Opinion
G056492
02-06-2020
THE PEOPLE, Plaintiff and Respondent, v. STEFANO BRESCIA, Defendant and Appellant.
Rachel Paige Varnell, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Kristen Ramirez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15NF1924) OPINION Appeal from a judgment of the Superior Court of Orange County, Michael A. Leversen, Judge. Affirmed in part and remanded with directions. Rachel Paige Varnell, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Kristen Ramirez, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Defendant Stefano Brescia was convicted of one count of first degree burglary with a person present. (Pen. Code, §§ 459, 460, subd. (a), 667.5, subd. (c)(21), 1170.12, subds. (b), (c)(2)(A).) The court also found a number of enhancements related to his prior criminal record true, and after striking several, sentenced Brescia to a total term of 19 years.
Subsequent statutory references are to the Penal Code.
On appeal, Brescia offers the following arguments: 1) He is entitled to independent review of the trial court's determination regarding the release of discovery records pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess); 2) the trial court abused its discretion by striking three, but not all four, of Brescia's prior strike convictions; 3) based on a change in law, he is entitled to resentencing for reconsideration of whether his serious strike prior should be stricken; and 4) based on a change in the law, two of his prior prison term enhancements must be stricken.
We agree with Brescia that he is entitled to review of the Pitchess motion. Having undertaken this review, we find no error in the court's ruling. We also find no abuse of discretion with respect to the court's decision not to strike all of Brescia's prior strike convictions. We agree with him as to his two final arguments regarding sentencing on the serious strike and prison priors. Accordingly, we remand for resentencing on the serious strike prior, and direct the trial court to strike the two remaining prison prior allegations. We affirm the judgment in all other respects.
I
FACTS
We need not delve too deeply into the facts of the case for purposes of this appeal. On October 2014, a family of three was staying at a motel in Anaheim. The mother was alone in the room one morning, sleeping with the window partially open. After her husband and son returned, they realized their camera bag, in which they had kept cash in two foreign currencies, was missing. They noticed the window was fully open and the screen had been removed, and they found the missing bag in a trash can near an elevator.
Subsequent investigation determined that Brescia's fingerprints matched fingerprints found on the window screen, and Brescia could not be excluded as a source for DNA found on the camera bag.
Brescia was charged with one count of first degree residential burglary (§§ 459, 460, subd. (a)), while a person was present (§ 667.5, subd. (c)(21)). The information also alleged four prior strike convictions (§§ 667, subds. (d), (e)(2)(A), 1170.12, subds. (b), (c)(2)(A)), a prior serious felony (§ 667, subd. (a)(1)), a prior prison term for a violent felony (§ 667.5, subd. (a)), and five prior prison terms (§ 667.5, subd. (b)).
Before trial, Brescia filed a discovery request pursuant to Pitchess v. Superior Court, supra, 11 Cal.3d 531. After an in camera hearing, the court disclosed potentially relevant information to the defense.
At the conclusion of trial, the jury found Brescia guilty of the burglary count and determined the person present allegation was true. After a court trial on the priors, the court found all the alleged priors to be true.
The court sentenced Brescia to a total term of 19 years, which consisted of the upper term, six years, doubled, on the burglary count; five years for the serious felony prior, and one year for each of two prison priors. Exercising its discretion, the court struck three of the prior strike convictions, the prior prison term regarding the violent felony, and three prior prison terms.
II
DISCUSSION
Pitchess Review
As noted above, pursuant to a Pitchess motion, the court disclosed certain information to the defense. Brescia does not argue the court abused its discretion in determining what should be disclosed, but asks us to undertake an independent review of the materials. The Attorney General disagrees, arguing that Brescia has failed to show prejudice, the cases cited are out of context and do not address the circumstances present here. (People v. Gaines (2009) 46 Cal.4th 172, 181; People v. Memro (1985) 38 Cal.3d 658, 684, overruled on another point in Gaines, supra, 46 Cal.4th at p. 181, fn. 2; People v. Samayoa (1997) 15 Cal.4th 795, 820.)
The Attorney General also ignores People v. Mooc (2001) 26 Cal.4th 1216, 1228 (while citing it for another point), which expressly endorses appellate review of the trial court's "decision not to disclose any evidence" without any requirement of demonstrating prejudice. Insisting Brescia demonstrate prejudice when he has not been allowed access to the material which might reveal prejudice is an impossible burden, and therefore our independent review is appropriate.
We independently reviewed the sealed reporter's transcripts of the in camera hearings regarding Brescia's Pitchess motion. As reflected in the sealed transcripts, the court's findings are sufficient to permit appellate review. Based on our review of those findings, we conclude the trial court properly exercised its discretion in ordering discovery of limited information regarding incidents that might be pertinent to claims of excessive force or dishonesty. We find no error.
Prior Strike Convictions
Brescia next argues that the trial court abused its discretion by striking three, but not all four, of his strike priors, because the same reasoning for striking three of them applied to the remaining conviction.
In a sentencing brief, Brescia's counsel asked the court to "strike at least one strike so as not to impose the three strikes law" and impose a sentence "somewhere between" 14 and 20 years. Counsel argued that all four strikes arose from the same case in Los Angeles County, and "arise out of the same course and conduct [sic] as in this case, but also contain the same mitigation factors." (We take this to mean the facts of both cases were similar; the convictions were for residential burglary and attempted residential burglary.) The mitigation factors alleged were: 1) Brescia "exercised caution to avoid harm to persons or damage to property"; 2) "The amounts of money or property taken were deliberately small"; and 3) "No harm was done, nor was the victim threatened."
During sentencing, the court, pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, struck three of the four strike priors, a prior prison term involving a violent felony, and three other prior prison terms. The court listed the following reasons for striking those allegations: "There was no weapon used in the current offense. [¶] [Brescia's] prior strikes are 14 years old and remote in time. [¶] The court has considered [Brescia's] age, social history, and future prospects for a productive life. [¶] The court has considered the general objectives of sentencing, including protection of society, deterrence from future criminal conduct, and sentencing uniformity; the sentence indicated herein is commensurate with [Brescia's] current behavior in the current case combined with his record."
In People v. Carmony (2004) 33 Cal.4th 367 (Carmony), the California Supreme Court summarized the principles applicable to a trial court's ruling on a request to strike one or more prior "strike" allegations under section 1385. "'In Romero, we held that a trial court may strike or vacate an allegation or finding under the Three Strikes law that a defendant has previously been convicted of a serious and/or violent felony, on its own motion, "in furtherance of justice" pursuant to . . . section 1385(a).' [Citation.] We further held that '[a] court's discretionary decision to dismiss or strike a sentencing allegation under section 1385 is' reviewable for abuse of discretion." (Carmony, supra, 33 Cal.4th at p. 373.)
"'[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, "in furtherance of justice" pursuant to Penal Code section 1385(a), or in reviewing such a ruling, the court in question must consider whether, 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.'" (Carmony, supra, 33 Cal.4th at p. 377.)
"In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, '"[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve the legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review."' [Citations.] Second, a '"decision will not be reversed merely because reasonable people might disagree. 'An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.'"' [Citations.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Carmony, supra, 33 Cal.4th at pp. 376-377.)
The entirety of Brescia's argument is that because the court could have used the same rationale for striking the fourth strike - the factors the court mentioned with regard to the lack of a weapon, remoteness, etc. - it was somehow required to do so. In support of this argument, Brescia cites only one case, an appeal by a district attorney. (People v. Bishop (1997) 56 Cal.App.4th 1245.) In Bishop, the appellate court found no abuse of discretion after the trial court struck two strikes in the interest of justice. The trial court did not err by using remoteness in time and the nature of the crimes (petty theft) as mitigating factors. (Id. at pp. 1250-1251.)
Brescia asserts, therefore, that the remoteness of the remaining strike operates as a mitigating factor, as does the fact that he would still serve a substantial sentence. But this argument turns the standard of review on its head. Had People v. Bishop, supra, 56 Cal.App.4th 1245, found an abuse of discretion, Brescia might at least have an argument. But it did not and he does not. "'"The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary.]"'" (Carmony, supra, 33 Cal.4th at pp. 376-377.) Brescia has failed to meet that high burden, or to demonstrate the sentence exceeds the bounds of reason. (People v. Giordano (2007) 42 Cal.4th 644, 663-664.)
His only substantive argument is that because the facts of the three convictions the trial court struck were similar to the fourth, the court's decision was "'"irrational or arbitrary"'" (Carmony, supra, 33 Cal.4th at pp. 376-377), as a matter of law, but he cites no authority for this proposition, nor do we find it irrational. Nor does the fact that Brescia would have served a considerable sentence anyway. There are simply no facts here to demonstrate the court's decision constituted an abuse of discretion.
Prior Serious Felony Enhancement
As discussed above, Brescia's sentence in this case includes a five-year prior serious felony enhancement pursuant to section 667, subdivision (a)(1). At the time of Brescia's sentencing, the trial court had no power to strike or dismiss the five-year serious felony priors. Brescia filed a supplemental brief arguing he is entitled to the benefit of Senate Bill No. 1393 (2017-2018 Reg. Sess.). That legislation, which became effective January 1, 2019, amended sections 667, subdivision (a), and 1385, subdivision (b), to allow a court to exercise its discretion to strike or dismiss a prior serious felony conviction for sentencing purposes. (Stats. 2018, ch. 1013, § 2.) The Attorney General concedes this change in law applies retroactively to this case. (See In re Estrada (1965) 63 Cal.2d 740.)
The Attorney General also argues that remand for resentencing on this point is unnecessary because the trial court "clearly indicated that it would not have dismissed the enhancement" because the trial court declined to dismiss the strike associated with the serious felony conviction. But these are two different enhancements, as Brescia points out. Dismissing the strike allegation "would have cut appellant's sentence almost in half, while a decision to strike the prior serious felony enhancement would result in only a five year reduction in sentence."
Thus, while there was some indication of what the court might have done, it was not conclusive, and we decline to find the court "clearly indicated" it would not have exercised discretion it did not have at the time. (People v. McDaniels (2018) 22 Cal.App.5th 420, 425.) Given the facts of this case and Brescia's lengthy sentence, we find the most prudent course of action is to permit defense counsel to have an opportunity to make an argument on this point in the trial court. Accordingly, we remand for that purpose.
Prior Prison Term Enhancements
On October 15, 2019, after this matter had been submitted, Brescia requested leave to file a supplemental brief regarding an amendment to section 667.5, subdivision (b), which had been signed into law by the Governor a week earlier. We granted Brescia's request, he filed his supplemental brief, and this court issued an order vacating submission and giving the Attorney General an opportunity to respond. No response was received.
Under the amended law, a one-year enhancement for a prior prison term may only be imposed if the prior prison term was served for a sexually violent offense as defined in Welfare and Institutions Code section 6600, subdivision (b). (See Stats. 2019, ch. 590, § 1.) The amended law took effect on January 1, 2020, and it is retroactive to all cases not yet final. (People v. Lopez (2019) 42 Cal.App.5th 337, 340-341.)
At sentencing, the court imposed one-year sentence for each of Brescia's two prior prison terms. It is undisputed that the prior felony convictions were not sexually violent as defined in the amended law. The enhancements, therefore, are no longer authorized by law. We therefore order these enhancements stricken, and we shall direct the trial court to issue an appropriate order on remand.
Amendment of Abstract of Judgment
Brescia also argues the abstract of judgment, as originally issued, inaccurately reflects a five-year enhancement under section 667.5, subdivision (a), when the trial court struck that enhancement. Further, the abstract of judgment does not reflect a five-year serious felony enhancement the court imposed under section 667, subdivision (a)(1).
Given that we are remanding for resentencing on the five-year prior serious felony enhancement, we see no need to order the abstract of judgment amended at this point, as it will be mooted by the resentencing hearing and a new one issued. Counsel and the court should ensure that the sentence after remand is properly reflected in the new abstract of judgment.
III
DISPOSITION
The matter is remanded to the trial court with directions to exercise its discretion whether to strike the five-year prior serious felony enhancement pursuant to sections 667, subdivision (a)(1), and 1385, subdivision (b).
The two one-year enhancements imposed pursuant to section 667.5, subdivision (b), are no longer authorized by law, and Brescia's new sentence shall reflect this change.
In all other respects, the judgment is affirmed.
MOORE, ACTING P. J. WE CONCUR: ARONSON, J. GOETHALS, J.