People v. Briseno CA4/2 ( 2021 )

Filed 7/30/21 P. v. Briseno 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, E075884
v. (Super.Ct.No. INF042283)
RICHARD LUIS BRISENO, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Dean Benjamini, Judge.
Affirmed.
Robert V. Vallandigham, Jr., under appointment by the Court of Appeal, for
Defendant and Appellant.
Matthew Rodriquez, Acting Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, and Arlene A. Sevidal
and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
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In 2003, Richard Luis Briseno pled guilty to carjacking and kidnapping for
purposes of robbery and was sentenced to 33 years in prison. In 2019, the California
Department of Corrections and Rehabilitation (CDCR) recommended recalling and
reducing his sentence based on his exemplary behavior while in prison. (Pen. Code,
§ 1170, subd. (d).) The trial court declined the CDCR’s recommendation. On appeal,
Briseno argues this was an abuse of discretion. We conclude the court’s decision not to
reduce his sentence was reasonable and affirm.
I
FACTS
In 2002, the Riverside County District Attorney charged Briseno with carjacking
(Pen. Code, § 215, subd. (a)), robbery (Pen. Code, § 211), kidnapping for purposes of
robbery with personal use of a firearm (Pen. Code, § 209, subd. (b)(1)), and kidnapping.
(Pen. Code, § 207, subd. (a), unlabeled statutory citations refer to this code.) The
information also alleged Briseno had one prior serious felony conviction (§ 667,
subd. (a))—which qualified as a strike conviction—and that he personally used a firearm
while committing the first three charges. (§§ 667, subds. (c) & (e)(1), 1170.12, subd. (c),
12022.53, subd. (b).)
Briseno pled guilty to carjacking and robbery, and admitted the firearm use
enhancement, prior strike, and prior serious felony. Following the terms of the plea
agreement, the trial court sentenced him to 33 years in prison, composed of nine years for
the carjacking (doubled to 18 due to the prior strike), 10 years for the firearm
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enhancement, and one five-year term from the prior serious felony enhancement. The
sentence also included a 10-year term for the robbery conviction, which the court stayed
under section 654.
In 2019, the Secretary of the CDCR sent the trial court a letter recommending it
recall Briseno’s sentence in accordance with section 1170, subdivision (d). The
prosecution opposed the recommendation, arguing Briseno received the benefit of his
bargained for sentence and was not entitled to resentencing.
The trial court held a hearing on the recommendation on October 6, 2020, and
declined to modify the sentence. Briseno timely appealed.
II
ANALYSIS
Section 1170, subdivision (d)(1), authorizes the court, “at any time upon the
recommendation of the secretary or the Board of Parole Hearings in the case of state
prison inmates . . . [to] recall the sentence and commitment previously ordered and
resentence the defendant in the same manner as if they had not previously been
sentenced, provided the new sentence, if any, is no greater than the initial sentence.”
(§ 1170, subd. (d)(1).) “This provision thus creates ‘an exception to the common law rule
that the court loses resentencing jurisdiction once execution of sentence has begun.’ ”
(People v. Frazier (2020) 55 Cal.App.5th 858, 863.)
“We review the trial court’s decision whether to recall a defendant’s sentence for
an abuse of discretion.” (People v. McCallum (2020) 55 Cal.App.5th 202, 211
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(McCallum).) “ ‘ “Where, as here, a discretionary power is statutorily vested in the trial
court, its exercise of that discretion ‘must not be disturbed on appeal except on a showing
that the court exercised its discretion in an arbitrary, capricious or patently absurd manner
that resulted in a manifest miscarriage of justice. [Citations.]’ ” [Citation.] The abuse of
discretion standard “involves abundant deference” to the court’s ruling.’ ” (Ibid., italics
omitted.)
In exercising this discretion, “the trial court may exercise its authority ‘for any
reason rationally related to lawful sentencing.’ ” (McCallum, supra, 55 Cal.App.5th at
p. 210). It may also “consider ‘postconviction factors, including, but not limited to, the
inmate’s disciplinary record and record of rehabilitation while incarcerated, evidence that
reflects whether age, time served, and diminished physical condition, if any, have
reduced the inmate’s risk for future violence, and evidence that reflects that
circumstances have changed since the inmate’s original sentencing so that the inmate’s
continued incarceration is no longer in the interest of justice.’ ” (Ibid.)
Briseno argues the trial court’s refusal to follow CDCR’s recommendation was an
abuse of discretion because his record while in prison was exemplary. He emphasizes the
fact that for the past five years he has had no gang affiliations and no rule violations. In
short, he argues that the record contains more factors weighing in favor of CDCR’s
recommendation than against.
We agree Briseno’s behavior since his conviction—and particularly since he
renounced his gang affiliation—shows real reform, for which we commend him.
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However, we cannot agree the trial court’s decision not to resentence him was arbitrary,
capricious, or irrational. As the trial court explained, it was uncomfortable shortening
Briseno’s term “given the remarkable life of violence [he] lived up until the time he was
placed in prison avoiding a life term.” The court balanced this against “this period of
what I think is a start of him being reformed for the past five years,” and concluded the
relatively brief period of reform wasn’t sufficient to warrant resentencing. This was
especially true because the conduct underlying his conviction was, in the trial court’s
view, “horrific.” Moreover the court noted Briseno’s negotiated plea let him avoid an
indeterminate life sentence for a determinate term and that he “did save his life by
electing to take a determinant term,” rather than face potential life in prison. Given this,
it concluded that “although I see a tremendous amount of reformation, I also see that
there was a life sentence,” and that it would not “be appropriate at this time to simply
say . . . ‘. . . [y]ou bargained for the [33], but because you’ve done a good job, now
you’re going to be getting out significantly earlier.’ ”
In other words, the court considered several of the factors contemplated by
section 1170, subdivision (d), but concluded they did not weigh in Briseno’s favor given
his record and relatively late reform. Even if we were to disagree with this assessment,
we would not be able to say it was arbitrary or irrational.
Because we conclude the trial court did not abuse its discretion in declining to
resentence Briseno, we do not address the People’s argument that section 1170,
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subdivision (d), does not permit a trial court to modify a sentence entered after a
negotiated plea.
III
DISPOSITION
We affirm.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J.
We concur:
MILLER
Acting P. J.
FIELDS
J.
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