Opinion
E080627
04-24-2024
THE PEOPLE, Plaintiff and Respondent, v. TERELL LOVE, Defendant and Appellant.
Robert L. Hernandez, 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, A. Natasha Cortina, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FVI22002109. Rafael Arreola, Judge.
Robert L. Hernandez, 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, A. Natasha Cortina, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
CODRINGTON J.
I
INTRODUCTION
Defendant and appellant Terell Love fled from multiple sheriffs' deputies in a vehicle down an Interstate freeway which ended when defendant collided with a semitruck. A jury convicted defendant of evading a peace officer (Veh. Code, § 2800.2, subd. (a)). In a bifurcated proceeding, the trial court found true that defendant had sustained a prior strike conviction (Pen. Code, §§ 667, subd. (b)-(i), 1170.12, subds. (a)-(d)) and that there were three aggravating factors for the purposes of sentencing. After denying defendant's motion to dismiss his prior strike conviction, the court sentenced defendant to the upper term of three years, doubled to six years due to the strike in prison. On appeal, defendant contends the trial court abused its discretion by declining to strike his 14-year-old prior conviction for robbery. We find no abuse and affirm the judgment.
All future statutory references are to the Penal Code unless otherwise stated.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background
On July 26, 2022, at approximately 11:22 am, San Bernardino County Sheriff's Deputy Hector Cuevas was on duty in his marked police vehicle in Victorville when he attempted to conduct a traffic stop of a vehicle driven by defendant. Defendant initially pulled his car over to the shoulder and came to a stop, but he suddenly sped off at a high speed. Deputy Cuevas pursued defendant in his patrol vehicle and a high speed chase ensued with other deputies later joining in the pursuit.
As defendant fled, he drove on the opposite side of traffic, ran through a red light at an intersection, jumped over a curb while turning, and then entered the Interstate 15 freeway (I-15). Deputy Cuevas maintained a three car lengths distance behind defendant. Deputy Cuevas observed defendant drive around 80 miles per hour when he entered the freeway and weave in and out of all four lanes of traffic. At several points, defendant drove 90 to 100 miles per hour in moderate and heavy traffic, and through constructions zones. Defendant also drove onto the shoulder approximately 10 times and, on multiple occasions, came within one to three feet of other moving cars.
As the pursuit continued onto the westbound 210 freeway, Deputy Cuevas had to slow down because he was unable to bypass vehicles safely due to heavy traffic. Thereafter, Deputy Adolfo Bahena took over the pursuit as the lead with Deputy Cuevas following behind. Despite vehicles driving between 65 to 75 miles per hour in all lanes of traffic, defendant continued to drive at 90 to 100 miles per hour. Defendant's car eventually struck a semi-truck that he was attempting to pass on the westbound 210 freeway. After the collision, defendant continued driving on the shoulder of the freeway at approximately five miles per hour to the Baseline Road exit ramp until he came to a stop.
The pursuit spanned a total distance of 42 miles and lasted 26 minutes. Defendant and his passenger received medical treatment for their injuries at the scene. Throughout the pursuit, Deputies Cuevas and Bahena observed defendant violating several traffic laws, including driving 90 to 100 miles per hour in a construction zone, driving 100 miles per hour on the I-15 freeway, driving on the shoulder of the freeways, running red lights, and making unsafe lane changes.
B. Procedural Background
On August 11, 2022, an information was filed charging defendant with receiving a stolen vehicle (§ 496, subd. (d); count 1) and evading a peace officer with wanton disregard for safety (Veh. Code, § 2800.2, subd. (a); count 2). The information also alleged that defendant had suffered a prior strike conviction (§§ 667, subd. (b)-(i), 1170.12, subds. (a)-(d)), to wit, a 2008 robbery, and 11 aggravating factors.
On October 19, 2022, the trial court granted the People's motion to dismiss count one and proceeded to trial on the remaining count. On October 25, 2022, a jury found defendant guilty of evading a peace officer with wanton disregard for safety. In a bifurcated proceeding, the trial court found true the prior strike allegation and three of the 11 alleged aggravating factors. Specifically, the court found true that defendant had suffered a 2008 robbery conviction that qualified as a strike and the following aggravating factors true beyond a reasonable doubt: (1) the crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness; (2) defendant engaged in violent conduct that indicates a serious danger to society; and (3) defendant served a prior term in prison or county jail.
Prior to sentencing, defense counsel filed a motion to dismiss defendant's prior strike conviction pursuant to People v. Superior Court (Romero) (1996) 13.Cal.4th 497 (Romero) and section 1385, subdivision (c). Defense counsel argued the following mitigating factors were entitled to great weight: defendant was 17 years old at the time he committed the strike, citing section 1385, subdivision (c)(2)(G); defendant's conviction was 14 years old, citing section 1385, subdivision (c)(2)(H)); and defendant's current offense was not a violent felony, citing section 1385, subdivision (c)(2)(F)). Counsel acknowledged that defendant had other offenses on his criminal record, but suggested that they were not significant because they were misdemeanors. Counsel further claimed that because the current conviction was not a violent felony, there was no evidence supporting a finding that defendant would be a danger to public safety if the prior conviction was dismissed.
The People filed an opposition brief, arguing defendant "is exactly the type of defendant that the [T]hree [S]trikes law was aimed toward." The People noted defendant's adult criminal history, which commenced in 2008, and that defendant had spent approximately eight years in state prison for his robbery conviction and reoffended three years after his release. Defendant then pled guilty to or was convicted of two misdemeanors-false imprisonment (§ 236) and threatening to commit a crime with intent to terrorize (§ 422, subd. (a)). The People asserted that defendant's criminal record, the pattern of increasing violence of his past convictions, and his lack of rehabilitation show that a dismissal of the prior conviction would not be in the interest of justice as required by Romero.
The sentencing hearing was held on December 8, 2022. At that time, the trial court indicated that it had read the parties' sentencing briefs, defendant's Romero motion and the People's opposition to that motion, the probation report, defendant's psychological report, and a Biopsychosocial Assessment of defendant. After hearing brief arguments from the prosecutor and defense counsel, who reminded the court that defendant was 17 years old at the time he committed the 2008 prior strike conviction for robbery, the trial court denied defendant's Romero motion.
In denying the Romero motion, the court stated: "First, the motion to strike the prior. That motion is denied. The prior was approximately eight years ago. It is a serious 211, the prior is a serious felony. It is a strike charge, and there isn't enough reason to strike -- or grounds to strike the prior; okay? I have stricken priors for reasons. One of the arguments was that the harsh sentence I may impose. [¶] And I have done it for that reason -- the Court of Appeals has reversed me -- but I've done it for that reason, where a person had to be sentenced 25 to life instead of seven to life because they stipulated, or agreed to, or wanted to, and I said that was wrong. But we don't have that in here. We are not talking about a 25-to-life sentence. We're not talking about (indistinct) of disparity between the sentence or among the sentencing options; okay? So I'm not going to consider that. The motion is denied." At that point, defense counsel clarified that defendant's prior conviction was actually 14 years old, not eight years old as the court had indicated. The court replied, "It's 2008; we're in 2022, so it's --let's see --12 and 2 -- about 14 years. I don't know what I said; I apologize for the eight. But anyway, I considered 14 years; okay? It's not a sentence that -- a case from over 20 years ago, like the ones you're referring to in your Points and Authorities But in any event, I said the eight; it was in my mind it was a 2008 case. But in any event, it doesn't change what I set up."
After analyzing the circumstances in aggravation and mitigation, the trial court sentenced defendant to the upper term of three years, doubled to six years due to the prior strike, in state prison. Defendant timely appealed.
III.
DISCUSSION
Defendant contends the trial court abused its discretion when it denied his Romero motion to dismiss his prior strike conviction because it failed to "afford great weight" to mitigating circumstances under recent amendments to section 1385 made by Senate Bill No. 81 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 721, § 1). The People argue Senate Bill No. 81 does not apply to strikes and that the trial court did not abuse its discretion in denying defendant's Romero motion and considered the proper factors in denying the motion.
The Legislature has amended section 1385, subdivision (c) twice since enacting Senate Bill No. 81, but the more recent changes to section 1385, subdivision (c) do not affect our analysis of defendant's claim. (See Stats. 2022, ch. 58, § 15; Stats. 2023, ch. 131, § 160.)
A. Senate Bill No. 81
Whether Senate Bill No. 81's amendments to section 1385 apply to prior strike convictions is a question of statutory interpretation, which we review de novo. (People v. Tirado (2022) 12 Cal.5th 688, 694.)
Section 1385 governs a trial court's discretion to dismiss various elements of an action or sentence on its own motion. This includes the ability to dismiss all or any portion of an action, including enhancements and prior strikes. (§ 1385, subds. (a)-(c); Romero, supra, 13 Cal.4th at p. 508.) Under section 1385, subdivision (a), the trial court "may . . . in furtherance of justice, order an action to be dismissed." This authority includes the power to "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 ...." (People v. Williams (1998) 17 Cal.4th 148, 158 (Williams).)
Effective January 1, 2022, Senate Bill No. 81 added subdivision (c) to section 1385 to give trial courts more discretion to strike sentence enhancements under certain conditions. (See People v. Burke (2023) 89 Cal.App.5th 237, 242-243 (Burke).) As relevant here, section 1385, subdivision (c) provides, in part: "(c)(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." (§ 1385, subd. (c)(1)-(2), as amended by Stats. 2021, ch. 721, § 1.)
One of the mitigating circumstances a court must consider is whether "[t]he defendant was a juvenile when they committed the current offense or any prior offenses, including criminal convictions and juvenile adjudications, that trigger the enhancement or enhancements applied in the current case." (§ 1385, subd. (c)(2)(G).)
In Burke, supra, 89 Cal.App.5th 237 our colleagues in the Third District Court of Appeal considered whether the changes enacted by Senate Bill No. 81 applied to prior strikes as well as enhancements. They concluded Senate Bill No. 81 did not apply to strikes. In so holding, the Burke court explained that "[t]he term 'enhancement' has a well-established technical meaning in California law," specifically, that it is "'"an additional term of imprisonment added to the base term."'" (Id. at p. 243.) Meanwhile, "[i]t is equally well established that the Three Strikes law is not an enhancement; it is an alternative sentencing scheme for the current offense." (Ibid., citing Romero, supra, 13 Cal.4th at p. 527.) Burke "presume[d] the Legislature was aware of, and acquiesced in, both this established judicial definition of enhancement and the distinction between an enhancement and an alternative sentencing scheme such as the Three Strikes law." (Burke, supra, at p. 243.) Therefore, because "[t]he Legislature did not otherwise define the word 'enhancement' in section 1385," and "the statutory language is clear and unambiguous," Burke opted to follow that language without considering any legislative history materials. (Id. at p. 243.)
We agree with Burke and conclude that "section 1385, subdivision (c)'s provisions regarding enhancements do not apply to the Three Strikes law." (Burke, supra, 89 Cal.App.5th at p. 244.)
Defendant argues Burke is not binding on this court and urges us to "adopt a broader understanding of 'enhancement' than that adopted in Burke." We decline to do so. There is no split of authority on this issue among the California Courts of Appeal post Burke.
The First District Court of Appeal, Division Five in People v. Olay (2023) 98 Cal.App.5th 60 (Olay) recently examined additional arguments-based on section 1385, subdivision (c)(2)(G)-that were not addressed by the Burke court. (Olay, supra, at pp. 66-69.) In Olay, the court analyzed the legislative history of Senate Bill No. 81 and found it supports the conclusion that the Legislature intended "enhancement" to accord with its accepted meaning. That court was "skeptical the Legislature would have expressed an intent to reject the well-established legal meaning of 'enhancement' in such a roundabout manner by obliquely referencing 'juvenile adjudications' as one of the relevant mitigating circumstances" and that "[t]he legislative history confirms the Legislature had no such intent." (Id. at p. 67.) The court noted that the legislative history includes a statement that "[a]n enhancement differs from an alternative penalty scheme," and "[t]he presumption created by this bill applies to enhancements, but does not encompass alternative penalty schemes." (Assem. Com. on Public Safety, Analysis of Sen. Bill No. 81 (2021-2022 Reg. Sess.) as amended Apr. 27, 2021, pp. 5-6.) "A more unambiguous statement of the Legislature's intent to adopt the legal meaning of enhancement for section 1385, subdivision (c) can hardly be imagined." (Olay, supra, at p. 67.) Moreover "subsequent history makes no reference whatsoever to the Three Strikes law or any other alternative sentencing scheme." (Id. at p. 68.)
Thus, the legislative history only reinforces that "enhancement" as used in section 1385, subdivision (c), is not ambiguous. It is therefore not warranted to resort to the canon against surplusage. "If the plain language of a statute or regulation is clear and unambiguous, our task is at an end and there is no need to resort to the canons of constructions or extrinsic aids to interpretation." (Butts v. Board of Trustees of California State University (2014) 225 Cal.App.4th 825, 838.)
As noted above, the Olay court "still agree[d] with Burke's ultimate conclusion- that section 1385, subdivision (c) does not apply to the Three Strikes law." (Olay, supra, 98 Cal.App.5th at p. 67.) We agree with the holdings in Burke and Olay that section 1385, subdivision (c)'s provisions regarding enhancements do not apply to the Three Strikes law. (Burke, supra, 89 Cal.App.5th at p. 244; Olay, supra, 98 Cal.App.5th at p. 69; accord People v. Tilley (2023) 92 Cal.App.5th 772, 776, fn. 2.) Accordingly, we conclude the trial court did not err when it declined to exercise its discretion to strike defendant's prior strike without considering mitigating circumstances.
B. Denial of Romero Motion
Having determined that section 1385, subdivision (c) does not apply to a trial court's decision whether to dismiss a prior strike conviction under the Three Strikes law, we consider the case law that does govern such a decision.
Under subdivision (a) of section 1385, the trial court may dismiss a prior strike in the furtherance of justice. (Romero, supra, 13 Cal.4th at pp. 529-530.) We review a trial court's refusal to dismiss a prior strike conviction for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 375 (Carmony).) "This standard is deferential," "[b]ut it is not empty.... [I]t asks in substance whether the ruling in question 'falls outside the bounds of reason' under the applicable law and the relevant facts." (Williams, supra, 17 Cal.4th at p. 162.)
In Williams, supra, 17 Cal.4th 148, our Supreme Court held that in deciding whether to dismiss a prior strike conviction, the court "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." (Id. at p. 161.) A trial court may "give 'no weight whatsoever . . . to factors extrinsic to the [Three Strikes] scheme.'" (People v. Garcia (1999) 20 Cal.4th 490, 498, quoting Williams, supra, at p. 161.)
In Carmony, the Supreme Court emphasized that the Three Strikes law "not only establishes a sentencing norm, it carefully circumscribes the trial court's power to depart from this norm and requires the court to explicitly justify its decision to do so." (Carmony, supra, 33 Cal.4th at p. 378.) The court described the Williams guidance as "stringent standards that sentencing courts must follow in order to find" a defendant outside the scheme's spirit. (Carmony, supra, at p. 377, italics added.) More recently, our high court reiterated, "[T]he Three Strikes law establishes a 'strong presumption' in favor of a harsher sentence and requires the court to explicitly articulate its reasoning if it is to depart from a harsher sentence by granting the Romero motion." (People v. Salazar (2023) 15 Cal.5th 416, 428.)
"[T]he circumstances must be 'extraordinary . . . by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack.'" (Carmony, supra, 33 Cal.4th at p. 378, italics added.) Here, there is nothing about the nature and circumstances of the present felony and the prior strike conviction or the particulars of defendant's background, character, and prospects that suggests defendant could be deemed outside the spirit of the Three Strikes law.
Defendant argues his prior conviction should have been dismissed because it was "[e]xtremely [r]emote in [t]ime." However, as we have seen, remoteness, by itself, cannot be the basis for dismissing a prior strike conviction. (§ 667, subd. (c)(3); People v. Strong (2001) 87 Cal.App.4th 328, 342.) It is true that a remote conviction may be dismissed if it is followed by a long crime-free period evidencing rehabilitation. As explained in People v. Humphrey (1997) 58 Cal.App.4th 809, "In criminal law parlance, this is sometimes referred to as 'washing out.' [Citations.] The phrase is apt because it carries the connotation of a crime-free cleansing period of rehabilitation after a defendant has had the opportunity to reflect upon the error of his or her ways." (Id. at p. 813 [reversing the trial court's dismissal of a strike because "the defendant has led a continuous life of crime after the prior, there has been no 'washing out' and there is simply nothing mitigating about a 20-year-old prior"].) But "older strike convictions do not deserve judicial forgiveness unless the defendant has used them as a pivot point for reforming his ways." (People v. Mayfield (2020) 50 Cal.App.5th 1096, 1107-1108 [reversing the trial court's dismissal of one of two prior strike convictions where the defendant "failed to reform his behavior during the decade plus that elapsed between his first strike conviction and his third strike conviction"].)
Here, it cannot be said that defendant reformed his ways after his strike conviction. To the contrary, a few years after his release from prison for committing robbery on several elderly individuals, he was convicted of criminal threats and false imprisonment. He was then placed on probation but continued to commit crimes. According to the probation report, defendant has warrants from Antioch County for committing a battery, criminal threats, vandalism, and unauthorized entry of occupied dwelling. Defendant also has warrants from Alameda County for committing child abuse with possible great bodily injury/death and assault on a child causing great bodily injury. Moreover, defendant was on probation when he committed the current offense. Under these circumstances, the mere fact that defendant's prior strike conviction was 14 years old cannot justify granting his Romero motion. The trial court recognized that the prior strike was 14 years old but reasonably determined, given defendant's criminal history, that it was not sufficiently compelling to take him outside of the Three Strikes law.
Defendant relies on People v. Avila (2020) 57 Cal.App.5th 1134 (Avila) to support his position, but his reliance is misplaced. In Avila, the defendant was sentenced to 25 years to life in prison, plus 14 years, for attempted second degree robbery and attempted extortion based upon two prior strike offenses committed 26 and 28 years previously, when he was a juvenile. (Id. at p. 1142.) Avila's convictions were based on two incidents in which Avila approached street vendors selling oranges, demanded money, and "squashed" or "stomped on" bags of oranges. (Id. at pp. 1138-1139.)
The Court of Appeal reversed, finding that the trial court had abused its discretion: "[A]n abuse of discretion may be found where a trial court considers impermissible factors, and, conversely, does not consider relevant ones. [Citation.] [¶] That is precisely what occurred here. The trial court did not consider factors relevant to the nature and circumstances of Avila's prior strikes." (Avila, supra, 57 Cal.App.5th at p. 1141.) The Court of Appeal found, inter alia, that the trial court had not afforded due weight to the fact that Avila's prior strikes were both decades old and committed when he was a juvenile, and had inaccurately sentenced Avila as a violent offender. It had also erred by treating Avila as a habitual criminal, finding that "Avila is not comparable to the defendant who has led a continuous life of crime so as to counteract the extreme remoteness of his priors." (Id. at p. 1143.) The Court of Appeal concluded, although "Avila indeed may be deserving of a lengthy sentence," "no reasonable person could agree that the sentence [of life in prison] imposed on Avila was just." (Id. at pp. 11441145.) As the court observed, Avila neither committed violence nor threatened his victims and the only damage was that oranges worth $20 were crushed. (Id. at p. 1147.)
Avila is easily distinguished. Defendant's crime of evading a peace officer with willful and wanton disregard is much more severe, dangerous, and serious than Avila's crimes of "destroying fruit" (Avila, supra, 57 Cal.App.5th at p. 1151), and, even so, defendant does not face a life sentence under the Three' Strikes law, as did Avila. The trial court here considered factors relevant to the nature and circumstances of defendant's prior strike, the remoteness of the prior strike, the circumstances of defendant's current offense, defendant's criminal history, and defendant's failure to take responsibility. And like in Avila, the court here did not engage in speculation about the potential for violence in arriving at defendant's sentence. The two offenders' criminal histories are sharply different as well: unlike Avila, defendant can accurately be described as a career criminal. Defendant's six-year sentence is simply not comparable to the life sentence at issue in Avila. The reasoning of Avila does not help defendant.
We also reject defendant's claim that the trial court did not consider his youth at the time of his prior strike conviction. There is nothing in the record to suggest this claim. In fact, in his briefing submitted to the trial court for the sentencing hearing and at the sentencing hearing, defendant emphasized his youth at the time he committed the prior strike offense.
In sum, we conclude the trial court did not abuse its discretion in denying defendant's Romero motion. The record indicates the trial court considered the relevant facts and reached an impartial decision. (Carmony, supra, 33 Cal.4th at p. 378.) Defendant has failed to demonstrate that the trial court's decision was irrational or arbitrary. (Ibid.)
IV. DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ P. J. McKINSTER J.