People v. Carrillo CA1/1 ( 2023 )

Filed 6/13/23 P. v. Carrillo CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
A165296
v.
FRANCISCO CARRILLO, (Napa County
Super. Ct. No. 20CR002737)
Defendant and Appellant.
Defendant Francisco Carrillo appeals from a trial court order denying
his motion to treat as a misdemeanor an offense of possession of ammunition
by a prohibited person (ammunition offense) to which he pleaded guilty under
a plea agreement.1 He claims the court abused its discretion in denying his
motion. We disagree and accordingly affirm.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
On October 27, 2020, Carrillo, who was 26-years old, was approached
by a police officer who knew him from prior interactions.2 Carrillo had an
The ammunition offense was brought under Penal Code section
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30305, subdivision (a). All statutory references are to the Penal Code unless
otherwise specified.
2 The parties stipulated to the factual basis of the plea, and the recited
facts are taken from a probation report.
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extensive criminal history, and the officer knew he was on probation. The
officer asked to conduct a body search, and Carrillo consented. The search
produced a plastic bag, which contained a glass pipe, and a single 12-gauge
shotgun shell. Carrillo was prohibited from possessing ammunition as the
result of prior felony convictions. He was charged with the ammunition
offense and with possessing an injection or ingestion device.3 The charges
also sought to revoke his probation and his post-release community
supervision (PRCS) which he was also serving as a result of an earlier
offense.
A preliminary hearing was held in early 2021, and Carrillo asked the
trial court to exercise its discretion under section 17, subdivision (b) (section
17(b)), and treat the ammunition offense as a misdemeanor. The court
denied the motion. Carrillo subsequently pleaded no contest to the
ammunition offense as a felony.
Before being sentenced, Carrillo was arrested and charged with
misdemeanor theft (§ 488, subd. (a)) and misdemeanor resisting a peace
officer (§ 148, subd. (a)(1)). The charges also sought to revoke his probation
and his PRCS. Carrillo was returned to custody, but our record is unclear on
how these charges were resolved.
The first sentencing on the ammunition offense occurred in September
2021. The trial court suspended imposition of the sentence, released Carrillo
from custody for time served, and placed him on probation for two years.
About two weeks after he was released on probation, Carrillo was
charged with felony battery with a serious bodily injury (§ 243, subd. (d)).
The charges also sought to revoke his probation and his PRCS. The petition
3The latter charge was brought under Health & Safety Code, section
11364, subdivision (a).
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to revoke probation alleged that Carrillo had engaged in an unlawful battery
(§ 242) and had failed to submit to chemical testing. The trial court
summarily revoked Carrillo’s probation, but it shortly thereafter reinstated
probation with additional terms.
In January 2022, Carrillo was again arrested. This time he was
charged with resisting a peace officer (§ 148, subd. (a)). The charges once
again sought to revoke his probation and his PRCS. After a hearing, the trial
court sustained the probation violation and set the matter for another
sentencing hearing.
Before the sentencing hearing, Carrillo filed another motion under
section 17(b) asking the trial court to treat the ammunition offense as a
misdemeanor and, “[i]f [n]ecessary,” to reconsider its prior determination at
the preliminary hearing that the offense was a felony. The court denied the
motion, and proceeded with sentencing.
The trial court terminated Carrillo’s probation, imposed the midterm
authorized for the ammunition offense (two years in state prison), and
ordered Carrillo to receive substance-abuse counseling or education. The
court explained that the middle term was the presumptive term, and it
understood that section 1170 mandates the imposition of the lower term
when certain factors apply, such as if the defendant “was a youth . . . during
the commission of the offense.” The court found that none of these factors
applied to the ammunition offense, although it found that the discovery of
only a single shotgun shell was a mitigating circumstance.
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II.
DISCUSSION
A. The Trial Court Did Not Abuse Its Discretion in Declining to
Treat the Ammunition offense as a Misdemeanor.
A charge of possession of ammunition by a prohibited person is a
“wobbler,” meaning it is punishable as either a felony or misdemeanor.
(§ 30305, subd. (a).) Under section 17(b), courts have discretion to treat a
wobbler as either a felony or misdemeanor. Factors relevant in exercising
such discretion include the circumstances of the offense, the defendant’s
appreciation of and attitude toward the offense, the defendant’s character as
evidenced by his or her behavior and demeanor at the trial, and the
defendant’s criminal history. (People v. Mullins (2018) 19 Cal.App.5th 594,
611; People v. Alvarez (1997) 14 Cal.4th 968, 979.) “Section 17(b) allows the
trial court to determine the nature of such an offense at the time of
sentencing or later, namely ‘on application of the defendant or probation
officer’ after the trial court has granted probation ‘without imposition of
sentence.’ (§ 17(b)(3).) ‘[B]ecause each case is different, and should be
treated accordingly, . . . we repose confidence in the discretion of the court to
impose a sentence that is appropriate in light of all relevant circumstances.’ ”
(People v. Tran (2015) 242 Cal.App.4th 877, 887.)
An appellate court reviews a trial court’s decision on how to treat a
wobbler under an “extremely deferential and restrained” abuse of discretion
standard. (People v. Alvarez, supra, 14 Cal.4th at p. 981.) The trial court “is
presumed to have considered all of the relevant factors in the absence of an
affirmative record to the contrary.” (People v. Myers (1999) 69 Cal.App.4th
305, 310.) An appellate court will not disturb the trial court’s decision unless
it is clearly shown to be irrational or arbitrary. (People v. Tran, supra,
242 Cal.App.4th at p. 887.)
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Carrillo advances two main arguments in challenging the trial court’s
denial of his request to have the possession charge treated as a misdemeanor.
First, he points out that many of his prior offenses occurred before he was 26
years old, and he claims that the court disregarded recent legislation
directing courts to be lenient when imposing sentences for crimes committed
during a defendant’s youth. Second, he contends that the court wrongly
treated his recidivism as being singularly dispositive. We are not persuaded.
At the last sentencing hearing, the trial court stated it had reviewed
the felony revocation report and had considered Carrillo’s record. It noted
that Carrillo had been convicted of four prior felonies in addition to various
misdemeanors.4 In its view, Carrillo’s “four felony convictions alone with the
misdemeanor convictions [were] enough to deny the 17(b) based on the
record.” Still, it found other and more specific factors to be relevant:
“[I]t’s pretty clear that Mr. Carrillo doesn’t do very well on
supervision by the Probation Department, or . . . Parole Department, as
well. And has been sentenced to prison numerous times. Had [PRCS]
violations, a number of them, a number of felony offenses. Continually.
“And including, you know, violent offenses. I see a battery from
2021, which is just last year. And the court takes that into
consideration. Under [California Rules of Court,] Rule 4.414 the court
takes into consideration the criteria affecting probation, as well as
looks at the record of violations in this case, and the frequency, and
how close in time those violations occur from Mr. Carrillo getting
released from custody or being placed into a program.
4 Because Carrillo was a minor at the time of many of these offenses,
we refrain from describing them in detail. Suffice it to say, and as the parties
discuss in their briefs, the felonies included a 2013 conviction for carrying a
loaded firearm in public, where the person is an active participant in a
criminal street gang (§ 25850, subd. (c)(3)); a 2016 conviction for failure to
stop at the scene of an injury accident (Veh. Code, § 20001, subd. (a)); and a
2016 conviction for assault with a deadly weapon or with force likely to
produce great bodily injury by a prisoner (§ 4501, subd. (b)).
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“It just doesn’t fit well with Mr. Carrillo, in terms of having any
kind of supervision. He’s currently on [PRCS] in another case with this
probation case. The court looks at the circumstances in aggravation,
including that Mr. Carrillo has served a prior prison term, that he was
on mandatory supervision and PRCS. And the number of petitions, I’ve
already talked about those, including the conduct or the performance
on probation and supervision.
“The court also looks at Rule 4.423, which the Probation
Department didn’t include. But the underlying offense itself, I do
believe that those factors apply. In the sense that it talks about
whether the defendant was [a] passive participant or played a minor
role. I mean this was one shotgun shell, if I recall. One item of
ammunition. That this type of offense can be committed in a much
more significant manner.”
Carrillo maintains that the trial court gave insufficient weight to the
fact that his prior felonies were committed before he was 26. He argues that
“section 17 cannot be considered in a vacuum” and its application should be
guided by a 2022 amendment to section 1170, which added
subdivision (b)(6)(B). (Senate Bill No. 567 (2021–2022 Reg. Sess. (Stats.
2021, ch. 731, § 1.3).) This provision states, “Notwithstanding paragraph (1),
and unless the court finds that the aggravating circumstances outweigh the
mitigating circumstances that imposition of the lower term would be contrary
to the interests of justice, the court shall order imposition of the lower term if
any of the following was a contributing factor in the commission of the offense
. . . (B) The person is a youth, or was a youth as defined under subdivision (b)
of Section 1016.7 at the time of the commission of the offense.”
As we have discussed, the trial court expressly considered and applied
this subdivision when it sentenced Carrillo to the two-year mid-term sentence
for the ammunition offense. Nonetheless, Carrillo argues that the law more
broadly requires courts to consider whether a defendant was a youth at the
time of a prior offense if that offense is considered in relation to imposing a
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sentence for a subsequent offense. According to him, “[i]f youth crimes are
legally mitigated, such crimes cannot aggravate de minimus adult crimes.”
We are unconvinced. Even assuming that section 1170,
subdivision (b)(6)(B) bears on a court’s consideration of whether to treat a
wobbler—committed when the defendant was as an adult—as a felony due to
prior youth offenses, the record here shows that the trial court was fully
aware of and considered Carrillo’s age when he committed his crimes.
Carrillo has pointed to nothing in the record to suggest that the court ignored
that his prior felonies occurred when he was a youth. Moreover, many of
Carrillo’s offenses, including the ammunition and subsequent offenses,
occurred after Carrillo was 26 years old. We reject Carrillo’s characterization
of the repeated adult offenses as “de minimus.”
We also reject Carrillo’s argument that in denying his section 17(b)
motion the trial court impermissibly relied on the 2013 conviction for being a
gang member in possession of a firearm (§ 25850, subd. (c)(3)) because the
law has “changed in [Carrillo]’s favor since his conviction in 2013.” As
Carrillo recognizes in his briefing, the trial court did not rely on the 2013
conviction, at least not to any consequential extent. As he concedes, the
“court focused on [Carrillo]’s recidivism and inability to stay on probation”
and “did not mention [the] 2013 conviction . . . specifically, let alone
emphasize it as the main reason the trial court was denying the 17(b)
motion.”
Carrillo next contends that the trial court erred by relying on his
recidivist status as “singularly dispositive.” Again, we are unconvinced.
Even assuming the questionable premise that courts cannot rely solely on a
defendant’s recidivism when considering a section 17(b) motion, the trial
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court here plainly did not so rely in denying Carrillo’s motion.5 The record
shows the court took into account the seriousness and frequency of Carrillo’s
crimes, Carrillo’s continued and repeated unlawful behavior as an adult, and
Carrillo’s failure to succeed while under non-custodial supervision.
In his reply brief, Carrillo argues for the first time that the trial court’s
denial of his request to treat the possession charge as a misdemeanor
violated newly enacted section 17.2. (Assem. Bill No. 2167 (2022–2023 Reg.
Sess.) § 2, added September 29, 2022.) This provision codifies a legislative
intent for sentencing courts to “consider alternatives to incarceration and use
least restrictive means available.” It states, “(a) It is the intent of the
Legislature that the disposition of any criminal case use the least restrictive
means available. [¶] (b) The court presiding over a criminal matter shall
consider alternatives to incarceration, including, without limitation,
collaborative justice court programs, diversion, restorative justice, and
probation. [¶] (c) The court shall have the discretion to determine the
appropriate sentence according to relevant statutes and the sentencing rules
of the Judicial Council.”
Carrillo’s argument fails even if we assume both that he did not forfeit
it and that section 17.2 is retroactive to nonfinal criminal cases under In re
Estrada (1965) 63 Cal.2d 740. For starters, the record clearly shows that the
trial court did “consider alternatives to incarceration” by repeatedly placing
Carrillo on probation and giving him opportunities to succeed under non-
5At oral argument Carrillo’s counsel insisted that People v. Alvarez,
supra, 14 Cal.4th 968, held that a trial court cannot rely exclusively on a
defendant’s recidivism as “singularly dispositive” (id. at p. 973) in deciding
how to treat a wobbler under section 17(b). We do not read Alvarez to have
reached such a holding since in the same passage it also stressed courts’
continuing “broad authority” under the statute (ibid.), although we need not
and do not decide the question here.
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custodial supervision. Furthermore, Carrillo himself acknowledged that he
had “been struggling on probation” and that “probation ha[d] never helped”
him. Recognizing this, he specifically asked to “get off probation and PRCS”
and to “do extra time.” We reject Carrillo’s appellate counsel’s
characterization of these comments as reflecting an inconsequential “lack of
impulse control” on Carrillo’s part.
Lastly, a remand under a newly enacted law giving trial courts new
sentencing discretion is unnecessary when “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.’ ” (People v. Gutierrez (2014)
58 Cal.4th 1354, 1391.) Here, the record shows that the court would not have
sentenced Carrillo any differently had section 17.2 been in effect at the time
of sentencing. The court carefully considered Carrillo’s request to treat the
ammunition offense as a misdemeanor, and Carrillo presents no reason for us
to believe that the court abused its discretion or might reassess its decision in
light of section 17.2.
III.
DISPOSITION
The trial court’s order denying the section 17(b) motion is affirmed.
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_________________________
Humes, P.J.
WE CONCUR:
_________________________
Margulies, J.
_________________________
Banke, J.
People v. Carrillo A165296
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