Opinion
G058342
06-03-2020
THE PEOPLE, Plaintiff and Respondent, v. DAVIS SALARY, Defendant and Appellant.
Jan B. Norman, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 17NF0210) OPINION Appeal from a judgment of the Superior Court of Orange County, Robert C. Gannon, Judge. Affirmed. Jan B. Norman, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
* * *
Appellant Davis Salary is before us a third time. Previously, we affirmed his convictions for assault with a deadly weapon and battery causing serious injury, but remanded the matter to the trial court to exercise its newly granted discretion under Senate Bill No. 139 (Sen. Bill 1393) whether to strike or dismiss a Penal Code section 667, subdivision (a), enhancement. (All further statutory references are to the Penal Code.) (People v. Salary (Jan. 31, 2019), 055407 [nonpub. opn.]).)
The trial court held a resentencing hearing. After considering the written filings, counsels' oral arguments and Salary's statement, the court declined to strike or dismiss the five-year prior. Salary appealed, and his appointed counsel filed a brief under the procedures outlined in People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738. Salary filed two supplemental briefs. Because our review of the record disclosed no arguable issues, we affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
As recounted in our prior opinion, on January 6, 2017, Salary noticed the victim had some of his property in the back of the victim's truck. Salary asked for it back and called the victim a derogatory term. The victim left, returned with a companion, and confronted Salary. After Salary and the victim exchanged insults, the victim took more of Salary's property and taunted him. After the victim tossed the property into his truck, Salary snuck up from behind and stabbed the victim with a pair of scissors, causing the victim to suffer a collapsed lung. (People v. Salary (Jan. 31, 2019, G055407 [nonpub. opn.].)
A jury convicted Salary of assault with a deadly weapon and battery causing serious injury, and found true great bodily injury and deadly weapon enhancements. The trial court imposed a 12-year term, comprised of the low term for assault with a deadly weapon doubled to four years under the Three Strikes law, a three-year great bodily injury enhancement, and a five-year prior serious felony enhancement under section 667. After this court initially affirmed the judgment, appointed counsel filed a motion to recall the remittitur to request resentencing relief under Sen Bill 1393, which, effective January 1, 2019, amended sections 667 and1385 to permit trial courts with discretion to strike or dismiss a section 667 enhancement. We granted the motion, vacated our prior opinion, and issued a new opinion ordering the trial court to exercise its newly granted discretion under Sen Bill 1393. (People v. Salary (Jan 31, 2019, G055407 [nonpub. opn.].)
Following remand, Salary filed a resentencing brief, arguing mitigating circumstances warranted striking or dismissing the five-year serious felony conviction enhancement. Specifically, he argued (1) the victim was the initial aggressor who escalated the situation by returning with a companion; (2) the victim robbed him; and (3) the victim's actions caused Salary to be in fear of bodily harm.
At the resentencing hearing, after considering the parties' arguments and Salary's statement, the trial court declined to strike or dismiss the five-year prior. The court explained resentencing relief was not warranted because of (1) the circumstances and aggravating factors set forth in the original probation report; (2) the great violence and bodily harm caused by stabbing the victim in the back; (3) Salary's conduct was indicative of a danger to society; (4) Salary's numerous prior convictions; and (5) Salary had served four prior prison terms and had 15 probation or parole violations.
II
DISCUSSION
Following Wende guidelines, we have reviewed counsel's brief and the appellate record. To assist the court in its review, counsel identified two issues for our consideration: Whether the trial court considered the proper factors or abused its discretion in declining to strike or dismiss the five-year prior.
"[I]n considering whether the furtherance of justice is served by dismissal under section 1385, no weight should be accorded factors extrinsic to the [sentencing] scheme . . . . Instead, 'preponderant weight must be accorded to factors intrinsic to the scheme, such as the nature and circumstances of the defendant's present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects. [Citation.]" (People v. S.M. (2017) 9 Cal.App.5th 210, 220.) Here, the trial court considered the nature and circumstances of the present offenses and Salary's background, including prior criminal conduct. In light of the numerous aggravating factors and Salary's extensive criminal background, we find no abuse of discretion in the court's decision declining to strike or dismiss the five-year prior.
Salary filed two supplemental letter briefs. In his first letter brief, Salary repeats the arguments he made in his statement at the resentencing hearing. He claims the five-year prior was based on a conviction for aiding and abetting a 2009 assault solely committed by his brother. He argues he was only present and did not participate in the assault. Salary further argues there were numerous mitigating circumstances in the present incident, including that the victim and the victim's accomplice "antagonized, bullied, assaulted, and threatened . . . [and] robbed" him. He also claimed he refused a one-year plea deal because he felt he was the victim. The trial court, however, considered all of these mitigating circumstances, but nevertheless declined to strike or dismiss the five-year prior. In light of the numerous aggravating factors and Salary's extensive criminal history, we find no abuse of discretion.
In his second letter brief, Salary informed this court that his mother is 66 years old and has health issues. He states he is her caregiver and is worried he will never see her again. At the resentencing hearing, Salary informed the trial court that he was caring for his mother. Thus, the court considered this factor and nevertheless denied resentencing relief. In light of the numerous aggravating factors and Salary's extensive criminal history, we again find no abuse of discretion. Salary never informed the trial court about his mother's age or health. It is axiomatic that a trial court does not err in failing to consider a factor never raised. In addition, Salary does not cite any authority compelling us to remand the matter for another hearing.
Our review of the entire record, including the matters identified by counsel does not show the existence of an arguable issue. (Wende, supra, 25 Cal.3d at pp. 442-443.) Consequently, we affirm the judgment.
III
DISPOSITION
The judgment is affirmed.
ARONSON, ACTING P. J. WE CONCUR: FYBEL, J. THOMPSON, J.