People v. Vargas CA4/2

• Court: California Court of Appeal
• Decided: July 10, 2025
• Docket: E083567
• Status: Unpublished

Opinion

Filed 7/10/25 P. v. Vargas CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E083567

v. (Super.Ct.No. FSB20000582)

JOHNNY JOE VARGAS, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Harold T.

Wilson, Jr., Judge. Affirmed.

Jared G. Coleman, 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 P. Beesley and

Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent.

1 INTRODUCTION

Defendant and appellant Johnny Joe Vargas contends the trial court abused its

discretion in imposing an upper term sentence, since it failed to consider that he suffered

childhood trauma, pursuant to Penal Code1 section 1170, subdivision (b)(6). We affirm

the judgment.

FACTUAL AND PROCEDURAL BACKGROUND2

A police officer was dispatched on a call regarding a reported stolen vehicle. The

officer located the vehicle and conducted a traffic stop. Defendant was driving the stolen

vehicle, and the officer arrested him.

A jury convicted defendant of driving or taking a vehicle without consent.

(Veh. Code, § 10851, subd. (a), count 1.) The trial court subsequently found true one

prior strike allegation (§§ 1170.12, subds. (b) & (c), 667, subds. (d) & (e)), as well as the

following four circumstances in aggravation within the meaning of California Rules of

Court, rule 4.421: (1) defendant’s prior convictions were numerous and of increasing

seriousness, (2) he had served prior prison terms, (3) he was on parole during the

commission of the current offense, and (4) his prior performance on probation and parole

was unsatisfactory.

Defendant filed a sentencing brief and requested that the trial court dismiss his

prior strike under section 1385, subdivision (a), pursuant to People v. Superior Court

1 All further statutory references will be to the Penal Code unless otherwise indicated. 2 The underlying facts of this case are not relevant to the issues on appeal; thus, this opinion will only give a brief description of the facts. 2 (Romero) (1996) 13 Cal.4th 497. Defendant argued, through a biopsychosocial report

prepared by a social worker, that he “experienced a myriad of childhood traumas

including housing instability, family violence and financial instability.” He detailed the

trauma of his childhood, which included his parents being drug addicts, his father being

physically abusive, defendant drinking alcohol and using drugs with his friends, and him

ending up in Juvenile Hall at 15 years old.

The prosecution filed its sentencing brief, asking the court to deny defendant’s

Romero motion and sentence him to the upper term. The prosecutor noted defendant had

an extensive criminal history that included two felony adjudications, one prior strike

conviction, 16 felony convictions, and six misdemeanor convictions. The prosecutor

further noted that defendant was requesting leniency because he allegedly experienced a

myriad of childhood traumas; however, if true, “these justifications for his criminal

behavior have existed for decades,” and he never took advantage of the rehabilitative

programs that were available to him. The prosecutor listed the four aggravating factors

the court found true and noted there were no mitigating factors.

The probation report also listed the aggravating factors and confirmed there were

no mitigating factors. The report stated that defendant had “a substantial and lengthy

criminal record,” which included 12 state prison terms, and that he had “violated his

terms and conditions of probation, PRCS, and parole numerous times.” The probation

department recommended that the court impose the aggravated term, doubled pursuant to

the prior strike.

3 The court held a sentencing hearing and addressed defendant’s Romero motion.

Defense counsel submitted on his brief and asked the court to review defendant’s

background “to get an idea of his upbringing and some of the circumstances that may

have led him in the direction that he ultimately went.” The trial court stated that it read

the defense brief, including the details of defendant’s history, as well as the prosecution’s

brief. It then declined to exercise its discretion to dismiss the prior strike, noting that

defendant’s prior convictions “are numerous and have been continuous.” The court also

noted he served prior terms in prison and county jail, he was on post-release supervision

or parole at the time of the offense, and his prior performance on probation or parole was

unsatisfactory. The court called attention to the probation report, noting it set forth

defendant’s lengthy criminal history.

The court then proceeded to sentence defendant, stating that it read and considered

the probation report and its recommendation, as well as the circumstances in aggravation

and mitigation. The court noted there was a true finding as to the aggravating factors in

this case and recited the four factors. It then selected the upper term of three years,

doubled by the strike, and sentenced defendant to a total term of six years in prison.

DISCUSSION

The Trial Court Properly Imposed the Upper Term

Defendant contends the trial court abused its discretion in imposing the upper term

since it failed to apply the correct legal standards in sentencing him. Specifically, he

claims the court “either misunderstood or failed to exercise its discretion” under section

4 1170, subdivision (b)(6)(A), did not consider his childhood trauma, and made no finding

that imposing the lower term would be contrary to the interests of justice. We conclude

the court properly exercised its discretion in sentencing defendant.

A. Applicable Law and Standard of Review

Effective January 1, 2022, Senate Bill No. 567 (2021-2022 Reg. Sess.) amended

section 1170. (Stats. 2021, ch. 731, § 1.3.) Following the amendment, the middle term

for any offense with a sentencing triad became “the presumptive sentence . . . unless

certain circumstances exist.” (People v. Flores (2022) 73 Cal.App.5th 1032, 1038

(Flores).)

Relevant here, Assembly Bill No. 124 (2021-2022 Reg. Sess.) added subdivision

(b)(6) to section 1170. (Stats. 2021, ch. 695, § 5.1; Flores, supra, 73 Cal.App.5th at pp.

1038-1039.) This subdivision provides: “[U]nless the court finds that the aggravating

circumstances outweigh the mitigating circumstances that imposition of the lower term

would be contrary to the interests of justice, the court shall order imposition of the lower

term if any of the following was a contributing factor in the commission of the offense:

[¶] (A) The person has experienced psychological, physical, or childhood trauma,

including, but not limited to, abuse, neglect, exploitation, or sexual violence.” (§ 1170,

subd. (b)(6)(A).)

A trial court’s exercise of sentencing discretion is reviewed for abuse of

discretion. (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582.) The sentencing court

has wide discretion in weighing the relevant factors. (Ibid.) “‘To prove an abuse of

5 discretion, “‘[t]he burden is on the party attacking the sentence to clearly show that the

sentencing decision was irrational or arbitrary.’”’” (People v. Fredrickson (2023)

90 Cal.App.5th 984, 988 (Fredrickson).) However, ““‘in the absence of such a showing,

the trial court is presumed to have acted to achieve legitimate sentencing objectives, and

its discretionary determination to impose a particular sentence will not be set aside on

review.””’ (Ibid.)

B. Defendant's Claim Has Been Forfeited

On appeal, defendant contends the trial court erred by imposing the upper term

because section 1170, subdivision (b)(6)(A), generally provides for a presumptive lower

term sentence where a defendant has experienced psychological, physical, or childhood

trauma that was a contributing factor in the commission of the offense. We conclude that

defendant has forfeited this argument for failure to raise it at the time of sentencing.

The California Supreme Court has held that “complaints about the manner in

which the trial court exercises its sentencing discretion and articulates its supporting

reasons cannot be raised for the first time on appeal.” (People v. Scott (1994) 9 Cal.4th

331, 356; see In re F.M. (2023) 14 Cal.5th 701, 710 [“a defendant who fails to object

before the trial court to a sentence on the ground that it is being ‘imposed in a

procedurally or factually flawed manner’ generally forfeits the right to challenge such an

error on appeal”].)

Here, the record does not show that defendant ever asserted he was entitled to a

presumptive lower term pursuant to section 1170, subdivision (b)(6), as a result of

6 psychological, physical, or childhood trauma. Even when circumstances might justify the

application of this statute, it is the defendant who bears the burden to raise the issue at the

time of sentencing, and the failure to do so forfeits any claim of error on appeal.

(Fredrickson, supra, 90 Cal.App.5th at pp. 991-992; People v. Tilley (2023) 92

Cal.App.5th 772, 777-778 [defendant forfeited argument by failing to object to trial

court’s imposition of middle term under section 1170, subd. (b)]). Because defendant

never raised any issue under section 1170, subdivision (b)(6) below, he has forfeited his

claim.

C. The Trial Court Properly Exercised its Discretion

Notwithstanding the forfeiture, defendant’s claim fails on the merits. He contends

the trial court “disregarded the presumption” of the lower term in section 1170,

subdivision (b)(6)(A) and made no finding that imposing the lower term would be

contrary to the interests of justice. We conclude that defendant has not shown the lower

term presumption applied.

Section 1170, subdivision (b)(6)(A), does not mandate a presumption in favor of

the lower term in every case in which the defendant experienced childhood trauma.

Instead, the presumption applies only if the defendant’s childhood was “a contributing

factor” in the commission of the offense. (§ 1170, subd. (b)(6)(A); see also Flores,

supra, 73 Cal.App.5th at p. 1039 and Fredrickson, supra, 90 Cal.App.5th at pp. 991-

992.) In other words, in order to trigger the presumption, there must be some initial

showing that defendant’s childhood trauma was a contributing factor, and “only then

7 must the record affirmatively show compliance with the statute.” (Fredrickson, supra, 90

Cal.App.5th at p. 992.)

Here, defendant failed to make the required showing that his childhood trauma

contributed to his decision to drive or take a vehicle without consent. (Veh. Code,

§ 10851, subd. (a), count 1.) His sentencing brief detailed his upbringing but never

alleged that his childhood trauma contributed to the commission of the offense. The

biopsychosocial assessment report defendant attached in support of his sentencing brief

also failed to relate his childhood trauma to the commission of the offense. Even on

appeal, defendant does not allege that his childhood trauma was a contributing factor to

his offense. Instead, he merely argues that the court erred by failing to consider whether

his childhood trauma triggered a presumptive lower term sentence pursuant to section

1170, subdivision (b)(6). Because there was no argument or evidence that defendant’s

childhood trauma was a contributing factor to the commission of his offense, the trial

court was not required to make a finding regarding the applicability of section 1170,

subdivision (b)(6). (See Fredrickson, supra, 90 Cal.App.5th at p. 992.)

Even assuming the record supported a finding that defendant’s childhood trauma

contributed to the commission of the offense, the trial court was not required to impose

the lower term if it found the aggravating circumstances outweighed the mitigating

circumstances, such that the imposition of the lower term would be “contrary to the

interests of justice.” (§ 1170, subd. (b)(6).) The court stated that it read and considered

the probation officer’s report and recommendation and the circumstances in aggravation

8 and mitigation. The trial court noted there was a finding of the following aggravating

factors: (1) defendant’s prior convictions or sustained petition in juvenile delinquency

proceedings were “numerous or of increasing seriousness”, (2) he had served prior prison

terms, (3) he was on probation, mandatory post-release community supervision, or parole

when the offense was committed, and (4) his prior performance on probation, mandatory

supervision, or parole were unsatisfactory. There were no mitigating circumstances; thus,

the court’s implicit finding that the aggravating circumstances outweighed any mitigating

circumstances is amply supported by the record. Further, the court’s implicit

determination that imposition of the low term was contrary to the interests of justice is

also amply supported by the record contrary to the defendant’s claims.

We note defendant’s additional brief claim that the court failed to apply the

criteria under section 1385, subdivision (c)(2)(E), in determining whether to dismiss his

prior strike conviction. Section 1385, subdivision (c)(2)(E) requires a court to give great

weight to evidence that “[t]he current offense is connected to prior victimization or

childhood trauma,” in determining whether to dismiss an enhancement. However, as the

People correctly point out, “section 1385, subdivision (c)’s provisions regarding

enhancements do not apply to the Three Strikes law.” (People v. Burke (2023)

89 Cal.App.5th 237, 244.)

In sum, defendant has failed to show the court abused its discretion in sentencing

him. The aggravating circumstances support the court’s decision to impose the upper

term.

9 DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS J.

We concur:

McKINSTER Acting P. J.

RAPHAEL J.