People v. Simental CA4/3

Filed 11/4/26 P. v. Simental CA4/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE THE PEOPLE, Plaintiff and Respondent, G064951 v. (Super. Ct. No. 11NF2782) CARLOS ARMANDO SIMENTAL, OPINION Defendant and Appellant. Appeal from a judgment of the Superior Court of Orange County, Michael J. Cassidy, Judge. Affirmed and remanded with directions. Jason L. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters and Charles C. Ragland, Chief Assistant Attorneys General, Arlene A. Sevidel, Assistant Attorney General, Daniel Rogers and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Respondent. * * * Carlos Armando Simental appeals from the trial court’s decision not to strike or dismiss a firearm enhancement from his sentence of life with the possibility of parole on a count of kidnapping with intent to commit robbery. (See Pen. Code,1 § 209, subd. (b)(1).) Simental also argues the trial court miscalculated his custody credits. We conclude the trial court did not abuse its discretion by denying Simental’s request to strike or dismiss the firearm enhancement but agree with the parties as to the court’s miscalculation of Simental’s custody credits. Accordingly, we modify the judgment to reflect that Simental is entitled to 4,798 days of custody credits plus 354 days of presentence conduct credit for a total of 5,152 days. FACTUAL AND PROCEDURAL BACKGROUND This is the third appeal we have heard in this drug-related home invasion robbery case. Factual details about the crimes of which Simental was convicted have been laid out in our two previous opinions, and we do not restate them here. (See People v. Perez (Oct. 20, 2020, G056047) [nonpub. opn.]; People v. Simental (Aug. 29, 2023, G061471) [nonpub. opn.].) Simental was originally sentenced on six counts, which were counts four through nine in the information.2 These were: kidnapping of 1 All statutory references are to the Penal Code. 2 For purposes of this appeal, we take judicial notice of the record in our previous unpublished appeals. (People v. Perez, supra, G056047; People v. Simental, supra, G061471.) Prior to sentencing, the trial court dismissed the first three counts in the information pursuant to section 1385 after Simental and his codefendants filed a motion for new trial. 2 victim 1 to commit robbery (§ 209, subd. (b)(1); count 4); first degree robbery in concert (§§ 211, 212.5, subd. (a), 213, subd. (a)(1)(A; count 5); kidnapping of victim 2 (§ 207, subd. (a); count 6); two counts of making criminal threats (§ 422; counts 7 and 8); and first degree residential burglary (§§ 459, 460, subd. (a); count 9). For each of these counts, the jury found true an allegation that Simental had personally used a firearm in committing the offense. (§§ 12022.53, subd. (b); 12022.5, subd. (a).)3 (People v. Simental, supra, G061471.) At the original sentencing in 2018, the trial court imposed: a term of life with the possibility of parole as to count four, plus 10 years for the firearm enhancement under section 12022.53, subdivision (b); a consecutive nine-year term on count five, plus 10 years for the section 12022.53, subdivision (b) firearm enhancement; and a consecutive term of one year and eight months on count six, plus three years and four months for the section 12022.53, subdivision (b) enhancement. The court ordered the terms for the remaining counts to be served concurrently: three years each on counts seven and eight and six years on count nine, plus a 10-year enhancement under section 12022.5, subdivision (a), as to each of these counts. The total sentence imposed in 2018 was life plus 34 years. On direct appeal, a prior panel of this court reversed the conviction as to count six and remanded the case to the trial court to allow 3 Section 12022.53, subdivision (b), provides an enhancement for personal use of a firearm during the commission of felonies enumerated in the statute. Kidnapping and robbery are among the enumerated felonies, (id. at subds. (a)(3)–(4)), and so this enhancement was sought as to those counts. Section 12022.5, subdivision (a), provides an additional enhancement for personal use of a firearm in any felony. This enhancement was sought as to the remaining criminal threats and residential burglary charges. 3 the prosecution to retry the charge, or alternatively to conduct a resentencing hearing. The trial court was further directed to stay Simental’s sentence for count five under section 654 and to consider application of section 1170.91.4 (People v. Perez, supra, G056047.) On remand, the trial court dismissed count six after the prosecution elected not to retry it. Considering Simental’s military history as a mitigating factor, the court resentenced him to life with the possibility of parole on count four, plus 10 years for its accompanying firearm enhancement. The court imposed and stayed a 13-year sentence on count five, which included the firearm enhancement, and then imposed concurrent sentences of 16 months on counts seven and eight and two years on count nine, plus a 10-year firearm enhancement as to each count. Thus, Simental’s total sentence was reduced from life with the possibility of parole, plus 34 years to life with the possibility of parole, plus 10 years. (People v. Simental, supra, G061471.) Simental filed a second appeal arguing the trial court did not apply the newly amended section 1385 at the resentencing.5 This court was unable to presume the court had performed the analysis required under section 1385 for purposes of the firearm enhancement. It therefore vacated the sentence and remanded the case for another resentencing. (People v. Simental, supra, G061471.) 4 This section requires a court to consider a defendant’s military history and any resulting trauma or mental illness as a mitigating factor in sentencing. (§ 1170.91, subd. (a).) 5 As we noted in People v. Simental, supra, G061471, effective January 1, 2022, section 1385 was amended to give sentencing courts more guidance in exercising their discretion to dismiss enhancements. 4  After the second remand, Simental filed a new sentencing brief. In it, he advised he had been released on parole but was seeking “a sentence which will facilitate his continued advancement in society”—namely, a probationary sentence which could ultimately lead to expungement. In addition to having served two tours in Iraq during the gulf war and having a documented case of posttraumatic stress disorder (PTSD) from that service, Simental argued his positive prison record reflects his ability to reintegrate into society. Additionally, Simental noted the parole board found he no longer poses an unreasonable risk to public safety, he has displayed respect to prison staff, and he has a good work history and strong work ethic, as well as continued efforts to maintain sobriety. Documents attached to the sentencing brief included Simental’s associate degree in business, obtained while he was in prison, as well as the transcript from Simental’s parole hearing in December 2022. At the second resentencing, which took place in November 2024, the prosecution objected to the dismissal of the firearm enhancement. The trial court found Simental was ineligible for probation based on his conviction under section 12022.53, subdivision (g). However, the trial court considered the fact Simental had multiple enhancements and chose to dismiss the enhancements on all determinate counts (counts five, seven, eight, and nine) pursuant to section 1385, subdivision (c)(2)(B). As to the indeterminate count for kidnapping, however, the court stated it did not believe it to be in the interest of justice to strike or dismiss the section 12022.53, subdivision (b) enhancement for count four, stating in part: “It’s not in the interest of justice and I think the dismissal of this enhancement would endanger public safety.” Simental’s sentence thus remained life with the possibility of parole plus 10 5 years, except for the dismissal of the previously stayed 10-year firearm enhancements on the determinate counts. Simental timely appealed. DISCUSSION I. STANDARD OF REVIEW On appeal, Simental argues the trial court applied an incorrect legal standard in assessing whether dismissing the remaining firearm enhancement would endanger public safety. We review the trial court’s determination for abuse of discretion. (See People v. Gonzalez (2024) 103 Cal.App.5th 215, 225 (Gonzalez).) As an initial matter, we note the Attorney General urges us to deem Simental’s argument forfeited under People v. Scott (1994) 9 Cal.4th 331 (Scott), in which the California Supreme Court held “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.” (Id. at p. 356.) But we do not think Scott requires us to find forfeiture here. The Scott court also stated: “[T]here must be a meaningful opportunity to object to the kinds of claims otherwise deemed waived . . . . This opportunity can occur only if, during the course of the sentencing hearing itself and before objections are made, the parties are clearly apprised of the sentence the court intends to impose and the reasons that support any discretionary choices.” (Ibid.) The record in this case does not show the trial court gave any tentative decision to the parties about striking the firearm enhancement on the kidnapping charge. Counsel had already argued when the court pronounced its decision and promptly ended the hearing. As such, there was 6 no meaningful opportunity for counsel to object to this aspect of the court’s ruling.6 II. THE TRIAL COURT WAS WITHIN ITS DISCRETION TO FIND DISMISSAL OF THE FIREARM ENHANCEMENT WOULD NOT BE IN FURTHERANCE OF JUSTICE We remanded this matter for resentencing so the trial court could consider whether to exercise its discretion under section 1385, which now states in pertinent part: “Notwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute.” (§ 1385, subd. (c)(1).) “In exercising its discretion under this subdivision, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in subparagraphs (A) to (I) are present. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety.” (Id. at subd. (c)(2).) “Pursuant to section 1385, subdivision (c)(2), absent a finding that dismissal would endanger public safety, a court must assign significant value to the enumerated mitigating circumstances when they are present. In practice, the presence of an enumerated mitigating circumstance will generally result in the dismissal of an enhancement unless the sentencing court finds substantial, credible evidence of countervailing factors that ‘may 6 Even had there been a waiver, we would nevertheless exercise our discretion to consider Simental’s argument to forestall a later claim of ineffective assistance of counsel, because the objection raises only an issue of law. (See People v. Mattson (1990) 50 Cal.3d 826, 854.) 7 nonetheless neutralize even the great weight of the mitigant circumstance, such that dismissal of the enhancement is not in furtherance of justice.’” (People v. Walker (2024) 16 Cal.5th 1024, 1038, italics added (Walker).) Of course, regardless of the presence of mitigating factors, the court should not dismiss an enhancement if it finds dismissal would endanger public safety. A. Furtherance of Justice Analysis “Under the relevant statutory scheme, long-standing case authority, and the rules of court governing sentencing, a trial court deciding whether to dismiss a sentence enhancement in furtherance of justice under section . . . 12022.53 must consider case-specific factors as well as general sentencing objectives.” (Nazir v. Superior Court (2022) 79 Cal.App.5th 478, 485.) Those factors “‘are the same [ones] . . . the trial court must consider when handing down a sentence in the first instance.’ [Citations.] Among those factors are whether ‘“[t]he crime involved great violence, . . . threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness”’ and whether “‘[t]he defendant has engaged in violent conduct that indicates a serious danger to society.”’” (People v. Flores (2021) 63 Cal.App.5th 368, 377 (Flores).) “We review the denial of a motion to dismiss an enhancement for abuse of discretion and will not reverse the ruling unless it ‘“is so irrational or arbitrary that no reasonable person could agree with it.”’” (Flores, supra, 63 Cal.App.5th at p. 376.) Here, the trial court could properly consider the severity of the home invasion in which Simental was involved and determine that it demonstrated a high degree of cruelty. Further, the court could consider that Simental’s history of substance abuse and addiction could act as a potential trigger for his participation in violent crime, as it did in this case. 8 B. Mitigating Circumstances Simental argues there were three mitigating circumstances present here, which should have led to the dismissal of the firearm enhancement. We agree that there was one mitigating circumstance— multiple enhancements alleged in a single case. (§ 1385, subd. (c)(2)(B).) However, the court addressed this by dismissing the enhancements on the determinate counts and preserving only the enhancement on the indeterminate sentence—which is precisely what the statute contemplates it should do in such a situation. (See ibid. [“In this instance, all enhancements beyond a single enhancement shall be dismissed”].) The court was not required to dismiss all the enhancements. Simental also contends the offense of which he was convicted was “connected to mental illness” (§ 1385, subd. (c)(2)(D)), and “connected to prior victimization or childhood trauma” (id., subd. (c)(2)(E)). We see no evidence in the record indicating Simental suffered any prior victimization or childhood trauma. And while Simental’s probation report indicates he partly attributed his participation in the crime to PTSD, he offered no evidence at resentencing indicating this was indeed the case. In any event, the trial court took Simental’s PTSD into account as a mitigating factor as required under section 1170.91. We therefore conclude there were no further mitigating circumstances which would restrict the court’s discretion to keep the single firearm enhancement under section 12022.53 in place. It could find dismissing the enhancement was not in the furtherance of justice based on the brutality of the crime. 9 C. Danger to Public Safety Even though we affirm the trial court’s exercise of discretion here, we address its reference to the danger to public safety to clarify some important points. 1. The Trial Court’s Reasoning Here, the court dismissed enhancements as to counts five, seven, eight, and nine as follows: “Now we’re back with the changes in the law as far as 1385 is concerned and there are multiple enhancements, but they’re all for the same reason. You know, there’s gun enhancements. [¶] So as far as the determinate counts are concerned, I will dismiss those enhancements that are connected because there are multiple enhancements. [¶] So connected to 5A, I’ll go ahead and dismiss the 12022.53[,subdivision ](b) enhancement pursuant to 1385. The enhancement on 7A, the enhancement on 8A and 9A,7 I will dismiss those enhancements under 12022.5[, subdivision ](a) pursuant to 1385.” We sought supplemental briefing from the parties as to whether the trial court erred in dismissing those enhancements without considering the potential danger to public safety. The Attorney General observes that the court dismissed the firearm enhancements as to the determinate counts without making an express public safety or interests of justice finding, yet it declined to dismiss the remaining enhancement for reasons of public safety and the interests of justice. As such, the Attorney General argues, the court’s conclusion is contradictory—if it thought public safety would be endangered 7 It appears the trial court was referring to the counts as “5A,” “7A,” “8A” and “9A” because the counts were listed this way in the abstract of judgment. 10 by dismissing the enhancement on count four, the same concern should attach to the determinate enhancements. Simental argues, however, the trial court “clearly understood” that it could not dismiss enhancements if it found dismissal would endanger public safety because it cited public safety as a reason to deny dismissal of the indeterminate enhancement. Therefore, Simental urges us to presumptively find that the court considered public safety in connection with its decision whether to dismiss any of the enhancements. The Attorney General is correct regarding the analysis required under section 1385, subdivision (c)(2). An assessment of the impact on public safety is required regardless of the mitigating circumstance presented or the enhancement at issue, as Walker suggests. (See Walker, supra, 16 Cal.5th at p. 1029.) “[I]f the court does not conclude that dismissal would endanger public safety, then mitigating circumstances strongly favor dismissing the enhancement.” (Id. at p. 1036.) Here the trial court did not make an express conclusion as to whether or not dismissing the enhancements on the determinate counts would endanger public safety; we conclude it should have. (See § 1385, subd. (a) [“The reasons for the dismissal shall be stated orally on the record”]; see also Walker, at p. 1036, fn. 6.) However, where the record is unclear, we must “presume that the trial court followed established law and thus properly exercised its discretion in sentencing a criminal defendant.” (People v. Weddington (2016) 246 Cal.App.4th 468, 492.) This principle is especially applicable here because our previous unpublished opinion in this matter discussed the public safety inquiry as a requirement. (See People v. Simental, supra, G061471 [“under amended section 1385, a trial court is obligated to consider certain factors when exercising its sentencing discretion—the furtherance of justice, the 11 presence of mitigating circumstances, and danger to public safety”].) Given our previous opinion and the Supreme Court’s subsequent decision in Walker, we cannot assume the trial court was unaware that it had to consider public safety in connection with dismissing any enhancements under section 1385. Rather, it is reasonable for us to infer the court assumed, without explicitly stating, that there could be no danger to public safety if enhancements on concurrently served counts were dismissed. 2. Assessment of Dangerousness As to the enhancement the trial court declined to dismiss, section 1385 defines “‘[e]ndanger public safety’” as “a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others.” (Id., subd. (c)(2).) “[S]ection 1385, subdivision (c)(2) focuses on the danger associated with the dismissal of an enhancement, phrasing the inquiry as whether ‘dismissal of the enhancement would endanger public safety,’ and whether ‘there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others.’” (Gonzalez, supra, 103 Cal.App.5th at p. 228, original italics.) Simental’s early release on parole is a strong indicator that he does not currently pose such a danger. Indeed, the parole board decided as much, saying that, at least as of December 6, 2022, Simental did not pose an “unreasonable risk to public safety.” Also, “a crucial part of the inquiry is how the dismissal of the enhancement will impact the length of the defendant’s sentence. A currently dangerous defendant who will be released from prison within a short timeframe might be found by the trial court to pose a greater danger to the public than a defendant who is currently dangerous but who has no prospect 12 of release from prison until he is elderly.” (Gonzalez, supra, 103 Cal.App.5th at p. 228.) Because Simental has already been released from custody, the practical reality is that dismissal of the enhancement cannot impact his release. Additionally, neither the Attorney General nor the trial court pointed to any evidence that Simental is currently dangerous. Nonetheless, because the court adequately addressed the applicable mitigating circumstance, it retained discretion to determine that dismissing the lone remaining enhancement would not be in furtherance of justice for reasons other than public safety. III. THE TRIAL COURT ERRED WHEN IT DID NOT RECALCULATE SIMENTAL’S CREDIT FOR TIME SERVED “A defendant ordinarily receives credit against his time in state prison for the days he spends in local custody before a court sentences him to prison. [Citations.] In addition to credit for the days spent in local custody, a defendant may also earn credits for his conduct before sentencing. [Citation.] A sentencing court calculates a defendant’s presentence conduct credits as a percentage of the days the defendant spent in actual confinement. The usual percentage is 50 percent of actual time served. [Citation.] But, if the defendant’s offense is statutorily defined as ‘violent,’ section 2933.1, subdivision (c) limits the presentence conduct credit to 15 percent of actual time served before sentencing.”8 (People v. Nunez (2008) 167 Cal.App.4th 761, 764.) Presentence custody credits count against both the term of 8 Kidnapping, of which Simental was convicted, is a violent crime under section 667.5, subdivision (c)(14). 13 imprisonment and any period of parole. (See In re Sosa (1980) 102 Cal.App.3d 1002, 1006.) However, “once the defendant is committed to prison, his custody is thereafter considered service of his sentence, and a remand with respect to a sentence the defendant is already serving does not render him eligible for credits of the presentence kind.” (People v. Buckhalter (2001) 26 Cal.4th 20, 33 (Buckhalter).) Instead, if the trial court modifies a defendant’s sentence on remand, it is “obliged, in its new abstract of judgment, to credit him with all actual days he had spent in custody, whether in jail or prison, up to that time.” (Id. at p. 37.) In so concluding, the Supreme Court cited section 2900.1, which states: “Where a defendant has served any portion of his sentence under a commitment based upon a judgment which judgment is subsequently declared invalid or which is modified during the term of imprisonment, such time shall be credited upon any subsequent sentence he may receive upon a new commitment for the same criminal act or acts.” (See Buckhalter, at p. 37.) When Simental was originally sentenced in March 2018, he was awarded credit for time served amounting to 2,717 days under section 2933.1—including 2,363 actual days and 354 days of good conduct. At the first remand and resentencing in 2022, the court awarded Simental 4,492 days under section 2933.1, including 3,906 actual days and 586 days of good conduct. However, at the second resentencing in November 2024, the court’s calculation of Simental’s credits was exactly the same: 4,492 days consisting of 3,906 actual custody and 586 days of good conduct. 14  Under Buckhalter, the trial court was obliged to recalculate the actual custody days accrued as of the second resentencing date.9 The Attorney General concedes the court should have done so, but urges us to do the recalculating, citing People v. Guillen (1994) 25 Cal.App.4th 756. (See id. at p. 764 [“when the sentence issue presented is essentially arithmetic in nature, involving no factual assessment or exercise of discretion and, in fact, will take no more than a few minutes of appellate time, it is far more economical to resolve it through the appellate process than to require the institution of a trial court proceeding”].) We will do so. DISPOSITION The matter is remanded to the trial court to amend the judgment to reflect Simental is entitled to 4,798 days of custody credits plus 354 days of presentence conduct credit for a total of 5,152 days. The trial court clerk is directed to prepare and forward to the Department of Corrections and 9 Simental repeatedly refers to the missing credits as “presentence” credits. But his missing credits were from time served on his imposed sentence, not his time in presentence custody. Thus, they are properly characterized as custody credits. (See § 2900.1; see also Buckhalter, supra, 26 Cal.4th at p. 34.) 15 Rehabilitation a certified copy of the amended abstract of judgment reflecting these modifications. In all other respects, the judgment is affirmed. MOTOIKE, P. J. WE CONCUR: DELANEY, J. GOODING, J. 16