discretion by not striking the second prior strike conviction; and (2) erred in imposing the upper term based on improper aggravating factors. For the reasons discussed below, we reject these contentions.
A. Relevant Proceedings 1. Background
At Garcia's sentencing hearing, defense counsel argued the trial court should consider the amendments to section 1170, which state the midterm is the presumptive sentence unless there are aggravating factors admitted by the defendant or found true beyond a reasonable doubt by the jury. The court stated it had reviewed the amendments to section 1170.
The prosecution argued the trial court should deny Garcia's Romero motion and sentence him to 25 years to life. The prosecution noted that, alternatively, if the court elected to strike one of the two prior convictions, Garcia would be sentenced under section 1170. In that event, the prosecution requested leave to amend the information to allege the following aggravating factors: defendant was armed with or used a weapon at the time of the crime (Cal. Rules of Court, rule 4.421(a)(2)); defendant engaged in violent conduct that indicates a serious danger to society (Cal. Rules of Court, rule 4.421(b)(1)); and defendant served a prior term in prison under section 1170, subdivision (h) (Cal. Rules of Court, rule 4.421(b)(3)). The prosecution argued the court could consider the first and third factors because the jury already found the weapon allegation to be true and the court could rely on certified court records of the prior conviction. The court noted amending the information to include the aggravating factors was not necessary because the Rules of Court applied regardless.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
2. Romero proceedings
Turning to the Romero motion, the court first addressed the circumstances of the current offense. The court noted the situation unfortunately escalated to a physical fight that resulted in a fatal stabbing. With respect to Garcia's assertion that he was protecting Victor, the court stated "even if that was somewhat true, it just does not justify pulling out a knife during a fist fight." The court also noted Michael was outnumbered two to one, and even if Victor was on the ground at some point, Victor was not being pummeled or assaulted by Michael in a manner in which his life was in danger. The court concluded that under these facts, and because the evidence showed Victor was not seriously injured, "it was clear that there was no necessity of pulling out a knife and stabbing the victim multiple times" even if the jury found Garcia believed he needed to protect Victor.
Regarding Garcia's criminal record, the court expressed its view that the facts underlying his prior convictions for the rape and forcible oral copulation incident were "horrendous." Garcia and his companion abducted a woman off the street, drove around, and sexually assaulted her multiple times, including committing rape and oral copulation. Although it acknowledged the prior crime occurred a "long time ago," the court believed that "the facts of that case cannot be ignored." The court also noted that although both convictions stemmed from a single case, they were two separate acts and still resulted in two prior serious felony convictions.
On the other hand, the court noted that after serving his 14-year sentence and being paroled in 1990, Garcia had no other serious felony convictions. Though he had misdemeanors in the early 1990s for driving under the influence and indecent exposure, the court stated that Garcia was not a "habitual criminal."
The court also stated its view that, by convicting Garcia of voluntary manslaughter, the jury found Garcia intended to kill the victim, but that he did so based on an unreasonable belief that he needed to protect Victor.
After weighing these considerations, the court concluded it would strike one of the strike priors and the five-year prior serious felony conviction enhancements. The court stated:
. . . So given the remoteness of the case, but in consideration of the seriousness of the facts of this case and considering his prior conviction, . . . [and] under [ ] the amendments to 1385, it talks about in imposing an enhancement that you consider the age. Anything over 20 years shouldn't be considered. Also, anything more than one enhancement.
Now, technically the Three Strikes Law sentencing is not an enhancement, but obviously 1385 has been applied to strike cases, but it technically is not an enhancement. It's a separate sentencing procedure which does make a difference because you're not imposing an enhancement. You're just sentencing him in an alternative sentencing protocol.
But I think because the remoteness, I think the court is going to need to strike at least one of the strikes and also strike the five-year prior. So I will at this time strike one of the strikes so that he will be sentenced as a second offender. And I also will strike the five-year prior so that would not be imposed, and that five-year prior it stems from the exact same case. And even though the law permits you to do that, the trend obviously has been that the court, in situations like this, should not probably impose the five-year enhancement in addition to imposing a prior serious felony conviction under the Strike Law. So the five-year prior and one of the strikes will be stricken.
3. Trial court's selection of the upper term
Turning to selection of the base term, the court noted there were several factors in aggravation that "stand out quite a bit" under rule 4.421, including that the crime involved great violence in that Garcia stabbed the victim with a knife; Garcia was armed with and used a weapon during the commission of the crime, which the jury found true beyond a reasonable doubt; and the victim was vulnerable in that he was unarmed and outnumbered by two men who were much heavier than he was. The court expressed its belief that, based on the facts of the case and the prior serious felony conviction, Garcia was a "dangerous person." Additionally, the court noted Garcia served a prison term for his prior convictions, so "that obviously was proven as well."
The court addressed each of defense counsel's arguments with respect to mitigating factors. First, the court disagreed with the characterization that the victim provoked Garcia and his brother. The court believed Garcia and Victor engaged Michael in the fight. Second, the court disagreed that the incident was an "unusual circumstance[ ]" that "could never happen again." The court was concerned that, if provoked, Garcia may do something like this again. Finally, the court observed Garcia did successfully complete parole in his prior case. Although that was a factor in Garcia's favor, the court concluded the fact that he committed this new offense "defeats" the successful completion of parole.
The court thus concluded there were no factors in mitigation, but there were aggravating factors, which had been proven beyond a reasonable doubt, that justified the high term. It stated, "And I think the factors, even if you just consider those that were proven beyond a reasonable doubt including the weapon, the fact that he's been in prison, I think, considering those factors are sufficient aggravating factors to impose the high term." The prosecutor sought to introduce Garcia's certified RAP sheet to prove the prior conviction, which the court received into evidence. When the prosecutor alerted the court to the fact that certain aggravating factors still had to be proven beyond a reasonable doubt by a jury-factors not proven by the weapon allegation or the certified RAP sheet, the court responded:
Again, like I said, I am considering those items that were proven beyond a reasonable doubt and also the fact that he went to prison and also the fact that certain enhancements are not being imposed. But most importantly is that the weapon that was used is an aggravating factor, and I do find the aggravating factors to outweigh any mitigation in this case.
4. Synopsis
For the above reasons, the trial court imposed the upper term of 11 years, doubled as a second strike, for a total of 22 years in state prison. The court struck the weapon allegation under section 1385, noting the weapon allegation was being used as an aggravating factor for selecting the high term.
B. The trial court's Romero ruling was not an abuse of discretion.
1. Relevant law
A trial court must make its decision to strike or not strike a prior conviction by considering factors that are intrinsic to the Three Strikes law's sentencing scheme. (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).) The factors a trial court must consider include: (1) the nature and circumstances of the current conviction; (2) the nature and circumstances of the prior strike conviction; and (3) the defendant's "background, character, and prospects." (Ibid.) If the defendant falls outside the spirit of the Three Strikes law, the court may, in furtherance of justice, treat the defendant "as though he had not previously been convicted of one or more serious and/or violent felonies." (Ibid.; see also Romero, supra, 13 Cal.4th at pp. 529-530; § 1385, subd. (a).) We review a trial court's denial of a Romero motion for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 373 (Carmony).) "[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Id. at p. 377.)
2. Analysis
Garcia argues the trial court erred by striking only one of his two prior strike convictions. In support of his contention, Garcia asserts that section 1385, subdivision (c), as amended by Senate Bill No. 81 (2021-2022 Reg. Sess.) (Stats. 2021, ch, 721, § 1) applies here and warrants remand for resentencing. Effective January 1, 2022, section 1385, subdivision (c)(2) states sentencing courts "shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in subparagraphs (A) to (I) are present. 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 ...." (Italics added.) Garcia argues the trial court erred by giving no apparent weight to subdivision (c)(3)(C), which mandates enhancements that could result in a sentence of over 20 years be dismissed (as mentioned above, based on Garcia's strike, the trial court doubled his 11-year upper term for a total term of 22 years).
We are not persuaded. The amended language of the statute makes clear that it applies only to enhancements. Our Supreme Court has long held the Three Strikes law "articulates an alternative sentencing scheme for the current offense rather than an enhancement." (Romero, supra, 13 Cal.4th at p. 527.) Because the plain language of the statute demonstrates Senate Bill No. 81 applies only to enhancements, it is inapplicable to the trial court's decision to sentence Garcia under the Three Strikes law. (People v. Burke (2023) 89 Cal.App.5th 237, 239-240, 242244.)
Garcia separately argues the court abused its discretion by basing its Romero ruling in part on the inaccurate conclusion that the jury found he "intended to kill the victim." It is true the jury was not required to find Garcia expressly intended to kill the victim. We nonetheless conclude the trial court's decision to strike one of the prior strikes and impose the other was not an abuse of discretion. The court properly concluded that, in light of Garcia's current offense (that resulted in the victim's death), criminal history (as a violent sex offender), and character/prospects (as someone who unnecessarily escalated a fist fight into a homicide by repeatedly stabbing the victim in the heart), he posed a danger to society and thus fell within the spirit of the Three Strikes law. (See Williams, supra, 17 Cal.4th at p. 161.) In other words, notwithstanding the trial court's misunderstanding of whether the jury found Garcia intended to kill the victim, the record demonstrates the court reached a reasonable sentencing decision based on an analysis of relevant factors and public safety concerns. In short, the court's ruling was not arbitrary or irrational. (See Carmony, supra, 33 Cal.4th at p. 374.)
C. The trial court's imposition of the upper term was not improper
Garcia next argues the trial court erred in imposing the upper term because it: (1) considered factors not stipulated to by Garcia or found true beyond a reasonable doubt; and (2) incorrectly concluded there were no mitigating factors. We disagree. We will address each argument in turn.
Effective January 1, 2022, Senate Bill No. 567 (2021-2022 Reg. Sess.) (SB 567) "amended section 1170, subdivision (b) to specify that, when a sentencing court chooses a term from a statutory triad, the chosen term shall not exceed the middle term, unless the facts supporting the aggravating circumstances are (1) established by the defendant's stipulation to them, (2) proven to a jury (or to a court, if jury is waived) beyond a reasonable doubt, or (3) based on prior convictions evidenced by a certified record of conviction. (Stats. 2021, ch. 731, §§ 1.3, 3(c), adding Pen. Code, § 1170, subd. (b)(1)-(3), by amendment.)" (People v. Jones (2022) 79 Cal.App.5th 37, 44.)
Immediately before the trial court issued its ruling imposing the upper term, the prosecution noted that the court could only rely on aggravating facts proven beyond a reasonable doubt. To this end, the prosecution expressed its view that the court could, in Garcia's case, rely on California Rules of Court, rule 4.421(a)(2) [defendant was armed with or used a weapon at time of commission of offense], (b)(1) [defendant has engaged in violent conduct that indicates a serious danger to society]; and (b)(3) [defendant has served a prior term in prison or county jail]. In response, the court clarified: "Like I said, I am considering those items that were proven beyond a reasonable doubt and also the fact that he went to prison and also the fact that certain enhancements are not being imposed. But most importantly is that the weapon that was used is an aggravating factor, and I do find the aggravating factors to outweigh any mitigation in this case. [¶] So in view of that, the court does select the high term of 11 years." It is thus clear from the record that the trial court imposed the upper term in conformance with the requirements of SB 567. For this reason, in light of the exchange between the prosecution and trial court, we reject Garcia's assertion that the trial court erroneously relied on factors not stipulated to or found true beyond a reasonable doubt.
The prosecution also stated its view that the court was not permitted to consider the aggravating circumstances listed in California Rules of Court, rule 4.421(a)(1) [crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness] and (a)(3) [victim was particularly vulnerable].
We also reject Garcia's contention that the trial court erred by relying on the aggravating circumstance that Garcia served a prior prison term. As the Attorney General notes, the trial court admitted Garcia's Record of Arrest and Prosecutions (RAP) sheet into evidence, which showed Garcia was sentenced to 14 years in prison in his prior case. (See § 1170, subd. (b)(3) [in imposing upper term, trial court may rely on prior convictions evidenced by certified record of conviction]; People v. Flowers (2022) 81 Cal.App.5th 680, 685 [same].)
We also reject Garcia's argument that remand is warranted because the trial court did not consider potential mitigating factors in imposing the upper term. Garcia asserts that in finding there were no mitigating factors, the court erroneously relied in part on its own incorrect understanding of the facts. Specifically, he argues the trial court erred by concluding the victim was not the initial aggressor - a conclusion that ran contrary to the factual findings the jury necessarily made in order to convict Garcia of voluntary manslaughter. (See CALCRIM No. 571 ["[i]mperfect self-defense does not apply when the defendant, through his own wrongful conduct, has created circumstances that justify his adversary's use of force]".) Garcia thus argues that under California Rules of Court, rule 4.423(a)(2), the court should have afforded greater weight to the circumstance in mitigation that the victim was the aggressor or provoker of the incident. We are not persuaded. The trial court could reasonably interpret the facts underlying the voluntary manslaughter conviction and conclude as follows: rule 4.423(a)(2) should not be a significant mitigating factor here because, although the victim initiated the verbal altercation when he came to Garcia's apartment and threatened him, Garcia was the one who escalated the encounter by bringing a knife to the carport, getting involved in the physical fight so that Michael was outnumbered, and using the knife to kill Michael when he was unarmed. Given these facts, it was not arbitrary or irrational for the trial court to give little or no weight to the mitigating factor listed in rule 4.423(a)(2).
Nor do we find persuasive Garcia's argument that the trial court improperly failed to consider the mitigating factor that Garcia previously successfully completed parole. (See Cal. Rules of Court, rule 4.423(b)(15).) Again, the record shows that the trial court did consider Garcia's successful completion of parole, but ultimately gave the factor little weight, instead concluding the aggravating factors outweighed the mitigating factors and justified the imposition of the upper term. (Cf. People v. Oberreuter (1988) 204 Cal.App.3d 884, 888 ["Absent an explicit statement by the trial court to the contrary, it is presumed the court properly exercised its legal duty to consider all possible mitigating and aggravating factors in determining the appropriate sentence"].)
In sum, the trial court's imposition of the upper term conformed with SB 567 and was not an abuse of discretion.
DISPOSITION
The judgment is affirmed.
We concur: COLLINS, J. ZUKIN, J.