People v. Garcia CA4/3 ( 2023 )

Filed 3/17/23 P. v. Garcia CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE
THE PEOPLE,
Plaintiff and Respondent, G061198
v. (Super. Ct. No. 18CF1869)
HENRY GARCIA, OPI NION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Michael
A. Leversen, Judge. Reversed and remanded.
Steven S. Lubliner, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Melissa Mandel and Tami
Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
After a jury found Henry Garcia guilty of committing a carjacking when he
was 24 years old, the trial court sentenced him to the middle term of 5 years. On appeal,
Garcia argues the court failed to apply Penal Code section 1170, subdivision (b)(6),
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which went into effect shortly before his sentencing hearing. Among other things,
section 1170, subdivision (b)(6), requires trial courts to sentence youth offenders, such as
Garcia, to the lower term unless the aggravating circumstances of the offense sufficiently
outweigh the mitigating circumstances – here, Garcia’s age along with potential trauma
he suffered as a child. We find the trial court failed to apply this subdivision when
sentencing Garcia. Thus, we reverse his sentence and remand this matter to the trial court
for resentencing.
I
FACTS AND PROCEDURAL HISTORY
In June 2020, the prosecution filed a two-count information against Garcia
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and codefendant Raymond Ray Romeroalcala relating to an incident that occurred on
July 2, 2018. The information charged them with one count of kidnapping during the
commission of a carjacking (§ 209.5, subd. (a)), and one count of carjacking (§ 215,
subd. (a)).
The evidence at trial showed that on July 2, 2018, Vincente F. parked his
van behind a store to collect cardboard and other recyclables. His wife, Maria Q., who is
blind, was sleeping in the passenger seat. When Vincente F. got out of the van, he left his
keys in the ignition and opened the rear passenger door to load the cardboard through it.
Three men approached him while he was collecting cardboard. One of the men fought
1
All further undesignated statutory references are to the Penal Code.
2
Within the record codefendant’s name appears as Raymond Ray Romeroalcala and
Raymond Romero Alcala. We will refer to codefendant as Raymond Ray Romeroalcala
as listed on the information.
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with Vincente F. to prevent him from getting into the van. Another got into the van and
started the engine. The third man also went straight to the van. The man fighting with
Vincente F. eventually jumped into the van, and the three men drove away with Maria Q.
still inside. Vincente F. began yelling for help. A group of bystanders called the police
and began following the van in their own vehicle.
Meanwhile, Maria Q. heard a commotion but thought it was her husband
returning to the van. When the van sped off she began yelling and was told by one of the
men to “shut up” or “they would kill [her].” Maria Q. eventually heard a helicopter
circling the van from above, which prompted one of the men in the van to say, “‘drive
faster. We’re being followed.’”
The bystanders continued following the van until it stopped near some
apartment complexes. After it stopped, they saw three men flee the vehicle in different
directions. The police arrived on the scene shortly thereafter. Romeroalcala was found
in an alcove in one of the surrounding apartment buildings. An iPhone was found on the
driver’s seat of the van. The number on the phone was linked to Garcia, and Garcia
admitted the phone was his. In March 2019, Vincente F. identified Garcia out of a photo
lineup as the driver of the van.
Following the presentation of evidence, the jury found Romeroalcala and
Garcia not guilty of kidnapping but guilty of the lesser-included offense of false
imprisonment by violence. It also found them both guilty of carjacking. On March 11,
2022, the trial court sentenced Garcia to the middle term of five years for the carjacking
charge with a concurrent two-year sentence for false imprisonment.
Garcia appeals, arguing the court failed to apply section 1170, subdivision
(b)(6), when selecting the five-year middle term. He requests that we vacate his sentence
and remand the matter for resentencing.
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II
DISCUSSION
A. Carjacking Sentence
Prior to 2022, former section 1170 gave the trial court broad discretion to
determine whether to impose the lower, middle, or upper term. (People v. Lopez (2022)
78 Cal.App.5th 459, 464.) Courts could “select the term which, in the court’s discretion,
best serve[d] the interests of justice.” (Former § 1170, subd. (b), Stats. 2020, ch. 29,
§ 15, eff. Aug. 6, 2020.) This discretion was curtailed beginning January 1, 2022, when
section 1170 was amended by Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021,
ch. 731, § 1.3) (Sen. Bill 567). Following the amendment, the middle term became “the
presumptive sentence for a term of imprisonment unless certain circumstances exist.”
(People v. Flores (2022) 73 Cal.App.5th 1032, 1038, fn. omitted.)
Senate Bill 567 also added subdivision (b)(6) to section 1170. (People v.
Flores, supra, 73 Cal.App.5th at pp. 1038-1039.) This subdivision created a presumption
favoring the lower term when, among other things, the defendant was under the age of 26
when the offense was committed or has experienced certain types of trauma. (§ 1170,
subd. (b)(6).) When either of these circumstances apply, the lower term must be applied
“unless the court finds that the aggravating circumstances outweigh the mitigating
circumstances [so] that imposition of the lower term would be contrary to the interests of
justice.” (§ 1170, subd. (b)(6).) The amendments to section 1170 made by Senate Bill
567 apply retroactively to all cases that were not final as of January 1, 2022. (Flores, at
p. 1039; People v. Dunn (2022) 81 Cal.App.5th 394, 403.)
It is undisputed that section 1170, subdivision (b)(6), applies here. Among
other things, Garcia was 24 years old when the carjacking occurred. Garcia also asserts
the record contains evidence showing he suffered childhood trauma. His parents
divorced when he was seven years old. His mother later remarried, and his stepfather
physically abused his mother and siblings for years. Further, Garcia was hit by a car
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when he was eight years old, which caused severe fractures to his skull and left him with
memory problems that persist to this day. Because section 1170, subdivision (b)(6)
applies, Garcia should have been sentenced to the lower term unless the aggravating
circumstances of the carjacking sufficiently outweighed these mitigating circumstances.
Garcia contends the trial court erred by failing to apply this subdivision. We agree.
Though Garcia was sentenced in March 2022, shortly after section 1170, subdivision
(b)(6) had gone into effect, the record indicates the court did not apply it.
To begin, neither Garcia’s sentencing brief nor the prosecution’s sentencing
brief mentioned section 1170, subdivision (b)(6). While Garcia’s sentencing brief argued
the court should consider his age, it did so in the context of Miller v. Alabama (2012) 567
U.S. 460 (Miller), which held that mandatory life sentences for persons under the age of
18 violated the Eighth Amendment. (Id. at p. 465.) Under Miller, Garcia’s brief argued
that his age should be considered in sentencing because juveniles have a less developed
moral sense than adults and are more capable of change than adults. (Citing Id. at
p. 471.) But Garcia never cited section 1170, subdivision (b)(6), let alone discussed how
his age at the time of the offense triggered the lower-term presumption under this
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subdivision.
Likewise, during the sentencing hearing, Garcia’s counsel simply referred
the court to the sentencing brief and never mentioned section 1170, subdivision (b)(6).
While the prosecution noted that section 1170 had been amended, it only stated that “the
law changed in that in order for the court to sentence to the upper term, the aggravating
factors . . . need to be found true by the jury.” Because no such findings had been made,
the prosecution requested that Garcia be sentenced to the middle term. Although the
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The Attorney General does not contend that Garcia has forfeited this argument by
failing to raise it in the trial court. Rather, the Attorney General only contests the merits
of Garcia’s argument. Thus, we do not address whether the argument has been forfeited.
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prosecution should have known that Garcia was 24 years old when the offense occurred,
it never brought section 1170, subdivision (b)(6), to the attention of the court.
Finally, nothing in the court’s pronouncement of Garcia’s sentence
indicates it was aware of section 1170, subdivision (b)(6). As set forth above, this
subdivision requires imposition of the lower term unless doing so “would be contrary to
the interests of justice” because the aggravating circumstances outweigh the mitigating
circumstances. (§ 1170, subd. (b)(6).) Nothing in the record reasonably shows the court
engaged in this analysis. In selecting the five-year middle term, the court explained it
“ha[d] considered [Garcia’s] age, social history, and future prospects for productive life.
[It] also considered the general objectives of sentencing, including protection of society,
deterrence from future criminal conduct, sentencing uniformity, and ensuring the
sentence indicated herein is commensurate with [Garcia’s] behavior in the current case
combined with his or her record. [It] also considered [Garcia’s] age and other factors in
arriving at this sentencing decision.” While the court mentioned Garcia’s age, this
appears to be a response to Garcia’s argument concerning age under Miller, supra, 567
U.S. 460, not a reference to section 1170, subdivision (b)(6).
In response, the Attorney General argues we should apply the general
presumption that the trial court understood and followed applicable law. (Citing People
v. Mosley (1997) 53 Cal.App.4th 489, 496.) However, “‘[i]f the record demonstrates the
trial court was unaware of its discretion or that it misunderstood the scope of its
discretion under the applicable law, the presumption has been rebutted, and the order
must be reversed.’” (Hudson v. Foster (2021) 68 Cal.App.5th 640, 662.)
Here, based on the discussion above, the record sufficiently demonstrates
the court was unaware of the scope of its discretion under section 1170, subdivision
(b)(6). To reiterate, the court’s sentencing pronouncement does not reflect any
understanding that it was required to impose the lower term unless the aggravating
circumstances of the carjacking outweighed Garcia’s youth and the trauma he
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experienced as a child. Further, nothing in any of the briefing or statements made at oral
argument mentioned the court’s limited discretion under section 1170, subdivision (b)(6).
Since the court was unaware of the scope of its discretion, the general presumption
favoring the trial court’s ruling has been rebutted.
Finally, the Attorney General argues that even if the trial court failed to
apply section 1170, subdivision (b)(6), it would have reached the same result had the
statute been applied. We disagree.
“Remand for resentencing is required . . . ‘unless the record “clearly
indicate[s]” that the trial court would have reached the same conclusion “even if it had
been aware that it had such discretion.”’ [Citation.] This is because defendants are
‘“entitled to sentencing decisions made in the exercise of the ‘informed discretion’ of the
sentencing court.”’ [Citation.] A court that is not aware of the scope of its discretionary
powers cannot exercise that ‘informed discretion’ any more than a court whose sentence
may have been based on misinformation regarding a material aspect of the defendant’s
record.” (People v. Gerson (2022) 80 Cal.App.5th 1067, 1096.)
As evident from the discussion above, nothing in the record clearly
indicates the court would have reached the same conclusion. Garcia was still a youth at
the time of the offense. The record also showed he had a turbulent childhood, including
being hit by a car when he was eight years old, which impaired his memory. At the time
of sentencing, Garcia had no prior felony convictions. His only prior arrest occurred in
September 2012 (when he was 18 years old) for challenging another person to fight in
public, which is a misdemeanor. (§ 415, subd. (1).) Further, the evidence indicates
Garcia only drove the van and did not physically fight with Vicente F. Given these facts,
it is unclear whether the court would again sentence Garcia to the middle term of five
years if it applied section 1170, subdivision (b)(6). Due to this uncertainty, remand for
resentencing is required.
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B. Motion to Augment
Initially, Garcia requested that we make two corrections to the abstract of
judgment so that it matched the trial court’s oral pronouncement of his sentence. First,
the court orally sentenced him to an aggregate term of five years, consisting of five years
for the carjacking offense and a concurrent two-year sentence for false imprisonment.
However, the abstract of judgment states Garcia was sentenced to an eight-month
consecutive sentence for false imprisonment, resulting in an aggregate term of five years
and eight months. Second, the abstract of judgment stated Garcia had served 876 actual
days in custody when he had served 976 days. The Attorney General did not oppose
either request.
After appellate briefing was completed, Garcia filed a motion to augment
the record. His motion explained that the abstract of judgment had been corrected by the
trial court, so he was withdrawing his above requests for relief. He sought to augment the
record to include the amended abstract of judgment and the relevant amended minute
orders. The motion to augment is granted, and Garcia’s requests for relief concerning the
abstract of judgment are now moot.
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III
DISPOSITION
Garcia’s sentence is reversed. The matter is remanded for resentencing,
consistent with section 1170, subdivision (b)(6). In all other respects, the judgment is
affirmed.
MOORE, J.
WE CONCUR:
O’LEARY, P. J.
MOTOIKE, J
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