People v. Ayala CA4/1 ( 2023 )

Filed 7/27/23 P. v. Ayala CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D081044
Plaintiff and Respondent,
v. (Super. Ct. No. SCS322001)
JUVENAL AYALA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Dwayne K Moring, Judge. Affirmed.
Deanna L. Lopas, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
INTRODUCTION
A jury found Juvenal Ayala guilty of robbery (§ Pen. Code,1 § 211;
count 1); grand theft of personal property (§ 487, subd. (a); count 2); and two
counts of shoplifting (§ 459.5; counts 3 & 4). Ayala admitted he was
previously convicted of one serious felony (§§ 667, subd. (a)(1), 668, and
1 Undesignated statutory references are to the Penal Code.
1192.7, subd. (c)) that qualified as a strike prior (§§ 667, subds. (b)-(i),
1170.12, and 668). In a bifurcated proceeding, the trial court found true an
allegation that Ayala committed count 1 while he was on parole (§ 1203.085,
subd. (b)), and several circumstances in aggravation within the meaning of
California Rules of Court, rule 4.421. The court sentenced Ayala to an
aggregate term of 8 years, 4 months, in state prison.
Ayala’s counsel on appeal has filed an opening brief asking this court to
conduct an independent review of the record pursuant to Anders v. California
(1967) 386 U.S. 738 (Anders) and People v. Wende (1979) 25 Cal.3d 436(Wende). We granted Ayala the opportunity to file a supplemental brief on
his own behalf and he has done so. We have reviewed the entire record as
required by Wende and Anders, as well as the briefing submitted by counsel
and Ayala, and we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
I.
Shoplifting Offenses (Counts 3-4)
On December 9, 2021, an asset protection employee for the Old Navy
department store reviewed surveillance video of a theft at their Las Americas
Mall location. The surveillance video depicted a man, whom the employee
identified as Ayala, enter the store at approximately 8:01 p.m. Ayala
removed two brown paper bags from his pocket and placed 11 pieces of Old
Navy merchandise into the bags. Ayala exited the store with the two bags of
concealed merchandise, valued at $292.92, without attempting to pay.
On January 20, 2022, the asset protection employee reviewed
surveillance video of another theft at the same Old Navy store. She observed
Ayala enter the store at around 12:19 p.m. and remove a plastic bag from his
pocket. He concealed nine items of clothing in the bag, valued at $281.91.
2
Ayala left the store with the concealed merchandise without attempting to
pay.
The surveillance video footage of both thefts were played for the jury,
and “screenshots” of the footage were moved into evidence. The asset
protection employee identified Ayala, in court, as the individual depicted in
the surveillance videos concealing and taking merchandise from the store.
II.
Grand Theft (Count 2)
On February 14, 2022, a loss prevention officer employed by the
Marshall’s department store reviewed video surveillance of thefts that
occurred on February 5, February 8, and February 9, 2022. The loss
prevention officer identified Ayala, in court, as the individual depicted in the
videos committing the thefts.
On February 5, 2022, Ayala was seen entering the Marshall’s
department store carrying an empty bag. He placed the bag in a shopping
cart and concealed 21 items, valued at $317.79. Ayala left the store with the
concealed merchandise without attempting to pay.
During the February 8, 2022, incident, Ayala appeared to be dressed in
the same clothing as the February 5, 2022, theft. He entered the Mashall’s
department store and placed items of clothing and other merchandise into a
shopping cart. He spoke with an unidentified man who handed him
additional items, and he then exited the store with 28 pieces of merchandise
without attempting to pay. The value of the merchandise was $417.
On February 9, 2022, Ayala entered the Marshall’s store and placed 28
items of merchandise into a bag. He left the store without attempting to pay
for the concealed items. The merchandise was valued at $479.73.
3
The loss prevention officer also testified regarding uncharged conduct
that occurred on February 14, 2022. She was informed that Ayala was
present in the Marshall’s store and she observed him place several items of
merchandise into a bag through live surveillance video. The investigator
approached Ayala in the store, and he laughed and continued to conceal
items in his bag. She observed him exit the store without paying for 22
items, valued at $574.78.
The surveillance video of each incident was played for the jury. During
each theft, the store alarm system sounded when Ayala exited the store
because sensors attached to the unpaid merchandise were not removed.
III.
Robbery (Count 1)
On March 30, 2022, a security officer providing support to a shopping
center near the Marshall’s department store was informed that Ayala was at
a 7-Eleven convenience store on the premises. The officer worked for a
security company that had a contract with the shopping center, and the
Marshall’s department store within the center, to assist with theft
prevention. The security officer asked Ayala to leave the premises and Ayala
complied. Around an hour later, he observed Ayala hiding behind a trashcan
near the Marshall’s department store before the store opened. The officer
escorted him away from the store, but Ayala returned again at 9:35 a.m.
The security officer observed Ayala enter the Marshall’s department
store and the officer informed the store manager of his presence. He kept in
radio communication with the store manager and waited outside of the store
for Ayala to exit. The officer observed the store alarms sound as Ayala exited
the store with two bags of merchandise without attempting to pay.
4
The security officer approached Ayala and asked him to return to the
store with the merchandise. He informed Ayala that the theft was captured
on the surveillance cameras. Ayala responded, “No. I’m not going to give it to
you. I’m taking it. This is what I need, and I’ll be back tomorrow for more.”
The security officer told Ayala he was “not intimidating to [him],” and he
asked Ayala to leave the mall and not return if he didn’t intend to return the
merchandise.
The security officer continued to follow and speak with Ayala at a
distance of around five to six feet. During this conversation, Ayala put his
hand in his pocket and told the officer, “Don’t come close because[] if you do,
I’m going to hurt you.” Ayala then removed his hand from his pocket and
continued walking. The security officer testified that he believed Ayala was
serious and that if he got closer Ayala would hurt him.
Two San Diego police officers received a description of Ayala and
responded to the scene at approximately 10:30 a.m. One of the officers had
prior contact with Ayala and observed him from the patrol car. The officer
called Ayala by name and he responded. The officers detained and searched
Ayala and two bags in his possession. They found Marshall’s merchandise in
the bags, with store tags and security tags still attached. Ayala did not have
any credit cards, cash, or merchandise receipts in his possession, nor did he
possess any weapons.
The responding police officers interviewed the security officer at the
scene. The security officer stated that Ayala told him he planned to take the
merchandise to “TJ” to resell it. The security officer did not mention in his
statement to the officers that he was fearful during his interaction with
Ayala.
5
IV.
Bifurcated Court Trial
Following the jury’s guilty verdicts on counts 1 through 4, the trial
court conducted a bifurcated court proceeding on Ayala’s prior convictions
and the circumstances in aggravation that were alleged in the amended
information. Ayala waived his right to a jury trial and admitted that he
suffered a serious prior felony conviction that qualified as a strike. He
further admitted that his conviction offense involved great violence, great
bodily harm, threat of great bodily harm, or other facts disclosing a high
degree of cruelty, viciousness, or callousness, within the meaning of
California Rules of Court, rule 4.421(a)(1). He admitted an allegation that he
was on probation or parole when the underlying offenses were committed.
The court found true, beyond a reasonable doubt, allegations that
Ayala: (1) engaged in violent conduct within the meaning of Rule 4.421(b)(1);
(2) suffered a prison prior; and (3) performed unsatisfactorily while on
probation or parole pursuant to Rule 4.421(b)(5).
V.
Sentencing
The trial court sentenced Ayala to an aggregate term of 8 years 4
months, in state prison. The court arrived at this sentence by imposing the
middle term of 3 years on count 1, doubled due to the strike prior, for a total
of 6 years; one-third the middle term on count 2, for a total of one years, four
months; and a one-year consecutive sentence for another case that is not the
subject of this appeal. On counts 3 and 4 (the misdemeanor shoplifting
charges), the court denied probation and sentenced him to credit for time
served. The court exercised its discretion to dismiss the serious felony prior
pursuant to section 1385.
6
DISCUSSION
Appointed appellate counsel filed a brief summarizing the facts and
proceedings in the trial court. Counsel raised no specific issues on appeal,
and instead identified five possible, but not arguable, issues pursuant to
Anders, supra, 386 U.S. 738, as follows, whether: (1) joinder of the various
theft charges on different offense dates was appropriate, and, if not, whether
counsel was ineffective for failing to request a severance; (2) there was
sufficient evidence to prove force or fear as it relates to the robbery charge;
(3) all necessary jury instructions were given; (4) there was sufficient
evidence to support each aggravating factor the trial court found true; and
(5) the trial court abused its discretion at sentencing.
We granted Ayala permission to file a brief on his own behalf and he
filed a 4-page handwritten brief. As best can be discerned, Ayala contends
there was insufficient evidence to support a conviction for robbery because
the security officer involved in the offense was not in fear during the incident
and because he testified falsely. Ayala alleges that the security officer was
familiar with his criminal history and was motivated to lie so that Ayala
would not come back to the shopping center. Ayala further proffers that he
was not carrying a weapon during the offense.
When the appellant raises specific issues in a Wende proceeding, we
must expressly address them in our opinion and if they fail, explain why.
(People v. Kelly (2006) 40 Cal.4th 106, 110, 120, 124.) Below we address the
issues identified by appellate counsel and Ayala, and as we discuss, conclude
the issues lack arguable merit.
7
I.
Joinder of Counts 2-4
Ayala was initially charged in a criminal complaint with one count of
robbery. An amended complaint, and an information thereafter, added
charges of grand theft and two counts of shoplifting occurring on different
offense dates. Ayala did not request severance of the additional theft charges
at any point during the proceeding. Appellate counsel suggests as a possible
issue that joinder of the various theft-related offenses in the amended
complaint and information was inappropriate, and that defense counsel was
ineffective for failing to move for severance of the added charges. We
conclude the issue is not reasonably arguable.
A. General Legal Principles
“Section 954, in relevant part, permits the joinder of ‘two or more
different offenses of the same class of crimes or offenses.’ ” (People v. Simon
(2016) 1 Cal.5th 98, 122 (Simon); see also § 954.) If charged offenses are
connected together in their commission, or of the same class, the presumption
is that they will be tried together because separate trials would waste judicial
resources. (People v. Soper (2009) 45 Cal.4th 759, 771–772 (Soper); see also
Simon, supra, 1 Cal.5th at p. 122 [“Joinder is ordinarily favored because it
avoids the increased expenditures of funds and judicial resources that may
result from separate trials.”].) “Joinder, therefore, ‘is the course of action
preferred by the law.’ ” (Simon, at p. 122.)
However, even where the statutory requirements of section 954 have
been met, “a trial court has discretion to sever properly joined charges in the
interest of justice and for good cause.” (Simon, supra, 1 Cal.5th at p. 122.)
“The burden is on the party seeking severance to clearly establish that there
is a substantial danger of prejudice requiring that the charges be separately
8
tried.” (Soper, supra, 45 Cal.4th at p. 773.) A trial court has no sua sponte
duty to order charged offenses severed. (People v. Maury (2003) 30 Cal.4th
342, 392.)
“A defendant, to establish error in a trial court's ruling declining to
sever properly joined charges, must make a ‘ “clear showing of prejudice to
establish that the trial court abused its discretion . . . .” ’ ” (Soper, supra, 45
Cal.4th p. 774.) “In determining whether a court abused its discretion in
declining to sever properly joined charges, [the reviewing court] first
consider[s] the ‘cross-admissibility of the evidence in hypothetical separate
trials.’ [Citation.] If the evidence is cross-admissible, then this ‘is normally
sufficient to dispel any suggestion of prejudice and to justify a trial court's
refusal to sever properly joined charges.’ [Citation.] If not, then we also
consider ‘(1) whether some of the charges are particularly likely to inflame
the jury against the defendant; (2) whether a weak case has been joined with
a strong case or another weak case so that the totality of the evidence may
alter the outcome as to some or all of the charges; or (3) whether one of the
charges (but not another) is a capital offense, or the joinder of the charges
converts the matter into a capital case.’ [Citation.]” (People v. Gomez (2018) 6
Cal.5th 243, 275–276.)
A party’s failure to request severance forfeits the issue on appeal.
(Maury, supra, 30 Cal.4th at p. 392 [“defendant’s failure to request a
severance waives the matter on appeal”].) A claim of ineffective assistance of
counsel for failing to request severance will not prevail when the trial court
would not have abused its discretion by denying a motion to sever. (Ibid.)
However, “ ‘[e]ven if a defendant fails to demonstrate the trial court’s joinder
ruling was an abuse of discretion when it was made, reversal may
nonetheless be required if the defendant can demonstrate that ‘the joint trial
9
resulted in such gross unfairness as to amount to a due process violation.’
[Citation.]” (Gomez, supra, 6 Cal.5th at p. 276.)
B. Analysis
Here, the trial court had no sua sponte duty to order the theft-related
offenses severed, and Ayala forfeited his challenge to the joinder of the
charges by failing to request severance in the trial court. (See Maury, supra,30 Cal.4th at p. 392.) Nonetheless, we consider the merits of this potential
claim because appellate counsel raises ineffective assistance of counsel as a
possible issue. As we discuss, because we conclude joinder of the charges was
not in error, the “related claims of ineffective assistance of counsel fail and do
not require further discussion.” (People v. Ledesma (2006) 39 Cal.4th 641,
748.)
The charges at issue in the instant case—robbery, grand theft, and
shoplifting—are all within the same class of offenses because they share the
common characteristic of the wrongful taking of another’s property. (See
People v. Koontz (2002) 27 Cal.4th 1041, 1075 [robbery and petty theft “fall
within the same class, in that they share the common characteristic of the
wrongful taking of another's property”].) Joinder was therefore proper
because the statutory joinder requirements under section 954 have been met.
(§ 954 [“An accusatory pleading may charge two or more different
offenses . . . of the same class of crimes or offenses . . . .”].) Accordingly,
because all of the offenses charged in the information fell within the same
class of offenses, there was a presumption favoring the joinder of the charges
for trial. (Soper, supra, 45 Cal.4th at pp. 771–772.)
Further, even if Ayala had moved for severance of the properly joined
charges, the trial court would not have abused its discretion by denying his
request. A substantial portion of the evidence against Ayala undoubtedly
10
would have been cross-admissible in hypothetical separate trials under
Evidence Code section 1101 to prove common plan or scheme and intent.
(Evid. Code, § 1101, subd. (b), [permitting evidence of other crimes to prove
some fact other than criminal propensity, such as common plan or scheme,
intent, or identity].) Between December 2021, and March 2022, Ayala
entered various clothing stores in and around the Las Americas Mall. During
each offense, he brought with him a bag that he used to conceal merchandise,
and in at least two of the offenses, Ayala wore the same clothing. He refused
to leave or return the merchandise even when the security alarm sounded
and he was confronted by security, and he repeatedly targeted the Marshall’s
and Old Navy department stores. Ayala’s conduct during these repeated
offenses bore such similarity “as naturally to be explained . . . by a general
plan, the similarity [of which] is not merely coincidental, but indicates that
the conduct was directed by design.” (People v. Ewoldt (1994) 7 Cal.4th 380,
396.) And considering Ayala’s statement in his supplement brief on appeal
suggesting he “took hygiene items and some clothes” out of necessity because
he “live[d] on the streets,” his repeated conduct was probative of his intent to
permanently deprive the stores of their merchandise. (Id. at p. 406
[“Evidence of intent is relevant to establish that, assuming the defendant
committed the alleged conduct, he or she harbored the requisite intent.”].)
If evidence relating to the joined offenses is cross-admissible, as was
the case here, “then this ‘is normally sufficient to dispel any suggestion of
prejudice and to justify a trial court's refusal to sever properly joined
charges.’ ” (Gomez, supra, 6 Cal.5th at pp. 275–276; see also Soper, supra, 45
Cal.4th at pp. 774–775 [cross-admissibility “alone is normally sufficient to
dispel any suggestion of prejudice and to justify a trial court's refusal to sever
properly joined charges”].) But even if this evidence was not cross-
11
admissible, “the absence of cross-admissible evidence does not bar joinder.”
(People v. O'Malley (2016) 62 Cal.4th 944, 968.) For example, in People v.
Bean (1988) 46 Cal.3d 919 at page 939, the trial court’s denial of a severance
motion was upheld despite the lack of cross-admissibility, because it was not
a case in which, “at the time the ruling was made, the evidence of defendant's
guilt of one or more of the joined offenses was weak, while evidence of the
other was strong. And neither offense was particularly inflammatory in
comparison with the other.” Similarly, here, each theft was performed in
nearly an identical manner and captured on surveillance video footage; thus,
the evidence of Ayala’s guilt was substantial in each of the offense and not
weak relative to any other charge.
Accordingly, because Ayala cannot establish a reasonable probability
that a favorable result would have occurred had his counsel moved for
severance, he cannot establish that his counsel was ineffective. (Strickland v.
Washington (1984) 466 U.S. 668, 694 [To establish ineffective assistance of
counsel, a defendant must establish prejudice, which is defined for this
purpose as a reasonably probability of a more favorable result absent the
attorney’s errors.].) Nor does anything in the trial record suggest that joinder
actually prejudiced Ayala in a manner that rendered his trial grossly unfair.
We note that the trial court instructed the jury to consider each count
separately and return a separate verdict for each one. (CALCRIM No. 3515;
see also Simon, supra, 1 Cal.5th at pp. 129–131 [joinder of offenses did not
result in a grossly unfair trial, in part because the trial court instructed the
jury to decide each count separately].) We therefore conclude this issue is not
reasonably arguable.
12
II.
Sufficiency of the Evidence
Appellate counsel suggests as a possible issue that there is insufficient
evidence of the force or fear element of the robbery charge. Ayala also argues
there was insufficient evidence of robbery, stating that the security officers
involved in his offenses were “never afraid” and that the officer testified
falsely in order to “kick [him] out of their [lives].” We disagree and conclude
the issue is not reasonably arguable.
“Robbery is ‘the taking of personal property of some value, however
slight, from a person or the person’s immediate presence by means of force or
fear, with the intent to permanently deprive the person of the property.’ ”
(People v. Jackson (2016) 1 Cal.5th 269, 343.) A security guard may be a
victim of robbery if they have a “special relationship with the store and had
the duty and authority to retrieve its stolen property.” (People v. Bradford
(2010) 187 Cal.App.4th 1345, 1347–1348.) The fear element may be
established by evidence of “express threats, by the display of a weapon, or by
intimidation alone.” (People v. Collins (2021) 65 Cal.App.5th 333, 340–341.)
To establish the elements of robbery, “the People must prove that ‘the victim
was in fact afraid’ . . . .” (Id. at p. 341.)
In reviewing the sufficiency of the evidence to support a conviction, we
must determine “ ‘whether from the evidence, including all reasonable
inferences to be drawn therefrom, there is any substantial evidence of the
existence of each element of the offense charged.’ [Citations.]” (People v.
Crittenden (1994) 9 Cal.4th 83, 139, fn. 13.) This standard is deferential,
and, as such, we must “review the whole record in the light most favorable to
the judgment . . . .” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) We
13
“ ‘presume in support of the judgment the existence of every fact the trier
could reasonably deduce from the evidence.’ [Citation.] We must also ‘accept
logical inferences that the jury might have drawn from the circumstantial
evidence.’ [Citation.]” (People v. Flores (2020) 9 Cal.5th 371, 411.) On appeal,
“ ‘[w]e do not reweigh evidence or reevaluate a witness's credibility.
[Citation.]’ ” (People v. Scott (2011) 52 Cal.4th 452, 487.)
Here, the security officer involved in the robbery offense was employed
by a company providing security support to the Marshall’s department store.
When Ayala concealed and took property from the store on March 30, 2022,
the security officer approached him as part of his “special relationship with
the store” to recover stolen property. (Bradford, supra, 187 Cal.App.4th at
p. 1347.) Thus, the security officer was a “victim” for the purposes of section
211.
Further, reviewing all reasonable inferences from the evidence in
support of the judgment, as we must, we conclude there was substantial
evidence that the security officer was in fear during the offense. The security
officer testified that when he confronted Ayala about the stolen merchandise,
Ayala put his hand in his pocket and stated, “Don’t come close because if you
do, I’m going to hurt you.” Although the security officer did not tell police
officers at the scene that he was in fear, he testified that he believed Ayala
would hurt him if he got any closer. The security officer’s testimony
established evidence of a direct threat, as well as intimidation, sufficient to
establish a logical inference of the fear element of robbery. (Collins, supra,
65 Cal.App.5th at pp. 340–341.)
Although Ayala urges us to conclude the security officer testified falsely
and was not in fear during the offense, this argument was presented to the
jury by defense counsel’s cross-examination and closing argument. The jury
14
rejected this argument by finding Ayala guilty. Ayala’s contentions relating
to the officer’s veracity amounts to no more than a request for us to reweigh
the officer’s credibility, which is not a function of this court on appeal. (Scott,
supra, 52 Cal.4th at p. 487.) And although Ayala argues that he was not in
possession of a weapon during the offense, “[i]t was not necessary for the jury
to find that defendant was armed with or used a deadly weapon to find him
guilty of robbery by force or fear.” (People v. Federico (1981) 127 Cal.App.3d
20, 33.) Accordingly, we conclude that insufficient evidence of the robbery
charge is not reasonably arguable.
III.
Jury Instructions
Appellate counsel raises as a possible issue whether all necessary jury
instructions were given. However, appellate counsel does not suggest error
as to any specific instruction. Nor does Ayala object to the jury instructions
in his supplemental briefing.
From a review of the record, it appears the trial court gave the pattern
jury instructions. Defense counsel did not object to any instruction, nor did
counsel request additional instructions that were refused by the court.
“ ‘[T]he failure to object to an instruction in the trial court waives any claim
of error unless the claimed error affected the substantial rights of the
defendant, i.e., resulted in a miscarriage of justice, making it reasonably
probable the defendant would have obtained a more favorable result in the
absence of error.’ [Citation.]” (People v. Kopp (2019) 38 Cal.App.5th 47, 66.)
We perceive no violation of Ayala’s substantial rights by the standard
instructions provided by the trial court, and defense counsel did not object to
any instruction. Any claim of error related to the jury instructions is
therefore forfeited. (People v. Lee (2011) 51 Cal.4th 620, 638 [“failure to
15
request clarification of an otherwise correct instruction forfeits the claim of
error for purposes of appeal”].)
IV.
Circumstances in Aggravation
Appellate counsel suggests as a possible issue there is insufficient
evidence of the circumstances in aggravation to support the trial court’s true
findings at the bifurcated proceeding. As we discuss, because the trial court
did not impose the upper term, the requirement that the trial court find the
aggravating factors true beyond a reasonable doubt is inapplicable. We
therefore conclude this issue is not reasonably arguable.
In 2021, the Legislature approved Senate Bill No. 567 (2021–2022 Reg.
Sess.) (Senate Bill No. 567), which made significant amendments to the
determinate sentencing law under section 1170, former subdivision (b). (See
Stats. 2021, ch. 731, § 1.3.) “Under this change in law, a trial court ‘may
impose a sentence exceeding the middle term only when there are
circumstances in aggravation of the crime that justify the imposition of a
term of imprisonment exceeding the middle term, and the facts underlying
those circumstances have been stipulated to by the defendant, or have been
found true beyond a reasonable doubt at trial by the jury or by the judge in a
court trial.’ ” (People v. Flores (2022) 73 Cal.App.5th 1032, 1038, fn. 10.)
Relatedly, section 1170, subdivision (b)(6) now 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: ¶
The person has experienced psychological, physical, or childhood trauma,
16
including, but not limited to, abuse, neglect, exploitation, or sexual violence.”
(§ 1170, subd. (b)(6)(A).)
The California Rules of Court, which provide guidance to courts in
imposing a sentence, were also amended to conform to the new legislation.
Rule 4.420(d) now provides, in relevant part: “In selecting between the
middle and lower terms of imprisonment, the sentencing judge may consider
circumstances in aggravation or mitigation, and any other factor reasonably
related to the sentencing decision. The court may consider factors in
aggravation and mitigation, whether or not the factors have been stipulated to
by the defendant or found true beyond a reasonable doubt at trial by a jury or
the judge in a court trial.” (Italics added.) Consistent with this rule, this
court recently held that the imposition of the middle term does not require
aggravating factors to be proven beyond a reasonable doubt under Apprendi
v. New Jersey (2000) 530 U.S. 466. (People v. Hilburn (Cal. Ct. App., July 5,
2023, No. D080175) 2023 WL 4342646, at *9.)
Here, the trial court found true, beyond a reasonable doubt, three
circumstances in aggravation, and Ayala admitted a fourth. However, the
trial court did not rely on these factors to impose the upper term, instead
exercising its discretion to impose the middle term on count 1. As clarified in
California Rules of Court, rule 4.420(d), when the trial court elects not to
impose the upper term, and instead selects between the middle term and
lower term, it may rely on factors in aggravation “whether or not the factors
have been stipulated to by the defendant or found true beyond a reasonable
doubt.” Although the circumstances in aggravation must have a sufficient
factual basis to be relied upon, as discussed further infra, the beyond a
reasonable doubt proof requirement set forth in section 1170 is not
applicable. Accordingly, we need not analyze whether the circumstances in
17
aggravation were proven in conformity with the proof requirement of section
1170, subdivision (d)(1). Rather, we analyze below whether the trial court
abused its discretion in relying on and weighing the circumstances in
aggravation, and imposing the ultimate sentence it rendered.
V.
The Trial Court’s Sentencing Discretion
“After a sufficient factual basis to support the circumstances in
aggravation or mitigation is found, the court enjoys broad discretion in its
sentencing determination. The trial court's sentencing decision is ‘review[ed]
for abuse of discretion.’ [Citation.]. That ‘discretion must be exercised in a
manner that is not arbitrary and capricious, that is consistent with the letter
and spirit of the law, and that is based upon an “individualized consideration
of the offense, the offender, and the public interest.” ’ [Citation.] The court
abuses ‘its discretion . . . if it relies upon circumstances that are not relevant
to the decision or that otherwise constitute an improper basis for decision.
[Citation.]’ ” (Hilburn, supra, 2023 WL 4342646, at *9.)
Here, the trial court considered, as circumstances in aggravation, that
Ayala suffered a prison prior and committed the instant offense while on
parole. These factors were proven by: (1) the certified records of conviction
introduced into evidence at the bifurcated proceeding; and (2) Ayala’s
admission that he was on parole when the instant offense occurred. Ayala
also admitted that his offense involved great violence, and the court relatedly
found true an allegation that Ayala engaged in violent conduct within the
meaning of California Rules of Court, rule 4.421(b)(1). Ayala’s admission,
and the trial court’s finding, was supported by the fact that the instant
offense was Ayala’s second robbery conviction, and that he threatened to hurt
the victim during the commission of the offense. Thus, the circumstances in
18
aggravation were supported by a sufficient factual basis to be relied upon by
the trial court.
Although the trial court noted minimal circumstances in mitigation,
the court interpreted Ayala’s low level of education and childhood poverty to
be a circumstance in mitigation that contributed to the commission of the
crime. The court used this mitigating factor, along with the absence of a
weapon in the commission of the offense, to dismiss the serious felony
allegation that would have resulted in an additional five-year term. Aside
from this minimal mitigation, the court found that none of the other
“standard mitigating factors apply to [Ayala],” and appropriately exercised its
discretion to select the middle term for count 1. This record does not
demonstrate the trial court abused its discretion in weighing these
aggravating circumstances. Quite the opposite—the record establishes the
trial court carefully weighed the mitigating and aggravating circumstances to
impose a sentence far more lenient than the sentence requested by the
People. Accordingly, we conclude this issue is not reasonably arguable on
appeal.
VI.
Summary
Review of the record pursuant to Wende, supra, 25 Cal.3d 436, and
Anders, supra, 386 U.S. 738, including the possible issues referred to by
Ayala and his appellate counsel, have disclosed no reasonably arguable
appellate issues. We find that Ayala was adequately represented both at
trial and on appeal.
19
DISPOSITION
The judgment is affirmed.
O'ROURKE, Acting P. J.
WE CONCUR:
DO, J.
RUBIN, J.
20