People v. Algarin CA3

Filed 9/6/23 P. v. Algarin CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Yuba) ----

THE PEOPLE, C097102

Plaintiff and Respondent, (Super. Ct. No. CRF191439)

v.

ALEXIS ALGARIN,

Defendant and Appellant.

In 2021, defendant Alexis Algarin appealed his sentence, which included the upper term of four years on one count of assault with a firearm (Pen. Code, § 245, subd. (a)(2))1 and upper term of 10 years on the attendant personal use of a firearm enhancement (§ 12022.5, subd. (a)). This court vacated the sentence and remanded for resentencing consistent with recent amendments to section 1170. (See Senate Bill

1 Undesignated statutory references are to the Penal Code.

1

No. 567 (2021-2022 Reg. Sess.).) Defendant now appeals the sentence on remand, contending that the trial court erred, because the aggravating circumstances that the trial court used to justify reimposing the upper term sentences were not established according to section 1170, subdivision (b). The People concede that remand is appropriate. We will remand for resentencing. I. BACKGROUND2 Defendant and A.L. were rival gang members. In August 2019, defendant fired five to seven shots at A.L.’s vehicle, while A.L. was driving the car with his father and another passenger. Defendant’s lengthy juvenile criminal history began in 2012 and continued through early 2019. This history included a juvenile adjudication for assault, as well as two probation violations. In December 2020, defendant pled no contest to three counts of assault with a firearm (§ 245, subd. (a)(2)) and admitted he personally used a firearm (§ 12022.5, subd. (a)). At the February 2021 sentencing hearing, the trial court found the following aggravating circumstances true: (1) defendant engaged in violent conduct that indicates a danger to society (Cal. Rules of Court, rule 4.421(b)(1));3 (2) defendant’s prior sustained petitions in juvenile proceedings were numerous and of increasing seriousness (rule 4.421(b)(2)); and (3) defendant’s prior performance on probation, mandatory supervision, postrelease community supervision, or parole was unsatisfactory (rule 4.421(b)(5)). The trial court sentenced defendant to an aggregate term of 16 years, comprised of the upper term of four years for one count of assault with a firearm, consecutive one-year terms for