People v. Garcia

320 Cal.Rptr.3d 616

The PEOPLE, Plaintiff and Respondent,

v.Miguel GARCIA, Defendant and Appellant.

B326131

Court of Appeal, Second District, Division 7.

Filed May 1, 2024

APPEAL from an order of the Superior Court of Los Angeles County, Lynne M. Hobbs, Judge. Affirmed with directions. (Los Angeles County Super. Ct. No. BA471405)

Karyn H. Bucur, Laguna Hills, 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, Senior Assistant Attorney General, Idan Ivri and Gabriel Bradley, Deputy Attorneys General, for Plaintiff and Respondent.

FEUER, Acting P. J.

Miguel Garcia appeals from an order after a resentencing hearing pursuant to Penal Code¹ section 1172.75 (retroactively invalidating prior prison term sentence enhancements imposed under former section 667.5, subdivision (b), other than for sexually violent offenses). In 2010 Garcia pleaded no contest to second degree robbery and possession of a firearm by a felon and admitted he personally and intentionally discharged a firearm. Garda’s 12-year sentence included seven one-year prior prison term sentence enhancements pursuant to former section 667.5, subdivision (b). At Garcia’s resentencing hearing, the superior court dismissed the prior prison term enhancements but resentenced Garcia to the same 12-year sentence by imposing the firearm enhancement that had been previously stricken, finding Garcia continued to pose a threat to public safety.

On appeal, Garcia challenges the superior court’s finding under section 1172.75, subdivision (d)(1), that imposition of a lesser sentence would endanger public safety. We review the superior court’s finding that reduction of Garcia’s sentence would endanger public safety, as we do for other determinations of risk in resentencing decisions, for an abuse of discretion. In light of the nature of the offense (an armed robbery in which Garcia fired his gun), Garcia’s multiple prior felony convictions of increasing seriousness, his failure to appear for sentencing, and his participation just two-and-a-half years after his sentencing in a prison riot in which he beat another inmate, the court did not abuse its discretion. However, we direct the court to correct a clerical error in the abstract of judgment to reflect that Garcia was sentenced to a concurrent term of two years on count 2 for possession of a firearm by a felon.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Robbery, Plea, and Sentencing

According to the probation report, on May 28, 2018 Simon Ituraea was working at a recycling center in Los Angeles when a vehicle entered the parking lot and Garcia exited the passenger side carrying a handgun. Garcia approached Ituraea and demanded Ituraea open a padlocked cabinet that served as the recycling center’s cash register. After Ituraea told Garcia there was no money in the cabinet, Garcia walked up to the cabinet and fired four shots at the padlock. Garcia opened the cabinet, removed $1,400 in cash, and returned to the vehicle, which drove off. Responding police officere recovered four 40-caliber shell casings next to the cabinet and two partial casings that were embedded in the cabinet stand. The robbery was captured on security cameras, and Ituraea identified Garcia in a photographic lineup.

The information charged Garcia with second degree robbery (§ 211; count 1) and possession of a firearm by a felon (§ 29800, subdivision (a)(1); count 2). As to count 1, it was specially alleged Garcia personally used and personally and intentionally discharged a firearm (§ 12022.53, subds. (b), (c)). As to both counts, it was also specially alleged Garcia served six prior prison terms within the meaning of former section 667.5, subdivision (b).²

On June 6, 2019 Garcia entered into a negotiated plea under which he pleaded no contest to both counts, admitted to having served seven prior prison terms within the meaning of former section 667.5, subdivision (b),³ and admitted the firearm enhancement allegation under section 12022.53, subdivision (c), "on the condition it will be stricken." Garcia agreed to imposition of a 12-year sentence, which the trial court⁴ imposed on November 26, 2019, comprising the upper term of five years for the robbery on count 1, plus seven one-year enhancements under former section 667.5, subdivision (b).⁵ On count 2, the court sentenced Garcia to the upper term of three years to run concurrently with the sentence on count 1, and the court imposed and struck a 20-year sentence for the section 12022.53, subdivision (c), firearm enhancement.

B. Resentencing Under Section 1172.75

In mid-2022 the superior court recalled Garcia’s sentence and set the case for resentencing under section 1172.75. On September 14 the People filed a brief in opposition to resentencing, arguing there was clear and convincing evidence that imposition of a lesser sentence would endanger public safety. Garcia’s "C-file"⁶ reflected that on March 18, 2022 Garcia participated in a prison riot and attacked another prisoner. Specifically, Garcia and seven other new arrivals to the Sierra Conservation Center prison rushed toward prisoners in the yard of the non-designated programming facility (NDPF),⁷ "causing a riot." Garcia and three other new arrivals hit an inmate on his body, upper torso, and face with their fists. Two corrections officers ordered the attackers to "[g]et [d]own," but they did not comply and continued to fight. The second time the corrections officers gave orders to get down, the attackers complied and got down on the ground. Ultimately, corrections officers used pepper spray to control the situation. Garcia was placed in a segregated unit "for presenting an immediate threat to the safety of others and endangering institution security." When interviewed, Garcia stated, " ‘I am a southsider⁸ and I will continue to commit violence if rehoused on an NDPF yard[.]’ " The institutional classification committee concluded, "Due to [Garcia’s] unwillingness to conform to behavioral expectations of an NDPF, hie unprovoked attack on an inmate he did not previously know of or have any prior interaction with, and statements during the interview, he is determined to be [an] NDPF failure, presents threat to the safety of others and endangers institution security and shall not be rehoused [in the nonsegregated units]."

On September 28, 2022 Garcia filed a response arguing the People failed to present clear and convincing evidence he presented a public safety risk. His C-file showed that on May 25, 2022, two months after the incident at the Sierra Conservation Center, the classification committee at the California City Correctional Facility decided not to impose a violent offender determination based on the "the circumstances of [Garcia’s commitment offense], no injuries noted to the victim," and because Garcia had "minimal history of committing similar offenses." The committee further found Garcia "does not pose a threat to the safety of [p]ublic, [s]taff, and [i]nmates if housed in a minimum support facility or a program in the community." Garcia was approved for a double cell "based on no recent in-cell misconduct or predatory behavior," and he reported he was getting along with his cellmate. Garcia was also deemed eligible for contact visits with minors. Apart from the March 2022 riot and beating, there were no other instances in the C-file raising a public safety concern.

At the September 30, 2022 resentencing hearing, the superior court⁹ found by clear and convincing evidence that Garcia posed a public safety risk based on the "seriousness of the offense as charged, … the fact that [Garcia] had a maximum of 30 years, used a firearm, discharged it, [and] suffered several prior felony convictions that seemed to become more serious in nature." The court also based its finding on Garcia’s "post-conviction behavior such as [his] failure to obey the court in returning for sentencing, engaging in a riot, as well as the allegations of [a] group beating of one individual."

The superior court acknowledged it was required to resentence Garcia because of the invalidity of the one-year prison prior sentence enhancements, but it declined to reduce Garcia’s sentence, finding a public safety risk and noting "the open plea main goal was to get to 12 years." The court resentenced Garcia to an aggregate sentence of 12 years comprising the low term of two years on the robbery count plus 10 years for the lesser included sentence enhancement for personal use of a firearm under section 12022.53, subdivision (b). On count 2 the court sentenced Garcia to the middle term of two years to run concurrently with his sentence on count 1.

Garcia timely appealed.

DISCUSSION

A. Governing Law and Standard of Review

"Prior to January 1, 2020, section 667.5, subdivision (b) required trial courts to impose a one-year sentence enhancement for each true finding on an allegation the defendant had served a separate prior prison term and had not remained free of custody for at least five years. [Citation.] Effective January 1, 2020, Senate Bill No. 136 (2019–2020 Reg. Sess.) (Stats, 2019, ch. 590) … amended section 667.5 by limiting the prior prison term enhancement to only prior terms for sexually violent offenses. [Citations.] Enhancements based on prior prison terms served for other offenses became legally invalid." (People v. Burgess (2022) 86 Cal.App.5th 375, 379-380, 302 Cal.Rptr.3d 461.) The Legislature later enacted Senate Bill No. 483, effective January 1, 2022, to make the changes implemented by Senate Bill No. 136 retroactive by adding former section 1171.1 (now section 1172.75)¹⁰ to the Penal Code. (See Stats. 2021, ch. 728, § 1 ["it is the intent of the Legislature to retroactively apply … Senate Bill 136 … to all persons currently serving a term of incarceration in jail or prison for these repealed sentence enhancements"]; accord, Burgess, at p. 380, ...