Opinion
F084844
04-26-2023
THE PEOPLE, Plaintiff and Respondent, v. BRIAN BILLINGS, Defendant and Appellant.
Robert Navarro, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Christopher J. Rench and R. Todd Marshal, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F19904880 . F. Brian Alvarez, Judge.
Robert Navarro, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Christopher J. Rench and R. Todd Marshal, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
Following an appeal that resulted in a remand for resentencing due to legislative changes made by Senate Bill No. 567 (2020-2021 Reg. Sess.) (Senate Bill 567), defendant Brian Billings was resentenced to a term of 15 years. Defendant now appeals this new sentence, arguing he received ineffective assistance of counsel and that the trial court abused its discretion by not striking a five-year enhancement in violation of Penal Code section 1385. Our review reveals defendant was not prejudiced by the actions taken by defense counsel during sentencing and that the trial court did not abuse its discretion. We, therefore, affirm the sentence imposed.
Unless otherwise indicated, all further statutory references are to the Penal Code.
BACKGROUND
In 2019, defendant was found guilty by a jury of the unlawful taking of a motor vehicle (Veh. Code, § 10851, subd. (a); count 1), and three counts of dissuading a witness from prosecuting a crime (§ 136.1, subd. (b)(2); counts 3-5). Based on this conviction, defendant was sentenced to a total term of 17 years as follows: eight years for count 1 (the upper term of four years doubled pursuant to § 667, subd. (e)(1)), five years, consecutive, for a prior "strike" conviction (§ 667, subd. (a)(1)), and four years (the middle term), consecutive, for count 3. Defendant was also sentenced to serve the middle term of four years in state prison for counts 4 and 5; however, those terms were stayed pursuant to section 654.
Defendant appealed to this court, arguing the evidence did not support the three convictions for dissuading a witness, and further, changes made to section 1170 by Senate Bill 567 required resentencing because the upper term was imposed for the vehicle theft conviction without meeting the new requirements of the amended section 1170, subdivision (b)(1) and (2). (Billings, supra, F080632, pp. 8-9.) In April 2022, we concluded that while substantial evidence supported the three convictions for dissuading a witness, remand for resentencing was necessary due to a lack of factual support in the record for the choice of the upper term on the vehicle theft conviction. (Billings, supra, F080632, p. 11.)
Respondent's motion for judicial notice is granted. This court takes judicial notice of the opinion and record on appeal in People v. Billings (April 27, 2022, F080632) [nonpub. opn.] (Billings).
Following remand of the case, defendant was resentenced in August 2022. During sentencing, the trial court stated, "there are no aggravating circumstances found by a jury or none were put forth today to the Court ..., the Court is constrained to impose the middle term." The court then imposed the middle term of three years for count 1 (unlawful taking of a vehicle), which was doubled to six years pursuant to section 667, subdivisions (d) and (e)(1), due to defendant's prior conviction of a serious or violent felony. The court also imposed the middle term of four years for count 3 (dissuading a witness), which was to run consecutively to the term for count 1. The four-year middle term was also selected for counts 4 and 5 (dissuading a witness), but those sentences were stayed pursuant to section 654. Finally, the court enhanced the sentence with a five-year term for a prior serious felony conviction under section 667, subdivision (a)(1). This enhancement was also meant to be consecutive to the term imposed for count 1. This resulted in a new sentence for defendant of 15 years, which was two years less than the sentence that was vacated by this court in the prior appeal.
The trial court declined to choose another base term for the sentence so the three-year term for count 1 continued to be the base term, which was then doubled before consecutive terms were added.
While various fines and fees were also imposed by the trial court, they are not challenged by defendant in this appeal.
DISCUSSION
Defendant's challenge here is focused on the trial court's decision to reimpose the five-year enhancement under section 667, subdivision (a)(1), arguing first that his attorney failed to provide meaningful representation during resentencing, and second that the court abused its discretion by not striking the section 667 five-year enhancement. We disagree.
I. Defendant's Claim of Ineffective Assistance of Counsel
Defendant specifically claims that because "[n]o argument was advanced in favor of an exercise of discretion in dismissing the section 667 five-year prior serious felony enhancement," during the resentencing hearing, he received ineffective assistance of counsel. Defendant fails to see the totality of the circumstances that existed around his resentencing.
The standard governing an ineffective assistance of counsel claim is well established. First, a defendant is required to show trial counsel's performance fell below an objective standard of reasonableness set by prevailing professional norms. (People v. Hernandez (2004) 33 Cal.4th 1040, 1052; Strickland v. Washington (1984) 466 U.S. 668, 687.) Second, a defendant is required to show there was a reasonable probability that, absent the trial counsel's error, the outcome of the proceeding would have been more favorable for the defendant. (Hernandez, at p. 1053.) This latter criterion does not require a defendant to show the deficient representation more likely than not altered the outcome; only that there was a "reasonable probability" that "the result of the proceeding would have been different." (Strickland, at p. 694.) A reasonable probability is "a probability sufficient to undermine confidence in the outcome." (Ibid.) However," 'a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.... If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . that course should be followed.'" (People v. Jacobs (2013) 220 Cal.App.4th 67, 7576.)
At the beginning of the sentencing hearing, defendant's attorney expressed his frustration with not being able to spend more time with defendant before the hearing. After being offered the opportunity to meet with his client by the trial court, however, the attorney admitted he was not asking for more time and was ready to proceed. When the court then asked defendant if he was ready to proceed, defendant confirmed that he was. The court then asked defendant's attorney if he wanted to be heard. When defense counsel started his presentation by focusing on what had been reversed by the appellate court, the court interrupted to confirm that upon remand defendant was entitled to a complete resentencing, and not just the portion addressed in the opinion reversing the sentence for the vehicle theft. When he continued, defense counsel noted that both he and the judge had participated in both the original trial of this matter and the first sentencing, which was appealed. Defendant's attorney then stated about his client:
"[H]e's a person who's a drug addict that did drug-addict-type crimes. And I think for the first time, he's finally addressing his-his drug-drug addiction. He, um-after some-some difficulties of getting enrolled through C.D.C.R. and being transferred a few times and being denied acceptance into the program, he is now in a drug program through C.D.C.R. I don't know if he'd like to tell you a little bit about it, but it is addressing his-his drug issues. And I think that is, you know, quite honestly the underlying problem that [defendant] has and what has led to his criminal behavior. He's obviously hoping that the Court would consider that in reimposing the sentence. A 17-year sentence is a harsh sentence. I understand it's not the maximum sentence. Obviously, my client is hoping for less."
Following this statement, defense counsel asked that defendant's mother be allowed to speak. Her statement addressed the impact a long sentence would have on defendant's relationship with his young son, especially because his current housing was so far away from the family. After defense counsel asked that defendant be allowed to provide a statement, defendant explained what programs he was involved in and also expressed his frustration with not being able to have more opportunities due to restrictions that had been put into place during the COVID-19 pandemic.
Initially, we cannot conclude defense counsel's presentation fell below objectively reasonable standards of professional norms while representing defendant during the sentencing hearing. While he may not have cited statutory or case law to argue the court should not impose the section 667 enhancement, he made a presentation that highlighted many of the factors that were important to any decision the trial court would make on the appropriateness of imposing the enhancement. In fact, the presentations by defense counsel, defendant's mother, and defendant addressed several of the factors now part of section 1385, and in effect since January 1, 2022. (Stats. 2021, ch. 721, § 1.) We note, only one enhancement was imposed, the sentence does not exceed 20 years, and at least one of the prior convictions alleged occurred less than five years before this current offense. (§ 1385, subd. (c)(2)(B), (C), (F), (H).) The mere fact a statute was not cited does not mean defense counsel was making an argument on behalf of his client that was not based on the current wording of relevant legal authorities.
The language of section 1385, as amended by Senate Bill No. 81 (2021-2022 Reg. Sess.), that is relevant here, provides: (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.. [¶] ... [¶] "(B) Multiple enhancements are alleged in a single case. In this instance, all enhancements beyond a single enhancement shall be dismissed. "(C) The application of an enhancement could result in a sentence of over 20 years. In this instance, the enhancement shall be dismissed. [¶] . [¶] "(F) The current offense is not a violent felony as defined in subdivision (c) of Section 667.5. [¶] . [¶] "(H) The enhancement is based on a prior conviction that is over five years old." (§ 1385, subd. (c)(2)(B), (C), (F), (H).)
However, even if we were concerned about defense counsel's presentation, defendant was still required to show he was sufficiently prejudiced by his attorney's failure to meet professional norms. (People v. Hernandez, supra, 33 Cal.4th at p. 1053.) A response to that criteria requires us to consider what the trial court stated when resentencing defendant. On this point, the record shows the following:
"[Defendant] does get the benefit of-or the ameliorative effect of the law. Accordingly, because there are no aggravating circumstances found by a jury or none were put forth today to the Court by way of separate maybe either prison terms that are certified, for instance as the circumstances in aggravation, the Court is constrained to impose the middle term of six years after a service-after balancing the circumstances in aggravation and mitigation. The presumptive term would be six years and that would be the appropriate term under the-under the state of the law as it's changed now. So, accordingly, as to Count One, the violation of 10851(a) with the prior allegation of prior convictions pursuant to 666.5, the Court imposes six years. The Court also imposes the nickel prior pursuant to Penal Code Section 666(a)(1). The Court recognizes that it has the ability now to select a different base term under the changes in law to Penal Code Section 654, but declines to do so. As to Count Three, the Court imposes a consecutive term for the violation of Penal Code Section 136.1(b)(2) of four years. As to Count Four, for a violation of Penal Code Section 136.1(b)(2), the Court imposes four years, but stays that count pursuant to Penal Code Section [654] because the intents and objectives of [defendant were] one [and] the same with regards to Count Three. Likewise, as to Count Five, the Court imposes four years, but stays four years pursuant to Penal Code Section 654 because the intents and objectives of [defendant] were one [and] the same as to Count Three likewise. Accordingly, the new term to be imposed, would be six years for the middle term, four years consecutive for Count Three, and then five years for the nickel prior for a total of 15 years in state prison."
Based on this record of the proceeding, we conclude defendant failed to establish he was sufficiently prejudiced. (See People v. Jacobs, supra, 220 Cal.App.4th at pp. 7576.) The trial court showed its understanding of various changes in the sentencing laws, recognized it could have selected a different base term that would have resulted in a longer sentence if doubled, and agreed to impose concurrent terms for two of the three counts alleging defendant dissuaded a witness. Based on this record, and the lack of any evidence in the record the court did not understand its ability to strike the enhancement without a legal presentation from defense counsel, we must presume the court correctly applied the law. Defendant has not shown the existence of the required level of prejudice to support his claim he was provided ineffective assistance of counsel at resentencing.
The record of the appeal in case no. F080632 shows that during the first sentencing hearing in this case, the trial court explicitly recognized its ability to strike the section 667 enhancement. (Billings, supra, F080632)
II. The Failure to Strike the Section 667 Enhancement
Defendant makes a separate, but related, argument focused on the trial court's duty to impose an appropriate sentence. This argument states the court abused its discretion because it had an independent duty not to impose the section 667 enhancement in this case.
Section 1385 empowers a trial court to "order an action to be dismissed" to further justice, on its own motion, or on the prosecution's motion. (§ 1385, subd. (a).) Furthermore, under section 1385, a trial court can also dismiss a portion of a case, including allegations stating a defendant was previously convicted of a felony. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 508.) Any order striking such an allegation should only be entered after a court determines the interests of justice would be served by not imposing a statutorily enhanced sentence, because the defendant falls outside the spirit of the "Three Strikes" law. (Id. at pp. 529-530.) Therefore, the trial court must consider:
"[W]hether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161; accord, People v. Johnson (2015) 61 Cal.4th 674, 688-689.)
When a trial court either fails or refuses to dismiss a prior strike conviction allegation during sentencing, the court's decision will be reviewed under an abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 375 (Carmony).) The party appealing the sentence has the burden to show the decision was irrational or arbitrary; something no reasonable person could agree with. (Id. at pp. 376-377.) Because the Three Strikes law establishes a preference that prior strikes enhance a sentence, there is a "strong presumption ... any sentence that conforms ... is both rational and proper." (Id. at p. 378.)
A trial court is not required to state reasons for declining to exercise its discretion under section 1385, and absent an affirmative record to the contrary, is presumed to have considered all relevant factors properly. (People v. Gillispie (1997) 60 Cal.App.4th 429, 433; People v. Myers (1999) 69 Cal.App.4th 305, 310.) "The plain language of section 1385[, subdivision ](c)(2) contemplates the trial court's exercise of sentencing discretion, even as it mandates that the court give 'great weight' to evidence of enumerated factors." (People v. Ortiz (2023) 87 Cal.App.5th 1087, 1096 (Ortiz).) "[T]he ultimate question before the trial court remains whether it is in the furtherance of justice to dismiss an enhancement." (Id. at p. 1098 [specifically rejecting the approach taken in People v. Walker (2022) 86 Cal.App.5th 386 (Walker), review granted March 22, 2023, S278309].) If a record is silent on what the court considered when sentencing a defendant, but the" 'record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law,'" the trial court's sentence should be affirmed, even if the reviewing court might have ruled differently. (Carmony, supra, 33 Cal.4th at p. 378.)
We must, however, address the potential impact of an issue currently pending before our Supreme Court. The issue addresses the language of section 1385, subdivision (c), which provides:
"(1) Notwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute.
"(2) 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." (Italics added.)
Section 1385, subdivision (c) was further modified by amendments that went into effect on June 30, 2022. Those amendments did not substantively alter the impact of the language at issue here.
The Second District Court of Appeal in Walker, supra, 86 Cal.App.5th 386, review granted March 22, 2023, S278309, explored the use of language in section 1385, subdivision (c)(1) and (2), and ultimately concluded, "the term 'great weight'" places a thumb on the scale that balances the mitigating circumstances favoring dismissal against whether dismissal would endanger public safety, and tips that balance in favor of dismissal unless rebutted by the court's finding that dismissal would endanger public safety." (Walker, at pp. 398-400.) When granting review, the Supreme Court sought briefing on the following issue only: "Does the amendment to Penal Code section 1385, subdivision (c) that requires trial courts to 'afford great weight' to enumerated mitigating circumstances (Stats. 2021, ch. 721) create a rebuttable presumption in favor of dismissing an enhancement unless the trial court finds dismissal would endanger public safety?" (Walker, supra, 86 Cal.App.5th 386.)
In contrast, a number of other district courts of appeal also explored this issue by considering the "legislative history," and noted the choice of the language requiring a court to give "great weight" to evidence of mitigating circumstances was adopted instead of other proposed language requiring the dismissal of an enhancement, unless there was a showing of" 'clear and convincing evidence that dismissal of the enhancement would endanger public safety.' (See Sen. Bill No. 81, as amended August 30, 2021; see also Sen. Rules Com., Off. of Sen. Floor Analyses, Analysis of Sen. Bill No. 81 (2021-2022 Reg. Sess.)" (Ortiz, supra, 87 Cal.App.5th at pp. 1096-1097; People v. Mendoza (2023) 88 Cal.App.5th 287, 297; People v. Lipscomb (2022) 87 Cal.App.5th 9, 19-20.) Because the use of the term "great weight" was consistent with the exercise of discretion, these courts concluded trial courts retained the ability to exercise discretion on whether to strike an enhancement, and are not required to overcome a presumption an enhancement be struck or dismissed absent evidence of a detrimental impact to public safety. (See Ortiz, at p. 1097.)
We are persuaded by the reasoning of these cases. The phrase "shall dismiss" in section 1385, subdivision (c)(1) cannot be read in isolation without also considering the language of subdivision (c)(2). Construed as a whole, the full language of subdivision (c) makes clear that while the listed mitigating factors are to be given "great weight," those factors merely guide the court's discretion on whether striking an enhancement furthers justice. (See Ortiz, supra, 87 Cal.App.5th at pp. 1096-1097.)
We return, however, to guiding principles that the party appealing the sentence has the burden to show the decision was irrational or arbitrary. (Carmony, supra, 33 Cal.4th at pp. 376-377.) We have been provided no evidence the trial court failed to give "great weight" to any evidence of mitigating circumstances before imposing the new sentence. In contrast, the record highlights how the court balanced various factors and did not simply impose a sentence without thought, while also noting its awareness of recent changes in the law on sentencing by listing at least two of those by number. Moreover, we know from a review of the probation report before the court that defendant had a lengthy record of prior convictions, and was on probation when the crimes involved in this case were committed. Despite these facts, the court resisted imposing the maximum sentence available, demonstrating it engaged in an exercise of discretion.
We cannot conclude the trial court's failure to strike the one section 667 enhancement imposed, or the decision to impose that enhancement, was irrational or arbitrary. As a result, we find no abuse of discretion by the court.
DISPOSITION
The judgment is affirmed.
[*] Before Hill, P. J., Detjen, J. and DeSantos, J.