People v. Baltrip CA4/1

Filed 3/28/24 P. v. Baltrip CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D081430

Plaintiff and Respondent,

v. (Super. Ct. No. SCD294912)

JUSTIN ALLEN BALTRIP,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Eugenia A. Eyherabide, Judge. Affirmed. Britton Donaldson, 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, Christopher B. Beesley and Daniel Rogers, Deputy Attorneys General, for Plaintiff and Respondent. MEMORANDUM OPINION A jury found Justin Allen Baltrip guilty of making a criminal threat. Baltrip’s sentencing memorandum claimed that “he suffers from Post

Traumatic Stress Disorder [PTSD]” as a result of a prison term he served in his youth and that this “trauma was a contributing factor to the commission of this offense” such that the lower term presumptively applied under Penal Code section 1170, subdivision (b)(6)(A). No one—not Baltrip, the People, nor the trial court—expressly referenced subdivision (b)(6)(A) during the sentencing hearing. After “consider[ing] the possible circumstances in mitigation as well as the possible circumstances in aggravation,” the court sentenced Baltrip to the middle term of two years in state prison for the offense. On appeal, Baltrip claims that, as the low term presumptively applied, the court abused its discretion by imposing the middle term absent pled and proven aggravating factors outweighing the substantial mitigating factors. We resolve this matter by memorandum opinion (see generally People v. Garcia (2002) 97 Cal.App.4th 847) and affirm. Under recent amendments to section 1170, “the court shall order imposition of the lower term” if one or more specified mitigating circumstances was “a contributing factor in the commission of the offense,” unless the court finds the low term “would be contrary to the interests of justice” because aggravating circumstances outweigh the mitigating circumstances. (§ 1170, subd. (b)(6).) Here, Baltrip claims he “experienced psychological, physical, or childhood trauma,” one of the specified mitigating circumstances. (§ 1170, subd. (b)(6)(A).) According to Baltrip, the word shall in subdivision (b)(6) required the trial court to impose the lower term; in failing to do so, the court abused its discretion. We perceive two flaws in this argument. First, section 1170(b)(6) requires the court to “ma[k]e” “additional factual findings” for the defendant to “qualif[y]” for a presumptive lower