Filed 3/17/23 P. v. Garcia CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

 Plaintiff and Respondent,

v.

HENRY GARCIA,

 Defendant and Appellant.

 G061198

 (Super. Ct. No. 18CF1869)

 O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Michael 

A. Leversen, Judge. Reversed and remanded.

Steven S. Lubliner, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Charles C. Ragland, Assistant Attorney General, Melissa Mandel and Tami 

Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.

* * *
2

After a jury found Henry Garcia guilty of committing a carjacking when he 

was 24 years old, the trial court sentenced him to the middle term of 5 years. On appeal, 

Garcia argues the court failed to apply Penal Code section 1170, subdivision (b)(6), 

which went into effect shortly before his sentencing hearing.1 Among other things, 

section 1170, subdivision (b)(6), requires trial courts to sentence youth offenders, such as 

Garcia, to the lower term unless the aggravating circumstances of the offense sufficiently 

outweigh the mitigating circumstances – here, Garcia’s age along with potential trauma

he suffered as a child. We find the trial court failed to apply this subdivision when 

sentencing Garcia. Thus, we reverse his sentence and remand this matter to the trial court 

for resentencing.

I

FACTS AND PROCEDURAL HISTORY

In June 2020, the prosecution filed a two-count information against Garcia 

and codefendant Raymond Ray Romeroalcala2relating to an incident that occurred on 

July 2, 2018. The information charged them with one count of kidnapping during the 

commission of a carjacking (§ 209.5, subd. (a)), and one count of carjacking (§ 215, 

subd. (a)).

The evidence at trial showed that on July 2, 2018, Vincente F. parked his 

van behind a store to collect cardboard and other recyclables. His wife, Maria Q., who is 

blind, was sleeping in the passenger seat. When Vincente F. got out of the van, he left his 

keys in the ignition and opened the rear passenger door to load the cardboard through it. 

Three men approached him while he was collecting cardboard. One of the men fought 

1

 All further undesignated statutory references are to the Penal Code.

2

 Within the record codefendant’s name appears as Raymond Ray Romeroalcala and 

Raymond Romero Alcala. We will refer to codefendant as Raymond Ray Romeroalcala 

as listed on the information.
3

with Vincente F. to prevent him from getting into the van. Another got into the van and 

started the engine. The third man also went straight to the van. The man fighting with 

Vincente F. eventually jumped into the van, and the three men drove away with Maria Q. 

still inside. Vincente F. began yelling for help. A group of bystanders called the police 

and began following the van in their own vehicle.

Meanwhile, Maria Q. heard a commotion but thought it was her husband 

returning to the van. When the van sped off she began yelling and was told by one of the 

men to “shut up” or “they would kill [her].” Maria Q. eventually heard a helicopter 

circling the van from above, which prompted one of the men in the van to say, “‘drive 

faster. We’re being followed.’”

The bystanders continued following the van until it stopped near some 

apartment complexes. After it stopped, they saw three men flee the vehicle in different 

directions. The police arrived on the scene shortly thereafter. Romeroalcala was found 

in an alcove in one of the surrounding apartment buildings. An iPhone was found on the 

driver’s seat of the van. The number on the phone was linked to Garcia, and Garcia 

admitted the phone was his. In March 2019, Vincente F. identified Garcia out of a photo 

lineup as the driver of the van.

Following the presentation of evidence, the jury found Romeroalcala and 

Garcia not guilty of kidnapping but guilty of the lesser-included offense of false 

imprisonment by violence. It also found them both guilty of carjacking. On March 11, 

2022, the trial court sentenced Garcia to the middle term of five years for the carjacking 

charge with a concurrent two-year sentence for false imprisonment.

Garcia appeals, arguing the court failed to apply section 1170, subdivision 

(b)(6), when selecting the five-year middle term. He requests that we vacate his sentence 

and remand the matter for resentencing.
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II

DISCUSSION

A. Carjacking Sentence

Prior to 2022, former section 1170 gave the trial court broad discretion to 

determine whether to impose the lower, middle, or upper term. (People v. Lopez (2022) 

78 Cal.App.5th 459, 464.) Courts could “select the term which, in the court’s discretion, 

best serve[d] the interests of justice.” (Former § 1170, subd. (b), Stats. 2020, ch. 29,

§ 15, eff. Aug. 6, 2020.) This discretion was curtailed beginning January 1, 2022, when 

section 1170 was amended by Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021, 

ch. 731, § 1.3) (Sen. Bill 567). Following the amendment, the middle term became “the 

presumptive sentence for a term of imprisonment unless certain circumstances exist.” 

(People v. Flores (2022) 73 Cal.App.5th 1032, 1038, fn. omitted.)

Senate Bill 567 also added subdivision (b)(6) to section 1170. (People v. 

Flores, supra, 73 Cal.App.5th at pp. 1038-1039.) This subdivision created a presumption 

favoring the lower term when, among other things, the defendant was under the age of 26 

when the offense was committed or has experienced certain types of trauma. (§ 1170, 

subd. (b)(6).) When either of these circumstances apply, the lower term must be applied 

“unless the court finds that 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).) The amendments to section 1170 made by Senate Bill 

567 apply retroactively to all cases that were not final as of January 1, 2022. (Flores, at 

p. 1039; People v. Dunn (2022) 81 Cal.App.5th 394, 403.)

It is undisputed that section 1170, subdivision (b)(6), applies here. Among 

other things, Garcia was 24 years old when the carjacking occurred. Garcia also asserts 

the record contains evidence showing he suffered childhood trauma. His parents 

divorced when he was seven years old. His mother later remarried, and his stepfather 

physically abused his mother and siblings for years. Further, Garcia was hit by a car 
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when he was eight years old, which caused severe fractures to his skull and left him with 

memory problems that persist to this day. Because section 1170, subdivision (b)(6) 

applies, Garcia should have been sentenced to the lower term unless the aggravating 

circumstances of the carjacking sufficiently outweighed these mitigating circumstances. 

Garcia contends the trial court erred by failing to apply this subdivision. We agree.

Though Garcia was sentenced in March 2022, shortly after section 1170, subdivision 

(b)(6) had gone into effect, the record indicates the court did not apply it.

To begin, neither Garcia’s sentencing brief nor the prosecution’s sentencing 

brief mentioned section 1170, subdivision (b)(6). While Garcia’s sentencing brief argued 

the court should consider his age, it did so in the context of Miller v. Alabama (2012) 567 

U.S. 460 (Miller), which held that mandatory life sentences for persons under the age of 

18 violated the Eighth Amendment. (Id. at p. 465.) Under Miller, Garcia’s brief argued 

that his age should be considered in sentencing because juveniles have a less developed 

moral sense than adults and are more capable of change than adults. (Citing Id. at 

p. 471.) But Garcia never cited section 1170, subdivision (b)(6), let alone discussed how 

his age at the time of the offense triggered the lower-term presumption under this 

subdivision.

3

Likewise, during the sentencing hearing, Garcia’s counsel simply referred 

the court to the sentencing brief and never mentioned section 1170, subdivision (b)(6). 

While the prosecution noted that section 1170 had been amended, it only stated that “the 

law changed in that in order for the court to sentence to the upper term, the aggravating 

factors . . . need to be found true by the jury.” Because no such findings had been made, 

the prosecution requested that Garcia be sentenced to the middle term. Although the 

3

 The Attorney General does not contend that Garcia has forfeited this argument by 

failing to raise it in the trial court. Rather, the Attorney General only contests the merits 

of Garcia’s argument. Thus, we do not address whether the argument has been forfeited.
6

prosecution should have known that Garcia was 24 years old when the offense occurred, 

it never brought section 1170, subdivision (b)(6), to the attention of the court.

Finally, nothing in the court’s pronouncement of Garcia’s sentence 

indicates it was aware of section 1170, subdivision (b)(6). As set forth above, this 

subdivision requires imposition of the lower term unless doing so “would be contrary to 

the interests of justice” because the aggravating circumstances outweigh the mitigating 

circumstances. (§ 1170, subd. (b)(6).) Nothing in the record reasonably shows the court 

engaged in this analysis. In selecting the five-year middle term, the court explained it 

“ha[d] considered [Garcia’s] age, social history, and future prospects for productive life. 

[It] also considered the general objectives of sentencing, including protection of society, 

deterrence from future criminal conduct, sentencing uniformity, and ensuring the 

sentence indicated herein is commensurate with [Garcia’s] behavior in the current case 

combined with his or her record. [It] also considered [Garcia’s] age and other factors in 

arriving at this sentencing decision.” While the court mentioned Garcia’s age, this 

appears to be a response to Garcia’s argument concerning age under Miller, supra, 567 

U.S. 460, not a reference to section 1170, subdivision (b)(6).

In response, the Attorney General argues we should apply the general 

presumption that the trial court understood and followed applicable law. (Citing People 

v. Mosley (1997) 53 Cal.App.4th 489, 496.) However, “‘[i]f the record demonstrates the 

trial court was unaware of its discretion or that it misunderstood the scope of its 

discretion under the applicable law, the presumption has been rebutted, and the order 

must be reversed.’” (Hudson v. Foster (2021) 68 Cal.App.5th 640, 662.)

Here, based on the discussion above, the record sufficiently demonstrates 

the court was unaware of the scope of its discretion under section 1170, subdivision 

(b)(6). To reiterate, the court’s sentencing pronouncement does not reflect any 

understanding that it was required to impose the lower term unless the aggravating 

circumstances of the carjacking outweighed Garcia’s youth and the trauma he 
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experienced as a child. Further, nothing in any of the briefing or statements made at oral 

argument mentioned the court’s limited discretion under section 1170, subdivision (b)(6). 

Since the court was unaware of the scope of its discretion, the general presumption

favoring the trial court’s ruling has been rebutted.

Finally, the Attorney General argues that even if the trial court failed to 

apply section 1170, subdivision (b)(6), it would have reached the same result had the 

statute been applied. We disagree.

“Remand for resentencing is required . . . ‘unless the record “clearly 

indicate[s]” that the trial court would have reached the same conclusion “even if it had 

been aware that it had such discretion.”’ [Citation.] This is because defendants are 

‘“entitled to sentencing decisions made in the exercise of the ‘informed discretion’ of the 

sentencing court.”’ [Citation.] A court that is not aware of the scope of its discretionary 

powers cannot exercise that ‘informed discretion’ any more than a court whose sentence 

may have been based on misinformation regarding a material aspect of the defendant’s 

record.” (People v. Gerson (2022) 80 Cal.App.5th 1067, 1096.)

As evident from the discussion above, nothing in the record clearly 

indicates the court would have reached the same conclusion. Garcia was still a youth at 

the time of the offense. The record also showed he had a turbulent childhood, including 

being hit by a car when he was eight years old, which impaired his memory. At the time 

of sentencing, Garcia had no prior felony convictions. His only prior arrest occurred in

September 2012 (when he was 18 years old) for challenging another person to fight in 

public, which is a misdemeanor. (§ 415, subd. (1).) Further, the evidence indicates 

Garcia only drove the van and did not physically fight with Vicente F. Given these facts, 

it is unclear whether the court would again sentence Garcia to the middle term of five 

years if it applied section 1170, subdivision (b)(6). Due to this uncertainty, remand for 

resentencing is required.
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B. Motion to Augment

Initially, Garcia requested that we make two corrections to the abstract of 

judgment so that it matched the trial court’s oral pronouncement of his sentence. First, 

the court orally sentenced him to an aggregate term of five years, consisting of five years 

for the carjacking offense and a concurrent two-year sentence for false imprisonment. 

However, the abstract of judgment states Garcia was sentenced to an eight-month 

consecutive sentence for false imprisonment, resulting in an aggregate term of five years 

and eight months. Second, the abstract of judgment stated Garcia had served 876 actual 

days in custody when he had served 976 days. The Attorney General did not oppose 

either request.

After appellate briefing was completed, Garcia filed a motion to augment

the record. His motion explained that the abstract of judgment had been corrected by the 

trial court, so he was withdrawing his above requests for relief. He sought to augment the 

record to include the amended abstract of judgment and the relevant amended minute 

orders. The motion to augment is granted, and Garcia’s requests for relief concerning the 

abstract of judgment are now moot.
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III

DISPOSITION

Garcia’s sentence is reversed. The matter is remanded for resentencing, 

consistent with section 1170, subdivision (b)(6). In all other respects, the judgment is 

affirmed.

MOORE, J.

WE CONCUR:

O’LEARY, P. J.

MOTOIKE, J