Filed 3/29/22 P. v. Chavez CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
| THE PEOPLE,
Plaintiff and Respondent,
v.
VINCENT FLAVIO CHAVEZ,
Defendant and Appellant.
| C093983
(Super. Ct. No. 11F08010)
|
A jury found defendant Vincent Flavio Chavez guilty of second degree robbery and resisting or obstructing a peace officer. The jury also found true two firearm enhancements against defendant. The trial court sentenced defendant to 13 years in state prison for second degree robbery and one firearm enhancement. Defendant previously appealed the convictions. We affirmed the convictions but remanded to allow the trial court to consider whether to strike or dismiss defendant’s firearm enhancements under its new discretion granted by the amended Penal Code section 12022.53, subdivision (h).[1] (People v. Chavez et al. (Aug. 10, 2020, C080117) [nonpub. opn.] (Chavez).)
Following remand, the trial court declined to strike the enhancements. Defendant timely appealed. When defendant’s appeal was pending, the Legislature passed Assembly Bill No. 124 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 695) (Assembly Bill No. 124). Both parties agree that Assembly Bill No. 124 applies retroactively to defendant and that this case should be remanded. We remand for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
We summarize pertinent facts from defendant’s previous appeal and the resentencing hearing on remand.[2] Defendant and his cohorts at gunpoint, robbed a couple in a parking lot. (Chavez, supra, C080117 [at p. 1].) Defendant brandished a gun at the wife while one of his cohorts showed a gun in his coat to the husband. ( Id. [ at p. 2-3].) After taking the wife’s purse, they fled in an SUV but were soon arrested by the police. (Id. [at p. 3].) Defendant was 22 years old at the time of the robbery.
A jury found defendant guilty of second degree robbery (§ 211) and resisting or obstructing a peace officer (§ 148, subd. (a)(1)). (Chavez, supra, C080117 [at p. 5].) The jury also found true the allegation that defendant participated as a principal in the robbery knowing another principal in the crime was armed with a firearm (§ 12022, subd. (a)(1)) and that defendant personally used a firearm in the commission of the robbery (§ 12022.53, subd. (b)). (Chavez, C080117 [at p. 5].) The trial court sentenced defendant to the midterm of three years in state prison on the robbery count plus 10 years for the personal use of a firearm enhancement. (Ibid.)
Defendant appealed the convictions. We affirmed the convictions but remanded the case to allow the trial court to consider exercising its newly granted discretion under section 12022.53, subdivision (h) to strike the firearm enhancements. (Chavez, supra, C080117 [at pp. 28-29].)
On remand, prior to the resentencing hearing, defendant submitted a letter to the trial court, where he detailed his upbringing, his reflection on his conduct, the improvement he had made during his time in prison, his plan to become a youth counselor upon release, the passing of his mother and grandmother while he was in custody, and his desire to reunite with his family and be present in his children’s lives. Along with the letter, defendant also submitted the general education development (GED) certificate he earned in prison and his GED transcript.
At the resentencing hearing, the trial court stated it had reviewed defendant’s file including his probation report, presentence report, the letter, and his GED certificate and transcript. Defendant’s counsel argued the trial court should strike the firearm enhancements because defendant merely brandished the weapon, the victims suffered no physical injury, and defendant was remorseful and had worked to better himself in prison. The People contended the court should not consider defendant’s post-sentencing behaviors. The trial court stated it “tend[ed] to agree with [the People] about what the Court should focus on today.” But it also acknowledged the letter was “very telling of [defendant’s] maturity” and “applaud[ed] [defendant] for what he is doing and how he is addressing his time in custody.” It also commented, “it’s really saddening that [defendant] has spent this time in custody away from his family and while the two most important women in his lives have past [sic].” Nevertheless, the trial court observed there was “a threat of great violence” in the offense because “defendant committed this offense with two other people” and “when more people are involved with criminal activity, more than one person has a firearm that the chances of that violence increase.” It also noted while defendant had no prior felony record when he committed the robbery, he had sustained a felony assault conviction following his arrest. Thus, the trial court concluded the aggravating factors outweighed the mitigating factors and declined to strike the firearm enhancements. Defendant’s trial counsel did not object to the trial court’s ruling or statement of reasons.
While defendant’s appeal of the resentencing was pending, the Legislature passed Assembly Bill No. 124. Assembly Bill No. 124 amended section 1170, requiring the trial court to impose the lower term if, among other things, the defendant was a youth at the time of the commission of the offense or has suffered childhood trauma, unless the trial court finds imposing the lower term would be contrary to the interests of justice. (Stats. 2021, ch. 695, § 5.3.) Assembly Bill No. 124 also added section 1016.7, which defines a “youth” as any person under the age of 26. (Stats. 2021, ch. 695, § 4.) Assembly Bill No. 124 went into effect on January 1, 2022.
DISCUSSION
Firearm Enhancement
Defendant contends the trial court abused its discretion in declining to strike his firearm enhancements because (1) his use of a firearm was less serious than what would normally be expected of such a crime; (2) his prospects support striking the firearm enhancements; and (3) the trial court considered inappropriate aggravating factors and failed to take into account his post-sentencing behaviors.[3] We disagree.
Section 12022.53, subdivision (b) provides for a consecutive sentence enhancement of 10 years when the defendant personally uses a firearm in the commission of a robbery, regardless of whether the firearm was operable or loaded. This enhancement may be stricken or dismissed at the trial court’s discretion in the interests of justice pursuant to section 1385. (§ 12022.53, subd. (h).) In deciding whether to strike or dismiss an enhancement, the trial court is to consider the factors listed in California Rules of Court, rule 4.410[4] (general objectives of sentencing), rule 4.421 (circumstances in aggravation), rule 4.423 (circumstances in mitigation), and rule 4.428 (factors affecting imposition of enhancements). (People v. Pearson (2019) 38 Cal.App.5th 112, 117.) The aggravating factors include a crime involving great violence or threat of great bodily harm, as well as the defendant’s prior convictions. (Rule 4.421(a)(1) & (b)(2).) The mitigating factors include the defendant having no or an insignificant prior criminal record. (Rule 4.423(b)(1).) “nless the record affirmatively reflects otherwise,” the trial court is deemed to have considered these factors. (Rule 4.409.) The trial court must also consider a defendant’s background, character, and prospects. (People v. Williams (1998) 17 Cal.4th 148, 161.) At a resentencing hearing after remand, the trial court should additionally take into account a defendant’s post-sentencing behaviors. (Dix v. Superior Court (1991) 53 Cal.3d 442, 460; People v. Yanaga (2020) 58 Cal.App.5th 619, 625.)
We review a trial court’s decision to strike an enhancement under section 1385 for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 373.) In doing so, we are guided by two precepts. (Id. at p. 376.) First, the party attacking the sentence bears the burden to “clearly show that the sentencing decision was irrational or arbitrary.” (Ibid.) Absent 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.” (Id. at pp. 376-377.) Second, “a ‘ “decision will not be reversed merely because reasonable people might disagree.” ’ ” (Id. at p. 377.) Taken together, “a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Ibid.)
Defendant contends his use of a firearm was “as minor as this sort of crime could possibly be.” He further argues the trial court cannot decline to strike his firearm enhancements based on the presence of a firearm, and he should not be held responsible for his codefendant’s “innocuous” use of a gun. Defendant misunderstood the trial court’s reasoning. The trial court did not view the presence of a firearm and his codefendant’s use of a gun separately. Instead, it considered the totality of the circumstances surrounding the robbery, including that defendant acted with two other people and that more than one person involved in the crime had a firearm. As our Supreme Court observed, even the passive display of a firearm may stimulate resistance from victims, creating additional risks of harm. (People v. Nelums (1982) 31 Cal.3d 355, 360.) The presence of multiple firearms also increased the chance that at least one of them might be discharged. While fortunately no one was harmed, it does not minimize the threat of great violence and bodily harm in defendant’s crime.
The trial court further considered defendant’s background, character, and prospects. After reviewing defendant’s letter, the trial court commended defendant for the improvement he had made while in custody and expressed sympathy for the passing of his family members. It also noted defendant’s lack of a felony record at the time of the robbery as well as his assault conviction following his arrest. To the extent the trial court erroneously described defendant’s misdemeanor assault conviction as a felony, it is of little consequence. The key is that defendant committed another act of violence that resulted in a conviction less than four years after the armed robbery, raising concerns for his prospects.
Nothing in the record affirmatively establishes that the trial court did not consider other relevant factors. (Rule 4.409 [a trial court is deemed to have considered relevant factors unless the record affirmatively establishes otherwise].) By stating the resentencing hearing’s “focus” should be on whether the original sentence was fair and just, the trial court did not exclude consideration of defendant’s post-sentencing behaviors. Indeed, as discussed ante, the trial court considered the mitigating factors provided in the letter, including defendant’s post-conviction conduct, educational achievements, and increased maturity, and concluded they were outweighed by the aggravating factors. (See People v. Nevill (1985) 167 Cal.App.3d 198, 202 [“[a] single aggravating factor is sufficient to impose an aggravated sentence where the aggravating factor outweighs the cumulative effect of all mitigating factors”].) The trial court, therefore, did not abuse its discretion in declining to strike the firearm enhancements.
Assembly Bill No. 124
In a supplemental brief, defendant contends we should remand for resentencing under the amended section 1170, subdivision (b)(6). The People agree. So do we.
According to the principle established in In re Estrada (1965) 63 Cal.2d 740, 744-745, an ameliorative change in law applies retroactively to nonfinal judgments in the absence of an express statement to the contrary by the Legislature. (People v. Francis (1969) 71 Cal.2d 66, 75-76.) A judgment becomes final when it has reached final disposition in the highest court authorized to review it. (People v. Rossi (1976) 18 Cal.3d 295, 304.)
Here, defendant’s judgment is not yet final and may be reduced by the operation of Assembly Bill No. 124. The Legislature also did not expressly prohibit the retroactive application of the bill. Defendant is therefore entitled to the benefit of Assembly Bill No. 124 requiring the trial court to impose the lower term if, among other things, the defendant was a youth at the time of the commission of the offense or has suffered childhood trauma, unless the trial court finds imposing the lower term would be contrary to the interests of justice. (Stats. 2021, ch. 695, § 5.3.)
DISPOSITION
The matter is remanded for resentencing pursuant to Assembly Bill No. 124. In all other respects, the judgment is affirmed.
[u] \s\ ,
BLEASE, J.
We concur:
\s\ ,
RAYE, P. J.
\s\ ,
KRAUSE, J.
[1] Further undesignated statutory references are to the Penal Code.
[2] Defendant requests we take judicial notice of the record from his original appeal. The People make no objection. We construe the request to be a motion to incorporate the record by reference and grant the motion. (Cal. Rules of Court, rule 8.147(b).)
[3] Defendant did not object that the trial court considered inappropriate factors or that it failed to consider his post-sentencing behaviors, forfeiting these claims. On appeal, defendant claims he received ineffective assistance of counsel, and the People do not address forfeiture. Accordingly, we exercise our discretion to review the claims on the merits. (In re Sheena K. (2007) 40 Cal.4th 875, 888, fn. 7 [an appellate court may at its discretion review a forfeited claim].)
[4] Undesignated rule references are to the California Rules of Court.
