Opinion
A167225
04-30-2024
THE PEOPLE, Plaintiff and Respondent, v. LADRAKEOUS DEAN, Defendant and Appellant.
NOT TO BE PUBLISHED
(Marin County Super. Ct. No. SC183421A.)
Stewart, P. J.
On a workday in December 2012, defendant Ladrakeous Dean walked into the San Rafael Transit Center and fired two rounds into his intended victim. After a jury found Dean guilty of attempted murder and assault with a semiautomatic firearm and found true certain firearm enhancements and prior convictions, the trial court sentenced him to a prison term of 47 years. Dean petitioned for resentencing under Penal Code sections 1172.75 and 1385, which the court granted. As part of that resentencing, the court dismissed three enhancements and reduced Dean's aggregate sentence to 34 years. But the court declined to dismiss a 20-year firearm enhancement in the interest of justice, finding that doing so would endanger public safety. Dean argues the court improperly determined section 1385, subdivision (c), was inapplicable to sentencing enhancements imposed for certain strike priors, misunderstood the scope of its discretion under section 1385, and was unaware of its discretion to impose a lesser firearm enhancement under People v. Tirado (2022) 12 Cal.5th 688, 700 (Tirado). We disagree and affirm.
Penal Code section 1172.75, formerly section 1171.1, was renumbered by the Legislature, effective June 30, 2022. (See People v. Burgess (2022) 86 Cal.App.5th 375, 380.) Further undesignated statutory references are to the Penal Code.
BACKGROUND
I.
Initial Sentencing
We incorporate by reference the procedural and factual background detailed in our previous unpublished opinion affirming Dean's conviction and recite only those facts necessary to resolve the disputed issues. (See People v. Dean (Mar. 18, 2016, A142658) [nonpub. opn.].)
In 2014, Dean was sentenced to a 47-year prison term following his conviction for attempted murder (§§ 187, subd. (a), 664; count 1) and assault with a firearm (§ 245, subd. (b); count 2). The sentence for count 1 was comprised of an aggravated term of nine years, doubled to 18 years for a strike prior, plus enhancements of 20 years for the personal use of a firearm (§ 12022.53, subd. (c)), three years for inflicting great bodily injury (§ 12022.7, subd. (a)), five years for having suffered a prior serious felony (§ 667, subd. (a)(1), and one year for the prior prison term (§ 667.5, subd. (b)). The sentence for count 2 was stayed pursuant to section 654.
II.
Resentencing
Nearly eight years later, Dean petitioned for resentencing under section 1172.75. The People conceded that the prior prison term enhancement should be stricken. Dean then filed a sentencing memorandum, requesting that the trial court exercise its discretion to strike certain enhancements pursuant to section 1385, subdivision (c). Asserting three of the nine mitigating circumstances enumerated in subdivision (c)(2) were present, Dean argued the interests of justice compelled dismissal of all but one enhancement. He asked the court to impose a midterm of six years on count 2, doubled to 12 years for the prior strike, plus three years for the great bodily injury enhancement, for a total 15-year sentence.
See fn. 1, ante, page 1. This provision invalidated "[a]ny sentence enhancement that was imposed prior to January 1, 2020, pursuant to subdivision (b) of Section 667.5," except certain sexually violent offenses. (§ 1172.75, subd. (a).) Subdivision (c) further provides that, "[i]f the court determines that the current judgment includes an enhancement described in subdivision (a), the court shall recall the sentence and resentence the defendant." The resentencing court is required to "apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing." (§ 1172.75, subd. (d)(2).)
The trial court referred the matter to the probation department for an updated sentencing recommendation and ordered the parties to submit further sentencing memoranda. The probation department's report recommended an aggregate sentence of 39 years.
In his supplemental sentencing memorandum, Dean updated his request and asked the court to strike all enhancements, resulting in a 12-year aggregated sentence. He also submitted additional mitigation information-such as his rehabilitation efforts and the impact of a lengthy sentence on his family-and attached psychological evaluations, a correctional expert's report, as well as letters from his family and the program manager of a rehabilitation program.
The People recommended an aggregate sentence of 46 years. This recommendation was based, in part, on Dean's "history of violence," which included "possession of a weapon on school grounds, two instances of robbery, three counts of attempted robbery, and resisting arrest" as a juvenile, as well as "robbery, grand theft person, resisting arrest, battery on state prison, and vehicle theft" as an adult. The People concluded Dean "posed an extreme danger to the community in 2014" and his prospects for rehabilitation were diminished by his subsequent convictions for offenses he committed in prison-i.e., his 2018 convictions of possessing a weapon (§ 4502, subd. (a)) and assaulting an inmate by force likely to produce great bodily injury (§ 4501, subd. (b)). The People also argued that the strike prior was not subject to section 1385, subdivision (c). Separately, the People filed a statement of facts detailing Dean's disciplinary misconduct while incarcerated for the instant offenses, which consisted of possessing multiple weapons and repeated instances of fighting with and battering other inmates.
The trial court opened the resentencing hearing by confirming it had read and considered the parties' pleadings, "the newest Probation Recommendation, the early initial Probation Report, [and] the letters from the family." It then received and read Dean's letter in court. The court noted it had "read the authorities in the cases that [the parties] cited" and was aware of its broad discretion. The court also drew attention to a few cases the parties failed to address, including a line of cases standing for the proposition that a sentencing court can impose a lesser included offense to the gun enhancement.
The prosecutor and defense counsel then presented their arguments, reiterating the positions stated in their briefing. Specifically, the prosecutor argued the trial court should not strike any of the enhancements-other than the prior prison enhancement under section 667.5, subdivision (b)-because doing so would endanger public safety. Defense counsel countered that Dean's original sentence was imposed under "the old paradigm" and that Dean's violence in prison must be considered in the context of the prison environment and the "severe trauma, and substance abuse" Dean had suffered. Dean and his loved ones expressed remorse and requested leniency when given the opportunity to address the court. The court also asked Dean what "a reasonable sentence" would be in his eyes, to which Dean responded, "15 years for attempted murder, not 47."
After the matter was submitted, the trial court took time to address the tragic circumstances of the case, Dean's expressed remorse, and the "paradigm shift" manifested by recent changes to sentencing laws. It also discussed the expert report filed in support of Dean's sentencing memorandum, before turning to the sentencing triad and section 1385.
Regarding the resentencing of counts 1 and 2, the trial court described its discretionary role as "re-weigh[ing]" and "re-balanc[ing]" the "factors in aggravation versus mitigation." The applicable mitigating factors the court considered were Dean's childhood trauma and his relative youth at the time of the offense. In contrast, the pertinent aggravating factors were Dean's past violent conduct, prior convictions, unsuccessful probation, and the premeditation for the instant crime. Considering all these factors, the court determined to impose the middle term of 7 years for count 1.
The trial court also found that doubling the sentence pursuant to section 1170.12 (the "Three Strikes" law) for the prior strike was appropriate because the prior offense was a robbery that "involved a high degree of violence and callousness." The court expressed the view that "[section] 1385(c)(2) does not apply to the [section] 1170.12 strike automatically, or necessarily." But the court still "consider[ed] all the factors" and determined there was "no mitigating factor that would warrant striking the strike under the Romero line of cases." (Italics added.) Thus, "on balance," it found that "because of [Dean's] prior record, and nature and circumstances of the current case, the strike should not be stricken." For the same reasons, the court imposed and stayed the middle term for count 2, also doubled.
(People v. Superior Court (Romero) (1996) 13 Cal.4th 497.)
Turning to the enhancements, the trial court first untangled the language in section 1385, subdivision (c). It stated subdivision (c)(2) mandates that the court give "great weight" to mitigating factors, while subdivision (c)(1) commands the court to "dismiss an enhancement if it is in the furtherance of justice to do so." Given the apposition of this mandatory and discretionary language, the court stated that its "view is that the legislature just wanted the Court to take a strong look at these enhancements and lean in favor of striking them where one of these mitigating factors appears, but to consider in total the interest of justice." It then proceeded to find that the mitigating circumstances enumerated in subparagraphs (B), (C), (D), (E), and (G) applied. The court also noted the "catchall in the statute that states that the Court may decline to strike the enhancement if the striking of that enhancement would endanger public safety." The court struck the three remaining enhancements, but declined to strike the 20-year gun enhancement imposed pursuant to section 12022.53, subdivision (c).
The court was required to strike the prior prison term enhancement imposed under section 667.5, subdivision (b), as a matter of law (§ 1172.75, subd. (a); see fn. 2, ante, p. 3) and exercised its discretion under section 1385, subdivision (c), to strike the other two enhancements imposed under sections 667, subdivision (a), and 12022.7.
The trial court elaborated on why it declined to strike the gun enhancement, which it saw as having "played a significant part in this case." It explained: "th[e] mitigating factors do not predominate in comparison to the nature and circumstances of the case, but most importantly were the Court to strike that 20 year enhancement, in the Court's view, that early release would endanger public safety and result in physical injury or serious danger to others under the current circumstances."
Consequently, the trial court reduced Dean's total sentence from 47 years to 34 years. Dean appealed.
DISCUSSION
I.
Trial Court Did Not Abuse Its Discretion Under Section 1385.
Dean contends that the trial court erred in finding section 1385, subdivision (c) inapplicable to terms imposed under the Three Strikes law, failed to properly weigh the sentencing factors set forth in Senate Bill No. 81's (2021-2022 Reg. Sess.) recent changes to section 1385, and abused its discretion in failing to impose a lesser-included firearm enhancement. We disagree.
In 2021, the Legislature added subdivision (c) to section 1385. (Stats. 2021, ch. 721, § 1, Sen. Bill No. 81.) Subdivision (c) has two components. The first provides, "[n]otwithstanding 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." (§ 1385, subd. (c)(1).) The second provides, "[i]n exercising its discretion under this subdivision, the court shall consider and afford great weight to evidence offered by the defendant to prove that [certain enumerated] mitigating circumstances . . . are present" and that "[p]roof 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." (§ 1385, subd. (c)(2).)
As we shall discuss, the weight of authority holds that section 1385, subdivision (c) does not apply to the Three Strikes law. Dean fails to overcome this authority and fails to show the court misapplied the subdivision's public safety exception. We also reject the contention that the court was not fully informed of its discretionary authority to impose a lesser-included firearm enhancement.
We independently review questions of statutory interpretation. (Walker v. Superior Court (2021) 12 Cal.5th 177, 194.) We review for abuse of discretion the trial court's exercise of discretion under section 1385, subdivision (c). (People v. Mendoza (2023) 88 Cal.App.5th 287, 298.)
A. Section 1385, subdivision (c), Does Not Apply to the Three Strikes Law.
Dean argues the trial court erred by ruling that section 1385, subdivision (c), as amended by Senate Bill No. 81, is inapplicable to sentencing enhancements imposed for prior strike convictions. Numerous courts, including this one, have rejected arguments identical to Dean's. (People v. Dain (2024) 99 Cal.App.5th 399, 410 ["section 1385(c), by its terms, applies only when a trial court is considering whether to dismiss 'an enhancement,' and a sentence under the Three Strikes law is not an enhancement"] [First Dist., Div. Two]; People v. McDowell (2024) 99 Cal.App.5th 1147, 1150 [same] [Fourth Dist., Div. Three]; People v. Olay (2023) 98 Cal.App.5th 60, 67 [same] [First Dist., Div. Five]; People v. Cota (2023) 97 Cal.App.5th 318, 340 [Fifth Dist.]; People v. Burke (2023) 89 Cal.App.5th 237, 243-244 [same] [Third Dist.]; (People v. Tilley (2023) 92 Cal.App.5th 772, 776, fn. 2 [same] [Third Dist.].) There is no split of authority among the appellate districts on this issue. We consider the issue settled, incorporate by reference the reasoning of these published cases, and reject Dean's argument.
Even if we agreed with Dean's interpretation of section 1385, subdivision (c)(2), as applying to strike sentences (which we do not), he would not be entitled to relief. After expressing its view that section 1385, subdivision (c) did not apply, the trial court nonetheless considered "all of the factors under [section] 1385[, subdivision] (c)(2)(a) through (i)" and, based on the circumstances of the case, concluded the strike "should not be stricken." The record thus" 'clearly indicate[s]' that the trial court would have reached the same conclusion" even if section 1385, subdivision (c) applied, and a remand for resentencing would be an idle act. (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.)
B. Even If the Walker Rebuttable Presumption Approach Applies When a Court Does Not Find Endangerment, Here the Trial Court Found Endangerment.
As we have indicated, Senate Bill No. 81 amended section 1385, subdivision (c)(2) to specify mitigating factors that a sentencing court "shall consider" when deciding whether to strike enhancements from a defendant's sentence in the interest of justice. (People v. Lipscomb (2022) 87 Cal.App.5th 9, 16.) Moreover, "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." (§ 1385, subd. (c)(2), italics added.) While altering the framework within which a sentencing court exercises its discretion under section 1385, "the specification of mandatory factors did not displace the trial court's obligation to exercise discretion in assessing whether dismissal is 'in furtherance of justice.'" (People v. Ortiz (2023) 87 Cal.App.5th 1087, 1093, review granted Apr. 12, 2023, S278894 (Ortiz).) Nor did it displace the court's discretion in evaluating whether dismissal would endanger public safety. (People v. Walker (2022) 86 Cal.App.5th 386, 395, 399-400, review granted Mar. 22, 2023, S278309 (Walker).)" '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." (§ 1385, subd. (c)(2).)
The juxtaposition of mandatory and discretionary language in section 1385, subdivision (c), has led to a split between the Courts of Appeal regarding the scope of discretion afforded sentencing courts. Walker, supra, 86 Cal.App.5th at pages 396-400 holds there is a rebuttable presumption that dismissal of enhancement is in furtherance of justice if one or more of the enumerated mitigating factors is present "unless and until" there is a finding that dismissal would endanger public safety. Ortiz, supra, 87 Cal.App.5th at page 1098, by contrast, rejects Walker's rebuttable presumption approach, holding that other factors besides public safety may outweigh mitigating circumstances in determining whether dismissal is in furtherance of justice. In Ortizs view, "a trial court's exercise of sentencing discretion" under section 1385, subdivision (c)(2) "involves more than a strictly binary weighing of mitigation against public safety. '[G]enerally applicable sentencing principles' relevant to a court's determination of whether dismissal is in furtherance of justice 'relat[e] to matters such as the defendant's background, character, and prospects.' [Citation.] Those principles require consideration of circumstances in mitigation (and aggravation) in the broader context of the recognized objectives of sentencing, which are not limited to public safety." (Ortiz, at p. 1097; see id. at pp. 10971099.) Our high court will ultimately resolve the conflict. For present purposes, we need not weigh in on the question to decide this case.
Dean argues the trial court should have applied Walker's rebuttable presumption.
But application of Walker would have made no difference here. Even if the court had applied the Walker rebuttable presumption regime, the trial court's finding that public safety would be endangered dispensed with any requirement that it consider mitigating factors under either Walker or Ortiz. (See Walker, supra, 86 Cal.App.5th at p. 398; Ortiz, supra, 87 Cal.App.5th at p. 1090 [Senate Bill No. 81 "enumerated] certain mitigating circumstances which the trial court-'[i]n its exercise of discretion'-is to 'weigh[] greatly' in favor of dismissal of an enhancement, unless 'dismissal of the enhancement would endanger public safety' "].) Thus, we agree with both Walker and Ortiz, as well as People v. Mendoza, supra, 88 Cal.App.5th at page 297, insofar as they all recognize "consideration of the mitigating factors in section 1385[, subdivision] (c)(2) is not required if the court finds that dismissal of the enhancement would endanger public safety." (Ibid.)
Dean acknowledges that the trial court made such a finding in this case and that such finding "is a sufficient basis for refusing to dismiss an enhancement under section 1385(c)(2)." Nonetheless, he argues we should remand the case because "the law is currently in flux" and "the trial court labored under a misunderstanding of the overall scope of its discretion under the newly amended statute." He hypothesizes that a lighter sentence might have been imposed "[i]f, following the Supreme Court's decision in Walker, the trial court should come to understand that the Legislature expressed a stronger preference for dismissing enhancements than the court previously believed." We are not persuaded.
The trial court's well-reasoned discussion of the likelihood of public endangerment should it strike the gun enhancement shows that it carefully considered that issue and the various ways it could have reduced the sentence. The court found striking all of the enhancements-in particular the gun enhancement because of the significant sentence it alone imposed- would endanger public safety. This was not a perfunctory exercise. First, the court discussed the expert report submitted in support of Dean's supplemental sentencing memorandum showing that "as someone gets older the propensity for violence decreases." This informed the court when "Dean [will be] of an age and maturity where the Court can be comfortable that he's not going to be a danger to society." The court methodically discussed the factors enumerated in section 1385, subdivision (c)(2) and decided to strike "at least two of the enhancements]." However, addressing the gun use enhancement, the court determined that the "report suggests . . . that too early of release for [Dean] would result in endangering public safety" because of his "prior history of violence, the extreme violence in this case, and his continued violence in custody." While it found the "mitigating factors do not predominate," the court expounded that "most importantly were the Court to strike that 20 year enhancement, in the Court's view, that early release would endanger public safety and result in physical injury or serious danger to others under the current circumstances." (Italics added.)
In sum, the trial court's thorough analysis of the case and Dean's particular circumstances led it to conclude the public safety exception in section 1385, subdivision (c) applied. (See People v. Lipscomb, supra, 87 Cal.App.5th at pp. 18, 20 [no abuse of discretion for refusing to dismiss firearm enhancement where the court finds dismissal would endanger public safety].) The court's comments at the resentencing hearing reflect that it was well aware of the law, including the most recent cases, very familiar with the record, and understood the full breadth of its discretion. Indeed, it observed, "to start with, let me underscore that I do understand that my discretion is pretty broad here, practically limitless in terms of where I can get. Since he's already got roughly 10 years in right now, were the circumstances appropriate, I could probably find a way through the rules of sentencing to get to a number that has him out in a couple of years, to 46 years, and so I recognize my discretion." In short, the record reflects that the court took into account all of the statutory mechanisms for reducing the sentence and made a careful decision in determining how long Dean should remain in prison to avoid posing a serious danger to public safety. It reduced the sentence on the primary count and struck three enhancements, reducing the sentence by 13 years, from 47 to 34 years. In finding an earlier release would endanger the public, it considered Dean's prior history of violent conduct, the violence involved in the crime at issue, the report of the People's expert, and Dean's violent conduct subsequent to the crime (which included possession of weapons) while in prison. In declining to reduce the sentence further, it did not abuse its discretion.
II.
The Trial Court Properly Understood and Did Not Abuse Its Discretion Under Tirado.
Dean asserts the trial court abused its discretion for the further reason that it not "aware of the option to impose a lesser firearm enhancement" under Tirado, supra, 12 Cal.5th at pages 697-701. Again, the resentencing hearing transcript belies this contention. Indeed, it was the court that brought Tirado to the parties' attention at the hearing. Citing People v. Morrison (2019) 34 Cal.App.5th 217, the court explained it can "[impose] a sentence for a lesser included offense" to the section 12022.53, subdivision (c), enhancement. It then noted that "Tirado is the California Supreme Court's reference to the rule of Morrison." The record shows the imposition of the enhancement at resentencing was "made by [the] court exercising informed discretion." (Tirado, supra, 12 Cal.5th at p. 694.) We accordingly find no abuse in that exercise.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Richman, J. Mayfield, J. [*]
[*] Judge of the Mendocino County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.