People v. Valles CA4/2

• Court: California Court of Appeal
• Decided: October 11, 2024
• Docket: E080982
• Status: Unpublished

Opinion

Filed 10/11/24 P. v. Valles CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E080982

v. (Super.Ct.No. RIF1603061)

RICHARD VALLES, OPINION

Defendant and Appellant.

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

Reversed and remanded.

Mi Kim, 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, Heather B. Arambarri and

Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent.

1 Defendant and appellant Richard Valles appeals an order of the Riverside County

Superior Court imposing a Penal Code section 12022.53, subdivision (d), gun discharge

enhancement.1

BACKGROUND2

Defendant, his girlfriend, and defendant’s former codefendant, Jesus Renteria,

lived together in a tight-knit homeless encampment alongside the Santa Ana River in

Riverside. In June 2016, defendant got into a fight with Michael Carmona after Carmona

pushed and hit defendant’s girlfriend. Defendant abandoned the fight and left the scene

when he felt he was going to have a seizure. While he was gone, Renteria stabbed

Carmona multiple times. After the stabbing, Carmona made gargling and gasping

sounds, and appeared to be dying. When defendant returned to the camp he was carrying

a rifle. He walked up to Carmona, whose face was covered by a carpet, and shot him in

the head.

Law enforcement officers found Carmona’s body in a shallow grave not far from

defendant’s tent. The cause of death was attributed to homicidal violence. The

pathologist noted Carmona suffered multiple stab wounds, two of which could have

killed him within a matter of minutes. Carmona had also suffered a gunshot wound to the

head that fractured his skull from the inside, and the bullet was found inside his brain.

1 All further statutory references are to the Penal Code. References to rules are to the California Rules of Court.

2 Some facts recited in this section are taken from this court’s opinion issued in defendant’s appeal from the judgment. (People v. Valles (July 8, 2022, E071361) [nonpub. opn.] (Valles I.).) We take judicial notice of that opinion on our own motion.

2 That wound would have caused death immediately. Because of the decomposition of the

body, the pathologist could not say for certain that Carmona was alive when the bullet

entered his brain.

A jury convicted defendant of first degree murder (§ 187, subd. (a)) and found true

an allegation that he had personally and intentionally discharged a firearm in the

commission of the murder causing Carmona’s death (§ 12022.53, subd. (d) (section

12022.53(d)). In August 2018, the trial court sentenced defendant to a total prison term

of 50 years to life, consisting of 25 years to life for the murder and 25 years to life for the

enhancement.

In the course of the sentencing hearing, the court denied defendant’s request to

strike the firearm enhancement pursuant to subdivision (h) of section 12022.53 (section

12022.53(h)). It found striking the enhancement would not serve the interests of justice,

noting that defendant’s actions in shooting an unarmed, incapacitated man in the head

placed him “square within the spirit” of the enhancement statute.

In his appeal from the judgment, defendant argued reversal and remand were

called for because the trial court did not understand the extent of its discretion afforded

by section 12022.53(h) to impose a lesser enhancement pursuant to either subdivision (b)

or (c) of that section.3 We affirmed the judgment in a partially published opinion

(formerly at People v. Valles (2020) 49 Cal.App.5th 156).

3 Section 12022.53 authorizes enhanced sentences when a defendant uses a firearm in the commission of certain felonies specified in the statute, and provides for different levels of punishment depending on how the firearm was used (i.e., a 10-year

3 Our Supreme Court granted defendant’s petition for review and held the case

while it considered the scope of trial court discretion afforded by section 12022.53(h), an

issue then pending before it in People v. Tirado (2022) 12 Cal.5th 688 (Tirado). The

Supreme Court ultimately decided the statutory framework of the firearm enhancement

provision permits a trial court to strike a section 12022.53(d) enhancement and to impose

a lesser uncharged statutory enhancement instead. (Tirado, supra, at p. 692.)

After it issued the Tirado opinion, the Supreme Court transferred defendant’s case

back to this court with directions to vacate our decision and reconsider the cause in light

of Tirado. In our new opinion, we reversed defendant’s sentence and remanded the case

to the trial court for a rehearing on the firearm enhancement, advising the lower court that

it could exercise its discretion either to strike the enhancement, to impose a lesser

included enhancement, or to reimpose the enhancement as found by the jury. (Valles I,

supra, E071361.)

At the hearing following the remittitur, the trial court again imposed a sentence of

25 years to life for the enhancement, to run consecutive to the term imposed for the

murder, that is, it ordered the same sentence given to defendant at the time of his

conviction. Defendant timely noticed this appeal.

enhancement for personal use of a firearm, a 20-year enhancement if the defendant personally and intentionally discharges a firearm, and a 25-year enhancement if the defendant’s personal and intentional discharge of a firearm proximately caused great bodily injury or death of a person other than an accomplice). (§ 12022.53, subds. (a)- (d).) Section 12022.53(h) authorizes the trial court to exercise its discretion to strike or dismiss a section 12022.53 enhancement otherwise required to be imposed by that section.

4 DISCUSSION

On appeal, defendant argues, and the People agree, that reversal of the order

resentencing defendant is called for because the trial court failed to consider evidence of

mitigation as required by section 1385. Defendant also posits that, if this court decides

the sentencing issue has been forfeited, it is because his attorney failed to provide

effective assistance. We conclude counsel’s representation of defendant was deficient

and reverse.

1. The Court Properly Exercised Its Discretion Under Section 1385

Section 12022.53(h) provides a trial court “may, in the interest of justice pursuant

to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise

required to be imposed by this section.” If a trial court strikes an enhancement pursuant

to section 12022.53, it may impose an uncharged lesser included enhancement instead of

dismissing the enhancement altogether. (Tirado, supra, 12 Cal.5th at p. 692.)

Subdivision (c)(1) of section 1385 authorizes the trial court to dismiss an

enhancement if it is in the furtherance of justice to do so, except if dismissal is prohibited

by any initiative statute. Subdivision (c)(2) of section 1385 provides that, if a defendant

offers evidence of any of the mitigating circumstance specified in the subdivision, then

the court is required to consider and give great weight to that evidence.

At sentencing, a defendant is entitled to a trial court’s exercise of informed

discretion. (Tirado, supra, 12 Cal.5th at p. 694.) A court abuses its discretion if it acts

without being aware of the scope of its discretion. (Ibid.) Unless there is evidence to the

5 contrary, however, we presume the trial court knew and applied governing law. (People

v. Thomas (2011) 52 Cal.4th 336, 361.)

We review a trial court’s decision not to dismiss or strike a prior conviction

allegation under the deferential abuse of discretion standard. (People v. Carmony (2004)

33 Cal.4th 367, 374; People v. Mendoza (2023) 88 Cal.App.5th 287, 298.) Where, as

here, a trial court has exercised a discretionary power conferred by statute, its decision

will not be disturbed on appeal except upon a showing that it exercised that discretion in

an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage

of justice. (People v. Jefferson (2016) 1 Cal.App.5th 235, 242-243 (Jefferson).)

In this case, the court did not abuse its discretion when it again sentenced

defendant to a 25-year-to-life sentence for the firearm enhancement. The court recalled

the murder of Carmona, noting defendant had left the scene of the fight, but then returned

a bit later and “placed a gun to the head of a vulnerable and completely defenseless

victim who had been stabbed and executed him.”

The court made clear it was “aware” of the discretion conferred upon it by

12022.53(h) and concluded, “[t]his is not the case that deserves that.” It found the killing

was “clearly within the spirit of what the legislature was after when they enacted

[section] 12022.53, specifically [section] 12022.53(d).” The court also stated it was

“mindful” of the discretion conferred by Tirado, supra, 12 Cal.5th 688, and it expressly

found no mitigating circumstances in this case. We find nothing arbitrary or

unreasonable in the court’s decision.

6 Defendant argues the court must have either been unaware of or misunderstood the

provision of subdivision (c)(2) of section 1385 (section 1385(c)(2)) because it did not

mention that provision, it “failed to consider, much less ‘afford great weight,’ to the

evidence presented by [defendant] and contained in the original probation report,” and, it

did not make a finding that dismissal of the gun charge would “‘endanger public safety.’”

The People agree remand is called for, noting the court did not mention whether the

current offense was connected with a mental illness, it did not order a supplemental

probation report, it did not say if it had read the probation report from the original

sentencing, and its remarks focused on the offense, not the offender. We are not

persuaded.

There is no reason to conclude the court was not aware of, or that it

misunderstood, section 1385. We presume a trial court understood the scope of its

discretion unless the record establishes misunderstanding on its face. (People v. Czirban

(2021) 67 Cal.App.5th 1073, 1097.) In this case, there is ample support for the

conclusion that the court knew and applied the applicable law. At the time of its ruling,

the court said it was aware of the discretion afforded by section 12022.53(h) (which

incorporates section 1385) and by our Supreme Court in Tirado (which discusses the

application of section 1385 in the context of sentencing for firearm enhancements,

Tirado, supra, 12 Cal.5th at pp. 695-696).

Contrary to the parties’ claims, section 1385(c)(2) does not require the trial court

to consider sua sponte and give great weight to the probation report prepared in

connection with defendant’s original sentencing. Nor was the court obliged to order

7 preparation of a supplemental probation report pursuant to rule 4.411(a)(2) because a

significant period of time had elapsed since the report prepared for defendant’s original

sentencing. A probation report is not required if, as here, a defendant is statutorily

ineligible for probation because he personally used a firearm in the commission of a

murder.4 (§ 1203.06, subd. (a)(1)(A); Rule 4.411(a).)

Defendant posits that the court was required to make a finding that dismissing the

firearm enhancement would endanger public safety. Not so. That finding is made only

after a defendant has proven the presence of at least one of the qualifying mitigating

circumstances. (§ 1385(c)(2).) Here, however, defendant offered no evidence for the

court to consider and, accordingly, there was no need for the court to make a finding with

respect to whether dismissal would endanger public safety.

2. The Ineffective Assistance of Defense Counsel

Defendant argues that an ineffective assistance of counsel claim is proper because

there simply could be no satisfactory or plausible tactical explanation for his counsel’s

failures to act. He complains she did not research legal principles applicable to

resentencing or advocate for his entitlement to a full resentencing, she did not request an

4 Although not raised by the parties, we note that a court is required to refer a matter to the probation officer to investigate facts relevant to determination of a restitution fine, if applicable, and in that connection, may in its discretion direct the officer to investigate the circumstances of the crime as well as the prior record and history of the defendant. (§ 1203, subd. (g).) Even if a probation report was required for the purposes of addressing the issue of restitution at the time of the original sentencing, we see no basis for requiring a supplemental report at the time of resentencing if, as here, restitution is not at issue. And, when a defendant is ineligible for probation and the parties did not request a report or object to proceeding without one, the issue is forfeited. (People v. Franco (2014) 232 Cal.App.4th 831, 834.)

8 updated probation report and ensure that defendant’s sentence is based on complete and

accurate information, and she made no effort to correct the trial court’s

“misunderstanding of the law” and “assert [defendant’s] entitlement to have the trial

court consider evidence of his mental illness, prior victimization, and childhood trauma

and its connection to the offense under section 1385, subdivision (c)(2)(D) and (E).”

To establish ineffective assistance of counsel, a defendant must show (i) that

counsel's representation fell below an objective standard of reasonableness under

prevailing professional norms and, (ii) that counsel's deficient performance was

prejudicial, i.e., but for counsel's failings, there is a reasonable probability the result

would have been more favorable to the defendant. (People v. Johnson (2015) 60 Cal.4th

966, 979-980.)

We agree defense counsel’s representation was utterly deficient. She simply failed

to advocate on behalf of her client. She did not make any argument or even an objection

at the resentencing hearing. She failed to call to the court’s attention the probation report

that was filed when defendant was sentenced in 2018 even though it contained

information relevant to two of the section 1385(c)(2) qualifying mitigating

circumstances—mental illness and prior victimization or childhood trauma (§1385,

subd. (c)(2)(D) & (E)).

According to the report, defendant was traumatized as a child when his family was

disrupted and displaced after his father became addicted to drugs. His parents began to

engage in domestic violence, which occasionally involved defendant because he would

try to protect his mother. Eventually the family lost their home and defendant’s father

9 was incarcerated. As a young adult, defendant was diagnosed with a bipolar disorder that

requires medication. He also suffered the loss of a child, long periods of unemployment,

drug addiction, and homelessness, and he was a victim of a shooting and arson while

living in the encampment—all experiences that may have contributed to his mental

illness. He was not taking medication for his bipolar condition when Carmona was

killed.

In view of the provisions of section 1385(c)(2) that require the court to give great

weight to evidence of any qualifying mitigating circumstances, which weigh greatly in

favor of dismissing the enhancement absent a finding that dismissal would endanger

public safety, we find defendant was prejudiced by his counsel’s failure to develop and

present facts relevant to his mental health, prior victimization, and childhood trauma.

DISPOSITION

The judgment is reversed and remanded to the trial court for a resentencing

hearing in keeping with sections 12022.53(h) and 1385, subdivision (c), at which the

court may dismiss the gun charge enhancement, impose a lesser included enhancement,

or to reimpose the current sentence for the enhancement.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ P. J.

We concur:

MILLER J. MENETREZ J.