People v. Angel Mike Chapa

• Docket Number: F084263
• Decision Date: 06 June 2023
• Parties: THE PEOPLE, Plaintiff and Respondent, v. ANGEL MIKE CHAPA, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

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THE PEOPLE, Plaintiff and Respondent, v. ANGEL MIKE CHAPA, Defendant and Appellant.

F084263

California Court of Appeals, Fifth District

June 6, 2023

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Tulare County No PCF323529. Antonio A. Reyes, Judge.

Kendall Dawson Wasley, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez, Kari Mueller and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

THE COURT^[*]

INTRODUCTION

On January 1, 2022, Senate Bill No. 81 (2021-2022 Reg. Sess.) (Senate Bill No. 81) went into effect, amending Penal Code^[1] section 1385 to require dismissal of eligible enhancements where certain mitigating circumstances are present, "if it is in the furtherance of justice to do so." (Id., subd. (c)(1).) As relevant here, one of the enumerated circumstances provides that where "application of an enhancement could result in a sentence of over 20 years.the enhancement shall be dismissed." (Id., subd. (c)(2)(C), italics added.)

Mike Angel Chapa, now appealing for the third time, contends that pursuant to the "shall be dismissed" language within section 1385, subdivision (c)(2)(C), dismissal of an enhancement resulting in a potential sentence of over 20 years is mandatory, even where the court finds that dismissal would endanger the public safety. As a result, Chapa argues the trial court erred by failing to dismiss a section 12022.53, subdivision (b) gun use enhancement applied to his sentence. In the alternative, he contends the trial court erred by failing to find that dismissal of the enhancement was not warranted because it would endanger public safety.

We conclude that the phrase "shall be dismissed" within subdivision (c)(2)(C) of section 1385, does not compel dismissal of an enhancement where its application could result in a sentence of over 20 years, if dismissal would endanger public safety. The trial court was therefore not required to dismiss the gun use enhancement here, the application of which resulted in a prison sentence of over 20 years. Insofar as Chapa contends the trial court failed to make required findings in declining to dismiss the enhancement, the record shows otherwise. We therefore affirm.

PROCEDURAL HISTORY

In 2016, Chapa was convicted by jury of attempted murder (§§ 664/187, count 1), assault with a firearm (§ 245, subd. (a)(2), count 2), attempted second degree robbery (§§ 664/211, count 3), and felon in possession of a firearm (§ 29800, count 4). The jury also found true firearm enhancement allegations. (§ 12022.5, subd. (a)(1), count 2;

§ 12022.53, subd. (b), counts 1, 3, &4.) In addition, the court found true prior conviction allegations based upon the fact that Chapa had suffered a prior serious felony conviction and a prior strike conviction. (§§ 667 subd. (a)(1), 667, subds. (b)-(i), 1170.12, subds. (a)-(d).)

In 2019, a majority of this court reversed Chapa's conviction for assault with a firearm for insufficient evidence. Additionally, based upon the enactment of new legislation, this court concluded that Chapa was entitled to a resentencing hearing. We vacated Chapa's sentence and remanded the case back to the lower court for this purpose. (See People v. Chapa (Jan. 14, 2019, F075097) [nonpub. opn.] (Chapa I).)

In 2021, on review from his second appeal, this court vacated Chapa's sentence again. We concluded that the record failed to show that Chapa had knowingly, voluntarily, and intelligently waived his right to be present at the resentencing hearing. We further concluded that the trial court had stayed the sentence on Chapa's gun use enhancement (§ 12022.53, subd. (b)) based upon an erroneous interpretation of our prior opinion. (See People v. Chapa (Jun. 16, 2021, F080211) [nonpub. opn.] (Chapa II).)

In 2022, Chapa was resentenced. The trial court imposed an aggregate prison term of 24 years, which included a 10-year determinate term for the firearm use enhancement (§ 12022.53, subd. (b)) applied to his conviction for attempted murder. The court stayed the prior serious felony enhancement.

Chapa filed a timely notice of appeal.

STATEMENT OF FACTS

The Underlying Offense

We summarize the facts underlying Chapa's conviction as they are not directly relevant to the issues on appeal. A full recitation of the facts underlying Chapa's criminal conviction is recited in this court's unpublished opinion in Chapa I, supra, F075097.

In 2015, Chapa ran into a store, pointed a gun at the cashier, and demanded money from the cashier's pocket. When the cashier told Chapa that he would open the cash register for Chapa to take money from the register, Chapa pulled the gun's trigger. The gun did not fire.

The cashier repeated that he would open the cash register so that Chapa could take money from it. Chapa repeated," 'Give me money from your pocket.'" The cashier did not comply, and Chapa pulled the gun's trigger again. The gun failed to fire.

Chapa demanded,"' "Give me the money" '" and pulled the trigger a third time. The gun failed to fire a third time. Chapa fled in the passenger's seat of a vehicle waiting outside.

The Resentencing Hearing

The parties submitted sentencing briefs to the court in advance of Chapa's resentencing hearing. In his brief, trial counsel explained that dismissal of the gun use enhancement and the prior serious felony conviction enhancement were required under amended section 1385 if dismissal would be in the interest of justice. Trial counsel cited several mitigating factors in support of his assertion that the enhancements should be dismissed, including: the fact that application of the enhancements would result in a prison sentence of over 20 years (see § 1385, subd. (c)(2)(C)), the age of Chapa's prior serious felony conviction (see id., subd. (c)(2)(H)), and the fact that the gun used in the robbery was inoperable (see id., subd. (c)(2)(I)). Trial counsel further alleged that the current offense was connected to Chapa's childhood trauma (see id., subd. (c)(2)(E)).

In her brief, the prosecutor argued that dismissal of the enhancements would not be in the "interests of justice," and that it would endanger public safety. According to the prosecutor, Chapa had used a firearm to commit robberies in 2005 and 2015, and he had an extensive criminal history in between these offenses. The prosecutor further asserted there was no evidence that any childhood trauma Chapa may have suffered was connected to the current offense.

At the sentencing hearing, the prosecutor repeated her assertion that dismissal of the enhancements would endanger public safety (see § 1385, subd. (c)(2)), explaining:

"[THE PROSECUTOR]: When this defendant wants money and doesn't have it, then he goes after what he thinks is easy, which is targeting victims who are vulnerable, isolated, alone and unarmed. And then he robs them. And the fact that he's done self-help while he's been in prison, as the defense's moving papers state, does not negate the overarching complaint of Penal Code Section 1385(c)(2), which says that if a defendant is dangerous to society, if he poses a dangerousness, a threat, that that is the overarching rule that is supposed to be applicable to any kind of consideration by the Court of whether or not to strike any allegations. And this defendant has a proven track record.

[¶....¶]

"[W]hen you look at the enhancement within Penal Code Section 12022.53, the gun allegation, which gives the Court the discretion as to whether or not to impose that, that goes back to Penal Code Section 1385(c) in this case, which says that it has to be in the interest of justice for the Court to dismiss or not impose any of the allegations. And it also has to be something that is not going to place the community in danger. Here the defendant is a danger. There is no amount of events that he's been able to do while incarcerated that give us a real proper sampling of what would happen on the outside."

After further argument by the parties, the trial court made the following relevant comments:

"[THE COURT]: When you look at the factors for the Court to consider why, even considering the Romero motion or Romero issues, the factors consider the nature of the current offense is a less serious other felony. It's just as serious, if not more. The current offense, is it a violent or serious felony? Obviously, it is. The facts and circumstances of the current offense technically, to me, indicate a greater degree of danger to society. There was no physical injury, but there was definitely a threat of injury. There obviously was a weapon used.

"[Chapa] was not a passive participant. He was actively involved. He's the one that entered the store with the gun and made the threat. I don't see how his conduct was excusable in any way, shape, or form. So using those factors, I just don't see any reason for me to consider striking the strike. And I don't see any reason for me to consider -- I understand life is tough. You grow up in a certain family. Things happen in the felony. I acknowledge that. Mr. Chapa, but it doesn't justify the violent crime that you committed. That's why you're here. [¶ ] Now, I do acknowledge the significant things you've done since your conviction.... [But,] [b]ased on all the factors that I've set out, I'm gonna choose the midterm of 14 years as to Count 1. There was a gun used. The gun imposed a threat to the victim. I choose to impose the 12022.5[3] for ten years. So that's 24 years."

ANALYSIS

I. The Trial Court Was Not Required to Dismiss the Gun Use Enhancement

Chapa contends the...