Filed 7/16/24 P. v. Sanchez CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

LESTER REN E SANCHEZ,

Defendant and Appellant. B323029

(Los Angeles County Super. Ct. Nos. BA495806)

APPEAL from a judgment of the Superior Court of
Los Angeles County, Mildred Escobedo, Judge. Affirmed

. Tanya Dellaca and Patrick J. Hoynosk i, 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, Senior Assistant Attorney General, Nicholas J. Webster and Michael C. Keller, Deputy Attorney s General, for Plaintiff and Respondent.

________________________2 INTRODUCTION

Lester Rene Sanchez was convicted of first degree burglary (Pen

. Code

, § 459), violating a court order with a prior domestic violence conviction (§ 166, sub

. (c) (4)), and misdemeanor battery (§ 242). 1 After trial, he stipulated to the truth of six aggravating
circumstances , including that he “engaged in violent conduct that
indicates a serious dan g er to society

. ” (Cal. Rules of Court

, rule 4.421(b)(1)

. 2 ) At se ntencing, Sanchez presented evidence he had suffered
childhood trauma in the form of physical abuse. He requested a probationary sentence to pursue substance ab use treatment. The trial court, citing the newly amended sentencing provisions in
section 1170

, agreed Sanchez had suffered childhood trauma and that this trauma was connected to his offenses. But the court imposed the middle term sentence of four years based on the aggravating factors, specifically Sanchez’s danger to public safety

. Sanchez arg ues the court abused its discretion because the court did not follow section 1170’s lower

- term presumption for defendants who se childhood trauma “was a contributing factor in the commission of the offense.” ( See § 1170, subd. (b)(6)(A).)
Because the cour t did not abuse its discretion in weigh ing the aggravating factors against its finding of childhood trauma, we affirm.

1 All u ndesignated statutory references are to the Penal Code.

2 All rule references are to the California Rules of Court.3 FACTUAL AND PROCEDURAL BACKGROUND

A. Sanchez’s Conviction
Sanchez was charged in connection with the harassment of his former girlfriend, Ashley S

. , who was pregnant at the time
with his child

. Sanchez was abusing drugs and alcohol

, and the couple argued frequently

. In February 2021

, Sanch ez punched a hospital security guard who would not let him attend Ashley’s ultrasound appointment. Af ter Ashley moved out of their shared apartment, i n April 2021

, Sanchez broke into Ashley’s new apartment through a window , pushed her up against a door, and tried to take her cell phone as she called 911

. After Ashley obtained an emergency protective orde r against Sanchez in May
2021 , Sanchez texted and called Ashley

, threaten ing to shoot her. Ashley had another young child, Robert, who was present
when Sanchez broke in to Ashley’s apartment and who allegedly
witnessed other instances of abuse.
Sanchez was charged with first degree residential burglary (§ 459); dissuading a witness by force or threat (§ 136.1,
subd. (c)(1)); three counts of criminal threats (§ 422) ; stalking with a temporary order in effect (§ 646.9, subd. (a)) ; violation of a
court order wi th a prior domestic violence conviction (§ 166,
subd. (c)(4)); child abuse under circumstances likely to produce great bodily injury or death (§ 273a, subd. (a)); assault with a deadly weapon (§ 245, subd. (a)(1)); assault by means of force likely to produ ce great bodily injury (§ 245, subd. (a)(4)); and misdemeanor battery (§ 242). The People alleg ed six aggravating circumstances relating
to Sanchez’s sentence: (1) Sanchez committed a crime involving great violence, cruelty, viciousness, or callousness4

(r ule 4.421(a)(1)); (2) Ashley was a particularly vulnerable victim (rule 4.421(a)(3)); (3) Sanchez dissuaded a witness or otherwise interfered with the judicial process (rule 4.421(a)(6)); (4) he engaged in violent conduct that indicated a serious danger to society (rule 4.421(b)(1)); (5) he was on probation, post

- release supervision, or parole when the crime was committed (rule 4.421(b)(4)); and (6) his prior performance on probation, post

- release supervision, or parole was unsatisfactory (rule 4.421(b)(5))

. Sanchez proceeded to trial, and a jury found him guilty of first degree residential burglary, violating a court order with a prior domestic violence conviction, and misdemeanor battery. Sanchez was acquitted on the remaining counts.

B. Sanchez’s Sentencin g After Sanchez was found guilty

, but before the jury was discharged , the trial court addressed the six alleged aggravating
circumstances with counsel. The court stated that “the new statutory framework of [section] 1170 ” applied “ wherein on any
counts th at the jury has found the defendant guilty, there now has to be a finding by the jurors of aggravating factors.” Sanchez expressly waive d his right to a jury trial on the aggravating factors, and stipulate d that all six factors were true. Before sentencin g, the trial court requested sentencing
memoranda from Sanchez and the People. The court advised Sanchez’s counsel that, since the “statutory language has now changed,” counsel should “present any and all evidence that you have with regard to [section] 11 70,” including “the psychological, physical or childhood trauma, for instance, abuse

, neglect, exploitation, sexual violence, et cetera.”5 Sanchez ’s sentencing memorandum asked the court to impose a sentence of probation and order him to participate in a

su bstance abuse program , based on his substance abuse issues and traumatic childhood. Sanchez described his “turbulent family life, wherein his father would physically and verbally abuse his mother. . . . [Sanchez] acted as a human shield to protect his mot her and siblings from his father’s drunken rage. He would take the blows for them from a very young age.”
Sanchez stated that the trauma he suffered from this experience was “[t]he primary reason” for his substance abuse. The People’s sentencing memorand um requested a n upper
term prison sentence on the burglary count , based on “the numerous factors in aggravation.”
The trial court sentenced Sanchez on July 28, 2022

. T he

court first discussed Sanchez’s criminal history and his history of violating domesti c violence court orders . It stated that Sanchez

“ shows a very clear history of

. . . not following the rules, [and] disregarding all laws

. ” The court observed Sanchez “had three DV victims in his past.”
Sanchez addressed the court, explaining his “rough childhood” and “my stepdad beating my mom and beating me up, showing me . . . bad things, like drinking [ and ] drugs.” His
counsel argued that “[Sanchez] had a lot of issues in his life stemming from a traumatic childhood as well as drug and alcohol
abuse. ”
After hearing from Sanchez and his counsel , the court addressed mitigating factors. The court stated: “Pursuant to statute 1170, et seq., the Court must consider the rearing of the defendant and any and all childhood traumatic experiences that may have impacted him. Here, the defendant points out the6

beatings he received as a child from his father.” The court observed, “[Sanchez] has adopted what he learned from his family rearing

. . . . Rather than helping people and protecting the women, he takes pa rt in the wrongdoing to others, to women, to his family[.]” The court further noted Sanchez had completed several rehabilitative programs while incarcerated. But the court also
observed Sanchez was “still contacting the victim” as recently as June 2022, a nd Sanchez had already received rehabilitative

programs after his previous convictions. The court remarked, “I have to focus on the conduct of the incident, as well.” And the court further stated: “I understood you grew up in a really bad
situation. Un fortunately, a lot of us do. The difference is you’re going to make that choice whether you’re going to do the right thing or not. You chose to do the wrong.”
The court concluded:

[T]he aggravating factors were found true beyond a reasonable doubt by s tipulation and admission.

Pursuant to the People’s brief on pages 4 and 5, t he Court finds that the defendant is a public safety concern and a public safety issue, thereby complying with [section] 1170 in that I have found that the childhood trauma is tru e but that the defendant is a public safety concern. And the aggravating factors have been found true permitting this Court to consider all triad options.

However, because the defendant has never served in state prison, in addition to the mitigating fact ors, the Court shall sentence to the mid

- term of 4 years. I will not take the high term.7 Sanchez received a total sentence of five years and two
months , including consecutive terms of eight months for violating a court order with a prior domestic violenc e conviction and six months on the battery count

. Sanchez timely appealed.

DISCUSSION

Sanchez’s sole contention on appeal is that the trial court
abused its sentencing discretion under the recent amendments to
section 1170 , subdivision (b).

A. Legal Back

ground and Standard of Review “Section 1170, subdivision (b) governs imposition of a judgment of imprisonment when a statute specifies three possible
terms.” ( People v. Suazo (2023) 95 Cal.App.5th 681, 70 4 .) Through Senate Bill No. 567 and Assembly Bill No. 124, effective January 1, 2022, the Legislature amended section 1170, subdivision (b) , “in several fundamental ways

. ” ( People v. Flores (2022) 73 Cal.App.5th 1032, 1038.) These amendments took effect approximately eight months before Sanchez’s senten cing. As relevant here, “the new statute creates a presumption that the sentencing court ‘shall’ enter a lower term sentence when, among other things, a ‘psychological, physical, or childhood
trauma’ contributed to the offe nse. [Citation.] The sentencing court may only depart from this lower term presumption if it finds that the aggravating circumstances outweigh the mitigating circumstances such that the lower term would be contrary to ‘ the interests of justice.’ ” ( People v. Salazar (2023) 15 Cal.5th 41 6,
419 ( Salazar )

, quoting § 1170, subd. (b)(6) & (b)(6) (A) .)8 “Discretionary sentencing decisions, such as whether ‘the aggravating circumstances outweigh the mitigating circumstances [so] that imposition of the lower term would be contrary to the interests of justice’ (§ 1170, subd. (b)(6)) are reviewed for an abuse of discretion.” ( Salazar

, supra , 15 Cal.5th at p. 428, fn. 8 ; accord, People v. Hilburn (2023) 93 Cal.App.5th 189, 205 ( Hilburn )

. ) A sentencing court must exercise “‘ “ informed
discretion ” ’” an d abuses its discretion when it misunderstands “‘the scope of its discretionary powers

. ’” ( People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) “‘To prove an abuse of discretion, “‘[t]he burden is on the party attacking the sentence to clearly
show that th e sentencing decision was irrational or arbitrary.’”’” ( People v. Fredrickson (2023) 90 Cal.App.5th 984, 988.)

B. The Trial Court Did Not Abuse Its Discretion in Sentencing
Sanchez to the Middle Term
A ppellate courts generally “ presume that the [trial] cou rt ‘knows and applies the correct statutory and case law.’” ( People v. Thomas (2011) 52 Cal.4th 336, 361.) Sanchez concedes this general principle, but argues the trial court misunderstood
and therefore abused its sentencing discretion under
section 1170 , subdivision (b)(6). He asserts the trial court was required to apply a presumption of the lower term sentence because his childhood trauma was a contributing factor in his
offense and the court “never mentioned the low term presumption

. ”
As a threshold matter, Sanchez did not argue in his written sentencing memorandum or oral arguments presented to the trial
court that the lower term presumption applied to his sentence

. “Generally, if a party does not object to the sentence in the trial9

court
, ” that par ty “ may not claim on appeal the trial court failed to properly make or articulate its discretionary sentencing choices.” ( People v. Tilley (2023) 92 Cal.App.5th 772, 778 ( Tilley ) [defendant forfeited claim to the lower term presumption because he “did not seek the lower term based on section 1170, subdivision (b)(6) [or] object to the imposition of the middle

term ”]; accord, People v. Boyce (2014) 59 Cal.4th 672, 730

- 731 ; cf. People v. Panozo (2021) 59 Cal.App.5th 825, 840 [forfeiture does not apply where a defendant challenges a sentencing court’s “apparent misapprehension of statutory sentencing obligations”]. )
But e ven considering Sanchez’s argument on the merits

, we conclude the trial court did not abuse its discretion. Sanchez
relies on People v. Le e (2017) 16 Cal.App.5th 86 1 ( Lee ) and argues the record “ ‘ affirmatively demonstrate [ s ]’ ” that the trial court
misunderstood its discretion

. ( S ee id. at p. 866

. ) In Lee

, the trial

court expressly stated it lacked discretion to reduce a wobbler to a misdem eanor when the court actually had such discretion
under section 17, subdivision (b) . ( See i d. at pp. 867

- 869.) Lee does not support Sanchez.
The record before us does not “affirmatively demonstrate”
that the trial court was unaware of its new discretion under section 1170, subdivision (b). ( See Lee

, supra , 16 Cal.App.5 th at

p. 866.) Unlike the trial court in Lee , the trial court here did not
misunderstand its sentencing authority under section 1170. Although the court did not expressly refer to the low er term presumption in section 1170, subdivision (b)(6), the record before us clearly reflects the court conducted its sentencing in conformity with the statute and the presumption

.10 The court first determined that Sanchez had suffered childhood trauma, a nd it discussed how this experience
contributed to Sanchez’s offenses

. The court then balanced the six aggravating factors against the mitigating factor of Sanchez’s
childhood trauma and concluded that the aggravating factors supported a middle term sente nce

. In ruling that Sanchez presented “a public safety concern,” t he court examined the aggravating factor under rule 4.421(b)(1) that Sanchez’s conduct “indicates a serious danger to society

, ” citing the portion of the People’s sentencing memora ndum addr essing this factor

. The court also demonstrated an understanding of how the
lower term presumption applied to Sanchez’s case

, explaining
that its middle term sentence “compl [ied] with [section] 1170 in
that I have found that the childhood trauma is true bu t that the defendant is a public safety concern.” With this statement, the court recognized Sanchez’s childhood trauma was “true” and connected to his offenses, which would warrant a lower term

sentence under section 1170 ’s statutory presumption

. But the court ultimately found the aggravating factors overcame the presumption, and imposed a middle term sentence in accordance
with section 1170.
Because the court determined that Sanchez experienced
childhood trauma

, examined the trauma’s connection to his

o ffenses

, and then carefully weighed the aggravating and mitigating factors

, t he court did not abuse its discretion by selecting a middle term sentence . (See Salazar

, supra , 15 Cal.5th at p. 428, fn. 8 [observing a court would not abuse its “broad
sentenci ng discretion” by impos ing a middle term or lower term

sentence after weighing aggravating circumstances against the mitigating circumstance of childhood trauma]; Hilburn

, supra ,11

93 Cal.App.5th at p. 206 [court did not abuse its sentencing
discretion where “the record establishes the court carefully considered the relevant aggravating and mitigating circumstances” and determined the aggravating factors warranted the middle term].) In other words, the court did not abuse its discretion by declining to impos e the lower term
sentence because in its assessment

, the six aggravating factors that Sanchez stipulated to outweighed the mitigating factors, effectively rebutting the presumption.
Sanchez further argues the trial court erred by “seemingly us[ing] [ his ] childhood trauma to justify selecting the mid

- term .”
Sanchez cites the court’s remark that experiencing “poverty,”

“ physical abuse ,” and “substance use” as a child “should have shown [ Sanchez ] right from wrong.” The court did not improperly
consider Sanc hez’s childhood trauma

. T he court acknowledged
Sanchez “grew up in a really bad situation” and stated “he wasn’t given [a] chance when he was just a child .” But, despite this childhood trauma, the court concluded Sanchez “knew” his conduct “was wrong ” an d “the conduct of the incident” shows “a complete lack of thought process” and “maturity.” Under these circumstances, t he court’s consideration of the circumstances of
the offense alongside Sanchez’s childhood trauma was not an abuse of discretion. (See Hilburn

, supra , 93 Cal.App.5th at p. 206 [ no abuse of discretion where court considered mitigating
circumstance of youth and “the circumstances of the crime
itself” ].) 3

3 Sanchez further argues he received ineffective assistance of counsel because his attorney “never specifically argued that the low term presumption under the newly amended section 117012 DIS POSITION

The judgment of the trial court is affirmed.

MARTINEZ

, P. J.

We concu r:

SEGAL, J

.

FEUER , J.

applied.” He requests that, if we find his argument forfeited , we consider whether his attorney was ineffective. Since we addressed Sanchez’s argument on its merits, we need not consider his ineffective assistance of counsel claim.