People v. Alvarez CA3

Opinion

Filed 8/26/26 P. v. Alvarez CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento)

THE PEOPLE, C101822 Plaintiff and Respondent, (Super. Ct. No. 21FE008951) v. RICHARD ALVAREZ, Defendant and Appellant.

A jury found defendant Richard Alvarez guilty of voluntary manslaughter and assault with a deadly weapon. On the manslaughter count, the trial court sentenced defendant to 11 years tripled by three prior strike convictions to 33 years to life, plus an additional 10 years for two five-year prior serious felony enhancements, and, on the assault count, 25 years to life plus 10 years, stayed under Penal Code section 654.1 At sentencing, the court declined to strike the five-year enhancements imposed under section 667, subdivision (a)(1), finding by clear and convincing evidence that dismissal of the enhancements would endanger public safety.

1 Undesignated statutory references are to the Penal Code.

1 On appeal, defendant contends the trial court abused its discretion in not striking these enhancements, because (1) the trial court failed to consider defendant’s risk to public safety at the time of his release from prison when he would be elderly, and (2) mitigating factors weighed heavily in favor of dismissal. We conclude defendant has forfeited his claims on appeal, and, even if his claims were not forfeited, he has failed to demonstrate an abuse of discretion. We affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND We limit our recitation to the factual and procedural background pertinent to the issues on appeal. On April 21, 2020, a correctional officer escorted defendant from his cell in a state prison psychiatric services unit (PSU) to a holding cell and then to the PSU yard. PSU is a security housing unit for inmates with mental health needs. Defendant was restrained with handcuffs locked to a waist chain behind his back. Two other inmates were being escorted at the same time, the victim and another inmate, N.A., both restrained in handcuffs behind their backs. Defendant was in a wheelchair being pushed by a correctional officer. Leaving the holding cell, the victim was in front, defendant was in the middle, and N.A. was in the rear. The victim was approximately 25 feet from defendant. When defendant was about 10 feet into the yard, he slipped out of his handcuffs, jumped out of his wheelchair, and ran towards the victim holding a knife. The victim was still in restraints. Defendant stabbed him. Two correctional officers sprayed defendant with pepper spray. Defendant fell and threw a weapon away as he fell. When being searched, defendant warned a correctional officer that he had another weapon taped to his right thigh. The victim was transported to a hospital where he died from stab wounds. Defendant posted in his cell door window photos of the victim that showed his injuries from the stabbing.

2 Subsequently, defendant made two weapons that he planned to use on a correctional officer whom defendant felt had disrespected him by throwing a bar of soap at him. This attack was foiled when another inmate informed authorities that defendant had made the weapons. An amended information charged defendant with first degree murder (§ 187, subd. (a); count one) with a special circumstance that he was previously convicted of murder with a firearm (§ 190.2, subd. (a)(2)), and assault with a deadly weapon while serving a life sentence in state prison (§ 4500; count two). The amended information alleged five aggravating circumstances and three prior strike convictions. Defendant testified on his own behalf at trial. Defendant claimed he intended to stab but not kill the victim as a warning to him not to threaten defendant or brandish a weapon at him. Although the victim was in handcuffs at the time defendant stabbed him, defendant had seen him slip out of handcuffs before. Defendant testified that six months before the stabbing, the victim was moved into defendant’s cell block. At the time, there was no animosity between them. The animosity started when N.A. spread rumors that defendant had made advances towards N.A. N.A. is transgender. At a mental health counseling group four months before the incident, the victim told defendant to stay away from his girlfriend, N.A., and brandished a knife. Defendant testified, “I knew instantly that my life was in jeopardy, and I was fearful of my life.” Defendant had learned of an incident six months before where two inmates in a secured housing facility slipped their handcuffs, attacked another inmate, and killed him. The victim’s cell was above defendant’s, and defendant could hear the victim sharpening a weapon on concrete.

3 On April 21, 2020, defendant was concerned about being escorted with the victim, who might have the weapon he was sharpening. Defendant went after the victim because defendant was afraid of being attacked, stabbed, and in a vulnerable position. He knew that an inmate had just been murdered by two other inmates. Defendant testified it “was a fear and just pure adrenaline” that led him to attack the victim. At trial, the court read 11 stipulations to the jury regarding the victim’s assaults on inmates and correctional officers and other misconduct in prison. On count one, the jury found defendant not guilty of first and second degree murder and guilty of the lesser charge of voluntary manslaughter (§ 192, subd. (a)), and on count two, not guilty of assault by a prisoner serving a life sentence but guilty of the lesser charge of assault with a deadly weapon (§ 245, subd. (a)(1)). The People filed a sentencing brief asking the trial court to find the aggravating circumstances and prior convictions true contending there were no circumstances in mitigation. The People argued that, although defendant’s prior strikes were more than 10 years old, there had been no significant break in his criminal activity and defendant continued to commit violent offenses while incarcerated. Further, defendant’s prior strikes and current offenses proved that defendant remained a risk to the public. Finally, there was no mitigating circumstance that suggested defendant fell outside the three strikes scheme and his prior strikes should be dismissed. The People urged the court to impose the maximum sentence of 33 years to life plus 10 years in state prison. Defendant filed a sentencing memorandum asking the trial court to: (1) stay the sentence on count two under section 654; (2) find true certain mitigating circumstances; and (3) strike defendant’s prior strike convictions. Defendant argued the following mitigating circumstances applied: (1) he participated in the crime under circumstances of coercion or duress, or the criminal conduct was partially excusable for some other reason 4 not amounting to a defense (Cal. Rules of Court, rule 4.423(a)(4));2 (2) he experienced psychological, physical, or childhood trauma, including abuse, neglect, exploitation, or sexual violence, and it was a factor in the commission of the offense (rule 4.423(b)(3)); and (3) the commission of the current offense was connected to defendant’s prior victimization or childhood trauma or mental illness (rule 4.423(b)(4)). Given the weight of the mitigating evidence, defendant requested the middle term of six years on the manslaughter count. Finally, defendant asked the court to strike the prior strikes, or, in the alternative, sentence him using one prior strike. Defendant waived jury trial on the prior convictions and aggravating circumstances. The trial court found the three prior convictions true. The court also found true the following aggravating factors: defendant’s offense involved great violence, great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness (rule 4.421(a)(1)); defendant was armed with a weapon at the time of the crime (rule 4.421(a)(2)); the manner of the crime indicated planning, sophistication, or professionalism (rule 4.421(a)(8)); defendant engaged in violent conduct that indicates a serious danger to society (rule 4.421(b)(1)); and defendant’s prior convictions were numerous or of increasing seriousness (rule 4.421(b)(2)). The court proceeded to sentencing. In addition to the requests in defendant’s sentencing brief, defense counsel argued the court should strike the two five-year serious felony enhancements under factors enumerated in section 1385, subdivision (c), including that multiple enhancements were alleged in a single case, the enhancements would result in a sentence over 20 years, the current offense was connected to prior victimization and trauma, and the enhancements were based on offenses that are over five years old. (§ 1385, subd. (c)(2)(B), (C), (E), (H).)

2 Undesignated rule references are to the California Rules of Court.

5 In response, the prosecutor reiterated that defendant’s prior strike offenses and current offense proved defendant was a threat to the community outside and inside prison, and no mitigation suggested defendant fell outside of the three strikes scheme or that any of the strikes should be dismissed based on his background, character, and prospects. The prosecutor argued that defendant’s trauma and exposure to crime was not the reason defendant committed the current offense. Defendant “committed this crime because he is a violent person, and he is proud of that violence.” As to the mitigating factors in section 1385, subdivision (c), the prosecutor argued it was not in furtherance of justice for the trial court to dismiss the enhancements. The trial court denied defendant’s request to strike the prior strike convictions. Turning to the serious felony enhancements, the court found the following mitigating factors true: there were multiple enhancements, the enhancements could result in a sentence over 20 years,3 the enhancements were based on offenses over five years old, and the crimes were possibly connected to defendant’s prior victimization or childhood trauma. The court said that “even giving great weight to all the mitigating factors [defense counsel] has put forth in his sentencing memo, the Court still finds that by clear and convincing evidence that the dismissal of the enhancements would endanger public safety.” The court declined to strike the enhancements. Addressing section 1170, subdivision (b)(6), the trial court found that aggravating factors outweighed the mitigating factor of childhood trauma and declined to impose the lower term. Based on defendant’s record, his prior convictions, and the aggravating factors, the trial court imposed the upper term of 11 years for voluntary manslaughter 3 As the People point out, the enhancements did not result in a sentence over 20 years; defendant’s sentence of 33 years to life was already over 20 years before the enhancements. (People v. Torres (2025) 113 Cal.App.5th 88, 93 (Torres) [§ 1385, subd. (c)(2)(C) did not apply where “the sentence already exceeded 20 years without any enhancement”].)

6 tripled by the prior convictions to 33 years to life, plus 10 years for the two five-year serious felony enhancements. The court also imposed the upper term of 25 years to life for assault with a deadly weapon, plus 10 years for the enhancements, and stayed the sentence under section 654. At defense counsel’s request and with the prosecutor’s agreement, the court did not impose any fines and fees based on defendant’s inability to pay. Defendant filed a timely notice of appeal. DISCUSSION Section 1385 permits the trial court to dismiss an enhancement in the furtherance of justice. (Id., subd. (a).) Section 1385 provides in relevant part: “Notwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so.” (Id., subd. (c)(1).) “In exercising its discretion under this subdivision, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in subparagraphs (A) to (I) are present. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety. ‘Endanger public safety’ means there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others.” (Id., subd. (c)(2), italics added). In People v. Gonzalez (2024) 103 Cal.App.5th 215 (Gonzalez), the Court of Appeal found “the trial court erred because it considered only whether [the defendant] currently posed a danger to the public when assessing if a dismissal of the firearm enhancement would ‘endanger public safety.’ ” (Id., at p. 230, quoting § 1385, subd. (c)(2).) “Although the current dangerousness of the defendant is an appropriate factor to consider, as it will have some bearing on whether dismissing the enhancement would endanger the public, a crucial part of the inquiry is how the dismissal of the enhancement will impact the length of the defendant’s sentence.” (Gonzalez, at p. 228.) Thus, a 7 “currently dangerous defendant who will be released from prison within a short timeframe might be found by the trial court to pose a greater danger to the public than a defendant who is currently dangerous but who has no prospect of release from prison until he is elderly.” (Ibid.) We note that while Gonzalez was decided less than a month before the sentencing hearing in this case, defendant was sentenced more than two years after section 1385, subdivision (c) became effective on January 1, 2022. (Stats. 2021, ch. 721, § 1; Torres, supra, 113 Cal.App.5th at p. 92.) Moreover, the court in Gonzalez, as well as the defendant in that case, relied on this court’s analogous decision in People v. Williams (2018) 19 Cal.App.5th 1057. (Gonzalez, supra, 103 Cal.App.5th at pp. 222-223, 228- 229.) In Williams, we held the trial court erroneously failed to consider risk to the public from release of a defendant who would not be eligible for parole until the age of 77. (Williams, at pp. 1062-1063.) This court said: “Determining whether resentencing a defendant poses an unreasonable risk of danger to society is necessarily a forward- looking inquiry.” (Id. at p. 1063.) We concluded the trial court’s “failure to consider when, if ever, defendant would be released” was an abuse of discretion. (Id. at p. 1064.) Gonzalez applied Williams to section 1385, subdivision (c). (Gonzalez, at pp. 228-229.) In this case, defense counsel argued at sentencing that four of the enumerated mitigating circumstances applied, but the trial court refused to dismiss the five-year enhancements on the basis that dismissing the enhancements would endanger the public. Defendant contends substantial evidence did not support that finding. He argues that given the 40- year-to-life sentence imposed when he was 24 and the 33-year-to-life sentence imposed in this case, defendant will be 97 years old when he has completed these terms and “would have a diminished physical ability to commit violent offenses.”

8 However, in the trial court, defendant did not argue he presented no future danger to the public should the enhancements be stricken; did not object to the sentence pronounced on that basis; and did not ask the trial court to make a more specific record. As a result, we conclude defendant forfeited this claim of error. “ ‘A party in a criminal case may not, on appeal, raise “claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices” if the party did not object to the sentence at trial.’ ” (People v. Scott (2015) 61 Cal.4th 363, 406.) “Strong policy reasons support this rule: ‘It is both unfair and inefficient to permit a claim of error on appeal that, if timely brought to the attention of the trial court, could have been easily corrected or avoided. [Citations.]’ [Citation.] ‘ “ ‘ “The law casts upon the party the duty of looking after his legal rights and of calling the judge’s attention to any infringement of them. If any other rule were to obtain, the party would in most cases be careful to be silent as to his objections until it would be too late to obviate them, and the result would be that few judgments would stand the test of an appeal.” ’ ” ’ ” (People v. Stowell (2003) 31 Cal.4th 1107, 1114.) Fundamentally, “a party cannot argue on appeal that the trial court erred in failing to conduct an analysis it was not asked to conduct.” (People v. Fruits (2016) 247 Cal.App.4th 188, 208.) Defendant neither made the argument nor objected on the ground now advanced on appeal as supporting reversible error. If he had, the trial court could have addressed the issue. For this reason, defendant forfeited the claim on appeal that the court erred by failing to consider his future danger to public safety. (See Torres, supra, 113 Cal.App.5th at p. 92.) Even if this claim was not forfeited, we would affirm the judgment under the applicable abuse of discretion standard. (People v. Mendoza (2023) 88 Cal.App.5th 287, 298 [court’s decision that dismissing an enhancement under § 1385, subd. (c) would endanger public safety is reviewed for abuse of discretion].) Under that standard, a trial court does not abuse its discretion “unless its decision is so irrational or arbitrary that no 9 reasonable person could agree with it” (People v. Carmony (2004) 33 Cal.4th 367, 377), the court based its decision on “impermissible factors” or on an “incorrect legal standard” (People v. Knoller (2007) 41 Cal.4th 139, 156; Gonzalez, supra, 103 Cal.App.5th at p. 225), or the court was unaware of the scope of its sentencing discretion (People v. Tirado (2022) 12 Cal.5th 688, 694). The California Supreme Court has held that the appropriate remedy where the trial court is unaware of its sentencing discretion is to remand for resentencing, unless remand would be an idle act. (People v. Flores (2020) 9 Cal.5th 371, 432; People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) However, the appellant bears the burden of “affirmatively demonstrate[ing] that the trial court misunderstood its sentencing discretion.” (People v. Davis (1996) 50 Cal.App.4th 168, 172.) “Absent 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; see also People v. Giordano (2007) 42 Cal.4th 644, 666.) “[C]itation to a silent record is insufficient to meet [an appellant’s] burden to demonstrate an abuse of discretion.” (People v. Coleman (2024) 98 Cal.App.5th 709, 725; see also People v. Carmony, supra, 33 Cal.4th at p. 378 [“[w]here the record is silent,” we affirm].) Here, nothing indicates that the trial court misunderstood the scope of its sentencing discretion under section 1385, subdivision (c), which had been in effect for more than two years. (Stats. 2021, ch. 721, § 1, eff. Jan. 1, 2022.) Unlike the court in Gonzalez, the trial court here did not affirmatively state that it was relying on defendant’s current dangerousness to decline to dismiss the enhancements based on the risk to public safety. (Gonzalez, supra, 103 Cal.App.5th at pp. 222-224.) The trial court was not required to expressly state what time period it considered in determining whether to dismiss an enhancement. (People v. Bravo (2025) 107 Cal.App.5th 1144, 1157 [while § 1385, subd. (c) requires the trial court to give its reasons for dismissing an enhancement, there is no requirement that the court do so in declining to dismiss an 10 enhancement].) Defendant in effect speculates on a silent record that the trial court found defendant to be a risk to public safety by focusing on the present rather than on the future. We cannot find the trial court erred on this basis. (People v. Davis, supra, 50 Cal.App.4th at p. 172; People v. Coleman, supra, 98 Cal.App.5th at p. 725.) On the contrary, the record shows defendant plotted to stab the victim while the victim was in handcuffs. Defendant secreted prison-made knives on his person, one of them taped to his thigh, to elude strict security protocols. Defendant pretended to require a wheelchair, managed to slip off his handcuffs, and waited until the moment the victim was still in handcuffs and vulnerable to rush at him and stab him. Further, after the stabbing, defendant celebrated the murder by displaying photos of the victim’s injuries in the window of his cell door. Later, defendant admitted he had made more weapons to attack a correctional officer he said disrespected him by throwing a bar of soap at him. Defendant described himself as “violent.” Considering all this evidence, the court found that imposing a lesser sentence would endanger public safety. Defendant has not met his burden to establish the trial court’s ruling was an abuse of discretion. Because we conclude defendant has failed to carry his burden to show the trial court abused its discretion in finding that dismissing the enhancements would endanger the public, we need not consider defendant’s claim that the trial court erred because mitigating factors weighed heavily in favor of dismissal. (See People v. Mendoza, supra, 88 Cal.App.5th p. 296 [“if the court finds that dismissal of an enhancement ‘would endanger public safety,’ then the court need not consider the listed mitigating circumstances”]; accord People v. Lipscomb (2022) 87 Cal.App.5th 9, 18.)

11 DISPOSITION The judgment is affirmed.

/s/ WISEMAN, J. We concur:

/s/ ROBIE, Acting P. J.

/s/ MESIWALA, J.

 Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.