People v. Carmona CA2/8 ( 2023 )

Filed 9/11/23 P. v. Carmona CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B325487
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. NA110859-01
v.
EDUARDO CARMONA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Judith Levey Meyer, Judge. Affirmed.
Miriam K. Billington, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
_________________________
This is an appeal pursuant to People v. Wende (1979)
25 Cal.3d 436. Finding no error, we affirm.
A jury convicted appellant Eduardo Carmona of assault
with a firearm and possession of a firearm by a felon. The jury
also found true allegations that he personally used a handgun
within the meaning of Penal Code section 12022.5, subdivision
(a), and that he personally inflicted great bodily injury upon the
victim within the meaning of Penal Code section 12022.7,
subdivision (a). Carmona waived jury trial on his strike and
serious felony prior convictions and admitted them as alleged in
the information.
At sentencing, the trial court selected the high term of four
years for the assault conviction. This was doubled pursuant to
the Three Strikes law. The trial court selected the low term of
three years for the sentence enhancement under Penal Code
section 12022.5, subdivision (a). It also imposed a three-year
term pursuant to Penal Code section 12022.7 because the victim
was injured. Finally, the court, recognizing its discretion,
imposed a five-year term pursuant to Penal Code section 667,
subdivision (a)(1) (enhancement for conviction of a felony within
five years of serving a prison term) for the protection of the
public.
As for the conviction for possession of a firearm by a felon,
the court imposed the upper term of three years doubled
pursuant to the Three Strikes law and stayed the sentence under
Penal Code section 654. Carmona’s aggregate sentence was
19 years in state prison.
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Carmona appealed and we remanded the case to the trial
court for resentencing because appellant qualified for
consideration under newly enacted Assembly Bill No. 124 (2021–
2022 Reg. Sess.). Assembly Bill No. 124 mandates a presumptive
sentence of low term (unless the court finds that the aggravating
circumstances outweigh the mitigating circumstances) where
“psychological, physical, or childhood trauma, including, but not
limited to abuse, neglect, exploitation, or sexual violence” is a
contributing factor in the commission of the offense. (Stats. 2021,
ch. 695, § 5.3, adding Pen. Code, § 1170, subd. (b)(6).)
On remand, the trial court reduced the upper-term
sentences to mid-term sentences, resulting in an aggregate
sentence of 17 years. The trial court declined to sentence
appellant to the low term because “[t]here are interests of society
that this defendant remained locked up until he does get
whatever help he needs to allow him to be a productive citizen of
society, without him committing violent acts.” The court
continued, “And although I will not give him high term and feel
that if he needs to have additional four years protected from
society, I will give him that extra two as to midterm.” The court
concluded, “I am still going above the presumption of [Assembly
Bill No.] 124, because I still think that this defendant is a danger
to society, based on the nature of the crime and what occurred;
and that he has not availed himself of other opportunities to try
and improve his mental status.”
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Appellant filed a notice of appeal. On June 15, 2023,
counsel for appellant filed an opening brief pursuant to People v.
Wende, asking this court to independently review the record for
error. On June 15, 2023, the court advised appellant of his right
to file a supplemental brief on issues he wants the court to
consider. Appellant has not filed a supplemental brief.
We have examined the record and are satisfied appellant’s
counsel fully complied with her responsibilities and no arguable
issues exist. (People v. Kelly (2006) 40 Cal.4th 106, 109–110;
People v. Wende, supra, 25 Cal.3d at p. 441.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, P. J.
We concur:
WILEY, J.
VIRAMONTES, J.
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