People v. Garcia CA5

Filed 10/15/21 P. v. Garcia 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F078898
Plaintiff and Respondent,
(Super. Ct. No. F16902218)
v.
JESSE MANUEL GARCIA, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Fresno County. Houry A.
Sanderson, Judge.
William I. Parks, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jeffrey A.
White, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Jesse Manuel Garcia was convicted of various crimes arising out of an assault and
battery at a bar. The court imposed a Third Strike life sentence and ordered him to pay
certain fines and fees. He now appeals that sentence. We affirm.
BACKGROUND
Charges
The Fresno County District Attorney charged Garcia with three crimes: felony
battery (Pen. Code,1 § 243, subd. (d); Count 1), felony assault (§245, subd. (a)(4);
Count 2), and robbery (§ 211; Count 3). It was further alleged Garcia personally inflicted
great bodily injury (§ 12022.7; Count 2) and suffered various prior convictions. (§§ 667,
subds. (b)-(i), 1170.12, subds. (a)-(d), § 667, subd. (a), & § 667.5, subd. (a)).
Trial Evidence
The incident in this case took place at a bar one evening. At some point a melee
broke out during which one patron was knocked to the ground and suffered a broken
ankle. Multiple staff members identified Garcia as an assailant in the melee, particularly
with respect to the broken ankle victim. As Garcia exited the bar, at least two staff
members followed him outside.
While outside, Garcia snatched the phone from one woman who was attempting to
take a photograph. At the same time, the local police arrived on scene. Garcia fled,
smashed the phone, and was subsequently detained and arrested.
Verdict and Sentence
The jury found Garcia guilty as charged. The trial court found the prior conviction
allegations true in a bifurcated proceeding. Garcia was sentenced to serve 53 years to life
in prison. He was also ordered to pay $10,000, $120, and $90 in separate fines and fees.2
ANALYSIS
Garcia argues “the court’s failure to dismiss the prior strike offense must be
viewed as an abuse of discretion, and may also amount to a denial of constitutional due
1 All statutory references are to the Penal Code.
2These fines were imposed pursuant to sections 1202.4, 1465.8, and Government
Code, section 70373, respectively.
2.
process.” He also contends “[i]mposition of … assessments and fines absent an ability to
pay determination violates due process under the state and federal constitutions ….” We
discern no error or constitutional violation.
I. Three Strikes Sentence Properly Imposed
In attacking the sentence, Garcia claims the trial court “[i]gnor[ed]” his
“ ‘background, character and prospects.’ ” He asserts “the court apparently chose to
discount all the factors related to [his] personal circumstance.” The record does not
support his contention.
A. Additional Background
At the sentencing hearing, defense counsel informed the court,
“[A]s Mr. Garcia wrote to the Court, at the time that this
happened he was gainfully employed. He owned his own
house. He was engaged. And leading up to this point he was
helping to raise his niece and nephew. He was involved with
the church volunteer work. It appeared Mr. Garcia was trying
to do what he can do to set himself straight.”
Counsel ultimately sought a 25 or 30-year sentence.
The court pointed out Garcia was released from prison approximately 18 months
prior to this incident. The prosecutor added, “Garcia was absconding from parole when
this offense occurred ….”
The court preceded pronouncing judgment with the following comments:
“Mr. Garcia, your comments both to the probation officer and
in your letter, obviously, do not necessarily refer to much of
any remorse on your part as to the victim in question. I
understand you like your family. You care for your family.
You love your family members, and you want to be there for
them. But you don’t seem to have the same empathy for
someone else’s family. It’s really interesting how people are
always more interested in what’s theirs rather than have
similar feelings for someone else’s family member. If that
was your family member on the floor being kicked, you
probably wouldn’t have liked that. But if someone else’s
3.
family member, it doesn’t seem to [faze] you. And you try to
explain it by saying things like you’ve been in high maximum
prisons and things would have been much worse had it been
you truly involved in this incident. Which again, shows a
callous lack of interest and care and sympathy for anyone
else, let alone empathy. I don’t find that in your words or
letter outside of your self-centered interest of your own
immediate family. And that’s fine to have care and concern
for your immediate family members. But your lifestyle has
shown that you have never learned to extend that to anybody,
but yourself and or those immediate family members of
yours. Even the woman that you did care for years ago, you
did not take her life to be important enough to not abuse it to
the point where you were convicted and sentenced to prison
for 22 years. That’s a long prison commitment, sir. You
didn’t learn a whole lot from that. When you came out, you
didn’t live the parole appropriate lifestyle. Not only did you
abscond, you put yourself in positions where you made poor
choices because of the alcohol, because of the emotional
status of more aggravated and excitement that could come out
of those kind of settings. You certainly have not shown that
you learned much at all from having the opportunity to have
lived in a free society.”
A Third Strike life sentence was subsequently imposed.3
B. Analysis
“ ‘[I]n ruling whether to strike or vacate a prior serious and/or violent felony
conviction allegation or finding under the Three Strikes law, on its own motion, “in
furtherance of justice” pursuant to Penal Code section 1385(a), or in reviewing such a
ruling, the court in question must consider whether, in light of the nature and
circumstances of his present felonies and prior serious and/or violent felony convictions,
and the particulars of his background, character, and prospects, the defendant may be
deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as
3 The court did strike the five-year prior serious felony enhancements. (§ 667,
subd. (a).)
4.
though he had not previously been convicted of one or more serious and/or violent
felonies.’ ” (People v. Carmony (2004) 33 Cal.4th 367, 377 (Carmony).)
“Thus, the three strikes law not only establishes a sentencing norm, it carefully
circumscribes the trial court’s power to depart from this norm and requires the court to
explicitly justify its decision to do so. In doing so, the law creates a strong presumption
that any sentence that conforms to these sentencing norms is both rational and proper.”
(Carmony, supra, 33 Cal.4th at p. 378.)
The trial court’s decision, one way or the other, is reviewed for abuse of
discretion. “In reviewing for abuse of discretion, we are guided by two fundamental
precepts. First, ‘ “[t]he burden is on the party attacking the sentence to clearly show that
the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a
showing, the trial court is presumed to have acted to achieve legitimate sentencing
objectives, and its discretionary determination to impose a particular sentence will not be
set aside on review.” ’ [Citation.] Second, a ‘ “decision will not be reversed merely
because reasonable people might disagree. ‘An appellate tribunal is neither authorized
nor warranted in substituting its judgment for the judgment of the trial
judge.’ ” ’ [Citation.] 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.” (Carmony, supra, 33 Cal.4th at pp. 376–377; People v.
McDowell (2012) 54 Cal.4th 395, 430.) “[A] trial court will only abuse its discretion in
failing to strike a prior felony conviction allegation in limited circumstances.” (Carmony,
supra, 33 Cal.4th at p. 378.)
This case does not present exceptional circumstances. The trial court found
Garcia was dangerous to society, engaged in violent conduct, repeatedly violated the law
with increasing severity, absconded from parole at the time of this offense, had
previously failed to comply with supervision, and lacked remorse. These findings are all
reasonable.
5.
Lack of remorse, in this case, is a fact the court found particularly concerning and,
because that fact is based on the trial court’s personal observations, it is a finding
uniquely within its province. We are loath to discredit it and substitute our own
resolution. It is true that Garcia submitted evidence relating his future prospects.
Nonetheless, on balance we cannot conclude the decision to impose a Three Strikes
sentence in this case was arbitrary, capricious, or irrational as a matter of law.
Finally, Garcia claims the court ignored certain individualized factors relating to
him. There is nothing in the record to indicate the court ignored any argument or
evidence. The absence of a trial court’s line-by-line reasoning does not overcome the
presumption it acted lawfully. (Carmony, supra, 33 Cal.4th at pp. 376–377; see People v.
Stowell (2003) 31 Cal.4th 1107, 1114 [“where a statement of reasons is not required and
the record is silent, a reviewing court will presume the trial court had a proper basis for a
particular finding or order.”].) Garcia has failed to meet his burden to prove an abuse of
discretion.4
II. Fines and Fees Properly Imposed
“[A] defendant bears the burden of proof on [ability to pay]. [Citations.] Thus, …
upon proper objection, the court must hold a hearing at which defendant will have an
opportunity to bear his burden of proof on the issue of ability to pay.” (People v.
Cowan (2020) 47 Cal.App.5th 32, 49-50 (Cowan).) “[A] defendant forfeits a challenge
to the trial court’s imposition of a restitution fine above the statutory minimum for failing
to consider his or her ability to pay if the defendant did not object in the trial court.”
(People v. Smith (2020) 46 Cal.App.5th 375, 395.)
Here, “[b]ecause the $10,000 restitution fine the trial court imposed far exceeded
the statutory minimum of $300, [Garcia] had the opportunity to argue he was unable to
4 We note Garcia mentions a constitutional due process violation but makes no
effort to describe the violation. “ ‘ “ ‘[W]e treat the point as waived.’ ” ’ ” (Hoffman v.
Young (2020) 56 Cal.App.5th 1021, 1029.)
6.
pay it, but he did not. By failing to object and argue he did not have the ability to pay
the… restitution fine, [Garcia] forfeited the argument the court violated his constitutional
rights by imposing the fine without considering his ability to pay.”5 (People v.
Montelongo (2020) 55 Cal.App.5th 1016, 1033.) “By failing to object to the $10,000
restitution fine … [Garcia] left no doubt he would not have challenged the much lower
assessments ….” (Id. at p. 1034.) Accordingly, there is no due process error.
DISPOSITION
The judgment is affirmed.
SNAUFFER, J.
WE CONCUR:
HILL, P. J.
SMITH, J.
5 In setting a restitution fine above the statutory minimum, a trial court is required
to consider “the defendant’s inability to pay ...” (§ 1202.4, subd. (d).)
7.