People v. Mota CA4/2

• Court: California Court of Appeal
• Decided: November 28, 2023
• Docket: E079971
• Status: Unpublished

Opinion

Filed 11/28/23 P. v. Mota CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE,

Plaintiff and Respondent, E079971

v. (Super.Ct.No. RIF74296)

SALVADOR GARCIA MOTA, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.

Affirmed.

Arielle Bases, 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, Collette C. Cavalier and

Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.

1 At a resentencing hearing pursuant to Penal Code section 1172.75,1 the court

denied defendant and appellant’s, Salvador Garcia Mota, motion to strike his prior strike

conviction findings pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497

(Romero). On appeal, defendant contends the court abused its discretion. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND2

On July 31, 1978, the victim sat in a parked car waiting for friends. After her

friends got into the car and her boyfriend turned on the ignition, defendant and his

companion, armed with a revolver and a knife respectively, approached the car. After

robbing the occupants of their valuables, they opened the car door and pulled the victim

out. While defendant held his revolver to the victim’s back, he and his companion led

her to a waiting van. (People v. Mota (1981) 115 Cal.App.3d 227, 230 (Mota II).)

Once in the van, defendant and his companion forced the victim to lie on a

mattress. Defendant, his companion, and another man then subjected her to multiple acts

of forced sexual intercourse. While defendant was engaged in intercourse, the other two

men fondled her breasts and genitals. (Mota II, supra, 115 Cal.App.3d at p. 230.)

They then drove the van to a secluded area. At approximately 1:00 a.m. on

August 1, a security officer observed the parked van and approached to investigate. The

1 All further statutory references are to the Penal Code unless otherwise stated.

2 On the court’s own motion, we take judicial notice of our prior nonpublished opinion in defendant’s appeal from the original judgment, which was attached to the People’s opposition to defendant’s Romero motion. (People v. Mota (June 25, 1999, E023277) [nonpub. opn.] (Mota I).) (Evid. Code, §§ 452, 459; Cal. Rules of Court, rule 8.1115(b).)

2 van sped off; the officer pursued and eventually succeeded in getting the van to pull over.

The victim “jumped out of the van and ran to the officer, exclaiming, ‘Thank God, you

saved my life. I’ve just been raped.’ ” (Mota II, supra, 115 Cal.App.3d at p. 230.)

The driver was immediately arrested; defendant and his companion were

apprehended at the location to which they had fled when the van stopped. “A subsequent

search of the van revealed a loaded revolver, two knives, the items taken in the robbery,

and [the victim’s] pantyhose.” (Mota II, supra, 115 Cal.App.3d at p. 231.)

A jury convicted defendant of kidnapping (former § 207, count 1), three counts of

robbery (§ 211, counts 3 through 5), and three counts of rape (former § 261, subds. 2, 3,

counts 6 through 8.). The jury additionally found true enhancement allegations that

defendant used a firearm (former §§ 12022.5 & 1203.06, subd. (a)(1)) and that a principal

was armed with a firearm (former § 12022, subd. (a)) in the commission of the

kidnapping and robberies. The court sentenced defendant to prison for 12 years.

(Mota II, supra, 115 Cal.App.3d at pp. 229-230.)

Defendant appealed. The appellate court modified defendant’s sentence by

reducing it from 12 to 10 years of imprisonment. The appellate court otherwise affirmed

the judgment. (Mota II, supra, 115 Cal.App.3d at p. 235.)

“On May 16, 1997, defendant was apprehended while shoplifting a pair of jeans

from a Mervyn’s store in Corona.” A jury found defendant guilty of petty theft with a

prior conviction. (Former § 666, count 1.) The court thereafter found true allegations

that defendant had suffered five prior strike convictions (former §§ 667, subds. (c) & (e),

3 1170.12, subd. (c)), and a prior prison term (former § 667.5, subd. (b)). The court

sentenced defendant to a term of 25 years to life plus 1 year for the prior prison term.

(Mota I, supra, E023277.)

Defendant appealed, contending, as pertinent here, that the court abused its

discretion in refusing to grant his Romero motion. Defendant had asked the court below,

and this court, to consider the following factors: “(1) the current offense was neither

violent nor serious, and the merchandise was returned to the store; (2) . . . defendant’s

prior convictions arose out of a single case over 19 years [earlier]; (3) defendant was

young when he committed the crimes;[3] and (4) his behavior since the priors has not been

‘serious.’ ” (Mota I, supra, E023277.)

This court rejected defendant’s contention, noting defendant had been convicted of

five felonies in 1978. “After being discharged from state prison in 1986, defendant

continued his criminal activities. Between the years of 1989 and 1992, defendant was

consecutively convicted of misdemeanor charges. Even while in jail in 1992, defendant

received a conviction for possession of a controlled substance by a prisoner. During his

probation period, defendant committed a new crime and was sent to state prison, where

he remained until 1995. In other words, defendant has demonstrated a continuous pattern

of criminal behavior which belies any suggestion that he has yet changed his ways.” This

court affirmed the judgment. (Mota I, supra, E023277.)

3 Defendant was 18 years old at the time he committed the offenses.

4 On March 28, 2022, the court struck defendant’s prior prison term enhancement

pursuant to former section 1171.1, reducing defendant’s sentence by one year. The court

set the matter for hearing on an intended Romero motion.

On August 1, 2022, defense counsel filed an invitation for the court to dismiss

defendant’s prior strike conviction findings pursuant to Romero. Defense counsel argued

that defendant fell outside the spirit of the three strikes law, and that the following factors

supported dismissing defendant’s prior strike conviction findings: (1) the nature and

circumstances of the present offenses; (2) the remoteness of the prior convictions;

(3) defendant’s youth and remote remaining criminal history; (4) his background,

character, and prospects; and (5) postconviction factors including his disciplinary record,

record of rehabilitation, and reduced physical risk for future violence. On September 21,

2022, the People filed opposition to the motion in which they argued the court should

decline defendant’s invitation to strike his prior strike conviction findings.

At the hearing on the Romero motion on October 5, 2022, the court indicated it

had read the moving papers. Defendant’s niece made a statement that defendant “is truly

changed.” “[H]e doesn’t make excuses for what he has done, and he accepts

responsibility.” Defendant would have all their family’s support; he could stay with her,

her mother, or her aunt. They would help him find work and obtain a driver’s license.

“He is tired of living the life that he has been living for the last two decades, . . .”

Defendant also made a statement: “I would like to apologize to the Court, the

community of Riverside . . . for being a burden and for stealing a pair of pants 25 years

5 ago to support my drug habit.” “I stopped using drugs 12 years ago. I will be sober and

clean, with the help of the A.A. mentors/sponsors that I met.” “I left my gang ties 12

years ago.” “Finding a job won’t be a problem for me. I am a pipefitter by trade in the

oil⸺in the oil industry, and I learned how to weld, electrical, and hydraulic⸺hydraulic

machinery in VIA.” “I’m going to continue doing the A.A. meetings. I’m 62 years old

now. I’m tired of the life that I had before. I gave it up.” “If the Court gives me an

opportunity of freedom, I won’t be a disappointment to the Court, the community, or my

family.” “I’m tired and worn out, really. And I realize that the laws and rules are meant

to be kept, and I’m going to keep them. I’ve been keeping them for the last 12 years.”

Defense counsel noted that defendant was in “the lowest level of classification and

placement score. He can’t go any lower. I found seven violations. Four were for

one⸺or three were alcohol possession, one was drugs back in 2003/2004, three for

fighting, two were in 2011 and 2012, and then he had one in 2018.” Defense counsel

noted that the court should consider the fact that defendant had been rehabilitated, that he

had “gone to classes, employment, education.” That defendant’s age and diminished

capacity also militated toward granting the motion: “He has issues with liver [cirrhosis].

I have read [sic] medical records of cataracts. So it’s not only looking at what he has

chosen to do, but just his physical condition itself.” That “keeping someone in [prison]

longer that doesn’t pose” a risk to the public is against the intent of subsequent remedial

legislation.

6 The court reviewed the law with respect to Romero motions. It noted that in

addition to the relevant considerations when the first Romero motion was made, it had to

consider what subsequently happened in state prison. The court was “mindful of my

responsibilities, and my discretion, and I am mindful of the things that I am supposed to

balance.” It noted that it had to consider the facts and circumstances of the strike

convictions.

The court observed, “Here they are as bad as they can be. Without them being

homicides, they are as bad as they can be.” “[T]here were multiple victims here, . . .”

“And, generally, when there are multiple victims, I’m much, much less inclined to strike

strikes that arise out of the same fact pattern.”

“When you talk about his youthful age, let’s assume that that is part of [the]

analysis because it’s⸺it’s part of the facts and circumstances of the strike, . . .” “But

when we are talking about a person who has not only committed an offense, a prior

offense, but had been to state prison for that prior offense, their youthful nature on the

occasion of the incident offense, is much less amenable.” “If at any time his youthful

nature played a role, it should have been back when we were talking about the strike

offense. Because I think he was 18 at the time of the strike offense.” “I know that you

mentioned [the] strikes [were] 43 years old, but they certainly were not 43 years old at

the time of the incident events. They were much younger than that.”

The court concluded that the only remaining analysis was whether defendant had

performed so well in prison that he warranted the relief requested. The court noted

7 several instances where the court had exercised its discretion to strike prior convictions or

enhancements where the defendant’s behavior in prison was exemplary. However,

“[w]hen I look at this particular gentleman, I cannot ignore [seven] different . . . rules

violations[.]” “I certainly can’t ignore the last one, which was just in 2018, which, for

better or worse, he was charged with assault with a deadly weapon in jail.”

“Under these circumstances, the Court is not prepared to find that he falls outside

the spirit of our three-strikes law, notwithstanding, the lengthy period of incarceration,

and, notwithstanding, some of his physical impairments that have developed by virtue of

him becoming older.” “On balance, I do not find that he falls outside the spirit of our

three-strikes legislation. For that reason, the Romero motion is denied at this time.”

II. DISCUSSION

Defendant contends the court abused its discretion in denying his Romero motion.

He maintains the court violated his due process rights by failing to act with informed

discretion. We disagree.

“Senate Bill No. 483 added section 1171.1 to the Penal Code, which was

subsequently renumbered without substantive change as section 1172.75. (Stats. 2022,

ch. 58, § 12, eff. June 30, 2022.) Section 1172.75, subdivision (a) provides that ‘[a]ny

sentence enhancement that was imposed prior to January 1, 2020, pursuant to

subdivision (b) of Section 667.5, except for any enhancement imposed for a prior

conviction for a sexually violent offense . . . is legally invalid.’ [Citation.] Once the

Department of Corrections and Rehabilitation identifies those persons ‘currently serving

8 a term for a judgment that includes an enhancement described in subdivision (a)’ to the

sentencing court, ‘the court shall recall the sentence and resentence the defendant.’

[Citation.]” (People v. Monroe (2022) 85 Cal.App.5th 393, 399 (Monroe).)

“In resentencing, ‘[t]he court shall apply the sentencing rules of the Judicial

Council and apply any other changes in law that reduce sentences or provide for judicial

discretion so as to eliminate disparity of sentences and to promote uniformity of

sentencing.’ [Citation.] ‘The court may consider postconviction factors, including, but

not limited to, the disciplinary record and record of rehabilitation of the defendant while

incarcerated, evidence that reflects whether age, time served, and diminished physical

condition, if any, have reduced the defendant’s risk for future violence, and evidence that

reflects that circumstances have changed since the original sentencing so that continued

incarceration is no longer in the interest of justice.’ [Citation.]” (Monroe, supra, 85

Cal.App.5th at p. 399.) “By its plain terms, section 1172.75 requires a full resentencing,

not merely that the trial court strike the newly ‘invalid’ enhancements.” (Id. at p. 402

[reversing and remanding for resentencing where court thought it was without

jurisdiction to strike firearm enhancements]; see People v. Hubbard (2018) 27

Cal.App.5th 9, 12-13 [full resentencing includes jurisdiction to rule on Romero motion].)

“ ‘ “Defendants are entitled to sentencing decisions made in the exercise of the

‘informed discretion’ of the sentencing court. [Citations.] A court which is unaware of

the scope of its discretionary powers can no more exercise that ‘informed discretion’ than

one whose sentence is or may have been based on misinformation regarding a material

9 aspect of a defendant’s record.” ’ [Citation.]” (People v. Fredrickson (2023) 90

Cal.App.5th 984, 988; accord, People v. Lopez (2022) 78 Cal.App.5th 459, 466-467.)

“While the purpose of the Three Strikes law is to punish recidivists more harshly

[citation], not all recidivists fall within the spirit of that law. A trial court therefore may

strike or dismiss a prior conviction in the furtherance of justice. [Citations.] When

considering whether to strike a prior conviction, the factors a court considers are whether,

in light of the nature and circumstances of the defendant’s present felonies and prior

serious and/or violent felony convictions, and the particulars of the defendant’s

background, character, and prospects, the defendant may be deemed outside the scheme’s

spirit, in whole or in part, and hence should be treated as though the defendant had not

previously been convicted of one or more serious and/or violent felonies. [Citation.]”

(People v. Avila (2020) 57 Cal.App.5th 1134, 1140 (Avila).)

“We review a trial court’s ruling on a Romero motion under the deferential abuse

of discretion standard, which requires the defendant to show that the sentencing decision

was irrational or arbitrary. [Citation.] It is not enough that reasonable people disagree

about whether to strike a prior conviction. [Citation.] The Three Strikes law ‘not only

establishes a sentencing norm, it carefully circumscribes the trial court’s power to depart

from this norm . . . [T]he law creates a strong presumption that any sentence that

conforms to these sentencing norms is both rational and proper.’ [Citation.] Only

extraordinary circumstances justify finding that a career criminal is outside the Three

Strikes law. [Citation.] Therefore, ‘the circumstances where no reasonable people could

10 disagree that the criminal falls outside the spirit of the three strikes scheme must be even

more extraordinary.’ [Citation.]” (Avila, supra, 57 Cal.App.5th at p. 1140.)

Here, the court acted within its circumscribed discretion in denying defendant’s

motion to strike his prior strike conviction findings. The court indicated it understood its

discretion and went over the law that it was to apply when rendering a decision. The

court noted that the offenses underlying the strike convictions, except for murder, were

“as bad as they can be.” Since those offenses included kidnapping, the robbery of

multiple victims at gunpoint, and the gang rape of the victim, the court’s conclusion was

well within its discretion. We note that although defendant apologized for his theft of a

pair of jeans in his statement to the court, he did not apologize for the robberies, rape, and

kidnapping.

The court noted that although the strike offenses were 43 years old, they were not

that old when defendant committed the offense to which the findings based on those

offenses were attached. Indeed, the strike offenses were less than 20 years old when

defendant committed the instant offense. Moreover, defendant had spent seven and one-

half of those years in prison for the strike offenses. Defendant thereafter was convicted

of six misdemeanors and one felony. Defendant committed the first misdemeanor the

year after he was released. He served another two years in prison for the felony offense.

“In other words, defendant has demonstrated a continuous pattern of criminal behavior

which belies any suggestion that he has yet changed his ways.” (Mota I, supra,

E023277.)

11 The court next noted that defendant did not exactly have a sterling prison record.

As the court pointed out, defendant had seven rule violations while in prison. Moreover,

one of the rule violations, which occurred on December 13, 2018, included an allegation

of assault or battery with a deadly weapon. During that offense, the correctional officer

observed defendant, with two other inmates, “striking an inmate . . . in the upper torso

and facial area multiple times with his fists.” The officer recovered a metal shiv from

one of the other inmates. Defendant was found guilty of battery with a deadly weapon.4

Defendant’s prison record further supported the court’s ruling. Thus, the court acted

within its discretion in denying defendant’s Romero motion.

Defendant complains that the court abused its discretion by finding defendant’s

youth irrelevant, and by failing to mention his substance abuse, childhood trauma, and

postconviction efforts at rehabilitation. First, the court acknowledged defendant’s youth

when defendant committed the offenses underlying the prior strike conviction findings; it

simply found that the nature and circumstances of those offenses were so serious that

they substantially reduced the weight it would attach to defendant’s youth in its analysis.

That determination was well within the court’s discretion.

Second, the court’s “failure” to address each specific factor raised by defendant to

support his motion is not a due process violation or an abuse of its discretion. (See In re

4 At oral argument, defense counsel argued that defendant had no record of conviction for committing violent offenses since his commission of the strike offenses. Although true, defendant was found guilty of a prison rule violation of battery with a deadly weapon, a definitionally violent offense. (§ 242 [“A battery is any willful and unlawful use of force or violence upon the person of another.”].)

12 Marriage of Diamond (2021) 72 Cal.App.5th 595, 602 [Where a statute requires a court

to consider certain factors when rendering a decision, the court is not required to

expressly address each factor unless the statute specifically so requires.]; People v. Nevill

(1985) 167 Cal.App.3d 198, 202 [sentencing court is presumed to have considered all

relevant factors even if not expressly articulated].)

Here, as discussed ante, the court made it amply clear that it had read the parties

moving papers, knew the law, and understood its discretion in ruling on the motion. We

presume that the court properly considered all relevant criteria when rendering its

decision.5 Thus, the court acted within its discretion in denying defendant’s Romero

motion.

5 At oral argument, defense counsel argued this court should consider that defendant’s strike offenses were “aberrant,” that his offenses were related to his long- standing substance abuse issues, and that defendant’s circumstances had changed. Again, to the extent that the trial court did not specifically mention the purported “aberrance” of the strike offenses, his substance abuse issues, or his efforts at rehabilitation, we presume the court considered all relevant facts absent evidence indicating otherwise.

13 III. DISPOSITION

The court’s order denying defendant’s Romero motion is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER Acting P. J.

We concur:

MILLER J.

CODRINGTON J.