People v. Plascencia CA2/6

Filed 5/4/21 P. v. Plascencia CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
THE PEOPLE, 2d Crim. No. B305742
(Super. Ct. No. 19CR10581)
Plaintiff and Respondent, (Santa Barbara County)
v. ORDER MODIFYING
OPINION AND DENYING
TINO PLASCENCIA, REHEARING
[NO CHANGE IN
Defendant and Appellant. JUDGMENT]
THE COURT:
It is ordered that the opinion filed herein on April 19, 2021,
be modified as follows:
1. On page 1, the last sentence of the first paragraph (“We remand with
directions to reduce Plascencia’s probation term, and otherwise affirm.”) is
deleted and replaced with:
We remand to permit Plascencia to show that he is
entitled to a reduction of his probation term, and
otherwise affirm.
2. On page 5, in the first sentence of the first full paragraph, “, and the
Attorney General concedes, that” is deleted so that the sentence reads:
Plascencia contends he is entitled to seek the reduction of his
probation term from five to two years pursuant to Assembly
Bill No. 1950 (2019-2020 Reg. Sess.) (A.B. 1950).
3. On page 5, in the first sentence of the second full paragraph, “Subject
to exceptions not relevant here (see § 1203.1, subd. (m)),” is deleted and the
sentence is modified to read as follows:
Effective January 1, 2021, A.B. 1950 limits the
length of a felony probation term to two years.
(§ 1203.1, subd. (a).)
4. On page 5, the last sentence of the second full paragraph (“He is
therefore entitled to seek a reduction of his probation term on remand. (Sims,
at p. 964.)”) is deleted and replaced with:
He is therefore entitled to have the case remanded
to permit him to show that he falls under none of
A.B. 1950’s exceptions and, if so, to seek a
reduction of his probation term pursuant to the
new law. (Sims, at p. 964.)
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There is no change in judgment.
Respondent’s petition for rehearing is denied.
____________________________________________________________
GILBERT, P. J. PERREN, J. TANGEMAN, J.
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Filed 4/19/21 P. v. Plascencia CA2/6 (unmodified opinion)
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 SIX
THE PEOPLE, 2d Crim. No. B305742
(Super. Ct. No. 19CR10581)
Plaintiff and Respondent, (Santa Barbara County)
v.
TINO PLASCENCIA,
Defendant and Appellant.
A jury convicted Tino Plascencia of false
imprisonment (Pen. Code,1 §§ 236, 237, subd. (a)) and resisting
arrest (§ 148, subd. (a)(1)). The trial court sentenced him to two
years in state prison, suspended execution of the sentence, and
ordered him to serve five years of formal probation. Plascencia
contends: (1) the prosecutor committed misconduct, and (2) his
five-year probation term must be reduced to two years. We
remand with directions to reduce Plascencia’s probation term,
and otherwise affirm.
1 Statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL HISTORY
Plascencia and his girlfriend, S.G., got into an
argument in the parking lot of an apartment complex. A security
guard heard S.G. “let out [a] blood-curdling scream” and called
911. While on the phone, the security guard saw Plascencia carry
S.G. 10 or 15 feet to his truck. The two then left the complex, and
the security guard followed. When police stopped Plascencia a
few blocks away, he got out of his truck and ran. He was arrested
moments later.
Another man at the apartment complex, B.R., also
witnessed Plascencia and S.G.’s argument. He heard Plascencia’s
truck speed off with S.G. screaming inside. B.R. called 911 and
told the dispatcher that it looked like Plascencia had “stuck a
female in the car with him. She was screaming.” Though he did
not see whether Plascencia had forced S.G. into the truck, “it
seemed like” he had. B.R. also said that he thought Plascencia
“might have dragged [S.G.] out of her truck. Maybe it’s
boyfriend/girlfriend, but definitely arguing.” B.R. later told an
investigator that he had heard S.G. “scream[] kind of in a panic.”
During closing arguments, the prosecutor argued
that Plascencia “grabbed” S.G. out of her car and that her
“scream was described by two eyewitnesses as a blood-curdling
scream for help and a scream of panic.” Plascencia objected that
“[t]here was no testimony about a blood-curdling scream.” The
trial court overruled the objection. The prosecutor then clarified
that it was the security guard who characterized S.G.’s scream as
“blood-curdling” and that it was B.R. who heard a “scream of
panic.”
The prosecutor also argued that Plascencia wanted
jurors to “believe . . . his interpretation . . . that [S.G.’s] scream of
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fear, her scream of panic, her struggling, her resisting him for
trying to get out of the car, that should be interpreted as
reasonable consent. [¶] That doesn’t make any sense. Two
reasonable people saw what happened, and two reasonable
people came to the conclusion that this was a kidnap[ping] and
that . . . law enforcement needed to be involved.”
During rebuttal, the prosecutor said that “two
unbiased witnesses who observed the incident . . . reported seeing
. . . a nonconsensual incident between a boyfriend/girlfriend.”
Plascencia objected that B.R. “did not say those things.” The trial
court overruled the objection.
DISCUSSION
Prosecutorial misconduct
Plascencia contends the prosecutor committed
misconduct when she argued that B.R.: (1) heard a scream of
panic when Plascencia “grabbed” S.G., (2) saw S.G. “struggling”
and “resisting [Plascencia] for trying to get out of the car,” and (3)
concluded that this was a kidnapping based on the
“nonconsensual incident between a boyfriend/girlfriend.” But
Plascencia did not object when the prosecutor said that B.R. saw
him grab S.G., or when she said that B.R. saw S.G. struggle and
resist as she tried to get out of the truck, or when she said that
B.R. concluded that he was witnessing a kidnapping. Plascencia
also failed to request that the trial court admonish the jury to
“disregard the perceived impropriet[ies].” (People v. Thornton
(2007) 41 Cal.4th 391, 454.) Those contentions are accordingly
forfeited. (Ibid.)
Plascencia’s contentions also lack merit. “‘A
prosecutor who uses deceptive or reprehensible methods to
persuade the jury commits misconduct.’” (People v. Friend (2009)
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47 Cal.4th 1, 29.) “‘[S]uch actions require reversal under the
federal Constitution when they infect the trial with such
“‘unfairness as to make the resulting conviction a denial of due
process.’” [Citations.]’” (Ibid.) “‘Under state law, a prosecutor
who uses such methods commits misconduct even when those
actions do not result in a fundamentally unfair trial.’ [Citation.]”
(Ibid.)
As to Plascencia’s first claim of misconduct, the
prosecutor’s description of what B.R. heard and saw was a “‘“fair
comment on the evidence.”’” (People v. Thomas (2012) 53 Cal.4th
771, 822 (Thomas).) B.R. told the dispatcher that S.G. appeared
to be “stuck” in a truck with Plascencia and was screaming and
crying inside. He also told the dispatcher that Plascencia “might
have dragged [S.G.] out of her truck.” And he later told an
investigator that he had heard S.G. “scream[] kind of in a panic.”
(Italics added.) The prosecutor’s comments are thus properly
characterized as “‘“reasonable inferences[] or deductions . . .
drawn”’” from B.R.’s 911 call and testimony. (Ibid.)
The same is true regarding Plascencia’s second claim
of misconduct. The prosecutor did not argue that it was B.R. who
saw S.G. “struggling” and “resisting” Plascencia as she tried to
get out of his truck. Rather, that was her own characterization of
the events that transpired in the apartment complex parking lot.
Given the 911 calls and testimony from the security guard and
B.R., the prosecutor’s argument was again a “‘“fair comment on
the evidence.”’” (Thomas, supra, 53 Cal.4th at p. 822.)
So, too, her argument that B.R. concluded that he
had witnessed a kidnapping based on the “nonconsensual
incident between a boyfriend/girlfriend.” B.R. told the 911
dispatcher that Plascencia “might have dragged [S.G.] out of her
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truck.” He said that “it seemed like” Plascencia forced S.G. into
his truck and that she was screaming as he sped away. He also
characterized the incident as “[m]aybe . . . [a]
boyfriend/girlfriend” thing and noted that the two were
“definitely arguing.” The prosecutor’s comments were reasonable
inferences drawn from the evidence provided by B.R. (Thomas,
supra, 53 Cal.4th at p. 822.) No misconduct occurred. (Ibid.)
Probation term
Plascencia contends, and the Attorney General
concedes, that he is entitled to seek the reduction of his probation
term from five to two years pursuant to Assembly Bill No. 1950
(2019-2020 Reg. Sess.) (A.B. 1950). (Stats. 2020, ch. 328, § 2.)
We agree.
Subject to exceptions not relevant here (see § 1203.1,
subd. (m)), effective January 1, 2021, A.B. 1950 limits the length
of a felony probation term to two years (id., subd. (a)). The
provisions of A.B. 1950 apply retroactively to cases not yet final
as of its effective date. (People v. Sims (2021) 59 Cal.App.5th 943,
955-964; People v. Quinn (2021) 59 Cal.App.5th 874, 879-885.)
The trial court here ordered Plascencia to serve a five-year
probation term. His case is not yet final. He is therefore entitled
to seek reduction of his probation term on remand. (Sims, at p.
964.)
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DISPOSITION
The case is remanded for Plascencia to seek a
reduction of his probation term consistent with A.B. 1950. In all
other respects, the judgment is affirmed.
NOT TO BE PUBLISHED.
TANGEMAN, J.
We concur:
GILBERT, P. J.
PERREN, J.
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Patricia L. Kelly, Judge
Superior Court County of Santa Barbara
______________________________
Mi Kim, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Noah P. Hill and Kathy S.
Pomerantz, Deputy Attorneys General, for Plaintiff and
Respondent.