People v. Algarin CA3

Filed 9/6/23 P. v. Algarin CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Yuba)
----
THE PEOPLE, C097102
Plaintiff and Respondent, (Super. Ct. No. CRF191439)
v.
ALEXIS ALGARIN,
Defendant and Appellant.
In 2021, defendant Alexis Algarin appealed his sentence, which included the
upper term of four years on one count of assault with a firearm (Pen. Code, § 245, subd.
(a)(2))1 and upper term of 10 years on the attendant personal use of a firearm
enhancement (§ 12022.5, subd. (a)). This court vacated the sentence and remanded for
resentencing consistent with recent amendments to section 1170. (See Senate Bill
1 Undesignated statutory references are to the Penal Code.
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No. 567 (2021-2022 Reg. Sess.).) Defendant now appeals the sentence on remand,
contending that the trial court erred, because the aggravating circumstances that the trial
court used to justify reimposing the upper term sentences were not established according
to section 1170, subdivision (b). The People concede that remand is appropriate. We
will remand for resentencing.
I. BACKGROUND2
Defendant and A.L. were rival gang members. In August 2019, defendant fired
five to seven shots at A.L.’s vehicle, while A.L. was driving the car with his father and
another passenger. Defendant’s lengthy juvenile criminal history began in 2012 and
continued through early 2019. This history included a juvenile adjudication for assault,
as well as two probation violations.
In December 2020, defendant pled no contest to three counts of assault with a
firearm (§ 245, subd. (a)(2)) and admitted he personally used a firearm (§ 12022.5, subd.
(a)). At the February 2021 sentencing hearing, the trial court found the following
aggravating circumstances true: (1) defendant engaged in violent conduct that indicates a
danger to society (Cal. Rules of Court, rule 4.421(b)(1));3 (2) defendant’s prior sustained
petitions in juvenile proceedings were numerous and of increasing seriousness (rule
4.421(b)(2)); and (3) defendant’s prior performance on probation, mandatory supervision,
postrelease community supervision, or parole was unsatisfactory (rule 4.421(b)(5)). The
trial court sentenced defendant to an aggregate term of 16 years, comprised of the upper
term of four years for one count of assault with a firearm, consecutive one-year terms for
2 The parties stipulated that the pretrial release report and probation report formed the
factual basis of defendant’s plea. We accordingly take the underlying facts from the
instant case and defendant’s criminal history from the pretrial release report and
probation report.
3 Undesignated rule references are to the California Rules of Court.
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the other two counts of assault with a firearm, and the upper term of 10 years for the
firearm enhancement.
Defendant appealed the sentence, arguing that the trial court erred in imposing the
upper term for assault with a firearm and personally using a firearm by impermissibly
engaging in dual use of facts. We remanded for resentencing in light of recent legislative
enactments amending section 1170 (Senate Bill No. 567 (2021-2022 Reg. Sess.)) and
otherwise affirmed the judgment.
On remand, the trial court again imposed the aggregate term of 16 years, including
the upper term of four years for assault with a firearm and the upper term of 10 years for
personal use of a firearm, because “[t]he facts in this case are egregious.” The trial court
stated that it found all the previously identified aggravating circumstances true and that it
was imposing the upper term because of “[t]he facts of this case, in and of themselves,
and the defendant’s record.”
II. DISCUSSION
Defendant contends his sentence must be vacated and the matter remanded for
resentencing, because the facts underlying the aggravating circumstances the trial court
relied on to impose the upper term sentences were not established pursuant to the
amendments to section 1170, subdivision (b). Specifically, defendant argues that he did
not stipulate, and a jury did not find beyond a reasonable doubt, that his violent conduct
indicated a serious danger to society (rule 4.421(b)(1)), and a certified record of
adjudications was not used to establish that his prior sustained petitions in juvenile court
were numerous and of increasing seriousness (rule 4.421(b)(2)). The People concede the
resentencing did not comply with the amendments to section 1170, subdivision (b), so the
matter must be remanded. We will accept the People’s concession and remand for
resentencing.
As relevant here, effective January 1, 2022, Senate Bill No. 567 generally limits
the trial court’s ability to impose the upper term sentence unless aggravating
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circumstances that justify the imposition of a term in excess of the middle term: (1) have
been stipulated to by the defendant; (2) are found true beyond a reasonable doubt by a
jury or the judge in a court trial; or (3) relate to the defendant’s prior adjudications and
are based on a certified record of adjudication. (§ 1170, subd. (b)(1)-(3).) If the
aggravating circumstances that justify the imposition of an upper term are appropriately
proven, the court retains discretion to impose an upper term sentence. (§ 1170, subd.
(b)(1)-(2).)4
Here, it is undisputed that defendant did not stipulate to the underlying facts
supporting the aggravating factors, neither a jury nor a judge found the underlying facts
true beyond a reasonable doubt,5 and defendant’s record of prior adjudications was not
established by certified records. The People concede that remand for resentencing
consistent with amended section 1170, subdivision (b), is appropriate. We accept the
People’s concession and agree with the parties that by relying on circumstances in
aggravation that were not stipulated to, found true beyond a reasonable doubt, or proven
by certified records, the trial court imposed upper term sentences in a manner that does
not comply with amended section 1170, subdivision (b).
4 We note that defendant did not raise any mitigating circumstances under section 1170,
subdivision (b)(6), even though defendant was under 26 years of age at the time the
offense was committed. (§ 1170, subd. (b)(6)(B).) We thus need not address any
mitigating circumstances.
5 We also note that under section 1170, subdivision (b)(2), defendant has a right to a jury
trial on the aggravating circumstances and defendant did not waive this right.
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III. DISPOSITION
The sentence is vacated, and the matter is remanded for resentencing. In all other
respects, the judgment is affirmed.
/S/
RENNER, J.
We concur:
/S/
DUARTE, Acting P. J.
/S/
HORST, J.*
* Judge of the Placer County Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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