People v. Alcantara CA4/1 ( 2020 )

Filed 11/24/20 P. v. Alcantara CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D077148
Plaintiff and Respondent,
v. (Super. Ct. No. SCN315462)
JORGE COLIN ALCANTARA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Aaron H. Katz, Judge. Affirmed.
Charles R. Khoury, Jr., under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney
General, Steve Oetting and Kristen Ramirez, Deputy Attorneys General, for
Plaintiff and Respondent.
This is an appeal from the trial court’s decision not to recall the
sentence under Penal Code1 section 1170, subdivision (d) for the purpose of
striking a serious felony prior conviction (§ 667, subd. (a)(1)).
In July 2013, Jorge Colin Alcantara pleaded guilty to attempted
murder (§§ 187, subd. (a) & 664) as part of a plea agreement with a
stipulated sentence. Alcantara admitted a serious felony prior conviction, a
strike prior, and that he personally inflicted great bodily injury on the victim.
The parties stipulated to an 18-year prison term, which was structured as the
low term for attempted murder, doubled because of the prior strike for
10 years, plus five years for the serious felony prior, and three years for the
great bodily injury enhancement. Alcantara did not appeal his sentence or
seek a certificate of probable cause.
Alcantara contends the trial court did not understand the scope of its
discretion and the case should be remanded to permit the court to exercise
informed discretion.
The People’s response does not address Alcantara’s contention. Rather,
it argues the conviction was final years before Senate Bill No. 1393 (2018-
2018 Reg. Sess.) was enacted, effective January 1, 2019. The argument
continues that Senate Bill No. 1393 does not apply to Alcantara’s case
because the judgment was final and that a recall of the sentence under
section 1170, subdivision (d) does not reopen the judgment for purposes of
retroactive changes in law.
We will disagree with Alcantara’s claim the court was unaware of its
discretion. The court understood its discretion and made a reasoned decision
not to strike the prior conviction. We will decline to reach the People’s
argument in this case. The issue raised is before the Supreme Court
1 All further statutory references are to the Penal Code.
2
(People v. Federico (2020) 50 Cal.App.5th 318, review granted Aug. 26, 2020,
S263082), and the trial court refused to dismiss the prior. We will leave the
question of the intersection of finality of judgments and recalling sentences
under section 1170, subdivision (d) to another day.2
DISCUSSION
I
Procedural Background
Alcantara pleaded guilty to attempted murder in 2013 and admitted a
strike prior, a serious felony prior, and a great bodily injury enhancement.
He was sentenced on December 10, 2013. He did not appeal; thus, his
judgment became final no later than February 8, 2014. (People v. Buycks
(2018) 5 Cal.5th 857, 876, fn. 5.)
In August 2019, the trial court received a letter from the California
Department of Corrections and Rehabilitation (CDCR) recommending recall
of Alcantara’s sentence. Thereafter, Alcantara filed a motion to recall his
sentence for the purposes of striking the serious felony prior. Following
briefing and a hearing, the trial court denied Alcantara’s motion.
II
Alcantara’s Contention
Alcantara argues that the court did not understand that it had
discretion to strike the prior conviction even though it was part of a
stipulated sentence. Thus, Alcantara contends he is entitled to remand
because the judge’s misunderstanding is a “demonstrable error of law” that
amounts to an abuse of discretion. (People v. Duong (2010) 180 Cal.App.4th
1533, 1537.) The difficulty with Alcantara’s position is the court did believe it
2 The facts of the underlying offense are not relevant to the analysis of
the issues on this appeal. We will omit the traditional statement of facts.
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had discretion to strike the prior. The parties all asserted the court had
discretion and the court said earlier in the hearing, “The law has changed in
that where that five-year sentence was mandatory, it is now within the
discretion of the sentencing judge as to whether or not the five years needs to
be imposed.”
During the arguments that followed, the court noted this case involved
a stipulated sentence where the five year prior was an integral part of the
plea agreement. The court reviewed the plea and noted the sentence was
what Alcantara’s attorney felt comfortable with and the prosecution believed
was appropriate. Ultimately, the court, aware of its discretion concluded it
was “inappropriate” to modify the sentence in this case.
III
Analysis
We recognize the People contend the court did not have discretion
because Senate Bill No. 1393 could not be applied to the long-final judgment
in this case. Assuming, for sake of argument, the court did have such
discretion, on the record before us, it is plain the court thought it had the
discretion and undertook to exercise it. After much discussion and
deliberation, the court concluded the sentence arrived at by the parties in
this case was appropriate and should not be disturbed notwithstanding the
letter from CDCR. Certainly, that decision is an exercise of discretion and
well within the sentencing choices available to the court.
As we have previously noted, the People contend the law prevents such
decision; however, here, the outcome is effectively the same in that the court
declined to strike the prior. The Supreme Court has taken up the People’s
issue and will ultimately provide guidance. Therefore, we will affirm the
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decision on the basis Alcantara has not demonstrated error and decline to
discuss the People’s contention.
DISPOSITION
The judgment is affirmed.
HUFFMAN, J.
WE CONCUR:
BENKE, Acting P. J.
IRION, J.
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