People v. Green CA4/1

California Court of Appeal · D081409 · 2023-12-26 · Unpublished

Proceeding: appeal from a judgment
Trial court: Superior Court of San Diego County · No. SCD290772
Trial judge: Kimberlee A. Lagotta
Outcome: affirmed — Affirmed.
Area: criminal
Panel: Michele M. Castillo (author), William S. Dato, Truc T. Do

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T04:22Z · confidence high

The trial court sentenced Green to seven years in prison for two counts of assault with a firearm, striking one firearm enhancement and imposing the low term on the other. The Court of Appeal affirmed, finding no abuse of discretion in the sentencing choices and no evidence that Green was penalized for exercising his right to a jury trial.

Ruling reviewed	Standard	The court	The model
Trial court's decision to strike only one of the two firearm enhancements and impose the low term on the other. “We review the decision not to strike an enhancement for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 374.)”	abuse of discretion	not reached	agree with court The appellate court correctly applied the abuse of discretion standard from People v. Carmony. It noted that the trial court balanced aggravating and mitigating factors and that the appellant failed to show the decision was irrational or arbitrary. The court correctly distinguished between disagreeing with the weighing of factors and finding an abuse of discretion.
Trial court's imposition of a seven-year sentence after Green rejected a five-year plea offer. “A more severe sentence conflicts with a defendant’s exercise of the constitutional right to a jury trial only if the trial court imposes it because the defendant opted for trial. (Ibid.)”	de novo	not reached	agree with court The court correctly applied the rule from In re Lewallen and People v. Szeto that a higher sentence than a plea offer does not constitute a penalty for going to trial absent evidence of retaliatory motive. The court noted Green admitted the trial court made no statements penalizing him and clarified that the sentence was for greater convictions (two counts vs. one) rather than lesser ones.

Authorities

relied: People v. Carmony (2004) 33 Cal.4th 367 — Establishes the abuse of discretion standard for reviewing a trial court's decision to strike or impose enhancements.
relied: People v. Parra Martinez (2022) 78 Cal.App.5th 317 — Supports the presumption that a trial court acted to achieve legitimate sentencing objectives if the appellant fails to clearly show the decision was irrational or arbitrary.
relied: People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968 — Holds that an appellate court will not reverse a sentence merely because reasonable people might disagree with the trial court's weighing of factors.
relied: In re Lewallen (1979) 23 Cal.3d 274 — States that a trial court is not limited by the terms of negotiated pleas when imposing a sentence.
relied: People v. Szeto (1981) 29 Cal.3d 20 — Holds that the mere fact that a defendant receives a greater sentence than a plea offer does not support an inference of penalty for exercising the right to a jury trial.
relied: People v. Failla (2006) 140 Cal.App.4th 1514 — Cited for the procedural rule that arguments first raised in a reply brief are generally not considered.
relied: People v. Garcia (2002) 97 Cal.App.4th 847 — Cited for the standard regarding the brevity of memorandum opinions.

The appellate opinion: sound — The opinion is sound because it correctly applies the established standards of review for sentencing discretion and jury trial penalties. It accurately distinguishes between a disagreement with the weighing of factors and an abuse of discretion, and it correctly notes the lack of evidence of retaliatory motive in the sentencing.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:30Z · confidence low

After a jury convicted Thomas Green of two counts of assault with a firearm with personal-discharge enhancements found true on each, the San Diego Superior Court weighed aggravating and mitigating factors, struck one firearm enhancement, imposed the middle term on one count with the low term on its enhancement, and sentenced him to seven years in prison. On appeal Green argued the court abused its discretion by not striking both enhancements and penalized him for rejecting a five-year plea offer; the Court of Appeal, in a memorandum opinion, rejected both claims and affirmed.

Ruling reviewed	Standard	The court	The model
Trial court's decision to strike only one of two firearm enhancements (imposing the low term on the other) rather than striking both “Green does not persuade us that the trial court’s decision was irrational or arbitrary.”	abuse of discretion	correct	agree with court The opinion correctly applies Carmony's deferential standard to a discretionary decision not to strike an enhancement, recites a record showing the trial court balanced aggravating and mitigating factors (single shot, vulnerable victim struck in the back, crowded holiday boardwalk), and notes Green conceded the court understood the scope of its authority and considered both sides' factors. Green's argument amounted to a reweighing request, which Alvarez forecloses. The court also properly declined under Failla to consider the victim-vulnerability argument first raised in the reply brief, which contradicted Green's opening position. The opinion does not mention Penal Code section 1385(c), but nothing indicates Green raised it, and the outcome (one enhancement remaining) is consistent with it.
Imposition of a seven-year sentence after Green rejected a five-year pretrial plea offer, challenged as a penalty for exercising the right to jury trial “Here, Green presents no evidence the trial court imposed the sentence because he rejected the plea offer.”	unclear	correct	agree with court Under Lewallen and Szeto a post-trial sentence exceeding a plea offer is impermissible only if imposed because the defendant went to trial, and the bare disparity does not support that inference. Green conceded the trial court made no statement suggesting a penalty, and the appellate court correctly pointed out that the plea offer covered one count with an enhancement while the jury convicted on two counts each with an enhancement, so the greater sentence tracked greater convictions. The opinion did not articulate a standard of review, but the result follows directly from controlling Supreme Court authority.

Authorities

relied: People v. Carmony (2004) 33 Cal.4th 367 — A decision not to strike a sentencing allegation is reviewed for abuse of discretion; appellant must clearly show the decision was so irrational or arbitrary that no reasonable person could agree with it.
relied: People v. Parra Martinez (2022) 78 Cal.App.5th 317 — Absent a showing to the contrary, a reviewing court presumes the trial court acted to achieve legitimate sentencing objectives and properly considered the relevant factors.
relied: People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968 — A discretionary sentencing decision will not be reversed merely because reasonable people might disagree with it.
relied: In re Lewallen (1979) 23 Cal.3d 274 — A sentencing court is not limited by the terms of a rejected plea offer, but may not impose a harsher sentence because the defendant exercised the right to trial.
relied: People v. Szeto (1981) 29 Cal.3d 20 — The mere fact that a post-trial sentence exceeds a plea offer does not by itself support an inference that the defendant was penalized for going to trial.
relied: People v. Failla (2006) 140 Cal.App.4th 1514 — Arguments raised for the first time in a reply brief without good cause will not be considered.
relied: People v. Garcia (2002) 97 Cal.App.4th 847 — Courts of Appeal may resolve routine appeals by memorandum opinion with abbreviated factual and procedural background.

The appellate opinion: sound — The opinion answers both of Green's arguments with the governing Supreme Court authorities (Carmony, Alvarez, Lewallen, Szeto), accurately characterizes the record, and relies on Green's own concessions that the trial court understood its authority and made no penalizing statements. It is brief and does not state a standard of review for the jury-trial-penalty claim or discuss Penal Code section 1385(c), but neither omission affects the result on the arguments described.

How this analysis was made · dispute it

Opinion

Filed 12/26/23 P. v. Green CA4/1 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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D081409

Plaintiff and Respondent, v. (Super. Ct. No. SCD290772)

THOMAS CHRISTOPHER GREEN,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Kimberlee A. Lagotta, Judge. Affirmed. Sally Patrone, 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, Robin Urbanski, Donald W. Ostertag, and Juliet W. Park, Deputy Attorneys General, for Plaintiff and Respondent. MEMORANDUM OPINION Thomas Christopher Green shot a homemade firearm on a crowded public boardwalk, hitting two victims with shrapnel. A jury convicted Green of two counts of assault with a firearm. For each count, the jury also found true that Green personally and intentionally discharged the firearm. After weighing mitigating and aggravating factors, the trial court struck one firearm enhancement, ordered the low-term sentence on the other, and imposed a total prison term of seven years. Green appeals his sentence. We affirm. As we resolve this case by memorandum opinion, we do not elaborate on factual and procedural background beyond what is required for our analysis. (Cal. Stds. Jud. Admin., § 8.1; People v. Garcia (2002) 97 Cal.App.4th 847, 851-854.) I. First, Green contends the trial court abused its discretion in declining to strike both firearm enhancements. The People respond that the trial court considered the applicable factors and “struck a reasonable balance” by striking one and imposing the low term on the other. The People thus argue that the trial court’s decision was neither irrational nor arbitrary. We agree with the People. We review the decision not to strike an enhancement for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 374.) A trial court does not abuse its discretion unless its decision is “so irrational or arbitrary that no reasonable person could agree with it.” (Id. at p. 377.) Green, as appellant, bears the burden to “clearly” show the decision was irrational or arbitrary. (Id. at p. 376.) If Green fails to do so, we presume the trial court “acted to achieve legitimate sentencing objectives.” (People v. Parra Martinez (2022) 78 Cal.App.5th 317, 322 (Parra Martinez).) Here, the trial court “balanc[ed] out” the aggravating and mitigating factors before issuing its sentence. It considered “the totality of the evidence in this case” as well as “the arguments of all sides.” The trial court noted 2 that Green “fired off his weapon in the direction of vulnerable pedestrians on the boardwalk” on a busy holiday weekend. Despite the potential for greater injury, the trial court limited its sentencing decision to “what happened,” not “what-ifs.” Green’s shot resulted in two separate victims. The victim of the count with the firearm enhancement for which the trial court imposed prison time “was particularly vulnerable,” getting “hit by shrapnel in her back as she was walking away” with her two nieces. The trial court imposed the middle term for that count and the lower term for the corresponding firearm enhancement. The trial court, however, struck the firearm enhancement on the other count because “this was a single shot” and it already “considered the punishment” in the first count. Green concedes the trial court “understood the scope of its authority,” and he does not claim that the trial court failed to consider both mitigating and aggravating factors. “Accordingly, we may presume those factors were properly considered.” (Parra Martinez, supra, 78 Cal.App.5th at p. 323.) Green does not persuade us that the trial court’s decision was irrational or arbitrary. Green emphasizes mitigating factors and downplays aggravating ones to argue that the trial court should have reached a different result.1 In essence, Green disagrees with how the trial court weighed the factors. But we will not reverse “ ‘merely because reasonable people might disagree.’ ” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 978.) Green thus does not present a valid basis for reversal here.

1 We do not consider Green’s argument, first raised in reply, that the victims were “not especially vulnerable.” (See People v. Failla (2006) 140 Cal.App.4th 1514, 1519, fn. 3.) Green offers no reason for not making this argument earlier, and it conflicts with his initial position that both victims were “somewhat vulnerable.” 3 II. Second, Green argues the trial court unfairly penalized him for exercising his right to a jury trial because he received a seven-year sentence after rejecting a five-year pretrial plea offer. We disagree. At sentencing, a trial court is “in no way limited by the terms of any negotiated pleas” offered by the prosecutor. (In re Lewallen (1979) 23 Cal.3d 274, 281.) A more severe sentence conflicts with a defendant’s exercise of the constitutional right to a jury trial only if the trial court imposes it because the defendant opted for trial. (Ibid.) The “mere fact” that a defendant received a greater sentence than was offered by plea deal, however, “does not in itself support the inference that he [or she] was penalized” for going to trial. (People v. Szeto (1981) 29 Cal.3d 20, 35.) In Szeto, our Supreme Court affirmed a sentence after the defendant “admit[ted]” that the trial court “did not say anything reasonably giving rise to the inference that [it] was penalizing defendant for exercising his right to jury trial.” (Ibid.) Here, Green presents no evidence the trial court imposed the sentence because he rejected the plea offer. Like the defendant in Szeto, Green admits that “the trial court did not make any statement penalizing” him. And Green’s claim that the trial court “imposed a longer sentence for lesser convictions” is not accurate. Green turned down a pretrial offer to plead guilty to one count of assault with a firearm with a firearm enhancement. Despite Green’s focus on the attempted murder charge, it was not part of the contemplated plea. After trial, the jury convicted Green of two counts of assault with a firearm, each with a firearm enhancement. He thus received a longer sentence for greater convictions. As a result, Green does not persuade us that the trial court penalized him for taking his case to trial.

4 DISPOSITION We affirm.

CASTILLO, J.

WE CONCUR:

DATO, Acting P. J.

DO, J.

Cites, in this corpus

People v. Failla E038122 · 2006-06-30
People v. Carmony No. S115090 · 2004-07-08
People v. Garcia F034831 · 2002-04-17
People v. Superior Court No. S053029 · 1997-01-16
People v. Szeto Crim. 21523 · 1981-02-11
In Re Lewallen Crim. 20212 · 1979-02-09