The opinion
Filed 12/1/22 P. v. Barrios CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D079769
Plaintiff and Respondent,
v. (Super. Ct. No. SCD286884)
KEVIN BARRIOS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Daniel F. Link, Judge. Affirmed in part, vacated in part, and remanded.
Matthew A. Lopas, 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,
Arlene A. Sevidal and Elizabeth M. Kuchar, Deputy Attorneys General, for
Plaintiff and Respondent.
Kevin Barrios appeals from the sentence imposed after his guilty plea
to false imprisonment by violence or menace. (Pen. Code, §§ 236, 237,
subd. (a).)1 He argues that: (1) he is entitled to a remand for resentencing
under Assembly Bill No. 124 (2021-2022 Reg. Sess.), which went into effect
after his sentencing and established a new presumption in favor of the lower
term if the defendant’s “psychological, physical, or childhood trauma” was a
“contributing factor in the commission of the offense” (§ 1170, subd. (b)(6)(A));
and (2) he is entitled to have his excess presentence custody credits applied to
reduce his three-year period of parole.
We conclude that Assembly Bill No. 124 applies retroactively to cases
not yet final on appeal, and that it requires a remand for resentencing on this
record. We also accept the People’s concession as to the excess presentence
custody credits. Accordingly, we vacate the sentence, remand for
resentencing, and otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Crime
On the morning of August 9, 2020, Christopher W. was sitting in his
pickup truck on India Street in San Diego. A man later identified as Barrios
approached and began stabbing Christopher’s vehicle using a sharpened
piece of metal with a handle wrapped in tape. Barrios damaged the side
panels of the vehicle and caused several gouges and scratches. He also
pointed the weapon at Christopher and threatened to kill him. Christopher
sat in his vehicle for approximately 20 minutes, waiting for Barrios to leave.
When Christopher exited his truck, Barrios aggressively approached him
while swinging the weapon, coming within an arm’s length. Christopher
yelled at Barrios and he backed down. Christopher feared for his life and
believed Barrios was going to stab him.
1 Further statutory references are to the Penal Code.
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B. Pre-Sentencing Proceedings
In September 2020, Barrios was charged with criminal threats (§ 422)
and false imprisonment by violence, menace, fraud and deceit (§§ 236, 237,
subd. (a)).
Later the same month, Barrios’s appointed counsel declared a doubt as
to his mental competence and requested that the proceedings be suspended
under section 1368. The trial court suspended the proceedings so that
Barrios could be evaluated by mental health professionals.
Two mental health professionals evaluated Barrios’s mental
competence and filed reports with the court. One of the reports noted that
Barrios had “been sexually abused by his mother” and “placed in foster care”
and that he “admitted having been in a mental hospital on 5 occasions in the
past.” Another report stated that Barrios was first arrested at the age of 11
for an incident he said occurred after his mother “ ‘was being physically
violent with [him].’ ” Both professionals concluded that Barrios suffered from
mental illness and was not mentally competent to stand trial.
Barrios’s mental health symptoms included delusional thoughts and
beliefs. One psychologist concluded that Barrios “maintains delusional
beliefs related to his arrest in the instant offense.” In describing the charged
offense, Barrios told her that he was “working on the side as a field
coordinator” for the victim, who “had some legal problems.” Barrios stated:
“ ‘I wasn’t sure if I was going to join his company and accept pro bono as an
associate. I knew this man. He had a mental illness. . . . He was late for a
meeting I had set up and I was upset over him. I explained that I had him
recorded because I had my atm card and I had parked my vehicle. I think he
wanted to get rid of me. . . . I had a pen in my hand. I was writing a small
child’s book script. I was brainstorming. I noticed he had pulled up and was
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sitting in his car. I was wanting to talk to him about not showing up to meet
me.’ ”
In February 2021, the court found Barrios mentally incompetent to
stand trial under section 1368 and ordered that he be committed to a state
hospital or county jail for competency restoration treatment. After seven
months of treatment, another psychiatrist filed a report concluding that
Barrios had become competent to stand trial. Accordingly, the trial court
reinstated the criminal proceedings.
In October 2021, Barrios pled guilty to the false imprisonment charge
with an “indicated” lower-term sentence of 16 months in prison and a
dismissal of the remaining charge.
C. Probation Report
Before sentencing, the probation officer filed a probation report. The
probation report summarized Barrios’s lengthy criminal history, which began
when he was a juvenile in the early 1990s. His prior offenses included crimes
related to theft, domestic violence, vandalism, assault, drugs, and weapons.
His record also included multiple prior findings that Barrios was incompetent
to stand trial and corresponding commitments to mental hospitals. The
probation officer noted that Barrios “went to Atascadero State Hospital for
the first time in 2009” and “[f]or the next several years, he would be
committed to various state hospitals several times regarding competency
issues.” Barrios “admitted being hospitalized at Atascadero, Metro, and
Patton State Hospitals in the past.” He had also served six prior prison
terms and had done poorly on all types of supervision.
According to the probation officer, “[i]t appears the defendant has
struggled with mental health issues for many years as he has gone through
the mental competency hearing process numerous times. To the defendant’s
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credit, he is currently on psychotropic medication, and he indicated he plans
to stay on his medications upon release.”
Barrios reported to the probation officer that he was “raised by ‘a lot of
people’ including his grandmother, aunt, and his parents.” Barrios said that
his mother physically abused him as a child, and his father went to prison for
drug-related offenses.
The probation officer concluded that there were two possible
circumstances in mitigation: (1) Barrios may have been suffering from a
mental condition that significantly reduced his culpability for the crime; and
(2) he voluntarily acknowledged wrongdoing at an early stage of the criminal
process.
The probation officer also concluded that there were seven possible
circumstances in aggravation: (1) Barrios was armed with a weapon, a
sharpened piece of metal, at the time of the crime; (2) he engaged in violent
conduct that indicated a serious danger to society, in that the victim
appeared to be completely random and was targeted for unknown reasons;
(3) his prior convictions as an adult were numerous and of increasing
seriousness; (4) he had served six prior prison terms; (5) he was on two grants
of formal probation when the crime was committed; (6) his prior performance
on probation, mandatory supervision, and parole was unsatisfactory; and
(7) in a letter to the court (attached to the probation report), the victim
expressed long-lasting fear caused by the defendant’s actions, as a result of
which he moved to another county.2
2 In the letter, the victim also said that he believed “in the power of
forgiveness and restoration” and requested that Barrios be ordered to
perform community service and participate in vocational rehabilitation and
diversion programs “as a condition of probation.”
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The probation report stated: “Given the disproportionate amount of
aggravants compared to mitigants, the upper term of three years could be
justified. However, the middle term of two years appears to be sufficient
punishment for this crime.” Accordingly, the probation officer recommended
the middle term of two years.
D. Sentencing
At sentencing, the court noted that Barrios already had more than two
years credit for time served. The court stated: “I was planning on giving him
two years. He will have credit for time served. It will be a paper commit.”
After the prosecutor noted that the victim had indicated he would be
attending the sentencing hearing, but was not present, the court remarked,
“I know he wrote a great statement, which I thought was very effective. And
I hope you had a chance to read it because the victim was very scared and
has now moved since this incident. But [Barrios] will serve two years. He’ll
likely be released today because you do have so many credits.”
Without any further argument or explanation, the court then
pronounced judgment as follows: “Probation is denied. And you’re committed
to the custody of the sheriff, pursuant to 1170(h)(5)(a), for two years. You’ve
already served that two years.” The court awarded Barrios 928 days of credit
for time served. Because the credits exceeded the two-year sentence by 198
days, Barrios’s sentence was deemed served and he was released from
custody on parole immediately. Barrios filed a timely appeal.
DISCUSSION
I
Barrios first argues that he is entitled to resentencing under Assembly
Bill No. 124, which became effective on January 1, 2022, after his original
sentencing. (Stats. 2021, ch. 695, § 5.3.) The People concede (and we agree)
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that Assembly Bill No. 124 applies retroactively to nonfinal cases on appeal.
(People v. Gerson (2022) 80 Cal.App.5th 1067, 1095 (Gerson); People v.
Banner (2022) 77 Cal.App.5th 226, 240 (Banner).) But the People contend
that resentencing is unnecessary because the trial court “implicitly” found
that imposing a low term would be contrary to the interests of justice. We
conclude that Barrios is entitled to resentencing because the record does not
clearly indicate that the trial court would not have imposed a low-term
sentence under Assembly Bill No. 124.3
Assembly Bill No. 124 established a presumption in favor of a lower-
term sentence under specified circumstances. (Gerson, supra, 80 Cal.App.5th
at p. 1095.) As relevant here, the bill added the following language to section
1170: “[U]nless the court finds that the aggravating circumstances outweigh
the mitigating circumstances [and] that imposition of the lower term would
be contrary to the interests of justice, the court shall order imposition of the
lower term if any of the following was a contributing factor in the commission
of the offense: [¶] (A) The person has experienced psychological, physical, or
childhood trauma, including, but not limited to, abuse, neglect, exploitation,
or sexual violence.” (§ 1170, subd. (b)(6).)
Barrios is entitled to resentencing under this new law unless the record
clearly indicates that the trial court would have imposed the same sentence if
3 Our resolution of this issue will not affect the amount of time actually
served by Barrios because he had already accumulated enough custody
credits to complete the two-year, middle-term sentence by the time of
sentencing. However, Barrios is also arguing (and the People concede) that
he is entitled to have any excess custody credits applied to his three-year
parole term. If the trial court had imposed the low-term sentence of 16
months instead of the two-year middle term, Barrios would have had
additional days of excess custody credits to apply to his parole term. We
must therefore resolve the issue because it has a practical impact on Barrios’s
parole term.
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it had been in effect at the time of the original sentencing. (Gerson, supra, 80
Cal.App.5th at p. 1096.) “This is because defendants are entitled to
sentencing decisions made in the exercise of the informed discretion of the
sentencing court. 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.” (Ibid., internal quotation marks and
citation omitted.)
The record here does not contain any clear indication that the trial
court would have imposed a middle-term sentence even under Assembly Bill
No. 124. Under the new law, “psychological trauma based on mental illness
may be a circumstance qualifying for the lower term presumption in section
1170, subdivision (b)(6).” (Banner, supra, 77 Cal.App.5th at p. 241.) The
record here indicates that Barrios suffered from longstanding mental illness;
he had repeatedly been found incompetent to stand trial and committed to
state mental hospitals; his symptoms included delusional thoughts and
beliefs; and his delusional beliefs may have been a contributing factor in the
commission of the charged offense. These facts demonstrate a reasonable
possibility that Barrios may be entitled to a presumption in favor of the lower
term under Assembly Bill No. 124. (§ 1170, subd. (b)(6).)
The record also contains evidence of possible “childhood trauma” that
might support the same presumption. (§ 1170, subd. (b)(6)(A).) Barrios told
the probation officer that his mother physically abused him as a child, his
father went to prison for drug-related offenses, and he was raised by “a lot of
people.” Barrios told a psychiatrist that he had “been sexually abused by his
mother” and “placed in foster care.” According to Barrios, he was first
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arrested at the age of 11 for an incident that occurred after his mother “ ‘was
being physically violent with [him].’ ”
The People argue that the trial court already considered Barrios’s
mental illness and childhood trauma at sentencing and “implicitly” found
that imposing a lower term would be contrary to the interests of justice by
imposing the middle term, rather than the indicated lower term. But the
mere fact that the trial court imposed the middle term without any legal
presumption in favor of the lower term does not clearly indicate that it would
have done the same with such a presumption. Under Assembly Bill No. 124,
if psychological or childhood trauma was a contributing factor in the
commission of the crime, the presumption in favor of the lower term could be
overcome only if the court found that the aggravating circumstances
outweighed the mitigating. (§ 1170, subd. (b)(6).) If anything, the trial
court’s imposition of the middle term, rather than the upper term, suggests
that it did not believe the aggravating circumstances outweighed the
mitigating. (§ 1170, subd. (b)(2) (former subd. (b).) And the court’s indicated
lower term sentence also suggests that it was at least open to imposing the
lower term. (See People v. Clancey (2013) 56 Cal.4th 562, 576 [though not
binding at sentencing, an indicated sentence is “the trial court’s considered
judgment as to the appropriate punishment in the case”].)
As the People concede, the trial court “did not explicitly lay out the
reasons for its sentencing decision . . . .” Indeed, the sentencing record is
unusually sparse—most likely because the trial court recognized that it was
only imposing a “paper commit” to a term already satisfied by Barrios’s
accumulated custody credits. The court said little more than was strictly
necessary just to impose the sentence. In the absence of any other
statements by the trial court explaining its thinking at sentencing, nothing in
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the record clearly indicates how the court would have exercised its discretion
applying Assembly Bill No. 124’s presumption in favor of the lower term.
Mere speculation about what the trial court would have done under the new
law is insufficient to satisfy the “clearly indicated” standard. (People v. Bell
(2020) 47 Cal.App.5th 153, 199–200.)
Finally, we note that because Assembly Bill No. 124 was not yet in
effect at the time of sentencing, Barrios and his counsel had no incentive to
develop the record regarding his childhood and psychological trauma and its
relationship to his commission of the crime. Accordingly, we conclude that
the appropriate remedy is a remand for resentencing. (Gerson, supra, 80
Cal.App.5th at p. 1096 [remanding for resentencing under Assembly Bill
No. 124 because at time of sentencing, “the trial court had no statutory
reason to make, and [defendant] had no reason to seek, a finding that past
psychological or physical trauma was a contributing factor to his commission
of any of his offenses”]; Banner, supra, 77 Cal.App.5th at p. 242 [remanding
for resentencing under Assembly Bill No. 124 because at time of sentencing,
“neither [defendant] nor the court had a meaningful incentive to assess
whether mental illness was a . . . ‘contributing factor’ in the crime”].) We
emphasize that we express no opinion on how the trial court should exercise
its discretion on remand.
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II
As noted, Barrios also contends that he is entitled to have his excess
presentence custody credits applied to his three-year parole term. The People
concede the issue. We agree. (§ 2900.5, subds. (a) & (c); People v. Morales
(2016) 63 Cal.4th 399, 406; In re Ballard (1981) 115 Cal.App.3d 647, 649–
650.) On remand, the trial court is directed to apply any excess presentence
custody credits to Barrios’s parole term.
DISPOSITION
Barrios’s sentence is vacated. The matter is remanded to the trial
court for resentencing. In all other respects, the judgment is affirmed.
BUCHANAN, J.
WE CONCUR:
IRION, Acting P.J.
DO, J.
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