Filed 7/12/23 P. v. Segarra CA6

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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

ISRAFAEL SEGARRA,

Defendant and Appellant.

 H049740, H049741, H049742

 (Monterey County

 Super. Ct. Nos. 21CR008326, 

 20CR009369, 21CR005100)

MEMORANDUM OPINION

We resolve this case by memorandum opinion under California Standards of 

Judicial Administration, Title 8, Standard 8.1. (See also People v. Garcia (2002) 

97 Cal.App.4th 847, 853–855.)

Defendant pleaded no contest to charges in two cases, resulting in convictions for

operating a vehicle chop shop (Veh. Code, § 10801); receiving stolen property (Pen. 

Code, § 496d, subd. (a)); and attempting to dissuade a witness (Pen. Code, § 136.1). In a 

third case a jury convicted him of reckless evasion of a police officer (Veh. Code, 

§ 2800.2, subd. (a)) and resisting arrest (Pen. Code, § 148, subd. (a)(1)). For those three 

cases defendant was sentenced to an aggregate prison term of three years eight months, 

arrived at as follows: The upper term of three years for evading a police officer, and a 

concurrent six months for resisting arrest; a consecutive eight months for attempting to 

dissuade a witness; a concurrent low term of two years for operating a chop shop; and a 

concurrent middle term of two years for receiving stolen property, with one year to be 
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served on mandatory supervision. Defendant filed notices of appeal in all three cases, 

which we ordered considered together. 

Defendant contends he is entitled to resentencing under new legislation that 

applies retroactively and could reduce his aggregate prison term.

1

 After he was 

sentenced, the Legislature amended Penal Code section 1170 to allow an aggravated term 

to be imposed only where the aggravating factors have been admitted by the defendant or 

found true at trial. (Sen. Bill No. 567 (2020-2021 Reg. Sess.); Stats. 2021, ch. 731, 

§ 1.3.) The new legislation further provides that where the defendant “has experienced 

psychological, physical, or childhood trauma” that contributed to the offense, the trial 

court must impose the low term, unless aggravating factors outweigh mitigating 

circumstances. (Pen. Code, § 1170, subd. (b)(6).) The Attorney General agrees the 

ameliorative amendments apply retroactively but argues remand is not required because 

defendant was not prejudiced by application of the old standards; that is, his sentence 

would not have been more favorable had the new law been applied.

Appellate courts are divided on how to determine prejudice in this situation, and

the issue is pending before the California Supreme Court. (See People v. Dunn (2022) 

81 Cal.App.5th 394, rev. granted Oct. 12, 2022, S275655 [if at least one aggravating 

factor was found true beyond a reasonable doubt and remaining aggravating factors are 

reasonably probable to have been found true, assess likelihood same sentence would be

imposed]; and compare People v. Lopez (2022) 78 Cal.App.5th 459 [if fewer than all 

aggravating factors were found true by the jury beyond a reasonable doubt, the record 

must clearly show the same sentence would be imposed considering only the factors that 

unquestionably would have been found true by the jury] and People v. Flores (2022) 

1

 Defendant informs us he is no longer in prison but asserts the case is not moot 

because reducing his sentence would mean he spent excess time in custody, which could 

be credited against his remaining time on post release community supervision. We agree 

the appeal is not moot for that reason. (See People v. Warren (2018) 24 Cal.App.5th 899, 

919.) 
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75 Cal.App.5th 495, 500 [error harmless if at least one aggravating factor relied on was 

found by a jury or unquestionably would have been found by a jury beyond a reasonable 

doubt].)

In selecting the upper term of three years for evading a police officer, the trial 

court relied on only two aggravating factors: defendant’s prior criminal record, and his 

poor performance on probation and parole. Even applying the strictest of the various 

approaches to assessing prejudice, we acknowledge that both of those facts would have 

been proven true beyond a reasonable doubt based on information readily available in

official records had they been submitted to a jury. (Indeed, under the new law prior 

convictions need not be decided by a jury at all if they can be established by a certified 

record of conviction. (See Pen. Code, § 1170, subd. (b)(3).)) But satisfactory proof of 

the aggravating factors relied on by the trial court is not necessarily dispositive in this 

case. As we have noted, the new law also prescribes that the low term be imposed where 

the defendant “has experienced psychological, physical, or childhood trauma” that 

contributed to the offense and is not outweighed by aggravating factors. (Pen. Code, 

§ 1170, subd. (b)(6).) In light of this additional change, we cannot conclude the court 

would have imposed the same sentence had the amended law been in effect.

The record here contains information suggestive of possible childhood trauma. 

The probation report notes defendant has no contact with his father; could benefit from 

grief and loss counseling; and that drugs and alcohol have had a significant effect on his 

life. We agree with the Attorney General that those facts do not necessarily establish 

childhood trauma. But it is also significant that defense counsel had less incentive to 

develop evidence of trauma before this particular law change. Because possible further 

evidence establishing trauma could inform the trial court’s exercise of discretion, the 

record does not adequately show that the same sentence would have been imposed had 

the new law been in place, regardless of which standard is applied to assess prejudice. 

We will therefore reverse and remand for resentencing under the current standards. 
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DISPOSITION

The judgment is reversed and the matter remanded for resentencing. Defendant’s 

convictions shall remain. On remand, the prosecution may elect to proceed by meeting 

the requirements of Penal Code section 1170, subdivision (b)(2) regarding aggravating 

circumstances or may elect to proceed on the current record. Defendant shall be allowed 

the opportunity to present evidence in mitigation. The trial court shall then resentence 

defendant according to the current version of Penal Code section 1170. 
____________________________________

Grover, J.

WE CONCUR:

____________________________

Greenwood, P. J. 

____________________________

Lie, J. 

H049740, H049741, H049742

People v. Segarra