People v. Neukomsaravia CA2/1 ( 2022 )

Filed 8/30/22 P. v. Neukomsaravia CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B316952
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA119895)
v.
VINCENT GERARDO
NEUKOMSARAVIA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Juan C. Dominguez, Judge. Affirmed as
modified.
Susan Morrow Maxwell, under appointment by the Court of
Appeal, for Defendant and Appellant
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Michael J. Wise,
Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted appellant Vincent Gerardo
Neukomsaravia of two counts of carjacking and two counts of
assault with a deadly weapon. Neukomsaravia admitted to, inter
alia, prior prison term allegations under Penal Code1 section
667.5, subdivision (b) and prior serious felony convictions under
section 667, subdivision (a)(1). He was sentenced to state prison
for 22 years 4 months.
In a prior appeal, we reversed one of the carjacking
convictions based on insufficiency of the evidence, reversed the
true findings on the enhancement allegations under section
667.5, subdivision (b), otherwise affirmed the conviction and
sentencing enhancements, and remanded the matter for
resentencing. (People v. Rodriguez (Feb. 1, 2021, B300324)
[nonpub. opn.].)
On remand, Neukomsaravia requested that the trial court
not impose the section 667, subdivision (a)(1) prior serious felony
enhancement. The trial court denied the request.
Neukomsaravia now appeals from that determination. We
conclude the trial court did not abuse its discretion, and thus, we
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Summary2
Just after midnight on January 1, 2019, Neukomsaravia
and Delia Rodriguez entered the home of Rodriguez’s parents,
1Subsequent unspecified statutory references are to the
Penal Code.
2 We provide a summary of the facts as stated in our prior
opinion, People v. Rodriguez, supra, B300324, which both
Neukomsaravia and the People rely on in their recitation of facts.
2
Homero and Frances Rodriguez.3 Rodriguez held a metal bar and
Neukomsaravia was armed with a knife. According to Homero,
Neukomsaravia tried to stab him with the knife, and Rodriguez
hit her father over the head with the metal bar. By the time the
police arrived at the home, Neukomsaravia and Rodriguez had
fled.
A few hours later, when Homero and Frances returned to
their home from the hospital, the house had been ransacked and
Neukomsaravia and Rodriguez were standing in the kitchen.
Rodriguez held a machete, and Neukomsaravia held a hammer.
Rodriguez demanded the keys to her car.
The confrontation moved outside to the front of the house.
According to a neighbor, Neukomsaravia hit Homero with a
broom and demanded “the keys.” Rodriguez hit Frances on the
hand with the machete, threatened to kill her, and demanded the
keys to Homero’s truck. Homero eventually gave Rodriguez his
keys. Rodriguez drove away from the house. One witness
testified that Neukomsaravia was a passenger in the truck;
Homero and Frances testified that Neukomsaravia ran from the
house in the opposite direction from Rodriguez.
B. Procedural Summary
The Los Angeles County District Attorney charged
Neukomsaravia and Rodriguez with two counts of carjacking in
violation of section 215, subdivision (a) (counts 1 & 2) and two
counts each of assault with a deadly weapon in violation of
section 245, subdivision (a)(1) (counts 4 & 6 as to
3 Delia, Homero, and Frances have the same surname. To
avoid confusion, we will refer to Homer and Frances by their first
names. We intend no disrespect.
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Neukomsaravia). The information further alleged, inter alia,
that Neukomsaravia had suffered three prior serious felony
convictions within the meaning of section 667, subdivision (a)(1)
in December 2012; three prior “strike” convictions (§§ 667, subds.
(b)-(j), 1170.12, subd. (b)) in December 2012; and that
Neukomsaravia had incurred two prior prison term convictions
within the meaning of section 667.5, subdivision (b) in October
2007 and July 2011.
A jury found Neukomsaravia guilty as to all four counts
alleged against him.
Neukomsaravia waived trial on the prior conviction
allegations and admitted the prior serious felony, strike, and
prior prison term convictions described above. Pursuant to
People v. Superior Court (Romero) (1996) 13 Cal.4th 497, the trial
court dismissed two of his three strikes’ convictions.
The trial court sentenced Neukomsaravia to a total of 22
years 4 months in state prison. On count 1, the trial court
imposed 10 years, comprised of the middle term of five years,
doubled due to the strike. As to count 2, the court imposed a
consecutive term of three years and four months, comprised of
one-third the middle term of one year eight months (doubled due
to the strike). On count 6, the court imposed a two-year
consecutive sentence, comprised of one-third the middle term of
one year (doubled due to the strike). Pursuant to section 654, the
court imposed but stayed the sentence for count 4. The court also
imposed five years pursuant to section 667, subdivision (a)(1),
and one year each for two prior prison terms pursuant to section
667.5, subdivision (b).
Neukomsaravia filed an appeal from the judgment. On
February 1, 2021, this court concluded one of Neukomsaravia’s
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carjacking convictions (count 1) must be reversed, and his prior
prison term sentence enhancements under section 667.5,
subdivision (b), stricken. We remanded for resentencing. (People
v. Rodriguez, supra, B300324.)
Neukomsaravia’s resentencing hearing was held on
December 8, 2021. During the hearing, he argued the trial court
should exercise its discretion to strike the five-year sentence
imposed pursuant to section 667, subdivision (a)(1).
In refusing to strike the five-year enhancement, the trial
court stated: “In light of the evidence presented at trial, I did
determine that he was a lesser participant in this event, and the
court did strike one of his strikes so that he did not receive a life
sentence, which he could have, and I think it would have been
probably justified. The court felt, in order to place the proper
weight of the responsibility on the two defendants, that it should
be placed heavier on Ms. Rodriguez, although Ms. Rodriguez is
not a third striker so she came into court in a different status
than Mr. Neukomsaravia. . . . I don’t believe that, based on his
prior history and his comportment to date in state prison, that
the court should exercise its discretion in removing the—or
striking the five-year [section] 667[, subdivision (a)] prior.”
The trial court resentenced him to a total term of 17 years
in state prison. On count 2, the court imposed 10 years,
comprised of the middle term of five years, doubled due to the
strike. As to count 6, the court imposed a consecutive two-year
prison term, comprised of one-third the middle term of one year,
doubled due to the strike. The court further imposed and stayed
the sentence for count 4 pursuant to section 654. Finally, the
court imposed five additional years pursuant to section 667,
subdivision (a)(1).
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Neukomsaravia appeals from the resentencing.
DISCUSSION
The issue raised by Neukomsaravia is whether the trial
court abused its discretion when it refused at resentencing to
strike the five-year enhancement imposed under section 667,
subdivision (a). He asks this court to dismiss the enhancement.
We conclude the trial court did not abuse its discretion.
The parties agree the trial court had the discretion, in the
furtherance of justice, to strike the five-year enhancement proved
under section 667, subdivision (a)(1). (See §§ 667, subd. (f)(2),
1385; People v. Stamps (2020) 9 Cal.5th 685, 693; People v.
Zamora (2019) 35 Cal.App.5th 200, 208.) In making its
determination, the court was required to examine the nature of
the offense and the offender, any aggravating and mitigating
circumstances, including those articulated in section 1385,4 as
4 In exercising its discretion under section 1385,
subdivision (c)(2), “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. . . .” Subparagraphs (A) to (I) state: “(A) Application of
the enhancement would result in a discriminatory racial impact
as described in paragraph (4) of subdivision (a) of [s]ection 745.
[¶] (B) Multiple enhancements are alleged in a single case. . . .
[¶] (C) The application of an enhancement could result in a
sentence of over 20 years. . . . [¶] (D) The current offense is
connected to mental illness. [¶] (E) The current offense is
connected to prior victimization or childhood trauma. [¶] (F) The
current offense is not a violent felony as defined in subdivision (c)
of [s]ection 667.5. [¶] (G) The defendant was a juvenile when
they committed the current offense or any prior offenses,
including criminal convictions and juvenile adjudications, that
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well as the general objectives of sentencing as set forth in the
California Rules of Court. (See § 1385, subd. (c)(1); People v.
Brugman (2021) 62 Cal.App.5th 608, 639-640; People v. Shaw
(2020) 56 Cal.App.5th 582, 586-588; Cal. Rules of Court, rule
4.410.)
In determining whether the sentencing court abused its
discretion, we examine whether the court’s decision exceeded the
bounds of reason. (People v. Zeigler (2012) 211 Cal.App.4th 638,
667; see People v. Carmony (2004) 33 Cal.4th 367, 373 [holding a
deferential abuse of discretion standard of review applies to a
court’s decision not to strike a prior conviction allegation under
§ 1385].) We reverse the court’s decision only where its decision
is arbitrary, whimsical, or capricious. (People v. Zeigler, supra, at
p. 667.) We may not substitute our own judgement (ibid.) or
assign different weight to various factors considered by the trial
court (see People v. Willover (2016) 248 Cal.App.4th 302, 323).
The party attacking the sentencing decision bears the burden of
showing the court’s action was irrational or arbitrary, and in
doing so, it is not sufficient to demonstrate reasonable minds
might differ. (People v. Philpot (2004) 122 Cal.App.4th 893, 904.)
On this appeal, Neukomsaravia argues the trial court failed
to properly balance the guilt between himself and Rodriguez, who
the trial court acknowledged was more culpable. It is an
argument based essentially on fairness and distribution of fault.
Contrary to Neukomsaravia’s argument, however, the record at
the time of resentencing reflects the trial court devoted
trigger the enhancement or enhancements applied in the current
case. [¶] (H) The enhancement is based on a prior conviction
that is over five years old. [¶] (I) Though a firearm was used in
the current offense, it was inoperable or unloaded.” (Ibid.)
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substantial time and effort to Neukomsaravia’s position that it
should dismiss the five-year enhancement on the same grounds of
fairness now raised. The trial court concluded that Rodriguez’s
sentence was shorter nonetheless because she did not come to
court with prior strikes. It also considered Neukomsaravia’s
recidivist conduct and a physical altercation while he was in
prison. Further, as the court observed, it had already exercised
leniency by striking two of his three strikes’ convictions that
arose from a December 2012 case.
The record thus shows the court balanced the factors it was
required to examine. There is nothing in the record supporting
an argument the court failed to properly exercise its discretion.
Nor does the record support the conclusion the trial court might
sentence him differently and strike the enhancement if we were
to again remand this case. We decline to do so.
Neukomsaravia contends, and the People concur, that the
abstract of judgement must be corrected to show his correct days
of actual credit, which the parties agree is 1,073 days, calculated
by adding the original 188 days of actual credit to the additional
885 days he has spent in custody, from the date of his original
sentencing hearing on July 8, 2019, to the date of his
resentencing hearing on December 8, 2021. We order the
correction without the need to remand the case.
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DISPOSITION
The order is modified to reflect an award of 1,073 days of
actual credit. As modified, the order is affirmed. The trial court
is directed to prepare and forward an amended abstract of
judgment to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED
BENKE, J.*
We concur:
ROTHSCHILD, P. J.
BENDIX, J.
* Retired Associate Justice of the Court of Appeal, Fourth
Appellate District, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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