People v. Avalos CA5

Filed 5/28/21 P. v. Avalos 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE PEOPLE, F079734 Plaintiff and Respondent, (Super. Ct. No. F13900807) v.

ANGEL R. AVALOS, OPINION Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Fresno County. James A. Kelley, Judge. Nicholas James Seymour, 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, Darren K. Indermill and John Merritt, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo- Angel R. Avalos is currently serving a 25-year prison sentence. Ten years of that sentence is due to a firearm enhancement. After the Legislature enacted Senate Bill No. 620 (2017-2018 Reg. Sess., stats. 2017, ch. 682) (SB 620), the Secretary of the

California Department of Corrections and Rehabilitation (CDCR) recommended the trial court recall Avalos’s sentence and resentence him in light of its newly conferred discretion to strike firearm enhancements. The trial court declined the recommendation and Avalos now appeals that decision. We affirm. BACKGROUND Avalos pled no contest to robbery (Pen. Code,1 § 211), active participation in a gang (§ 186.22, subd. (a)), and illegal possession of a firearm (§ 29800, subd. (a)). He also admitted gang-related crime and firearm enhancements. (§§ 186.22, subd. (b) & 12022.53, subd. (b)). He was sentenced to serve 25 years in prison. Ten years of that sentence was due to the firearm enhancement. At the time of the plea, trial courts had no discretion to strike firearm enhancements. Several years after the plea, the Legislature enacted SB 620 to confer upon trial courts discretion to strike firearm enhancements. On this basis, the CDCR Secretary recommended the trial court recall Avalos’s sentence. The Secretary’s recommendation included a “cumulative case summary and evaluation report pursuant to the provisions of Penal Code section 1170(d).” The summary “present[ed] case factors that are applicable pursuant to the recommendation ….” These factors detailed Avalos’s “institutional adjustment,” “self help activities,” and “support.” The court subsequently declined to recall the sentence. In a letter written to the Secretary, the court explained it “read and considered the [recommendation] and the attachments thereto. [It found], based on the facts presented regarding both the defendant and the offense at the time of sentencing, the court, if it had discretion to strike the allegation pursuant to P.C. 12022.53(b), would not have exercised such discretion to strike or stay the punishment for the firearm enhancement.”