People v. Algarin CA3 ( 2022 )

Filed 2/7/22 P. v. Algarin 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Yuba)
----
THE PEOPLE, C093645
Plaintiff and Respondent, (Super. Ct. No. CRF1901439)
v.
ALEXIS ALGARIN,
Defendant and Appellant.
Defendant Alexis Algarin appeals following his no contest plea to multiple counts
of assault with a firearm and admission to one firearm use enhancement. He argues the
trial court erred in imposing the upper term for both the assault and enhancement,
alleging the trial court impermissibly engaged in dual use of facts.
We disagree the trial court abused its discretion. However, we agree with the
parties that defendant is nevertheless entitled to remand in view of the passage of Senate
Bill No. 567 (2021-2022 Reg. Sess.). We further conclude the trial court failed to impose
all mandatory fees. Accordingly, we reverse the judgment for further proceedings
consistent with this decision. We otherwise affirm.
1
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged with three counts of attempted murder, three counts of
attempted murder by shooting from a vehicle, and assault with a firearm. It was alleged
that defendant personally used and intentionally discharged a firearm with regard to the
attempted murder counts and defendant personally used a firearm with regard to one
count of assault with a firearm.
Defendant pled no contest to three counts of assault and admitted the associated
firearm enhancement for one count in exchange for dismissal of the remaining counts.
His agreed sentencing exposure was between nine and 16 years in state prison,1 and he
agreed to “waiving all rights to appeal his conviction or his sentence.” The stipulated
factual basis for his plea was the pretrial release report, which summarized the sheriff’s
department report concerning the incident.
According to this report, around 6:10 p.m., A. L. was riding in a car with his father
and another individual when they noticed a car following them closely, and A. L.
recognized one of the passengers of that car as defendant. A. L. knew defendant from his
time in juvenile hall where A. L. had identified as a Sureño gang member, while
defendant was a Norteño. Defendant was known to carry a gun and “had been ‘looking’
for [A. L.]” Defendant fired five to seven rounds at the car carrying A. L. No one was
hit, but two of the rounds flew through the rear window. One caused glass to hit A. L.
and another lodged itself into the car’s roof’s padding. Following the shooting, the car
carrying defendant immediately fled the scene. A. L. returned home and alerted
authorities.
The probation department’s presentence report detailed defendant’s juvenile
criminal history, which started in 2012 when he was counseled and released after he
1 This was consistent with the parties’ stipulation that Penal Code section 654 did
not apply in light of defendant’s firing at least three separate shots into the vehicle.
2
threatened a student with a knife on the school bus. The student was scratched in the
process. Next in 2015, defendant was counseled and released after he threw a rock at a
car belonging to a staff member at a high school. Defendant said the staff member had
embarrassed him in front of the class. The rock caused damage to the driver’s door for
which defendant paid $662 in restitution. Then in 2016, defendant twice burglarized
residences for which he completed a juvenile offender work program.
In 2017, defendant received deferred entry of judgment after he was found with
other individuals in an SUV where there was a concealed, loaded shotgun and a
concealed, loaded pistol. Authorities had been on the lookout for that SUV after
observing a social media video of individuals, including defendant, flashing gang signs
wherein one of them wielded the shotgun.
Again in 2017, defendant was apprehended following a traffic stop in which a
loaded handgun was recovered. Authorities were on the lookout for the driver of that
vehicle after defendant posted a video on social media. The video showed defendant
flashing gang signs with a gun in his waistband. As a result, defendant was adjudged a
ward of the court and ordered to participate in the Maxine Singer Youth Guidance Center
program for one year. After being ordered to the program, defendant participated in a
group assault in the dayroom, where defendant attempted to obscure a surveillance
camera. The juveniles ignored staff commands to stop and pepper spray had to be
deployed to stop the assault. Defendant resolved the petition by admitting to
participating in a criminal street gang and his wardship was continued. Defendant’s
wardship terminated in March 2019 when defendant was approximately 18 and one-half
years old. The instant offense happened approximately five months later.
3
The probation officer recommended the upper term of 16 years in prison, citing
aggravating factors from California Rules of Court, 2 rules 4.421(a) and 4.421(b)(1), (2),
(5), and identifying no factors in mitigation. Specifically, the officer thought defendant’s
behavior in targeting A. L. was particularly callous thereby justifying an aggravated term.
Defendant fired a gun from a moving car a minimum of five times, hitting A. L.’s
moving car at least twice. Defendant was motivated by gang ties to harm A. L. without
regard for the safety of the others. Moreover, defendant’s history of violent and
antisocial conduct, including his gang membership, demonstrated his danger to the
community.
Defendant opposed this recommendation, arguing in pertinent part that the use of
rule 4.421(a) would be inappropriate because a finding that the offense involved great
violence merely restated the gravamen of the offense, thus constituting an impermissible
dual use of facts. Defendant further argued that the record did not support a finding that
defendant had engaged in a pattern of violent conduct showing a danger to society under
rule 4.421(b)(1).3 Defendant instead requested the court impose the midterm. The
People’s sentencing memorandum agreed with the probation recommendation and
expanded upon its justifications for recommending imposition of the upper term.
Specifically, it detailed defendant’s prior conduct that demonstrated an increasing
tendency toward violence,4 as well as involvement in gangs.
2 Further rule references are to the California Rules of Court.
3 Defendant reiterated this objection at sentencing, arguing that aggravation based
upon the crime “involv[ing] great violence, great bodily injury” would be an
impermissible dual use of facts.
4 Consistent with the probation department’s description of his juvenile criminal
history, this included defendant’s troubling behavior toward another student on a bus in
2012 that involved threatening that student with a knife, placing the knife on that
student’s face, and then cutting the student’s finger. Defendant then vandalized a car at
4
On February 1, 2021, the trial court sentenced defendant to 16 years in state
prison, comprised of the upper term of four years for assault , plus the upper term of 10
years for the firearm enhancement, plus consecutive one-year terms for two other assault
counts. In justification of the imposition of the upper term, the court stated: “[Defense
counsel] is asking that I not make a finding pursuant to 4.421(a). I’ll make a finding
pursuant to 4.421(b), that he engaged in violent conduct that indicates a serious danger to
society. His prior sustained petitions in juvenile court are numerous and of increasing
seriousness. His prior performance under juvenile supervision is wholly unsatisfactory.
There are no circumstances in mitigation.” Defendant was also ordered to pay $2,800.55
in restitution, a $1,200 restitution fine, a $1,200 suspended parole revocation restitution
fine, a $30 conviction assessment fee, and a $40 court operations assessment fee.
Defendant timely appealed and did not request a certificate of probable cause.
DISCUSSION
I
Imposition Of The Aggravated Terms
Defendant complains the trial court abused its discretion in imposing the
aggravated terms for the assault and the associated gun enhancement. Specifically, he
argues the trial court engaged in dual use of facts because the court found defendant’s
violent conduct posed a danger to society and the only violent conduct in the record that
could have posed such a danger was the instant assault and gun enhancement. Defendant
also complains the record does not support the other factors underlying the court’s
selection of the aggravated terms. We disagree.
school in 2013, burglarized two residences in 2015, and then twice in 2017 was found in
cars with other gang members where police recovered loaded firearms. Finally, while in
juvenile hall, defendant assisted in the coordinated assault of other juveniles by
attempting to cover a surveillance camera.
5
At the time of defendant’s sentencing, section 1170, subdivision (b) provided,
“When a judgment of imprisonment is to be imposed and the statute specifies three
possible terms . . . [t]he court shall select the term which, in the court’s discretion, best
serves the interests of justice.” (Former § 1170, subd. (b); see also former § 1170.1,
subd. (d).)
The trial court’s sentencing decision is reviewed for abuse of discretion, meaning
its discretion must have been exercised in a manner that is not arbitrary and capricious.
(People v. Weber (2013) 217 Cal.App.4th 1041, 1063.) “ ‘[A] trial court is free to base
an upper term sentence upon any aggravating circumstance that the court deems
significant, subject to specific prohibitions.’ ” (Ibid.) “[T]he presence of one aggravating
circumstance renders it lawful for the trial court to impose an upper term sentence.”
(People v. Black (2007) 41 Cal.4th 799, 815; see People v. Forster (1994) 29 Cal.App.4th
1746, 1759 [finding upper term justified if “there remains one unassailable valid factor in
aggravation”].) “The trial court is not required to set forth its reasons for rejecting a
mitigating factor. [Citations.] Further, unless the record affirmatively indicates
otherwise, the trial court is deemed to have considered all relevant criteria, including any
mitigating factors.” (People v. Holguin (1989) 213 Cal.App.3d 1308, 1317-1318.)
Nevertheless, courts “generally cannot use a single fact both to aggravate the base
term and to impose an enhancement, nor may it use a fact constituting an element of the
offense either to aggravate or to enhance a sentence.” (People v. Scott (1994) 9 Cal.4th
331, 350; see § 1170, subd. (b); Rule 4.420(c), (d).)
As defendant must concede, neither assault with a deadly weapon nor the gun use
enhancement has “violent conduct that indicates a danger to society” as an element. (See
CALCRIM Nos. 875, 3146.) Defendant nonetheless argues that nothing in defendant’s
history other than his current conviction shows he has engaged in violent conduct that is a
danger to society, and, on that basis, defendant argues the trial court impermissibly
engaged in dual use, requiring reversal for resentencing.
6
Taking the second issue first, we disagree that any consideration of the assault by
drive-by shooting in evaluating defendant’s danger to society was impermissible use of
dual facts. Rather, defendant’s conduct in this case was particularly egregious and much
more than was required to establish assault with a deadly weapon with a simple gun use
enhancement. Defendant was looking for a rival gang member, followed him in a car,
and then shot at the car carrying that gang member five to seven times endangering not
only the gang member, but also the other car occupants and the general public at large.
Further, defendant complains his sustained juvenile petitions preceding this case
do not show that he poses a danger to society and that they are neither numerous, nor
increasing in severity. He posits that only his last three documented petitions with the
juvenile justice system could have been considered by the trial court because only these
petitions were “sustained.”5 He reasons none of those petitions shows that he is a danger
to society, nor were they increasing in severity. We disagree.
It is not clear to this court that defendant’s numerous petitions wherein he received
a disposition of counseling, paid restitution, and participated in the juvenile work
program could not be considered “sustained” by the trial court in evaluating his criminal
history, including whether it was escalating in severity. (See, e.g., People v. Nguyen
(2009) 46 Cal.4th 1007, 1012 [a constitutionally valid prior juvenile adjudication may be
used to enhance adult sentence].) Clearly, if those incidents are taken into account,
defendant had numerous interactions with authorities showing a willingness to commit
violence, moving from small knives, to rocks, to guns.
5 Defendant’s characterization of the People’s sentencing statement as being “a list
of incidents that allegedly occurred in juvenile hall that did not result in a sustained
petition” is mistaken. As recited at length herein, defendant’s interactions with the
juvenile justice system leading up to his agreed-upon deferred entry of judgment do not
show juvenile hall incidents.
7
However, we need not decide this issue because even without defendant’s juvenile
adjudications from 2012 to 2015, his petitions that resulted in deferred entry of judgment
and wardship proceedings show that he was repeatedly found in the presence of loaded
guns concealed in vehicles. Defendant flashed gang signs and had been identified as an
active member of the Norteño gang. He further participated in an assault after being
sentenced to one year in a juvenile correctional program. Defendant attempts to
downplay this latter incident as a “fistfight,” ignoring that it was a multi-person
orchestrated attack occurring within a juvenile rehabilitation facility and that the
juveniles involved refused to stop until they were incapacitated with pepper spray. Then,
mere months after being released from wardship, defendant was looking for A. L., a rival
gang member, and shot at the car A. L. was riding in five to seven times from the car that
defendant was riding in.
Accordingly, it is clear the trial court did not abuse its discretion in selecting the
aggravated terms in this case under the rules in effect at the time of sentencing.
(People v. Weber, supra, 217 Cal.App.4th at p. 1063.) Rather, the record supports that
defendant had engaged in violent conduct that endangered society and had suffered
multiple sustained petitions, which were increasing in severity. (Rule 4.421(b)(1), (2).)
It is also clear that the trial court did not abuse its discretion in determining that
defendant’s prior performance on probation had been unsatisfactory. (Rule 4.421(b)(1),
(2).) Any one of these factors is sufficient to support imposition of the aggravated terms.
(People v. Black, supra, 41 Cal.4th at p. 815; People v. Forster, supra, 29 Cal.App.4th at
p. 1759.) Accordingly, defendant’s claim that the trial court abused its discretion fails.
However, this does not end our inquiry. Following the close of briefing, but
before an opinion was issued in this case, the Legislature passed Senate Bill No. 567
(2021-2022 Reg. Sess.), which alters the methodology employed when the court is
selecting a triad term under Penal Code sections 1170 and 1170.1, creating a presumption
in favor of the middle term except as provided. (Stats. 2021, ch. 731, §§ 1.3, 2.) We
8
asked the parties to brief the applicability of this provision, which is effective January 1,
2022 (Cal. Const., art. IV, § 8, subd. (c)), and the parties have agreed it should be applied
retroactively to defendant’s nonfinal judgment. We concur that Senate Bill No. 567
should be applied retroactively to this case and will reverse defendant’s sentence and
remand for resentencing so that the court may exercise its discretion in accordance with
the new, more favorable rules for selecting the appropriate triad term under amended
Penal Code sections 1170 and 1170.1. (See, e.g., People v. Stamps (2020) 9 Cal.5th 685,
699 [“Eliminating the prior restriction on the court’s ability to strike a serious felony
enhancement in the furtherance of justice constitutes an ameliorative change within the
meaning of Estrada”].)
Moreover, we disagree with the People that the district attorney should be afforded
the opportunity to withdraw from the plea agreement on remand. The agreement between
the parties remains an open plea to a sentence between nine and 16 years, to be selected
at the court’s discretion. The People have not shown that the Legislature’s modification
to the scope of that discretion entitles the district attorney to withdraw from the plea deal
on remand. On the contrary, the Stamps decision itself recognized that a defendant
subject to an open plea deal would be entitled to remand for the trial court to reconsider
its sentence in light of the discretion newly afforded by Senate Bill No. 1393. (People v.
Stamps, supra, 9 Cal.5th at p. 700.) We discern no meaningful difference here and
further recognize that the district attorney should be afforded the opportunity to argue
through briefing and possible presentation of evidence that defendant should still be
sentenced to the upper term in this case. Nothing in this opinion prevents the district
attorney from attempting to make this showing on remand.
II
Fines And Fees
At sentencing, the trial court ordered defendant pay $2,800.55 in restitution, a
$1,200 restitution fine, a $1,200 suspended revocation restitution fine, a $30 conviction
9
assessment fee, and a $40 court operations assessment fee. However, because defendant
pled no contest to three counts, the trial court was required to impose the $40 court
security fee (Pen. Code, § 1465.8) and the $30 court operations assessment fee (Gov.
Code, § 70373) three times (see People v. Castillo (2010) 182 Cal.App.4th 1410, 1415,
fn. 3 [Gov. Code, § 70373]; People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866 [Pen.
Code, §1465.8]). Because we must remand the matter for resentencing, we can and will
direct the trial court to correct this omission at resentencing.
DISPOSITION
The judgment is reversed and the matter remanded for resentencing consistent
with the changes brought about by Senate Bill No. 567 and related legislation.6 The trial
court is also directed to impose three $40 court security fees (Pen. Code, § 1465.8) and
three $30 court operations assessment fees (Gov. Code, § 70373) at the resentencing
hearing. The judgment is otherwise affirmed.
/s/
Robie, J.
We concur:
/s/
Blease, Acting P. J.
/s/
Mauro, J.
6 Senate Bill No. 567 (2021-2022 Reg. Sess.), Assembly Bill No. 124 (2021-2022
Reg. Sess.), and Assembly Bill No. 1540 (2021-2022 Reg. Sess.) were all signed by the
Governor on October 8, 2021, and modified certain provisions related to sentencing.
Because the application of Senate Bill No. 567 to this case requires remand, we need not
address the possible applicability of the other provisions.
10