People v. Nieto CA5 ( 2024 )

Filed 9/18/24 P. v. Nieto CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F086475
Plaintiff and Respondent,
(Super. Ct. No. BF110720A)
v.
GUY DANIEL NIETO, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. Elizabet
Rodriguez, Judge.
Robert Navarro, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Joseph Penney,
Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
In 2006, Guy Daniel Nieto (appellant) pleaded no contest to voluntary
manslaughter (Pen. Code, § 192, subd. (a))1 and admitted a use of a deadly weapon
enhancement (§ 12022, subd. (b)), a prior strike allegation (§§ 667, subd. (d)(1), 1170.12,
subd. (b)(1)), and a prior prison term allegation (§ 667.5, subd. (b)). He was sentenced to
24 years in state prison.
In 2022, appellant was recalled for resentencing pursuant to Senate Bill No. 483
(2021-2022 Reg. Sess.) (Stats. 2021, ch. 728, § 3) because his judgment included a now
invalid prior prison term enhancement (§ 667.5, subd. (b)). (§ 1172.75, subd. (a).) At
resentencing, the trial court struck the enhancement, but denied appellant’s request to
dismiss his prior strike, and resentenced appellant to 23 years in state prison.
This appeal is taken from resentencing. Appellant contends the trial court abused
its discretion in declining to dismiss his prior strike conviction in furtherance of justice
pursuant to section 1385, subdivision (a). (See People v. Superior Court (Romero) (1996)
13 Cal.4th 497, 504 (Romero).) We conclude no abuse of discretion occurred. We
affirm.
BACKGROUND
I. Factual Background.
The following factual summary is drawn from the 2006 probation report following
appellant’s plea.
In June 2005, appellant and the victim began arguing about money in front of a
liquor store. They began struggling over the victim’s bicycle. The victim grabbed
appellant by the neck, causing appellant to nearly fall. Appellant then stabbed the victim
multiple times. The victim released his bicycle, and appellant got on it and rode away.
1 All further statutory references are to the Penal Code unless otherwise indicated.
2.
The victim was transported to the hospital. Medical personnel advised that the
victim suffered a stab wound to his neck that cut his carotid artery, and a stab wound to
his chest that punctured his heart. The victim also had a stab wound to his left biceps and
a laceration on his right shoulder and back. He died from his injuries several days later.
A witness saw appellant return to his apartment complex covered in blood with the
victim’s bicycle. The witness heard appellant state that he had stabbed someone who
“would not give me his bicycle.”
Appellant’s 12-year-old niece told law enforcement that appellant came home with
a bicycle. He had blood on his shirt, pants, and shoes. Appellant’s niece stated the next
day another family member came over and took the bicycle apart, leaving only the
wheels behind.
Appellant’s girlfriend told law enforcement that appellant came home covered in
blood. She stated appellant claimed he was assaulted by several subjects, including an
“old man,” who was either assisting the subjects or trying to stop the fight. According to
the girlfriend, appellant was hysterical, and stated he did not mean to stab the “old man.”
Appellant was interviewed by law enforcement. He initially denied knowledge of
the incident. After law enforcement confronted him with the statement of another
witness, appellant admitted to stabbing the victim, but claimed he was acting in self-
defense. He confirmed the victim was unarmed.
II. Appellant’s 2006 Plea and Sentence.
The Kern County District Attorney’s Office filed an information charging
appellant with murder (§ 187, subd. (a); count 1) with robbery-murder special
circumstances (§ 190.2, subd. (a)(17)(A)) and a use of a deadly weapon enhancement
(§ 12022, subd. (b)), and robbery (§§ 211, 212.5, subd. (c); count 2) with a use of a
deadly weapon enhancement (§ 12022, subd. (b)). The People also alleged appellant had
a prior strike conviction (§§ 667, subd. (d)(1), 1170.12, subd. (b)(1)) and served a prior
prison term (§ 667.5, subd. (b)).
3.
At the plea hearing, the trial court granted the People’s motion to amend the
information and add count 3, charging appellant with voluntary manslaughter. (§ 192,
subd. (a).) Appellant pleaded no contest to count 3, and admitted a use of a deadly
weapon enhancement (§ 12022, subd. (b)), a prior strike allegation (§§ 667, subd. (d)(1),
1170.12, subd. (b)(1)), and a prior prison term allegation. (§ 667.5, subd. (b).) The
remaining charges and allegations were dismissed.
The trial court sentenced appellant to the upper term of 11 years on count 3,
doubled to 22 years for his prior strike (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1)), plus
one year for the use of a deadly weapon enhancement and one year for the prior prison
term allegation, for a total sentence of 24 years in state prison.
III. 2022 Resentencing Proceedings.
In 2022, the California Department of Corrections and Rehabilitation (CDCR)
identified appellant as a person in their custody serving a prison term for a judgment that
included a now invalid prior prison term enhancement. (§ 1172.75, subd. (b).) Appellant
filed a petition for resentencing pursuant to section 1172.75, requesting the court dismiss
the prior prison term enhancement. In the resentencing petition, appellant also requested
the court dismiss the prior strike conviction, but did not make any argument in support of
the request or submit records or other evidence.
At the resentencing hearing, appellant submitted on the resentencing petition. The
People introduced a certified copy of appellant’s RAP sheet, which was admitted into
evidence.
The trial court dismissed the prior prison term enhancement in accordance with
section 1172.75, subdivision (a). However, the court declined to dismiss the prior strike
conviction, stating:
“The Court will not exercise its discretion under Penal Code
Section 1385 to strike a strike pursuant to [Romero] based upon the facts
of the case. Here the defendant stabbed the victim, who died from his
injuries. Also, the defendant’s criminal history as an adult began in 2000.
4.
He picked up his strike—first strike offense in December of 2001 for a
[violation of section] 422. He was sentenced to [the] low term of 16
months and violated parole several times after his initial parole date. The
last time he was paroled was May 15 of 2005. The date of this incident
was June 14th, 2005, about one month after he was last paroled.
“In addition, the Court has not received any information as to the
defendant’s rehabilitative efforts while incarcerated in CDCR.”
At the conclusion of the hearing, the trial court resentenced appellant to 23 years
in state prison.
DISCUSSION
I. The Trial Court Did Not Abuse Its Discretion In Declining to Dismiss
Appellant’s Prior Strike Convictions In Furtherance of Justice.
Appellant contends the trial court abused its discretion in denying his Romero
motion. He argues the court failed to consider several relevant factors, including his
youth and the age and nature of his prior strike offense. In the alternative, he claims that
even if the court did consider these factors, the ruling was still an abuse of discretion
because no reasonable person could agree with it. He requests that the matter be
remanded for a new resentencing hearing.
A. Legal Background—Senate Bill No. 483.
Effective January 1, 2022, Senate Bill No. 483 added section 1171.1, later
renumbered section 1172.75, to the Penal Code. Subdivision (a) of that section provides
that effectively any prior prison term enhancement “imposed prior to January 1, 2020 …
is legally invalid.”2
Section 1172.75 also sets forth a procedure for defendants serving a sentence with
a prior prison term enhancement to obtain relief. First, the CDCR must identify such
defendants and notify the court that sentenced them. (§ 1172.75, subd. (b).) Next, the
2 The only exception to this provision is for prior prison term enhancements
“imposed for a prior conviction for a sexually violent offense as defined in
subdivision (b) of Section 6600 of the Welfare and Institutions Code.” (§ 1172.75,
subd. (a).)
5.
sentencing court must review the judgment of each identified defendant and determine
whether it includes a qualifying prior prison term enhancement. (§ 1172.75, subd. (c).)
If so, the sentencing court must recall the sentence and resentence the defendant. (Ibid.)
“By its plain terms, section 1172.75 requires a full resentencing, not merely that
the trial court strike the newly ‘invalid’ enhancements.” (People v. Monroe (2022) 85
Cal.App.5th 393, 402.) Thus, section 1172.75 authorizes the resentencing court to
“revisit all prior sentencing decisions.” (People v. Valenzuela (2019) 7 Cal.5th 415, 424–
425.) The court may also consider “postconviction factors,” including “the disciplinary
record and record of rehabilitation of the defendant while incarcerated, evidence that
reflects whether age, time served, and diminished physical condition, if any, have reduced
the defendant’s risk for future violence, and evidence that reflects that circumstances
have changed since the original sentencing so that continued incarceration is no longer in
the interest of justice.” (§ 1172.75, subd. (d)(3).)
B. Standard of Review—Romero Motion.
In Romero, the California Supreme Court “explained that the ‘power to dismiss an
action,’ … ‘in furtherance of justice’ pursuant to Penal Code section
1385[, subdivision] (a), ‘includes the lesser power to strike ... allegations’ or vacate
findings ‘relevant to sentencing, such as the allegation’ or finding ‘that a defendant has
prior felony convictions.’ ” (People v. Williams (1998) 17 Cal.4th 148, 151 (Williams).)
In ruling on a motion to dismiss a prior serious and/or violent felony under the
“Three Strikes” law, the court must consider the “nature and circumstances” of the
present felonies and prior convictions, as well as the defendant’s “background, character,
and prospects.” (Williams, supra, 17 Cal.4th at p. 161.) The court must then determine
whether the defendant should be considered outside of the spirit of the Three Strikes
sentencing scheme, in whole or in part, and thus should be treated as though he had not
previously been convicted of one or more strike offenses. (Ibid.)
6.
We review an order on a Romero motion for an abuse of discretion. (Williams,
supra, 17 Cal.4th at p. 162.) This review is guided by two fundamental precepts.
(People v. Carmony (2004) 33 Cal.4th 367, 376.) First, the party challenging the
sentence has the burden to clearly demonstrate the sentencing decision was arbitrary or
irrational. (Ibid.) Otherwise, we presume the trial court acted to achieve legitimate
sentencing objectives and will not set aside its discretionary determination to impose a
particular sentence. (Id. at pp. 376–377.) Second, we will not reverse a sentencing
decision merely because reasonable people may disagree. (Id. at p. 377.) “Taken
together, these precepts establish that a trial court does not abuse its discretion unless its
decision is so irrational or arbitrary that no reasonable person could agree with it.” (Ibid.)
C. An Abuse of Discretion Did Not Occur.
The trial court’s denial of appellant’s motion was not irrational or arbitrary. As the
trial court noted, appellant’s conduct in the instant offense was egregious. Appellant
stabbed the victim in the chest and neck and took his bicycle. While appellant claimed he
acted in self-defense, the victim was unarmed. The stabs punctured the victim’s heart and
carotid artery, killing him. The horrific nature of the current offense clearly supports the
trial court’s conclusion that appellant does not fall outside of the spirit of the Three
Strikes sentencing scheme. (See Williams, supra, 17 Cal.4th at p. 161.)
The trial court also reasonably relied on appellant’s prior criminal history.
Appellant became an adult in 2001. In 2002, he received his first strike conviction for
criminal threats (§ 422). He violated parole twice after being released and was on parole
when he committed the current offense in 2005. He also has prior misdemeanor
convictions for illegal weapons possession (former § 12020, subd. (a)), illegal firearms
possession (former § 12025, subd. (b)), and domestic violence (§ 273.5, subd. (a)).
Appellant’s extensive criminal history leading up to his incarceration for the current
offense demonstrates “he is the kind of revolving-door career criminal for whom the
Three Strikes law was devised.” (People v. Gaston (1999) 74 Cal.App.4th 310, 320.)
7.
Appellant relies on his youth at the time of the offenses, noting he was age 19
when he was convicted of the prior strike, and age 22 when he was convicted of the
current offense. He also points out that his prior strike conviction was 21 years old at the
time of the resentencing hearing. We agree with appellant that his youth and the
remoteness of his prior strike were relevant considerations, particularly in light of the
“increasing recognition that young adults are constitutionally different from adults for
sentencing purposes because of their diminished culpability and greater prospects for
reform.” (People v. Avila (2020) 57 Cal.App.5th 1134, 1141–1142.) But given the
severity of the current offense and appellant’s criminal history, we cannot say that the
presence of these factors rendered the trial court’s ruling unreasonable. Moreover,
appellant failed to demonstrate that he has made any effort at rehabilitation while
incarcerated. Instead, the supplemental probation report revealed appellant has been
convicted of four in-prison offenses since his conviction on the current offense. This
undermined appellant’s suggestion that he has reformed his crime committing ways and
should be treated as though he did not have a prior strike offense.
Appellant argues the trial court abused its discretion because it did not mention
appellant’s youth or the remoteness of his prior strike conviction on the record.
According to appellant, this shows the trial court did not consider these factors in denying
his Romero motion. However, “[t]he 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; accord, People v. Edwards (2022) 76 Cal.App.5th 523,
529; People v. Brugman (2021) 62 Cal.App.5th 608, 637.) Thus, the trial court was not
obligated to explain its reasoning as to every relevant factor, and we do not infer that the
court failed to consider certain factors because it did not mention them on the record.
Appellant nonetheless contends that this presumption is inapplicable here because
the relevance of youth as a mitigating factor “has been at the forefront of criminal law
reform.” Appellant provides no authority supporting this assertion. While we recognize
8.
that youth is an important consideration in a Romero motion, so are many other factors,
such as the nature of the current offense, prior convictions, and the defendant’s
background and character. (Williams, supra, 17 Cal.4th at p. 161.) We decline to find an
exception for youth-related factors to the well-established rule that a trial court is not
required to state its reasons for declining to dismiss a prior strike. (In re Large (2007) 41
Cal.4th 538, 550; People v. Carmony, supra, 33 Cal.4th at p. 376.)
Finally, appellant claims the trial court should have considered the factual
background of his strike offense, which he characterizes as “readily ascertainable.” To
the extent that it was, we observe that appellant made no effort to provide such
information at the resentencing hearing. Because there is nothing in the record on appeal
detailing the facts underlying the prior strike conviction, we cannot consider them here.
To conclude, based on the record before this court, we find the trial court’s
decision not to dismiss appellant’s prior strike conviction was not “so irrational or
arbitrary that no reasonable person could agree with it.” (People v. Carmony, supra, 33
Cal.4th at p. 377.) Even if we disagreed with the trial court’s ruling, our role is to
determine whether it abused its discretion, not to substitute its judgment with our own.
Accordingly, appellant has not demonstrated an abuse of discretion, and this claim lacks
merit.
DISPOSITION
The judgment is affirmed.
LEVY, Acting P. J.
WE CONCUR:
PEÑA, J.
MEEHAN, J.
9.