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People v. Camarena

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
Feb 20, 2018
G055215 (Cal. Ct. App. Feb. 20, 2018)

Opinion

G055215

02-20-2018

THE PEOPLE, Plaintiff and Respondent, v. RICHARD CAMARENA, Defendant and Appellant.

Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 12CF2271) OPINION Appeal from a judgment of the Superior Court of Orange County, Patrick Donahue, Judge. Affirmed. Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

We appointed counsel to represent Richard Camarena on appeal. Counsel filed a brief that set forth the facts of the case. Counsel did not argue against his client but advised the court he found no issues to argue on Camarena's behalf.

Counsel filed a brief following the procedures outlined in People v. Wende (1979) 25 Cal.3d 436 (Wende). The court in Wende explained a Wende brief is one that sets forth a summary of proceedings and facts but raises no specific issues. Under these circumstances, the court must conduct an independent review of the entire record. When the appellant himself raises specific issues in a Wende proceeding, we must expressly address them in our opinion and explain why they fail. (People v. Kelly (2006) 40 Cal.4th 106, 110, 120, 124 (Kelly).)

Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), to assist the court with its independent review, counsel provided the court with information as to an issue that might arguably support an appeal. Counsel raised a single issue: Did the trial court abuse its discretion in failing to strike the gang enhancement.

We gave Camarena 30 days to file written argument on his own behalf, which he did. In his supplemental brief, Camarena argues the psychological evaluation the court considered was inadequate. He also asserts that pursuant to Senate Bill 261 "a person does not fully reach majority until age 25" and the facts demonstrate he was 20 years old with an intelligence quotient of 73 at the time he committed the offenses.

We have reviewed the record in accordance with our obligations under Wende and Anders, and considered the information counsel and Camarena provided. We found no arguable issues on appeal. The judgment is affirmed.

PROCEDURAL HISTORY

A jury convicted Richard Camarena of attempted murder, aggravated mayhem, and assault with a deadly weapon and found true various enhancements, including gang enhancements. Following our original opinion in this case affirming the judgment (People v. Camarena (Oct. 9, 2015, G049416) [nonpub. opn.]), the California Supreme Court transferred the matter to us with directions to vacate our decision and to reconsider the cause in light of People v. Fuentes (2016) 1 Cal.5th 218 (Fuentes). On December 12, 2016, this court remanded the case to the superior court for the limited purpose of allowing the trial court the opportunity to exercise its discretion and strike the Penal Code section 186.22, subdivision (b)(5), enhancement.

All further statutory references are to the Penal Code. --------

FACTS

We incorporate the factual summary of our prior opinion (People v. Camarena, supra, G049416), supplemented by additional facts regarding the resentencing that occurred after remand. On remand, Camarena filed a motion to dismiss his gang enhancement pursuant to section 1385.

The trial court denied Camarena's motion. The court explained that in considering a request to dismiss the gang enhancement pursuant to section 1385, the court must consider both the constitutional rights of the defendant and the interests of society. The court detailed the circumstances of Camarena's assault on the victim and noted Camarena's gang involvement and previous criminal behavior. The probation and sentencing report prepared for the previous sentencing hearing reported that at the age of 15, Camarena was observed carving "Dark Side" on a desk at school. He had sustained petitions for tagging. He also had a sustained petition for petty theft arising out of a beer theft from a store where the clerk was punched. The court stated it had read and considered a comprehensive psychological evaluation that concluded Camarena had a low level of intellectual functioning. After balancing the various factors, the court determined it would not be in the interests of justice for the court to strike the gang enhancement. The court did strike the great bodily injury and weapon enhancements citing Camarena's age and his record as a minor.

The trial court sentenced Camarena to 15 years to life on count one, willful, deliberate, and premeditated attempted murder (§§ 664, subd. (a), 187, subd. (a)). The court struck the enhancements on count one pursuant to section 1385. The court imposed and stayed the sentences on count two, aggravated mayhem (§ 205), and count three, assault with a deadly weapon (§ 245, subd. (a)(1)). The court struck the enhancements on counts two and three pursuant to section 1385 for the purposes of sentencing. Camarena filed a timely notice of appeal.

DISCUSSION

Counsel raises a single issue and Camarena appears to raise two issues. We will first address the issue counsel raises and then proceed to the issues Camarena raises. I. Section 1385

Counsel questions whether the trial court abused its discretion by failing to strike the gang enhancement (§ 186.22) under section 1385. Under section 1385, subdivision (a), a judge may either on his own motion or the prosecuting attorney's application, and in furtherance of justice, order an action to be dismissed. We review a court's decision not to exercise its section 1385 discretion to dismiss in other contexts for abuse of discretion. (People v. Memro (1995) 11 Cal.4th 786, 835-836.)

In People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977, the Supreme Court discussed the standard by which an appellate court should determine whether there has been an abuse of discretion in sentencing. The Alvarez court noted that on appeal the burden is on the party attacking the sentence to clearly establish the sentencing decision was irrational or arbitrary. Absent such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination will not be set aside on review. (Id. at pp. 977-978.)

Here, the record demonstrates the trial court's decision not to strike the gang enhancement was a sound decision based on the merits. The trial court did not abuse its discretion. II. Psychological Examination

In his supplemental brief, Camarena states the following: "I believe that Dr. Joseph M. Cervantes lack on giving me an affective psychological evaluation. Which I believe it was do to lack of time dates of evaluation 7/12/13, 7/15/13, 7/17/13." He then opines "the lack of time and evaluation, affected the outcome of the trial." He continues, "Which facts show that at the time of trial I had the understanding of a (3.2 grade equivalent)." Lastly, he asserts the trial court should have asked for a more effective psychological evaluation "determining [whether he] could stand trial."

Camarena misunderstands the scope of his appeal. This court remanded the case to the superior court for the limited purpose of allowing the trial court the opportunity to exercise its discretion and strike the section 186.22, subdivision (b)(5), enhancement. When a criminal defendant could have raised an issue in a previous appeal but did not do so, the defendant may be deemed to have waived the right to raise the issue in a subsequent appeal, absent a showing of good cause or justification for the delay. (People v. Senior (1995) 33 Cal.App.4th 531, 535.)

In his appeal from the resentencing, Camarena attempts to challenge his competency at the time of trial. This is an issue that should have been raised in his previous appeal, and Camarena shows no good cause why it was not previously raised. We deem the issue of competency to stand trial waived.

If we were to consider Camarena's complaint about the psychological evaluation as a sentencing issue, we would find it without merit. The record reflects the trial court read and considered what the court described as a "comprehensive psychological evaluation." At the sentencing hearing, the court acknowledged Camarena functioned at a low intellectual level. We perceive no error. III. Senate Bill 261

Camarena references Senate Bill 261 and indicates the bill stated "a person does not fully reach majority until age 25." He asserts the facts in this case demonstrate he was 20 years old with an intelligence quotient of 73 at the time he committed the offenses. We agree with these assertions. But Senate Bill 261 is inapt to Camarena's situation. Statutes enacted pursuant to this legislation provided for youth offender parole hearings and did not establish new criteria for youthful offender sentencing.

Senate Bill No. 261 provided the Board of Parole Hearings must conduct a youth offender parole hearing for offenders sentenced to prison who committed specified crimes when they were under 23 years of age. (Stats. 2013, ch. 312, § 4.) Section 3051, enacted as part of Senate Bill 261, defines a youth offender as a prisoner who was 23 years of age or younger at the time of the offense. Other provisions in section 3051 relate to how youthful offender parole hearings should be conducted and what consideration the board should give to the diminished culpability of juveniles as compared to adults. Clearly, Senate Bill 261 addressed issues of parole for youthful offenders. It did not, as Camarena suggests, provide for any new sentencing criteria for youthful offenders.

DISPOSITION

The judgment is affirmed.

O'LEARY, P. J. WE CONCUR: ARONSON, J. IKOLA, J.


Summaries of

People v. Camarena

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
Feb 20, 2018
G055215 (Cal. Ct. App. Feb. 20, 2018)
Case details for

People v. Camarena

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. RICHARD CAMARENA, Defendant and…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

Date published: Feb 20, 2018

Citations

G055215 (Cal. Ct. App. Feb. 20, 2018)