Opinion
C097908
11-01-2023
THE PEOPLE, Plaintiff and Respondent, v. KELLY MULLINS MOORE, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. 21CR000071
MESIWALA, J.
Defendant pled no contest to grand theft, being a felon in possession of a firearm, and burglary and admitted a five-year prior serious felony enhancement, in exchange for a maximum sentence of nine years four months in state prison. The trial court sentenced defendant to six years eight months in prison consecutive to a nine year four month sentence he was serving in a separate case. On appeal, defendant contends the trial court (1) erroneously concluded Penal Code section 1385, subdivision (c) did not apply to his five-year enhancement; and (2) abused its discretion in finding that striking the five-year enhancement would endanger public safety. (Undesignated section references are to the Penal Code.) We agree with defendant's second contention based on how the term "endanger public safety" is defined and the current state of the record. We therefore remand for resentencing, noting that on remand, the People may present evidence demonstrating that striking the five-year enhancement would endanger public safety as that term is defined.
FACTUAL AND PROCEDURAL BACKGROUND
An officer saw defendant's car stopped in front of a storage unit that had been pried open. When officers pulled over defendant and searched the car's trunk, they found a brass elephant, a tackle box, a tripod, a travel bag, and a Remington .22-caliber rifle. The victim confirmed those items were taken from his storage unit.
The first amended information charged defendant with theft of a firearm, being a felon in possession of a firearm, burglary, vandalism, and receiving stolen property. The information also alleged a five-year prior serious felony enhancement (§ 667, subd. (a)) and a prior serious or violent felony conviction within the meaning of the Three Strikes Law ("prior strike") (§§ 667, subd. (b)-(i), &1170.12.)
Defendant pled guilty to the theft of a firearm, burglary, and possession of firearm by a felon and admitted the five-year enhancement in exchange for a maximum term of nine years four months and dismissal of the remaining charges, allegation, and two additional cases.
The prosecution filed a sentencing brief stating the trial court had the discretion to dismiss the five-year enhancement under section 1385 but argued the court could find that striking the enhancement was either not in the interest of justice or would endanger public safety.
Defendant argued in his sentencing brief, "Penal Code section 1385(c)(3) lists situations in which enhancements may, should, or must be dismissed. It directs the court to give 'great weight' to a list of 'mitigating circumstances' which 'weigh heavily' in favor of dismissing an enhancement, with an exception only for danger to public safety. That danger is further defined as 'a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others,' which the record of this case does not support." The five-year enhancement should be stricken under section 1385, subdivisions (c)(2)(F) and (H) because the current offense was not a violent felony and the prior conviction upon which the enhancement was based was over five years old.
The probation report disclosed that since 1988, defendant had convictions for eight misdemeanors and 16 felonies and had served at least nine different prison terms. Those prior convictions included a 1988 burglary; a 1990 possession of a dangerous weapon; a 1991 burglary; a 2004 resisting arrest; a 2005 evading a peace officer with a vehicle theft; a 2007 hit and run with death or injury with two counts of vehicle theft; and a 2018 attempted burglary. Defendant's other convictions were for presenting false identification, vehicle thefts, drug related charges, probation violations, and receiving stolen property. The current state of the record discloses no facts about these cases.
At the sentencing hearing, the trial court asked the parties whether the five-year enhancement could be stricken under section 1385 due to the language in section 667, subdivisions (b) through (i). Defendant's counsel argued section 1385 applied, while the prosecutor argued it did not.
At that point, the trial court stated, "Well, [counsel] aside from anything 667 says, 1385, aside from the two sections that [defense counsel] cited, also talks about unless the defendant is, in fact, a danger, in essence, specifically 1385 says, 'Unless the Court find that dismissal of the enhancement would endanger public safety.' [¶] The unfortunate situation here is regarding the Defendant's ongoing record, if I'm not mistaken, 18 [sic] felonies and nine [sic] misdemeanor priors with what appears to be a prison term beginning on and off in 1990 with violations of parole starting as early as 1993 along with other failures on supervision. The Court finds that under 1385, whether any other circumstances exist or not, the dismissal of the enhancement would, in fact, endanger public safety. The request is denied."
DISCUSSION
Defendant contends the trial court (1) erroneously concluded it had no discretion to strike his five-year enhancement under section 1385; and (2) abused its discretion in determining that dismissing this enhancement would endanger public safety as that term is defined. We agree with his second contention based on the definition of that term and the current state of the record.
We review a trial court's order denying a motion to dismiss an enhancement under section 1385 for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 373374.)
"In 2021, the Legislature enacted [Senate Bill 81], which amended section 1385 to specify factors that the trial court must consider when deciding whether to strike enhancements from a defendant's sentence in the interest of justice. (Stats. 2021, ch. 721, § 1.)" (People v. Sek (2022) 74 Cal.App.5th 657, 674.) These factors are set forth in subdivision (c)(2) of section 1385. (Sek, at p. 674, fn. 7.)
By its plain language, subdivision (c) of section 1385 applies to the dismissal of enhancements. (§ 1385, subd. (c)(1); People v. Burke (2023) 89 Cal.App.5th 237, 243.)" 'Ordinarily words used in a statute are presumed to be used in accordance with their established legal or technical meaning.' [Citation.] The term 'enhancement' has a well-established technical meaning in California law. [Citation.] 'A sentence enhancement is" 'an additional term of imprisonment added to the base term.'" [Citations.])" (People v. Burke, p. 243.) The five-year enhancement provided for under section 667, subdivision (a), is an additional term of imprisonment added to the base term and hence an enhancement subject to the trial court's discretion to strike it.
"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)(2).)
Here at sentencing, the court stated, "The dismissal of the enhancement would, in fact, endanger public safety." The trial court based this finding on defendant's lengthy prior criminal record. We conclude the trial court abused its discretion in making this finding based on how the term endanger public safety is defined and the current state of the record.
Under section 1385(c)(2), "endangering public safety" is defined as "there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others." The question thus becomes whether the trial court's finding that defendant's prior record over the past 30 years demonstrates that striking a five-year sentence from the end of his 16-year sentence gives rise to the likelihood that the dismissal of that enhancement would result in physical injury or other serious danger to others.
In People v. Mendoza (2023) 88 Cal.App.5th 287, at page 298, the defendant similarly argued the record did not contain evidence suggesting that dismissal of the enhancement" 'would endanger public safety, i.e., that it "would result in physical injury or other serious danger to others." '" In rejecting that contention, the appellate court noted the trial court considered that a dismissal in that case would require the defendant's immediate release and there was a likelihood the defendant would commit a crime that would result in physical injury or serious danger to others. (Id. at p. 299.) The trial court also considered that the defendant discharged a gun with victims present during a home invasion robbery in his instant crime. (Ibid.) The appellate court concluded, "Given the [trial] court's consideration of the circumstances of the crime and the court's determination that a long sentence was necessary for [the defendant] to become rehabilitated after committing such a crime, we cannot say that the court's determination that dismissal of the enhancement 'would endanger public safety' (§ 1385(c)(2)) was 'so irrational or arbitrary that no reasonable person could agree with it [citation].'" (Ibid.)
Here, the state of the current record is otherwise. The present offense was a nonviolent theft from an unattended storage unit at a commercial facility in the middle of the night. While defendant's prior record is neither pristine nor without run-ins with the law and the prison system, his prior record as reflected in the current state of the record does not suggest that letting defendant out of prison eleven years from his sentencing instead of in sixteen years would likely result in physical injury or other serious danger to others. Defendant's conduct as reflected in the current state of the record does not demonstrate a pattern of violence, nor does it provide any insight into the relevant question as to whether that decision would result in physical injury or other serious danger to others.
Defendant was convicted of a burglary in 1988 and 1991 and attempted burglary in 2018; possession of a dangerous weapon in 1990; resisting arrest in 2004; evading a peace officer with a vehicle theft in 2005; and a hit and run with death or injury with two counts of vehicle theft in 2007. All but one of these crimes happened more than eighteen years ago and the record has no description of the facts of these crimes. The remainder of defendant's convictions are for theft and drugs and suggest nothing about the likelihood of physical injury or serious harm. We therefore conclude that on this record, the trial court abused its discretion in finding that dismissal of the five-year enhancement would endanger public safety.
Given that the trial court did not give defendant the highest sentence possible under the plea agreement, we conclude the trial court should have the opportunity to exercise its discretion anew in deciding whether to strike the five-year enhancement under the appropriate standard. (People v. Mendoza (2002) 74 Cal.App.5th 843, 862 [where the trial court exercised its discretion in a manner beneficial to the defendant, the record was not "sufficiently clear to render remand a meaningless exercise"].) On remand, the People may provide evidence demonstrating that striking the five-year enhancement would endanger public safety as that term is defined.
DISPOSITION
The convictions are affirmed, the sentence is vacated, and the matter is remanded for resentencing.
We concur: EARL, P. J., KEITHLEY, J.[*]
[*] Judge of the Butte County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.