People v. Reyes CA2/1

Filed 10/21/21 P. v. Reyes CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
THE PEOPLE, B307248
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA081621)
v.
CARLOS MAURICIO REYES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Alan Schneider, Judge. Affirmed.
Adrian K. Panton, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Scott A. Taryle and David A. Voet, Deputy
Attorneys General, for Plaintiff and Respondent.
____________________________
In defendant and appellant Carlos Mauricio Reyes’s first
appeal, we remanded for the trial court to exercise its newly
enacted discretion whether to strike a firearm enhancement. The
trial court opted to leave the enhancement in place. In this
second appeal, defendant argues the trial court misconstrued the
scope and nature of its discretion in various ways, and thus
misapplied that discretion on remand. Defendant’s arguments
are forfeited for failure to raise them below. On the merits, they
are unsupported by the record and/or fail for lack of prejudicial
error. Accordingly, we affirm.
PROCEDURAL BACKGROUND
A jury convicted defendant of shooting at an occupied motor
vehicle (Pen. Code,1 § 246) (count 1), assault with a firearm
(§ 245, subd. (a)(2)) (count 2), and discharge of a firearm with
gross negligence (§ 246.3, subd. (a)) (count 3). On count 2, the
jury found true the allegation that defendant personally used a
firearm (§§ 1203.06, subd. (a)(1), 12022.5, subd. (a)).
The trial court, the Honorable Susan M. Speer presiding,
sentenced defendant to the high term of four years on count 2,
then added the high term of 10 years for the firearm
enhancement, for a total of 14 years. The trial court imposed but
stayed the sentences on counts 1 and 3 under section 654.
In an unpublished decision, we remanded the matter for
the trial court to exercise its then-recently enacted discretion
whether to strike the section 12022.5 firearm enhancement.
We otherwise affirmed the judgment. (People v. Reyes
(Oct. 4, 2018, B284102) [nonpub. opn.].)
1 Unspecified statutory citations are to the Penal Code.
2
On remand, Judge Speer, outside the presence of defendant
or his counsel, issued a minute order stating that “[t]he matter
has been considered and the court elects to take no action on this
discretionary resentencing option.”
At defendant’s request, the matter was set for further
proceedings. Ultimately, this resulted in a hearing before a
different judge, the Honorable Alan Schneider. In advance of the
hearing, defendant submitted a report from the Department of
Corrections and Rehabilitation concerning his educational
progress in prison, and letters from friends and acquaintances
attesting to defendant’s good character.
At the hearing, Judge Schneider stated he had “read and
considered the transcripts in this matter, the preliminary
hearing transcripts, the appellate court decisions, the briefs,
[and] the probation report.” After hearing the argument of
counsel, he stated that he believed the only matter before him
was the firearm enhancement, and the remainder of the sentence
would remain the same.
Judge Schneider noted that in responding to our remittitur,
Judge Speer, the original sentencing judge, had stated her intent
not to strike the enhancement. Judge Schneider said he
nonetheless “will undertake [my] own independent review
because I believe that the remittitur requires that because of the
defendant’s efforts at rehabilitation. [¶] That being said, having
done that the court would exercise its discretion and not strike
the firearm enhancement in this case.” He explained that
defendant’s “somewhat positive” performance in custody “does
not make for sufficient mitigation to overcome the tremendous
amount of aggravating evidence that came out at trial in this
case . . . .”
3
On the question of what term to impose for the firearm
enhancement, Judge Schneider stated his belief that the only
matter before him was whether to “strike or stay the
enhancement,” and having opted not to do so, his only option was
to impose the same term imposed by the original sentencing
judge, that is, the high term. Judge Schneider nonetheless
proceeded to make his own findings regarding the factors in
aggravation and mitigation, including “the materials submitted
by the defense.”
As circumstances in aggravation, Judge Schneider found
that defendant’s crime was preplanned and sophisticated,
involved great risk of harm to the victim and bystanders, and
reflected “a high degree of viciousness and callousness.”
Judge Schneider further found “the victim was particularly
vulnerable.”2 Judge Schneider found defendant’s limited prior
criminal record and his educational progress in prison were
circumstances in mitigation, but was unconvinced by the letters
attesting to defendant’s good character. Balancing these factors,
Judge Schneider ruled the high term on the firearm enhancement
was appropriate. The sentence therefore remained at 14 years.
Defendant timely appealed.
DISCUSSION
Defendant on appeal argues that Judge Schneider
misconstrued the scope and nature of his discretion in various
ways. First, he argues that Judge Schneider improperly deferred
to Judge Speer’s determination to leave the firearm enhancement
2 Defendant does not challenge the factual bases for
Judge Schneider’s findings in aggravation, and we therefore
do not summarize the supporting evidence.
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in place. Second, he contends Judge Schneider erroneously
believed he could stay, as well as strike, the firearm
enhancement. Finally, he asserts that Judge Schneider did not
realize he had the option to leave the enhancement in place but
strike the penalty for that enhancement. Defendant’s arguments
are forfeited and also lack merit. We discuss each in turn.
Defendant argues that Judge Schneider was “improperly
influenced” by Judge Speer’s statement that she would not
exercise her discretion to strike the firearm enhancement, a
determination Judge Speer reached without giving defendant an
opportunity to be heard on the issue.
Defendant forfeited this objection by not raising it below.
(People v. Wall (2017) 3 Cal.5th 1048, 1075 [“a defendant forfeits
on appeal any ‘claims involving the trial court’s failure to
properly make or articulate its discretionary sentencing choices’
in the absence of objection below”].) Defendant contends any
objection would have been futile because, by referring to
Judge Speer’s decision before issuing his own, Judge Schneider
indicated his mind was already made up to defer to Judge Speer.
Assuming arguendo Judge Schneider indicated an intent to defer
to Judge Speer, we fail to see how the trial court’s mere
statement of the basis for a decision renders futile any attempt to
contest that basis.
The record, moreover, does not support defendant’s
assertion that Judge Schneider deferred to Judge Speer.
Judge Schneider noted Judge Speer’s view of the matter, but
immediately declared that he would “undertake [my] own
independent review.” He expressly based his decision not to
strike the enhancement on the “tremendous amount of
aggravating evidence,” not Judge Speer’s determination.
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Defendant points to Judge Schneider’s statement that he
would conduct an independent review “because I believe that the
remittitur requires that because of the defendant’s efforts at
rehabilitation.” Defendant argues this statement indicates
Judge Schneider believed the only factor he could consider was
defendant’s efforts at rehabilitation, and accordingly,
Judge Schneider did not believe he could reconsider the other
factors that Judge Speer already had decided against defendant.
We reject this interpretation. We read Judge Schneider’s
statement as explaining why he was not deferring to Judge
Speer’s earlier determination, namely, that Judge Speer did not
have before her defendant’s record of rehabilitation, which
defendant submitted after Judge Speer had issued her order. It
does not follow that, in making this statement, Judge Schneider
intended to consider only defendant’s rehabilitation record and
nothing else. Indeed, that conclusion is inconsistent with
Judge Schneider’s statement that he was conducting his “own
independent review,” and his express reference to the
aggravating factors.
Defendant argues Judge Schneider further misunderstood
the scope of his discretion because Judge Schneider referred to
striking or staying the firearm enhancement. Defendant notes,
correctly, that the law does not permit trial courts to stay
enhancements in the interest of justice, only to strike them.
(People v. McQueen (2008) 160 Cal.App.4th 27, 37 [“a court has
no authority to stay an enhancement under its ‘discretionary
sense of justice’ ” but “must either impose it or strike it”];
§ 12022.5, subd. (c) [“The court may, in the interest of justice
pursuant to Section 1385 and at the time of sentencing, strike or
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dismiss an enhancement otherwise required to be imposed by this
section. . . .”].)
Again, defendant forfeited this objection by not raising it
below. Given, moreover, that Judge Schneider did not stay the
firearm enhancement, any misstatement of the law could not
have resulted in an error. Nor can we conceive how his ruling
would have been different had the parties brought to his
attention that he could not stay the enhancement. Judge
Schneider made clear that in his view defendant should serve the
maximum penalty for the enhancement, so it is immaterial
whether he misunderstood the means by which he could have
removed that penalty had he been so inclined. (See People v.
Gutierrez (2014) 58 Cal.4th 1354, 1391 (Gutierrez) [remand
unnecessary when record “ ‘clearly indicate[s]’ ” trial court “would
have reached the same conclusion” had it been aware of the full
scope of its discretion].)
In a similar vein, defendant argues that Judge Schneider
failed to articulate that he had the option to leave the
enhancement in place, but strike the penalty for that
enhancement. (See § 1385, subd. (b)(1) [“If the court has the
authority . . . to strike or dismiss an enhancement, the court may
instead strike the additional punishment for that enhancement
in the furtherance of justice . . . .”].)
Once again, defendant failed to bring this to the trial
court’s attention, and therefore cannot assert it as a basis for
reversal here. Further, the fact that Judge Schneider did not
specifically articulate that he had this discretion does not mean
he was unaware of it; indeed, “[i]n the absence of evidence to the
contrary, we presume that the court ‘knows and applies the
correct statutory and case law.’ [Citations.]” (People v. Thomas
7
(2011) 52 Cal.4th 336, 361.) Also, again, given Judge Schneider’s
unequivocal conclusion that defendant should serve the
maximum penalty for the enhancement, remand would be
pointless even if arguendo he misunderstood his options for
removing the penalty. (Gutierrez, supra, 58 Cal.4th at p. 1391.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
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