People v. Argueta CA3 ( 2022 )

Filed 10/20/22 P. v. Argueta 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Shasta)
----
THE PEOPLE,
Plaintiff and Respondent, C094139
v. (Super. Ct. Nos. 11F316,
20HB2634)
SERGIO ARGUETA,
Defendant and Appellant.
In 2012, a jury convicted defendant Sergio Argueta of assault by means of force
likely to cause great bodily injury, and battery resulting in serious bodily injury. The trial
court found that defendant had prior strike convictions and a prior prison term, and
sentenced him to a determinate term of one year and an indeterminate term of 25 years to
life in prison. (People v. Argueta (Dec. 10, 2014, C071454) [nonpub. opn.] (Argueta).)
Defendant subsequently petitioned the trial court for resentencing under Penal
Code section 1170.126,1 but the trial court denied resentencing, concluding defendant
posed an unreasonable risk of danger to public safety.
1 Undesignated statutory references are to the Penal Code.
1
On appeal, defendant contends (1) the trial court abused its discretion by denying
resentencing based on his criminal history alone, (2) the trial court made factual mistakes
regarding the circumstances of his current crime, and (3) because the trial court’s denial
was not supported by substantial evidence, it violated his due process rights. Finding no
abuse of discretion, factual mistake or legal error, we will affirm the trial court’s order
denying resentencing.
BACKGROUND
The facts underlying defendant’s convictions are taken from Argueta, supra,
C071454, this court’s unpublished opinion in his previous appeal. We granted
defendant’s motion to incorporate by reference the record on appeal in Argueta.
In 2011, when defendant was 24 years old and on parole, he attacked a security
guard during a fight at a casino. Surveillance footage showed defendant approach the
guard while the guard was engaged with another individual on the ground. Defendant
looked both ways, raised his foot high, and stomped on the back of the guard’s head. A
second man kicked the guard in the face immediately after defendant. A witness
described the second kick as a full-energy foot kick but the guard could not say whether
the stomp or the kick was more powerful. (Argueta, supra, C071454.)
In 2012, a jury found defendant guilty of assault by means of force likely to cause
great bodily injury (§ 245, subd. (a)(1)) and battery resulting in serious bodily injury
(§ 243, subd. (d)). In a bifurcated proceeding, the trial court found true allegations of two
prior violent or serious felony convictions and a prior prison term (§§ 667, subds. (b)-(i),
667.5, subd. (b)). The trial court denied probation and sentenced defendant to state
prison for 25 years to life on the assault conviction due to defendant’s two prior strikes,
plus one year for the prior prison term. The sentence on the battery count was imposed
but stayed pursuant to section 654. This court affirmed the judgment. (Argueta, supra,
C071454.)
2
On July 25, 2014, defendant filed a petition for resentencing under section
1170.126. The trial court granted hearing on the petition, but on December 22, 2014, the
trial court stayed the hearing pending decision by the California Supreme Court in People
v. Atkins (2014) 229 Cal.App.4th 536 [review granted Nov. 12, 2014 (S221786), review
dismissed Oct. 14, 2015, in light of the decision in People v. Johnson (2015) 61 Cal.4th
674].2
When the hearing on his petition was not forthcoming, defendant filed a petition
for writ of habeas corpus in the trial court, requesting a hearing on his resentencing
petition. The trial court granted defendant’s habeas petition on October 19, 2020, ruling
that he was eligible for a hearing. On April 12, 2021, the trial court heard the matter and
denied resentencing, concluding that defendant posed an unreasonable risk of danger to
public safety.
Defendant obtained a certificate of probable cause, and this appeal was fully
briefed in August 2022.
2 In appellant’s opening brief, counsel for appellant writes that after the stay order on
December 22, 2014, defendant’s case “fell through the cracks.” Defendant wrote many
letters to the trial judge asking about the status of his hearing, and the trial judge
responded by letter a number of times. It appears that as late as February 2018, the trial
judge and the deputy public defender believed the Atkins case was still pending in the
California Supreme Court, even though review had been dismissed in 2015. However,
later in 2018 the trial judge indicated she did not know which Atkins case defendant was
referencing. Defendant had to file a habeas petition to finally obtain a hearing. Although
it is problematic and unfortunate that defendant had to wait more than six years for his
hearing, and had to file a habeas petition to finally get one, it appears defendant does not
assert the delay as an issue in this appeal. And given our resolution of his contentions in
this appeal, there is no showing of actionable prejudice.
3
DISCUSSION
I
Defendant contends the trial court abused its discretion by denying resentencing
based on his criminal history.
A
Proposition 36, the Three Strikes Reform Act of 2012, created a procedure for
certain inmates serving an indeterminate third-strike sentence to petition for modification
of their current sentences. (§ 1170.126.) The period to petition for resentencing expired
on November 7, 2014. (§ 1170.126, subd. (b).) Since then, an inmate may only bring a
petition under section 1170.126 based on a showing of good cause. (Ibid.)
Once the trial court determines the inmate is eligible for resentencing, it must
resentence the inmate unless it decides resentencing would pose an unreasonable risk of
danger to public safety. (People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th
1279, 1299.) The determination of whether an inmate currently poses an unreasonable
risk of danger to public safety is a discretionary one, and the facts upon which such a
decision is based must be proven by the People by a preponderance of the evidence.
(§ 1170.126, subd. (f); People v. Frierson (2017) 4 Cal.5th 225, 239.) In making this
decision, the trial court may consider: “(1) The petitioner’s criminal conviction history,
including the type of crimes committed, the extent of injury to victims, the length of prior
prison commitments, and the remoteness of the crimes; [¶] (2) The petitioner’s
disciplinary record and record of rehabilitation while incarcerated; and [¶] (3) Any other
evidence the court, within its discretion, determines to be relevant in deciding whether a
new sentence would result in an unreasonable risk of danger to public safety.”
(§ 1170.126, subd. (g).) But a trial court cannot deny resentencing under section
1170.126 based solely on immutable facts such as a petitioner’s criminal history unless
those facts support the conclusion that the petitioner continues to pose an unreasonable
risk of danger to public safety. (People v. Buford (2016) 4 Cal.App.5th 886, 914.)
4
We review a trial court’s decision under section 1170.126 for abuse of discretion
and review the facts upon which the trial court’s finding of unreasonable risk is based for
substantial evidence. (People v. Frierson, supra, 4 Cal.5th at p. 239; People v. Strother
(2021) 72 Cal.App.5th 563, 571.) “[A] trial court does not abuse its discretion unless its
decision is so irrational or arbitrary that no reasonable person could agree with it.”
(People v. Carmony (2004) 33 Cal.4th 367, 377.)
B
At the hearing on defendant’s petition for resentencing, defendant’s trial counsel
asked the trial court not to focus on defendant’s behavior when he was younger, but
rather the man he has become. The trial court indicated it had reviewed the material
provided to the court, including the information supplied by defense counsel.
The trial court referenced defendant’s criminal history prior to the current offense,
noting that while he was out on bail on charges that involved gangs and possession of a
short-barreled shotgun, he went to a party where there was a fight between gangs and he
stabbed an individual four times. The trial court said defendant was described as the
leader of a group that went to the party and that he violated parole. The trial court also
considered the People’s argument that defendant could do well in a structured prison
environment but could nevertheless commit violent crime upon release into the
community.
The trial court then discussed the seriousness of defendant’s assault on the security
guard. The trial court saw the evidence presented at the trial and personally observed that
the manner in which defendant stomped on the guard could have resulted in a homicide.
The trial court said defendant had suggested it was a kick from another individual that
caused the problem, but in any event, if defendant did connect with victim he was sorry.
The trial court added that while in prison, it appeared defendant engaged in an attack on
another inmate, striking him in the head while he was down. But the trial court said it did
not give much weight to that matter.
5
The trial court noted that more recently, as defendant got older, he participated in
the opportunities available to him in prison. The trial court said that was good for him.
Nevertheless, the trial court denied resentencing, finding that defendant posed an
unreasonable risk of danger to public safety.
C
The record shows that the trial court did not merely consider defendant’s criminal
history. It reviewed and considered materials that had been presented to the court and it
heard argument from counsel. Among other things, it considered defendant’s prior
performance on parole, the seriousness of his assault on the security guard, and his
conduct in prison, including the efforts he made to avail himself of opportunities there.
Moreover, the trial court is presumed to have considered all relevant factors absent an
affirmative record to the contrary. (People v. Myers (1999) 69 Cal.App.4th 305, 310.)
Defendant nevertheless argues the trial court failed to consider that he had not had
any disciplinary violations during his current prison term, instead reaching back more
than 10 years to a disciplinary violation during a prior prison term. He complains that the
trial court misconstrued the record by describing the incident as an assault on a cellmate
when the prison merely categorized it as fighting.
However, the People’s opposition to resentencing and its pertinent exhibit stated
that the incident took place during a prior prison term. And the trial court noted that the
prison had described the incident as fighting. But after reviewing the report, which stated
that defendant struck his cellmate in the head and upper torso while the cellmate was
lying face down on the ground, the trial court said it seemed more like defendant had
attacked the cellmate.
Defendant further argues the trial court minimized his rehabilitative efforts by
stating he availed himself of the opportunities more recently when the law had changed.
The record shows defendant participated in more rehabilitative programming during his
current prison term than he did in his prior prison term. And the trial court said the
6
increase in participation was good for defendant and the trial court was “glad” defendant
was able to do that.
Defendant argues the trial court’s comments turned his efforts at rehabilitation into
a liability. But his focus on isolated remarks misses the broader point the trial court was
making. It was appropriate for the trial court to consider defendant’s rehabilitative efforts
along with other information in exercising its discretion.
In addition, defendant asserts the trial court failed to consider the passage of time
or the changes in defendant’s psychological and mental attitude since 2011. However,
his counsel expressly asked the trial court to consider the man defendant had become and
the trial court indicated affirmatively that it had considered the material provided by
defendant. On this record we must presume the trial court considered the required
factors.
II
Defendant next argues the trial court made factual mistakes regarding the
circumstances of his current crime. But a review of the record shows otherwise.
He contends the trial court erroneously stated he had some sort of thick rasp
instrument and stomped on the security guard more than once. But that is not what the
trial court said. The trial court was suggesting that defendant “stomped” on the security
guard so bad that it was as if defendant had a thick rasp instrument. It was merely an
expression of the severity of the assault; the trial court said “that’s how bad it was.”
Defendant further argues the trial court incorrectly said defendant delivered a full
energy kick to the security guard’s head even though this court’s opinion in Argueta said
the full energy kick was delivered by the second assailant. Again, however, the trial
court was describing the severity of the assault, and this court’s opinion said the security
guard could not say which blow was more powerful. (Argueta, supra, C071454.) The
trial court was aware of the second kick, noting that defendant had claimed that the
second kick was the one that caused the problem.
7
In addition, defendant asserts the trial court’s statement that the security guard
“easily could have been dead” was not supported by evidence because the guard
“suffered a mild concussion and a bruised jaw.” However, the trial court said it saw the
evidence of how defendant stomped on the guard, and it was within its discretion to
conclude that the assault was serious.
Defendant also suggests the trial court believed he would have been charged with
serious and violent felonies but for the passage of Proposition 36. Although the trial
court made remarks about the seriousness of defendant’s assault and changes in the law,
we do not understand the comments to indicate a misunderstanding of applicable law, an
error in fact or law, or an abuse of discretion.
The trial court’s decision was supported by substantial evidence.
III
Defendant further claims that because the trial court’s denial was not supported by
substantial evidence, it violated his due process rights. Having concluded the trial court’s
denial of resentencing was supported by substantial evidence, the contention lacks merit.
DISPOSITION
The trial court’s order denying resentencing is affirmed.
/S/
MAURO, Acting P. J.
We concur:
/S/
HOCH, J.
/S/
BOULWARE EURIE, J.
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