People v. BravoPeople v. Bravo
Many years later, the Legislature eliminated sentencing enhancements for prison priors such as Bravo‘s, and in 2023, Bravo sought recall of his sentence and full resentencing pursuant to
On appeal, Bravo contends the trial court made various sentencing errors. As a preliminary matter, the Attorney General contends Bravo is not eligible for relief under
Accordingly, we affirm.
BACKGROUND
Bravo‘s Criminal Convictions and Original Sentence
In 2006, when Bravo was 29 years old, he had sexual contact with a 15-year-old girl, Jane Doe, on multiple occasions over the course of four months.1 According to the Contra Costa District Attorney, Bravo exposed Doe to drugs and had sex with her in San Francisco in June 2006 and exposed her to alcohol and had sex with her at a hotel in Concord in September 2006. In July 2006, Bravo had sex and engaged in other sex acts with Doe two or three different times in Concord. On another occasion, Bravo took Doe to San Francisco and asked her whether she would prostitute herself for him and called himself a ” ‘pimp.’ ” He also asked her to sell drugs in the area where she lived. Doe became pregnant, and she had an abortion.
Pursuant to a negotiated disposition reached in 2008, Bravo pleaded no contest to 12 felonies: three counts of unlawful sexual intercourse by a person 21 years of age or older with a minor under 16 years old (
As part of the negotiated disposition, Bravo agreed to a 20-year prison sentence. The trial court imposed the agreed-upon sentence, composed of an upper term of nine years for count 12 (soliciting a minor to use/sell a controlled substance), a full, separate, consecutive upper term of eight years for count 11 (rape by use of drugs),3 and a consecutive three-year term for one enhancement for great bodily injury under
Bravo was paroled in October 2022.
Effective January 1, 2020,
In 2021, the Legislature created a mechanism for providing retroactive relief to persons serving a term for a judgment that includes an enhancement under
“(2) The court shall apply the sentencing rules of the Judicial Council and apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.
“(3) The court may consider postconviction factors, including, but not limited to, the disciplinary record and record of rehabilitation of the defendant while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the defendant‘s risk for future violence, and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice.
“(4) Unless the court originally imposed the upper term, the court may not impose a sentence exceeding the middle term unless there are circumstances in aggravation that justify the imposition of a term of imprisonment exceeding the middle term, and those facts have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.”
Bravo‘s Request for Resentencing Under Section 1172.75
On July 21, 2023, Bravo filed a motion for recall of his sentence and full resentencing pursuant to
The district attorney filed a response, agreeing that the
The court stated it understood the remaining issues on resentencing to be, first, whether upper terms should be imposed for counts 11 and 12 and, second, whether an enhancement for great bodily injury should be imposed. The court asked counsel, “Am I leaving anything out?” and defense counsel responded, “I don‘t think you are, Your Honor.” The prosecutor agreed, “Those are the issues.”
The prosecutor argued there were “various sound reasons for maintaining the upper terms for Counts 11 and 12,” including that the victim was particularly vulnerable, Bravo “induced a minor to commit crimes,” “[h]e was convicted of other crimes for which consecutive sentences could have been imposed but were not,” his criminal history showed his “convictions were of an increasing seriousness,” he “was on probation during the time of at least some of the offenses,” and “the repeated nature of the crime[s].”6
Bravo spoke on his own behalf, reading a statement of remorse and a separate statement describing his rehabilitation. Bravo said he was beaten by his mother‘s boyfriends, and he became violent himself. He credited his wife and his faith for his change. Regarding his parole violation, Bravo said he was transient, and he “missed the [sex offender] registry after six months because . . . everything my wife is going through, health-wise, and me trying to be a provider from . . . where I‘m at, being homeless.”8
Bravo‘s wife also spoke on his behalf.9
The court explained why it selected the upper terms for counts 11 and 12: “I do believe that there has been a showing—some showing of childhood trauma. However, I do believe it would be contrary to the interest of justice to impose the lower term here. [¶] So then, pursuant to [section] 1170(b)(6), I am not compelled to impose the lower term. Choosing between the middle term and the upper term, I believe that, at this point, it still remains appropriate to impose the upper term, given the factors articulated by the People, in particular, the vulnerability of the victim, the inducement to commit a crime, that the sentences could have been consecutive but were concurrent[10], which I hear Defendant‘s argument that this was a plea. But I note that that kind of goes both ways. It was negotiated to be concurrent . . ., and it was negotiated to be the upper term.”
DISCUSSION
A. Resentencing Under Section 1172.75 is Available Where the Section 667.5(b) Enhancement Was Originally Imposed and Stayed
Here, Bravo‘s judgment “includes an enhancement” under
In reaching its unique conclusion, the Rhodius court reasoned: ”
Multiple appellate courts have considered this rationale and rejected it. (Espino, supra, 104 Cal.App.5th at p. 196 [citing cases].) As the Fifth District Court of Appeal explained in disagreeing with Rhodius, “Imposed-but-stayed prior prison term enhancements carry the possibility of execution. . . . If ‘imposed’ in
For the reasons explained in Espino, Mayberry, and the cases cited therein, we reject the Attorney General‘s position that Bravo is ineligible for
B. Bravo Received a Lesser Sentence on Resentencing
Bravo contends the trial court‘s imposition of a 20-year sentence on resentencing violates
But Bravo offers no authority for his position that a “lesser sentence” as the phrase is used in
In this case, Bravo received a “lesser sentence” because the trial court struck the
C. The Trial Court‘s Decision Not to Dismiss One of the Great Bodily Injury Enhancements Under Section 1385
Next, Bravo argues the trial court “failed to apply the correct statutory analysis” (capitalization omitted) when it declined to exercise its discretion under
Bravo argues the trial court misapplied
Second, “[a]bsent evidence to the contrary, we presume that the trial court knew the law and followed it.” (People v. Ramirez (2021) 10 Cal.5th 983, 1042 (Ramirez).) Bravo asserts the court “should have, but did not, assign significant value to” his childhood trauma. We see no basis for this assertion. Nothing in the record demonstrates the trial court failed to assign significant value to the evidence of his childhood trauma or otherwise misunderstood or misapplied
D. The Court‘s Decision Not to Impose Lower Terms Under Section 1170
Bravo similarly claims the trial court erred by failing to apply
In this case, the trial court found “some showing of childhood trauma,” but found “it would be contrary to the interest of justice to impose the lower term here.” The court continued, “So then, pursuant to [section] 1170(b)(6), I am not compelled to impose the lower term.” The court selected upper terms, relying on the aggravating factors identified by the prosecution.
Bravo argues the court “failed to apply the low term presumption in evaluating the interests of justice or weighing the aggravating circumstances.” But the record shows the trial court expressly referred to
Again, “we presume that the trial court knew the law and followed it.” (Ramirez, supra, 10 Cal.5th at p. 1042; see Knowles, supra, 105 Cal.App.5th at pp. 768–769 [rejecting claim the sentencing court failed to consider mitigating evidence because it did not mention all the evidence];
E. The Court‘s Decision to Impose Upper Terms
As we have seen, the trial court was permitted to select upper terms for counts 11 and 12 pursuant to
Initially, we are not convinced that the aggravating factor of the vulnerability of the victim based on her age was an element of the offenses at issue (counts 11 and 12). An element of many of his sex offenses is that the victim is under 16, but young age is not an element of count 11 (rape by use of drugs), and, while count 12 involves soliciting a minor to commit a crime, a 15-year-old victim may be more vulnerable than an older minor of 16 or 17.
The Attorney General takes the position that, regardless of consideration of aggravating factors, the trial court was free to impose upper terms under
The prosecution proffered—and the trial court relied on—many factors in aggravation that Bravo does not challenge, and the court determined upper terms were appropriate in this case.15 On this record, we conclude any
F. The Court‘s Failure to State Reasons for Imposing Consecutive Terms
Bravo recognizes that, after imposing a principal term for count 12, the trial court had authority under
Because defense counsel did not raise this issue at the sentencing hearing, this claim is forfeited. “[A] defendant cannot complain for the first time on appeal about the court‘s failure to state reasons for a sentencing choice.” (People v. Scott (1994) 9 Cal.4th 331, 352.)
Bravo tries to avoid forfeiture by arguing defense counsel was ineffective in failing to object. This argument is unavailing because Bravo has not shown prejudice. (See People v. Mai (2013) 57 Cal.4th 986, 1009 [to demonstrate ineffective assistance of counsel, a defendant must show (1) “counsel‘s performance was deficient” and (2) “resulting prejudice, i.e., a reasonable probability that, but for counsel‘s deficient performance, the outcome of the proceeding would have been different“].) Here, the trial court clearly determined that a 20-year sentence was appropriate for Bravo‘s 12 crimes involving sex, pandering, and drug offenses committed over the course of four months against a 15-year-old victim. Bravo fails to show that it is reasonably probable the outcome would have been different if defense counsel
DISPOSITION
The judgment is affirmed.
Miller, J.
WE CONCUR:
Stewart, P.J.
Desautels, J.