Improper Upper Term Sentence in Long Beach Courthouse

Effective January 1, 2022, Senate Bill 567 and Assembly Bill 124 modified Penal Code § 1170 so as to change the judge’s discretion in imposing an upper term sentence when a judge imposes a prison sentence of the lower, middle or upper term.

Penal Code § 1170(b)(2), as amended, now provides that an upper term sentence may be imposed only “when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term, and the facts underlying those circumstances 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.”

The following summary of a recent Second Appellate District opinion is the first published decision we have seen that applies these two new laws.

In February 2018, defendant Lisa Maria Garcia went to a Boost Mobile store owned by K.V. in the City of Long Beach.  She went there to buy two cell phones based on a promotion the store was offering at the time. 

Jacqueline Aguilar was working at the store that day and helped Ms. Garcia in her purchase of the phones and activating them.  Ms. Garcia had trouble setting up her e-mail account on both of the phones and Ms. Aguilar tried to help Ms. Garcia, but could not.  Ms. Garcia became extremely frustrated and demanded a refund.

In response, Ms. Aguilar called the store owner, K.V., who was at her other store.  K.V. agreed to get in her car and come over to the store with Ms. Garcia to try to help.  When K.V. got to the store, she tried to set up the e-mail account, but was unsuccessful.  She told Mr. Garcia that she would giver her a refund, less an $80 fee that Boost corporate policy stated could not be returned.

Ms. Garcia became extremely angry and cursed at K.V.  She again demanded a full refund, including the $80.  K.V. reiterated that she could not return all the money according to Boost Mobile corporate policy.

Ms. Garcia then came around the customer counter toward K.V. and Ms. Aguilar and said she was going to take something “worth $300.”  She yanked open a drawer under the cash register and grabbed K.V.’s personal cell phone.  K.V. then went to the front door of the store and locked it. 

Ms. Garcia then swung the bag containing the phones and hit K.V. with it.  She then picked up a large metal sign standing near the front entrance and swung it at K.V., hitting her several times.  She also hit K.V. with a wooden toy that was on the counter.  She then grabbed K.V.’s hair and knocked her to the ground before punching her several times.

Ms. Aguilar called 911 and the police came, arresting Ms. Garcia.

The Long Beach District Attorney’s Office charged Ms. Garcia with second degree robbery (Penal Code § 211) and assault with a deadly weapon (Penal Code § 245(a)(1).  It was also alleged that Ms. Garcia used the metal sign in commission of the robbery (Penal Code § 12022(b)) and that K.V. suffered great bodily injury from Ms. Garcia (Penal Code § 12022.7(a).

At trial, a store security video was played that showed the jury the incident from several angles.

The jury found Ms. Garcia guilty on both counts and found true the special allegations.

Judge James Otto (who we greatly respect and whose desk coincidentally is in our office because he worked with Greg before becoming a judge and left his desk to our office) imposed a five-year upper term on the second degree robbery, plus a consecutive three year term for the great bodily harm enhancement and a concurrent three year term on the assault with a deadly charge.

Judge Otto then suspended imposition of the eight year prison term and placed Ms. Garcia on five years of formal probation.  This is what many call a “joint suspended” sentence.

Ms. Garcia appealed the verdict and the sentence on several grounds, but this article will limit its scope to application of Senate Bill 567 and Assembly Bill 124, which Ms. Garcia did not argue would apply, but only fortuitously were applied because during the pendency of her appeal, the new laws became effective (“rescuing her” in a way).

The Second Appellate District Court explained that while the appeal was pending, both new laws became effective and the parties agreed that the legislation applied retroactively to all nonfinal appeals because the new provisions are ameliorative in nature.  People v. Brown (2012) 54 Cal. 4th 314, 323 (discussing rule of In re Estrada (1965) 63 Cal. 2d 740).

As applied here, since defendant certainly did not stipulate to facts that would support imposition of the upper term and the jury was not asked to find true facts other than those supporting the great bodily injury sentence enhancement, the imposition of the upper term sentence was vacated and the case was remanded for a new sentencing hearing.  Ms. Garcia was very lucky in this regard that a new law applied to her to reduce her sentence.

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