People v. Valenzuela CA6

Filed 9/1/22 P. v. Valenzuela CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H047920 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. CC818758)

v.

JACOB ANTHONY VALENZUELA,

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.) More than six years after defendant Jacob Valenzuela was initially sentenced, his case was returned to the trial court at the request of the Department of Corrections and Rehabilitation to correct an apparent error on the abstract of judgment. The trial court corrected the error and reimposed the original negotiated sentence: a 24-year prison term consisting of nine years for carjacking (Pen. Code, § 215), plus an additional 10 years for a firearm use enhancement (Pen. Code, § 12022.53, subd. (b)); five years for robbery (Pen. Code, § 211) and a 10-year firearm enhancement, to be served concurrently; one year eight months for kidnapping (Pen. Code, § 207) and a three-year four-month term for a firearm enhancement; and four years for assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1) plus a ten-year firearm use enhancement, to be served concurrently.

Defendant contends that in declining to strike the firearm enhancement at his resentencing, the trial court failed to properly exercise its discretion, and that it also imposed fines and fees without conducting a hearing on his ability to pay them. He contends newly enacted legislation giving trial courts greater discretion to consider mitigating factors applies retroactively and he is therefore entitled to be resentenced again under the new standards. Having reviewed the entire record, we find no abuse of discretion in the decision not to strike the firearm enhancement. A trial court has broad discretion when making sentencing choices. (People v. Dryden (2021) 60 Cal.App.5th 1007, 1031.) A sentencing decision will be reversed on appeal only if it is arbitrary or irrational. It is the appellant’s burden to affirmatively demonstrate error, which in this context means we presume the trial court was aware of the scope of its discretion and properly exercised it. (People v. White Eagle (1996) 48 Cal.App.4th 1511, 1523.) The discretion at issue here is conferred by Penal Code section 12022.53, which was amended effective January 1, 2018 to allow trial courts to strike a firearm sentencing enhancement in the interest of justice. (See Sen. Bill 620 (Stats. 2017–2018) ch. 682, §§ 1, 2.) The parties agree the amendment applied to defendant’s resentencing in January 2020. (See People v. Hill (1986) 185 Cal.App.3d 831, 834 [when a case is returned for resentencing by the Department of Corrections and Rehabilitation, the trial court can reconsider all sentencing choices].) Defendant argues the trial court abused its discretion by not considering all factors relevant to deciding whether the interests of justice would be served by striking the enhancement. Specifically, he asserts the court did not consider the good conduct he has displayed since being incarcerated. But applying the presumption that the court was aware of the scope of its discretion and properly exercised it, we find no abuse of discretion occurred. When imposing sentence, the trial court indicated that based on the severity of the crime it was not inclined to strike the enhancement. After noting its impression that this 2