People v. Lopez CA4/2 ( 2015 )


Menu:
  • Filed 12/23/15 P. v. Lopez CA4/2
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
    publication or ordered published for purposes of rule 8.1115.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    FOURTH APPELLATE DISTRICT
    DIVISION TWO
    THE PEOPLE,
    Plaintiff and Respondent,                                       E062511
    v.                                                                       (Super.Ct.No. INF1400918)
    JUAN ADRIAN LOPEZ et al.,                                                OPINION
    Defendants and Appellants.
    APPEAL from the Superior Court of Riverside County. James S. Hawkins,
    Judge. Affirmed as modified.
    John F. Schuck, under appointment by the Court of Appeal, for Defendant and
    Appellant Juan Adrian Lopez.
    Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant
    and Appellant Jesus Jaime Rocha.
    Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney
    General, Peter Quon, Jr., and Stacy Tyler, Deputy Attorneys General, for Plaintiff and
    Respondent.
    1
    A jury found defendants and appellants Juan Adrian Lopez and Jesus Jaime
    Rocha guilty of first degree residential burglary. (Pen. Code, § 459.)1 In a bifurcated
    proceeding, the trial court found true that Lopez had suffered one prior strike
    conviction (§§ 667, subds. (c) & (e)(1), 1170.12, subds. (b) & (c)(1)), one prior serious
    felony conviction (§ 667, subd. (a)(1)), and two prior prison terms (§ 667.5, subd. (b)).
    The trial court also found true that Rocha had suffered three prior prison terms (§
    667.5, subd. (b)). As a result, Lopez was sentenced to a total term of 18 years, and
    Rocha was sentenced to a total term of eight years in state prison. Defendants appeal
    from the judgment.
    On appeal, Lopez argues (1) the trial court abused its discretion in sentencing
    him to the upper term, and (2) the trial court improperly stayed one of his prior prison
    terms. We agree the trial court erred in staying rather than striking one of Lopez’s
    prior prison terms and will modify the judgment accordingly. We reject Lopez’s
    remaining contention and affirm the judgment.
    Counsel for Rocha has filed a brief pursuant to People v. Wende (1979) 
    25 Cal.3d 436
     and Anders v. California (1967) 
    386 U.S. 738
    . Rocha also filed a personal
    supplemental letter, claiming his appellate counsel was ineffective. We reject Rocha’s
    contentions and affirm the judgment as modified.2
    1   All future statutory references are to the Penal Code unless otherwise stated.
    2In reviewing the record on appeal, we note the trial court incorrectly stayed
    one of Rocha’s prior prison terms, to wit, a 2008 receiving a stolen vehicle (§ 496,
    [footnote continued on next page]
    2
    I
    FACTUAL AND PROCEDURAL BACKGROUND
    On April 4, 2014, Lopez and Rocha broke into a residential trailer located in a
    trailer park on Airport Boulevard in the County of Riverside. A neighbor saw Lopez
    use a tree trimmer to cut something on the door to her neighbor’s trailer and called 911
    to report the crime. The neighbor also witnessed Lopez put down the trimmer and
    kick in the trailer door. She then observed Lopez and Rocha enter the trailer. She then
    saw Lopez exit the trailer with a heavy-laden suitcase and Rocha exit with a black
    backpack. Lopez fled the scene on a bicycle he had propped against the trailer, and
    Rocha left on foot.
    Deputies from the Riverside County Sheriff’s Department responded to the
    scene and found Lopez hiding underneath one of the trailers. Rocha was found a short
    distance from the trailer park. When a deputy confronted him, Rocha fled and
    discarded stolen property onto the street as he ran from the deputy.
    Investigation revealed that the trailer door was “completely ripped out of the
    frame.” Among the stolen items were a computer, a mobile phone, phone chargers, a
    portable digital music device, tools, jewelry, a rosary, and the suitcase.
    On October 16, 2014, an amended information was filed charging defendants
    with first degree residential burglary. (§§ 459, 460, subd. (a)). As to Lopez, the
    [footnote continued from previous page]
    subd. (d)) conviction, rather than striking it. As such, we will modify the judgment
    accordingly.
    3
    information also alleged that Lopez had suffered one prior serious or violent felony
    strike conviction (§§ 667, subds. (d) & (e)(1), 1170.12, subds. (b) & (c)(1)), one prior
    serious felony conviction (§ 667, subd. (a)(1)), and two prior prison terms (§ 667.5,
    subd. (b)). As to Rocha, the information further alleged that Rocha had suffered three
    prior prison terms. (§ 667.5, subd. (b).)
    On October 29, 2014, a jury found defendants guilty of first degree burglary as
    charged. In a bifurcated proceeding, the trial court found true all of the prior
    conviction allegations.
    On December 10, 2014, Lopez was sentenced to a total term of 18 years in state
    prison, with credit of 501 days for time served as follows: the upper term of six years,
    doubled to 12 years due to the prior strike, for the substantive offense; a consecutive
    term of five years for the prior serious felony conviction; and a consecutive term of
    one year for one of the prior prison term allegations; the second prior prison term
    allegation was stayed. Rocha was sentenced to a total term of eight years in prison,
    with credit of 501 days for time served as follows: the upper term of six years for the
    burglary offense; plus two consecutive one-year terms for two of the prior prison term
    allegations; a third prior prison term allegation for a 2008 receiving a stolen vehicle
    (§ 496, subd. (d)) conviction was stayed. Both defendants subsequently appealed.
    4
    II
    DISCUSSION
    A.     Defendant Lopez’s Appeal
    On appeal, Lopez argues the trial court abused its discretion in sentencing him
    to the upper term and the trial court erred in staying one of his prior prison term
    allegations. We agree that the trial court should have struck the prior prison term
    allegation but disagree with defendant’s first contention.
    1.      Imposition of Upper Term
    A trial court’s exercise of its discretion in selecting a lower, middle, or upper
    term sentence under section 1170.1 is subject to review for abuse of discretion.
    (People v. Sandoval (2007) 
    41 Cal.4th 825
    , 847.) “[A] trial court will abuse its
    discretion . . . if it relies upon circumstances that are not relevant to the decision or that
    otherwise constitute an improper basis for decision.” (Ibid.) “Sentencing courts have
    wide discretion in weighing aggravating and mitigating factors. [Citation.] Indeed, a
    trial court may ‘minimize or even entirely disregard mitigating factors without stating
    its reasons.’ [Citation.]” (People v. Lai (2006) 
    138 Cal.App.4th 1227
    , 1258 (Lai).)
    “ ‘The burden is on the party attacking the sentence to clearly show that the sentencing
    decision was irrational or arbitrary. [Citation.] In the absence of 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.’ ” (People v. Superior Court (Alvarez ) (1997) 
    14 Cal.4th 968
    , 977-978;
    accord, Lai, at pp. 1258-1259.)
    5
    At the time of the sentencing hearing, Lopez was 23 years old and had a lengthy
    criminal history. Lopez began a life of crime in 2006 as a juvenile; and since that
    time, he has committed numerous crimes, with the exception of those periods of time
    when he was incarcerated. As an adult, he was convicted of vehicle theft in November
    2010, and sent to state prison for 16 months. After his release, he violated parole in
    July 2011 and February 2012; and in March 2013, he was convicted of assault with a
    deadly weapon and vehicle theft with a prior and sentenced to 24 months in state
    prison with 12 months of mandatory community release supervision. Following his
    release, Lopez violated his parole supervision in April 2014 and committed the instant
    offense in October 2014 while on parole supervision. It appears the trial court
    imposed the upper term based on Lopez’s conduct that indicates a serious danger to
    society (Cal. Rules of Court, rule 4.421(b)(1)); Lopez’s lengthy criminal history both
    as a juvenile and an adult, which were of increasing seriousness (Cal. Rules of Court,
    rule 4.421(b)(2)); Lopez’s prior prison terms (Cal. Rules of Court, rule 4.421(b)(3));
    the fact Lopez was on parole supervision when he committed the instant crime (Cal.
    Rules of Court, rule 4.421(b)(4)); and Lopez’s unsatisfactory prior performance on
    probation or parole (Cal. Rules of Court, rule 4.421(b)(5)).3 Indeed, the record
    supports the above-noted aggravating factors.
    3 We note the probation officer recommended a middle term sentence.
    However, as Lopez points out, “[t]he probation officer’s report and recommendation
    are advisory only, constituting aids to the sentencing courts in its exercise of discretion
    in determining an appropriate disposition, and thus may be rejected in their entirety.
    [footnote continued on next page]
    6
    Lopez does not dispute that the aggravating circumstances identified by the trial
    court are relevant and supported by the record. He acknowledges he has an extensive
    criminal history but blames his crimes on a “serious drug problem,” which he believes
    was a mitigating factor warranting a low or middle term sentence, and “not because of
    any inherent evilness.” At the outset, we reject the suggestion that the trial court failed
    to consider Lopez’s drug addiction. The record shows that the trial court was aware of
    defendant’s history of substance abuse, and the court made a finding to that effect.
    Lopez’s social background and history with substance abuse was pointed out to the
    court by his trial counsel and Lopez’s family members at the sentencing hearing. The
    court, however, found that Lopez “appears that he’s not interested in being
    rehabilitated.” The court also stated, “And because of that, the only thing the court can
    do is remove him from society for a period of time that is justified by the
    circumstances.”
    Citing People v. Jones (2009) 
    178 Cal.App.4th 853
    , 859 [Fourth Dist., Div.
    Two] (Jones) and People v. Gorley (1988) 
    203 Cal.App.3d 498
    , 501, Lopez argues
    “heavy use of or addiction to drugs is a mitigating factor.” Initially, we note Lopez’s
    reliance on Jones is misplaced. In that case, this court did not hold drug addiction is a
    mitigating factor; instead, we found Jones waived his claim that the trial court failed to
    [footnote continued from previous page]
    [Citations.]” (People v. Kronemyer (1987) 
    189 Cal.App.3d 314
    , 366, overruled on
    another ground in People v. Whitmer (2014) 
    59 Cal.4th 733
    , 742.)
    7
    consider additional mitigating factors, “such as his addiction to drugs.” (Jones, at
    p. 859.)
    Although drug and alcohol addiction may be a mitigating factor, it is not always
    a mitigating factor. (See, e.g., People v. Regalado (1980) 
    108 Cal.App.3d 531
    , 538-
    539 (Regalado); People v. Reyes (1987) 
    195 Cal.App.3d 957
    , 963 (Reyes); People v.
    Martinez (1999) 
    71 Cal.App.4th 1502
    , 1510-1511 (Martinez).) In Regalado, the
    appellate court upheld the “sentencing court’s implicit conclusion that defendant’s
    drug use did not influence the commission of the burglary to an extent that ‘partially
    excused’ its commission,” in part because although the defendant’s substance abuse
    problem was a longstanding one, the defendant had failed to take advantage of
    opportunities to address his problem. (Regalado, at p. 539.)
    In a similar vein, the Reyes court held: “As a policy matter, when a defendant
    has a drug addiction or substance abuse problem, where the defendant has failed to
    deal with the problem despite repeated opportunities, where the defendant shows little
    or no motivation to change his life style, and where the substance abuse problem is a
    substantial factor in the commission of crimes, the need to protect the public from
    further crimes by that individual suggests that a longer sentence should be imposed,
    not a shorter sentence. For example, the felony drunk driver who is suffering from an
    uncontrolled alcoholism should be sentenced to a longer term, not a shorter one, in
    order to prevent him from driving under the influence again.” (Reyes, supra, 195
    Cal.App.3d at p. 963.)
    8
    Likewise, the facts of Martinez, supra, 
    71 Cal.App.4th 1502
     are analogous and,
    thus, the reasoning therein applicable to the present case. There, the defendant
    contended his sentence of life imprisonment under the three strikes law violated the
    state constitutional prohibition of cruel or unusual punishment. (Martinez, at
    pp. 1509-1510.) In rejecting the claim, the court pointed out in part that Martinez was
    “a frequent repeat offender who seemingly has not learned from past incarceration. At
    sentencing he acknowledged that in the past dozen years he had averaged about 45
    days between leaving jail and being arrested again. [¶] [Martinez] portrays himself as
    a drug addict and a victim of drugs. The record demonstrates [he] has had lifelong
    problems with alcohol and drugs. However, drug addiction is not necessarily regarded
    as a mitigating factor when a criminal defendant has a long-term problem and seems
    unwilling to pursue treatment. [Citations.] It is notable that [Martinez] appears to
    have become seriously committed to seeking treatment after incarceration on charges
    carrying a life term. [Martinez’s] upbringing and learning disabilities are unfortunate,
    but the law still holds such an individual responsible for his or her behavior.” (Id. at
    pp. 1510-1511.)
    In the present case, the record demonstrates that Lopez is a repeat offender who
    has performed poorly on probation and parole and has failed to take drug treatment
    seriously. He had been given an opportunity to rehabilitate in juvenile detention
    facilities, drug court, treatment facilities, prison, and parole supervision. He was on
    mandatory parole supervision when he committed the present offense. The trial court
    9
    did not abuse its discretion in failing to treat Lopez’s drug addiction as a mitigating
    circumstance.
    Moreover, even if the court erred in failing to identify Lopez’s drug addiction
    as a mitigating circumstance, the error was not prejudicial because there is no
    reasonable probability a more favorable sentence would have been imposed in the
    absence of the error. (People v. Scott (1994) 
    9 Cal.4th 331
    , 355.) Showing the trial
    court made an error in considering a factor in sentencing is not, by itself, a sufficient
    ground for reversal. “Even if a trial court has stated both proper and improper reasons
    for a sentence choice, ‘a reviewing court will set aside the sentence only if it is
    reasonably probable that the trial court would have chosen a lesser sentence had it
    known that some of its reasons were improper.’ ” (Jones, supra, 178 Cal.App.4th at
    p. 861.) As explained ante, in the present case, the mitigating circumstance relied
    upon by Lopez is weakly mitigating at best. Moreover, the record reflects that the trial
    court had that circumstance in mind, even if it did not accept it as a mitigating
    circumstance. In light of the five undisputed aggravating circumstances identified by
    the trial court, any error in identifying mitigating circumstances was harmless. (See
    Jones, supra, 
    178 Cal.App.4th 853
    , 863, fn. 7 [“Only a single aggravating factor is
    necessary to make it lawful for the trial court to impose an aggravated prison term.”];
    People v. Osband (1996) 
    13 Cal.4th 622
    , 732 [A single aggravating factor is sufficient
    to support an upper term.].)
    Based on the foregoing, the trial court’s decision to impose the upper term
    sentence was not an abuse of discretion.
    10
    2.     Staying of Prior Prison Term Enhancement
    Lopez also contends, and the People correctly agree, that the trial court erred in
    staying rather than striking one of his prior prison terms. (§ 667.5, subd. (b).)
    Under section 667.5, subdivision (b), the trial court is required to impose a
    consecutive one-year term for each prior prison term served for any felony. (People v.
    Savedra (1993) 
    15 Cal.App.4th 738
    , 746-747.) Once a prior prison term allegation is
    found true, the trial court must either impose a consecutive one-year enhancement
    term pursuant to section 667.5, subdivision (b), or exercise its discretion to strike the
    allegation pursuant to section 1385. (People v. Langston (2004) 
    33 Cal.4th 1237
    ,
    1241; People v. Garcia (2008) 
    167 Cal.App.4th 1550
    , 1561; People v. Campbell
    (1999) 
    76 Cal.App.4th 305
    , 311; People v. Jones (1992) 
    8 Cal.App.4th 756
    , 758.) The
    failure to do so results in a legally unauthorized sentence. (People v. Bradley (1998)
    
    64 Cal.App.4th 386
    , 390-392.)
    Thus, the staying of the prior prison term enhancement was an unauthorized
    sentence. (See People v. Irvin (1991) 
    230 Cal.App.3d 180
    , 192-193; People v.
    Cattaneo (1990) 
    217 Cal.App.3d 1577
    , 1588-1589.) It is unnecessary to remand the
    matter to the trial court to decide whether to impose or strike the enhancement,
    because it is clear from the court’s comments at the sentencing hearing that the court
    did not intend to impose the term on one of the two prior prison terms. As such, we
    will strike the improperly stayed prior prison term enhancement. (See People v. White
    Eagle (1996) 
    48 Cal.App.4th 1511
    , 1521.)
    11
    B.     Defendant Rocha’s Appeal
    After Rocha appealed, and upon his request, this court appointed counsel to
    represent him. Counsel has filed a brief under the authority of People v. Wende,
    supra, 
    25 Cal.3d 436
     and Anders v. California, 
    supra,
     
    386 U.S. 738
    , setting forth a
    statement of the case, a summary of the facts and potential arguable issues, and
    requesting this court conduct an independent review of the record.
    We offered defendant an opportunity to file a personal supplemental brief. He
    did not file a supplemental brief on the merits. Instead, he filed a one-page letter
    seeking new appellate counsel and to argue his appellate counsel did not represent him
    to the “best of his abilities.” Rocha also notes in his letter that he “strongly believes
    that there were many issues that should of been brought up but were not.”
    A claim of ineffective assistance of appellate counsel requires a showing of
    both deficient performance and prejudice. (In re Reno (2012) 
    55 Cal.4th 428
    , 488.)
    Such a claim may be raised by an indigent defendant represented by appointed
    counsel, and if the appellate court agrees that the appellate attorney failed to raise
    significant meritorious issues, the defendant may be entitled to appointment of new
    counsel on appeal. (People v. Lang (1974) 
    11 Cal.3d 134
    , 139, 142; People v. Rhoden
    (1972) 
    6 Cal.3d 519
    , 529.)
    Having reviewed the entire record, we discern no basis for a claim of
    ineffective assistance of appellate counsel. No error of counsel appears on the face of
    the record, and we will not infer from the mere filing of a Wende brief that counsel’s
    representation fell below professional norms. At the very least, appellate counsel has
    12
    the duty to prepare a brief containing citations to the appellate record and appropriate
    authority. (People v. Feggans (1967) 
    67 Cal.2d 444
    , 447.) Counsel must set forth all
    arguable issues and cannot argue the case against his or her client. (Ibid.) These
    requirements were fulfilled here. Counsel raised the potential issues of whether
    Rocha’s prior prison terms should have been stricken in light of Proposition 47 and
    whether there was sufficient evidence to support the jury’s verdict.
    Failure of “appellate counsel to raise crucial assignments of error, which
    arguably might have resulted in a reversal” deprives an appellant of effective
    assistance of appellate counsel. (In re Smith (1970) 
    3 Cal.3d 192
    , 202-203.)
    However, the fact that appellate counsel followed the procedure set forth in Wende is
    insufficient, by itself, to show appellate counsel has been ineffective.
    We have undertaken an examination of the entire record pursuant to the
    mandate of People v. Kelly (2006) 
    40 Cal.4th 106
    , and we find no arguable error that
    would result in a disposition more favorable to defendant. Accordingly, defendant has
    also failed to meet his burden of proof on the issue of ineffective assistance of
    appellate counsel.
    Nonetheless, we do find a sentencing error, which we will correct by
    modification. As in Lopez’s case, the trial court erred in staying rather than striking
    one of the three prior prison term enhancements. (People v. Langston, supra, 33
    Cal.4th at p. 1241; People v. Campbell, supra, 76 Cal.App.4th at p. 311; People v.
    White Eagle, supra, 48 Cal.App.4th at p. 1521; People v. Savedra, supra, 15
    Cal.App.4th at pp. 746-747; People v. Calhoun (1983) 
    141 Cal.App.3d 117
    , 125-126.)
    13
    As previously noted, although a trial court has the power to strike a prior prison term
    enhancement under section 1385 (People v. Bradley, supra, 64 Cal.App.4th at p. 391,
    fn. 2; Calhoun, at pp. 124-125), a court does not have the power under section 1385 to
    stay a prior prison term enhancement (Calhoun, at pp. 124-125). Thus, the staying of
    one of the three prior prison term enhancements, specifically the prior prison term for
    the 2008 receiving stolen vehicle conviction, was an unauthorized sentence. (See
    People v. Irvin, supra, 230 Cal.App.3d at pp. 192-193.) An unauthorized sentence
    discovered by an appellate court is subject to correction. (People v. White Eagle,
    supra, 48 Cal.App.4th at p. 1521.) It is clear by the trial court’s comments at the
    sentencing hearing that it did not intend to impose the prior prison term enhancement
    for the 2008 vehicle theft conviction. Accordingly, we will order this prior prison term
    enhancement stricken rather than stayed.
    III
    DISPOSITION
    As to Lopez, the improperly stayed prior prison term enhancement is stricken
    rather than stayed. Likewise, in Rocha’s case, the improperly stayed prior prison term
    enhancement is stricken. The clerk of the superior court is directed to amend the
    abstracts of judgment in both Lopez’s and Rocha’s cases and the court’s minute order
    of the December 10, 2014 sentencing hearing in accordance with this opinion and
    forward a copy of the amended abstracts of judgment to the Department of Corrections
    and Rehabilitation.
    14
    The judgments, as so modified, are affirmed.
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS
    RAMIREZ
    P. J.
    We concur:
    HOLLENHORST
    J.
    McKINSTER
    J.
    15
    

Document Info

Docket Number: E062511

Filed Date: 12/23/2015

Precedential Status: Non-Precedential

Modified Date: 12/23/2015