Filed 4/29/22 P. v. Galvez CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from an order of the Superior Court of the County of Los Angeles, Mike Camacho, Judge. Affirmed.

David L. Annicchiarico, 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, William H. Shin and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.

I. INTRODUCTION

Defendant Jaime Galvez appeals from the trial court’s denial of his petition for resentencing under Penal Code section 1170.91,[1] contending that the court erred when it concluded that he did not meet his burden to demonstrate that he was eligible for a resentencing hearing. Finding no error, we affirm.

II. FACTUAL BACKGROUND[2]

On April 10, 2012, a California Highway Patrol officer received a dispatch call advising that a driver was brandishing a firearm at another vehicle. The officer observed defendant’s vehicle as it weaved and changed lanes, concluded that defendant was driving under the influence, and attempted to initiate a traffic stop. Defendant exited the freeway with the officer in pursuit, drove through a parking lot, and then reentered the freeway where the officer heard a gunshot and observed a shotgun outside the driver’s side window pointing up and back toward the officer.

The officer continued to follow defendant as he continuously drove in excess of 65 miles per hour and, at times, in excess of 100 miles per hour. As traffic increased, defendant weaved across multiple lanes of traffic, crossed over double yellow lines into the carpool lane on multiple occasions, and made several unsafe lane changes.

The pursuit terminated when defendant collided with another car. Officers approached defendant’s vehicle and removed the shotgun. Defendant then emerged from the vehicle and was given multiple instructions to get on the ground, but he refused to comply. At that point, officers shot defendant with multiple bean bag rounds and were eventually able to take him into custody.

Following trial, the jury found defendant guilty on count 1, evading a police officer in violation of Vehicle Code section 2800.2, subdivision (a); on count 2, assault with a firearm on a peace officer in violation of section 245, subdivision (d)(1); on count 3, shooting at an occupied motor vehicle in violation of section 246; on count 4, discharging a firearm from a motor vehicle in violation of section 26100, subdivision (d); on count 5, felon in possession of a firearm in violation of section 29800, subdivision (a)(1); on count 6, felon carrying a loaded firearm in public in violation of section 25850, subdivisions (a) and (c)(1); on count 7, discharging firearm in a grossly negligent manner in violation of section 246.3, subdivision (a); on count 9, resisting, delaying, or obstructing a police officer in violation of section 148, subdivision (a)(1); and on count 10, driving under the influence of alcohol in violation of Vehicle Code section 23152, subdivision (a).[3]

The jury found true, as to count 2, the allegation that defendant personally used and discharged a firearm within the meaning of section 12022.53, subdivisions (b) and (c). The jury also found true, as to count 10, the allegation that defendant had suffered a prior conviction within the meaning of Vehicle Code sections 23540 and 23546. Defendant admitted, as to counts 1 through 7, the allegation that he had suffered a prior conviction for a serious or violent felony within the meaning of sections 667, subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d).

The trial court sentenced defendant to a total of 38 years and four months comprised of the following: a middle term six-year sentence on count 2, doubled to 12 years based on the prior strike conviction, plus an additional 20-year sentence pursuant to section 12022.53, subdivision (c) and a five-year sentence enhancement pursuant to section 667, subdivision (a); and a consecutive one-third the middle term sentence of one-year, four months on count 1. The court imposed but stayed concurrent sentences on counts 3 through 7. And the court imposed a concurrent one-year term on count 9 and a six-month term on count 10.

On direct appeal from the judgment of conviction, a different panel of this Division affirmed and remanded the matter to the trial court with instructions to strike the unauthorized five-year sentence enhancement imposed under section 667, subdivision (a) and to resentence defendant in light of the stricken enhancement.

III. PROCEDURAL BACKGROUND

On August 21, 2020, defendant filed a petition for resentencing pursuant to section 1170.91. The petition alleged that as a result of his military service, defendant may be suffering from traumatic brain injury; anxiety disorder and depression; and substance abuse. In support of his petition, defendant attached reporter’s transcripts from the prior sentencing hearing as well as: (1) a certificate of release or discharge from active military duty detailing defendant’s military service; (2) an order confirming that he was awarded the good conduct medal; and (3) an undated photograph of himself in uniform.

On October 19, 2020, the trial court held a hearing on defendant’s petition. As explained in detail below, the court found that because it had already taken into “[ ]consideration [the] issues [raised by the petition] at the time of sentencing, . . . defendant [was] not entitled to a second hearing.”

IV. DISCUSSION

A. Background

1. Defendant’s Mental Health Expert[4]

During the guilt phase of the trial, defendant’s expert, forensic psychologist Haig Kojian, testified that defendant’s medical records indicated that he had been diagnosed as suffering from depression and anxiety. The records also reflected that defendant was addicted to various illegal substances and alcohol. According to Kojian, it was possible that a person who was under the influence of drugs and was experiencing emotional problems could have difficulty formulating specific intent. Kojian explained that if depression was severe enough, a patient could become psychotic. He did not, however, see anything in defendant’s medical records indicating that he was psychotic or delusional.

2. Defendant’s Testimony

Following the jury’s verdict, defendant testified in the sanity phase that he served in the military from 1979 to 1984. During that time, he suffered 10 to 15 head injuries caused by jumping from airplanes. After he left the military, defendant had surgery to treat one of his head injuries.

Defendant reenlisted in the military, but developed a drinking problem. His last year in the military, he developed depression and his speech impediment worsened. He was demoted several times for alcohol-related reasons and was eventually discharged “with honorable conditions,” but with an indication that he had failed to rehabilitate from alcohol addiction.

After he left the military the second time, defendant had suicidal thoughts. He was treated at a Veteran’s Administration hospital for alcohol addiction by a psychiatrist. His alcohol abuse became progressively worse from 1984 to 2002 when he went to prison. Thereafter, he was able to remain sober for the next nine years.

From 2004 to 2012, defendant received disability benefits from the Social Security Administration. Among other medications, defendant was taking prescription Xanax with Celexa, an anti-psychotic medication, in April 2012. The Xanax with Celexa caused defendant to have suicidal thoughts.

About a year before April 2012, defendant had a series of anxiety attacks that resulted in several emergency room admissions. After being sober for nine years, defendant’s daughter made him angry one day, causing him to begin drinking again.

On April 10, 2012, defendant experienced hallucinations as he drove on the freeway.

3. Original Sentencing Hearing

At the beginning of the February 20, 2014, sentencing hearing, the trial court indicated that it had received, reviewed, and considered the preplea report and “a litany of letters of support [from defendant’s] friends and family . . . as well as [from defendant] himself.” The court then considered defendant’s Romero[5] motion seeking to strike his prior serious felony conviction. Defendant’s counsel began her argument by describing defendant’s drug and alcohol addiction and criminal record. She also advised the court that “[defendant] wore a uniform for so many years, having been in the military, then rejoining the military.”

In response, the trial court stated that “[defendant] reiterated a lot of these issues even in his personal letters that he submitted to the court, again, I won’t say justifying his conduct but kind of helping explain what he believes led up to the offenses for which he now stands convicted.” The court then addressed defendant, stating: “But what I want you to truly understand [is] that I’m certainly not ignoring the issues that you brought to my attention all along this prosecution which was chemical dependency issues as well as perhaps certain levels of mental illness that you’ve been suffering from for some time. My concern is that the existence of those conditions that certainly you are suffering from doesn’t ensure that future public safety will be protected if the court were to be lenient with you. Those conditions still exist, and according to even you in your own words those were big factors in how you conducted yourself in . . . the case before us. So it doesn’t really help me in terms of mitigating the factors. It doesn’t really help me in terms of finding that your case overall, the present case, given all the circumstances of your criminal history, whether or not you fall outside the spirit of what the [three] strike law[] is all about, and that is to put a stop to the behavior once and for all, to make sure that it will not continue after this case is concluded.” Accordingly, the court denied defendant’s Romero motion.

The trial court then moved to sentencing, explaining that “I have taken those issues into consideration, [defendant], in terms of your mental illness and drug dependency issues, chemical dependency. Technically I would max a person out on this type of case, but I’m not going to do that for you because I’ve taken that into consideration at least to mitigate the underlying crime. That’s why I’m going to select the mid-term sentencing [instead of] what I otherwise would [impose,] high-term sentencing.”

Following those comments, the trial court sentenced defendant, as detailed above, using the six-year middle-term sentence on count 2, discharging a firearm at a police officer, as the base term.

4. Section 1170.91 Hearing

At the October 19, 2020, hearing on defendant’s section 1170.91 resentencing petition, the trial court discussed which factors it had considered at the original sentencing hearing and acknowledged that “the record is a little ambiguous on that point because I didn’t specifically mention military service or post-traumatic stress disorder, but I certainly mentioned his mental illness and his substance abuse . . . issues. But the bottom line is that that . . . , in fact, was considered for purposes of mitigation, which means he already received the relief that he’s now requesting once again. So my concern is, haven’t we already done this?”

Defendant’s counsel responded by asserting that the record of the original sentencing hearing was unclear and that under the “subsequent changes in the law,” defendant had a right to have his military service considered.

In response, the trial court explained, “Well, I certainly note that he is entitled to this consideration given his military service and certainly the mental health issues that originated from that military service.” The court emphasized, however, that it had “already considered that as mitigating evidence” and therefore declined to set a resentencing hearing under section 1170.91.

B. Section 1170.91[6]

“[S]ince 2015, California law has required trial courts to consider service-related trauma, substance abuse, and mental health problems as mitigating factors weighing in favor of low-term felony sentences. In 2018, the Legislature expanded this relief to allow [defendants] sentenced before 2015 to petition for a resentencing hearing in which the court considers service-related mitigating factors. As amended, []section 1170.91 lays out eligibility criteria and provides that upon receiving a petition, the court must hold a public hearing to determine whether the defendant satisfies those criteria.” (People v. Bonilla-Bray (2020) 49 Cal.App.5th 234, 236 (Bonilla-Bray).

“To be eligible for resentencing, a petitioner must meet the following criteria: [¶] —He or she is currently serving a sentence for a felony conviction—whether by trial or plea (§ 1170.91, subd. (b)(1)); [¶] —He or she served in a branch of the United States military (ibid.); [¶] —As a result of his or her service, he or she suffers from sexual trauma, traumatic brain injury, posttraumatic stress disorder, substance abuse, or mental health problems (ibid.); [¶] —The court did not consider those circumstances as a factor in mitigation at the time of sentencing (id., subd. (b)(1)(A)); and [¶] —He or she was sentenced before January 1, 2015 (id., subd. (b)(1)(B)).” (Bonilla-Bray, supra, 49 Cal.App.5th at p. 238.)

“Section 1170.91, subdivision (b)(3), in turn, establishes procedures for the trial courts to evaluate resentencing petitions. It provides that upon receiving a petition, the court must hold a public hearing after at least 15 days to determine whether the defendant meets the statutory criteria. ‘At that hearing, the prosecution shall have an opportunity to be heard on the petitioner’s eligibility and suitability for resentencing. If the person satisfies the criteria [in subdivision (b)], the court may, in its discretion, resentence the person following a resentencing hearing.’ (Ibid.)” (Bonilla-Bray, supra, 49 Cal.App.5th at p. 238.)

C. Analysis

Defendant contends that he made a prima facie showing that the trial court did not adequately consider his military service at the initial sentencing hearing and therefore the court erred in refusing to hold a resentencing hearing pursuant to section 1170.91. We disagree.

Defendant urges us to ignore the trial court’s conclusion that it had already considered defendant’s mental health problems and military service in mitigation because, according to defendant, “the trial court . . . can’t be presumed to have been aware of a sentencing statute that hadn’t yet been enacted.” To the extent defendant suggests that section 1170.91, subdivision (b)(1)(A) applies only to petitioners sentenced by courts that adequately foresaw the precise terms of that section at the initial sentencing hearing, we disagree. The plain language of that subdivision provides, as a prerequisite to resentencing, that “[t]he circumstance of [defendant having] suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of the person’s military service was not considered as a factor in mitigation at the time of sentencing.” (§ 1170.91, subd. (b)(1)(A).) In other words, if a defendant’s sentencing court already considered service-related mental health and substance abuse issues in mitigation, he or she is not eligible for resentencing.

Here, the same judge who presided over defendant’s trial and initial sentencing hearing also heard defendant’s section 1170.91 petition and concluded that the circumstances of his mental health problems and military service had already been considered in mitigation at the initial sentencing hearing. The record well supports that conclusion.

Defendant testified in detail about his military service and mental health and substance abuse problems at trial; and a mental health expert testified about his review of defendant’s medical records, which detailed defendant’s struggles with depression, anxiety, and substance abuse. Further, the trial court, at the initial sentencing hearing, expressly stated that it had decided against sentencing defendant to an otherwise appropriate maximum sentence after considering defendant’s mental health and substance abuse problems in mitigation.

That the trial court did not mention defendant’s military service during the initial sentencing does not demonstrate that the court did not consider that fact as part of its mitigation analysis. To the contrary, as the court indicated during the hearing on the petition, regardless of whether it explicitly referenced military service, it was well aware during sentencing that defendant had served his country honorably, but had been discharged due to his substance abuse issues, both from defendant’s own testimony and the “litany” of letters that defendant had submitted to the court during his prosecution.

Given the record of the sentencing hearing, during which the trial court stated that its middle term sentencing choice was predicated on defendant’s mental health issues, and the fact that defendant’s military service was well known to the court by the time it made that choice, we conclude that defendant failed to carry his burden under section 1170.91 to show that “[t]he court did not consider those circumstances as a factor in mitigation at the time of sentencing.” (Bonilla-Bray, supra, 49 Cal.App.5th at p. 238.) Because defendant did not meet the criteria for entitlement to a resentencing hearing, the court did not err in denying defendant’s petition.

V. DISPOSITION

The order denying the petition for resentencing is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KIM, J.

We concur:

BAKER, Acting, P. J.

MOOR, J.

[1] All statutory references are to the Penal Code unless otherwise indicated.

[2] The factual and procedural background of defendant’s underlying conviction and sentencing are taken from our unpublished opinion in his direct appeal from that judgment of conviction. (People v. Galvez (Nov. 9, 2015, B254807) [unpub. opn.].)

[3] Following trial, the prosecution, pursuant to section 1118.1, dismissed count 11, driving with a blood alcohol concentration of 0.08 percent or greater in violation of Vehicle Code section 23152, subdivision (b).

[4] The summaries of the testimony of defendant’s expert during the guilt phase and of defendant during the sanity phase are taken from the unpublished opinion in his direct appeal from the judgment of conviction. (People v. Galvez, supra, B254807.)

[5] People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).

[6] Section 1170.91, subdivision (a) provides: “If the court concludes that a defendant convicted of a felony offense is, or was, a member of the United States military who may be suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of his or her military service, the court shall consider the circumstance as a factor in mitigation when imposing a term under subdivision (b) of Section 1170. This consideration does not preclude the court from considering similar trauma, injury, substance abuse, or mental health problems due to other causes, as evidence or factors in mitigation.”