People v. Garcia CA4/3

Filed 3/17/23 P. v. Garcia CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G061198

v. (Super. Ct. No. 18CF1869)

HENRY GARCIA, OPI NION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Michael A. Leversen, Judge. Reversed and remanded. Steven S. Lubliner, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Melissa Mandel and Tami Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent. * * *

After a jury found Henry Garcia guilty of committing a carjacking when he was 24 years old, the trial court sentenced him to the middle term of 5 years. On appeal, Garcia argues the court failed to apply Penal Code section 1170, subdivision (b)(6), 1 which went into effect shortly before his sentencing hearing. Among other things, section 1170, subdivision (b)(6), requires trial courts to sentence youth offenders, such as Garcia, to the lower term unless the aggravating circumstances of the offense sufficiently outweigh the mitigating circumstances – here, Garcia’s age along with potential trauma he suffered as a child. We find the trial court failed to apply this subdivision when sentencing Garcia. Thus, we reverse his sentence and remand this matter to the trial court for resentencing.

I FACTS AND PROCEDURAL HISTORY In June 2020, the prosecution filed a two-count information against Garcia 2 and codefendant Raymond Ray Romeroalcala relating to an incident that occurred on July 2, 2018. The information charged them with one count of kidnapping during the commission of a carjacking (§ 209.5, subd. (a)), and one count of carjacking (§ 215, subd. (a)). The evidence at trial showed that on July 2, 2018, Vincente F. parked his van behind a store to collect cardboard and other recyclables. His wife, Maria Q., who is blind, was sleeping in the passenger seat. When Vincente F. got out of the van, he left his keys in the ignition and opened the rear passenger door to load the cardboard through it. Three men approached him while he was collecting cardboard. One of the men fought