People v. Argueta CA3

Filed 10/20/22 P. v. Argueta CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Shasta) ----

THE PEOPLE,

Plaintiff and Respondent, C094139

v. (Super. Ct. Nos. 11F316, 20HB2634) SERGIO ARGUETA,

Defendant and Appellant.

In 2012, a jury convicted defendant Sergio Argueta of assault by means of force likely to cause great bodily injury, and battery resulting in serious bodily injury. The trial court found that defendant had prior strike convictions and a prior prison term, and sentenced him to a determinate term of one year and an indeterminate term of 25 years to life in prison. (People v. Argueta (Dec. 10, 2014, C071454) [nonpub. opn.] (Argueta).) Defendant subsequently petitioned the trial court for resentencing under Penal Code section 1170.126,1 but the trial court denied resentencing, concluding defendant posed an unreasonable risk of danger to public safety.

1 Undesignated statutory references are to the Penal Code.

1

On appeal, defendant contends (1) the trial court abused its discretion by denying resentencing based on his criminal history alone, (2) the trial court made factual mistakes regarding the circumstances of his current crime, and (3) because the trial court’s denial was not supported by substantial evidence, it violated his due process rights. Finding no abuse of discretion, factual mistake or legal error, we will affirm the trial court’s order denying resentencing. BACKGROUND The facts underlying defendant’s convictions are taken from Argueta, supra, C071454, this court’s unpublished opinion in his previous appeal. We granted defendant’s motion to incorporate by reference the record on appeal in Argueta. In 2011, when defendant was 24 years old and on parole, he attacked a security guard during a fight at a casino. Surveillance footage showed defendant approach the guard while the guard was engaged with another individual on the ground. Defendant looked both ways, raised his foot high, and stomped on the back of the guard’s head. A second man kicked the guard in the face immediately after defendant. A witness described the second kick as a full-energy foot kick but the guard could not say whether the stomp or the kick was more powerful. (Argueta, supra, C071454.) In 2012, a jury found defendant guilty of assault by means of force likely to cause great bodily injury (§ 245, subd. (a)(1)) and battery resulting in serious bodily injury (§ 243, subd. (d)). In a bifurcated proceeding, the trial court found true allegations of two prior violent or serious felony convictions and a prior prison term (§§ 667, subds. (b)-(i), 667.5, subd. (b)). The trial court denied probation and sentenced defendant to state prison for 25 years to life on the assault conviction due to defendant’s two prior strikes, plus one year for the prior prison term. The sentence on the battery count was imposed but stayed pursuant to section 654. This court affirmed the judgment. (Argueta, supra, C071454.)