Resentencing on PC § 667.5(b) Enhancement is Denied

On October 8, 2019, Governor Gavin Newsom signed Senate Bill (SB) No 136 into law.  It abolished the one-year “prison prior” enhancement under Penal Code § 667.5(b) except for those who served a prior prison term for a sexually violent offense as defined under Welfare & Institutions Code § 6600 or when doing so would endanger public safety.  

The following summary of recent published decision exemplified “when doing so would endanger public safety.”

In 2018, Simon Ituraea was working at a recycling center in Los Angeles when a vehicle entered the parking lot and Miguel Garcia exited the passenger side carrying a handgun.  Mr. Garcia approached Ituraea and demanded that he open a padlocked cabinet that served as the recycling center’s cash register.

After Mr. Ituraea told Mr. Garcia that there was no money in the cabinet.  In response, Mr. Garcia pulled out his gun and fired four shots at the padlock, opened the cabinet and took out $1,400 in cash and returned to the vehicle before leaving.

Police responded and found four 40-caliber shell casings next to the cabinet and two partial casings embedded in the cabinet stand.  The robbery was captured on security cameras and Mr. Ituraea identified Mr. Garcia in a photographic lineup.  

In June 2019 (before SB 136 came into effect), Mr. Garcia pleaded no contest in the Clara Shortridge Foltz criminal courts building (CCB) to second degree robbery (Penal Code § 211) and possession of a firearm by a felon (Penal Code § 29800(a)(1)) and admitted that he personally and intentionally discharged a firearm (Penal Code § 12022.53(b) and (c)).

Judge Lynne M. Hobbs sentenced Mr. Garcia to twelve years in state prison.  The sentence included the upper term of five years on the robbery, plus seven one-year prior prison sentence enhancements under Penal Code § 667.5(b).  Judge Hobbs further sentenced Mr. Garcia to three years on the possession of a firearm by a felon charge to run concurrent with the five years on the robbery.  She also imposed and struck a 20-year sentence for the section 12022.53(c) firearm enhancement.

In 2022, Mr. Garcia’s sentence was recalled and set for resentencing under Penal Code § 1172.75.  

The People filed a brief in opposition to resentencing, arguing that there was clear and convincing evidence that that imposition of a lesser sentence would endanger public safety.  The opposition explained that Mr. Garcia’s “C-file” reflected that on March 18, 2022, Mr. Garcia participated in a prison riot and attacked another prisoner.  Specifically, Mr. Garcia and seven new arrivals at the Sierra Conservation Camp prison rushed toward prisoners in the yard of the non-designated programming facility (NDPF), causing a riot. 

 

Mr. Garcia and three other new arrivals hit an inmate on his body, upper torso and face with their fists.  Two corrections officers told the attackers to “get down,” but they did not comply and continued to fight.  Ultimately, corrections officers used pepper spray to control the situation.

When interviewed about the fight, Mr. Garcia stated, “I am a Southsider and I will continue to commit violence if rehoused at the NDPF yard.”

Judge Hobbs dismissed the prior prison enhancements, but resentenced Mr. Garcia to the same 12-year sentence by sentencing him to two years on the robbery (low term) and imposing a ten-year firearm enhancement (Penal Code § 12022.53(b) that had previously been stricken, finding Mr. Garcia continued to pose a threat to public safety.

Mr. Garcia appealed the new sentence to the Second Appellate District in downtown Los Angeles, which affirmed Judge Hobbs.  Mr. Garcia challenged Judge Hobbs’ finding that sentencing him to a lesser sentence would endanger public safety.  

The Second Appellate District explained that it reviewed the trial court’s sentence for an abuse of discretion.  

The Second District then cited to Mr. Garcia’s multiple prior felony convictions of increasing seriousness, his failure to appear for sentencing and his participation just two-and-a-half years after his sentencing in a prison riot in which he beat another inmate, and found Judge Hobbs had not abused her discretion.