People v. Segarra CA6

Filed 7/12/23 P. v. Segarra CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
SIXTH APPELLATE DISTRICT
THE PEOPLE, H049740, H049741, H049742
(Monterey County
Plaintiff and Respondent, Super. Ct. Nos. 21CR008326,
20CR009369, 21CR005100)
v.
ISRAFAEL SEGARRA,
Defendant and Appellant.
MEMORANDUM OPINION
We resolve this case by memorandum opinion under California Standards of
Judicial Administration, Title 8, Standard 8.1. (See also People v. Garcia (2002)
97 Cal.App.4th 847, 853–855.)
Defendant pleaded no contest to charges in two cases, resulting in convictions for
operating a vehicle chop shop (Veh. Code, § 10801); receiving stolen property (Pen.
Code, § 496d, subd. (a)); and attempting to dissuade a witness (Pen. Code, § 136.1). In a
third case a jury convicted him of reckless evasion of a police officer (Veh. Code,
§ 2800.2, subd. (a)) and resisting arrest (Pen. Code, § 148, subd. (a)(1)). For those three
cases defendant was sentenced to an aggregate prison term of three years eight months,
arrived at as follows: The upper term of three years for evading a police officer, and a
concurrent six months for resisting arrest; a consecutive eight months for attempting to
dissuade a witness; a concurrent low term of two years for operating a chop shop; and a
concurrent middle term of two years for receiving stolen property, with one year to be
served on mandatory supervision. Defendant filed notices of appeal in all three cases,
which we ordered considered together.
Defendant contends he is entitled to resentencing under new legislation that
applies retroactively and could reduce his aggregate prison term.1 After he was
sentenced, the Legislature amended Penal Code section 1170 to allow an aggravated term
to be imposed only where the aggravating factors have been admitted by the defendant or
found true at trial. (Sen. Bill No. 567 (2020-2021 Reg. Sess.); Stats. 2021, ch. 731,
§ 1.3.) The new legislation further provides that where the defendant “has experienced
psychological, physical, or childhood trauma” that contributed to the offense, the trial
court must impose the low term, unless aggravating factors outweigh mitigating
circumstances. (Pen. Code, § 1170, subd. (b)(6).) The Attorney General agrees the
ameliorative amendments apply retroactively but argues remand is not required because
defendant was not prejudiced by application of the old standards; that is, his sentence
would not have been more favorable had the new law been applied.
Appellate courts are divided on how to determine prejudice in this situation, and
the issue is pending before the California Supreme Court. (See People v. Dunn (2022)
81 Cal.App.5th 394, rev. granted Oct. 12, 2022, S275655 [if at least one aggravating
factor was found true beyond a reasonable doubt and remaining aggravating factors are
reasonably probable to have been found true, assess likelihood same sentence would be
imposed]; and compare People v. Lopez (2022) 78 Cal.App.5th 459 [if fewer than all
aggravating factors were found true by the jury beyond a reasonable doubt, the record
must clearly show the same sentence would be imposed considering only the factors that
unquestionably would have been found true by the jury] and People v. Flores (2022)
1
Defendant informs us he is no longer in prison but asserts the case is not moot
because reducing his sentence would mean he spent excess time in custody, which could
be credited against his remaining time on post release community supervision. We agree
the appeal is not moot for that reason. (See People v. Warren (2018) 24 Cal.App.5th 899,
919.)
2
75 Cal.App.5th 495, 500 [error harmless if at least one aggravating factor relied on was
found by a jury or unquestionably would have been found by a jury beyond a reasonable
doubt].)
In selecting the upper term of three years for evading a police officer, the trial
court relied on only two aggravating factors: defendant’s prior criminal record, and his
poor performance on probation and parole. Even applying the strictest of the various
approaches to assessing prejudice, we acknowledge that both of those facts would have
been proven true beyond a reasonable doubt based on information readily available in
official records had they been submitted to a jury. (Indeed, under the new law prior
convictions need not be decided by a jury at all if they can be established by a certified
record of conviction. (See Pen. Code, § 1170, subd. (b)(3).)) But satisfactory proof of
the aggravating factors relied on by the trial court is not necessarily dispositive in this
case. As we have noted, the new law also prescribes that the low term be imposed where
the defendant “has experienced psychological, physical, or childhood trauma” that
contributed to the offense and is not outweighed by aggravating factors. (Pen. Code,
§ 1170, subd. (b)(6).) In light of this additional change, we cannot conclude the court
would have imposed the same sentence had the amended law been in effect.
The record here contains information suggestive of possible childhood trauma.
The probation report notes defendant has no contact with his father; could benefit from
grief and loss counseling; and that drugs and alcohol have had a significant effect on his
life. We agree with the Attorney General that those facts do not necessarily establish
childhood trauma. But it is also significant that defense counsel had less incentive to
develop evidence of trauma before this particular law change. Because possible further
evidence establishing trauma could inform the trial court’s exercise of discretion, the
record does not adequately show that the same sentence would have been imposed had
the new law been in place, regardless of which standard is applied to assess prejudice.
We will therefore reverse and remand for resentencing under the current standards.
3
DISPOSITION
The judgment is reversed and the matter remanded for resentencing. Defendant’s
convictions shall remain. On remand, the prosecution may elect to proceed by meeting
the requirements of Penal Code section 1170, subdivision (b)(2) regarding aggravating
circumstances or may elect to proceed on the current record. Defendant shall be allowed
the opportunity to present evidence in mitigation. The trial court shall then resentence
defendant according to the current version of Penal Code section 1170.
4
____________________________________
Grover, J.
WE CONCUR:
____________________________
Greenwood, P. J.
____________________________
Lie, J.
H049740, H049741, H049742
People v. Segarra