Opinion
F067436
02-08-2018
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM CLIFFORD SMITH, Defendant and Appellant.
Elizabeth Campbell, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F12904584)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Hilary A. Chittick, Judge. Elizabeth Campbell, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Detjen, J. and Peña, J.
-ooOoo-
Defendant William Clifford Smith was convicted by jury trial of felony driving in willful or wanton disregard for the safety of persons or property while fleeing from a pursuing police officer (Veh. Code, § 2800.2, subd. (a)), and misdemeanor driving under the influence of alcohol or drugs (Veh. Code, § 23152, subd. (a)). The trial court found true allegations that defendant had suffered four prior strike convictions within the meaning of the Three Strikes law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). Defendant raised a Romero motion, requesting that the trial court exercise its discretion to dismiss three of the four prior strike conviction allegations pursuant to section 1385. The court denied the motion. The court sentenced defendant to 25 years to life in prison on the felony count. On the misdemeanor count, the court gave defendant credit for time served.
Before trial, defendant raised a Pitchess motion for discovery of peace officers' confidential personnel records. (Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).)
All statutory references are to the Penal Code unless otherwise noted.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
On appeal, defendant (1) requests that we independently review the records reviewed by the trial court on his Pitchess motion and determine whether the trial court abused its discretion by not providing him access to any records, (2) contends the trial court abused its discretion by declining to dismiss one or more of his prior strike conviction allegations, (3) contends he is entitled to an additional day of actual presentence custody credit, and (4) contends additional presentence credits should be awarded to him based upon the amendment to section 4019. We modify the judgment and affirm.
Defendant raises issues (1) and (4) by way of supplemental briefing.
FACTS
On July 1, 2011, at about 6:28 p.m., Police Officer Jason Hurley was in uniform, patrolling in Fresno in a marked vehicle with a light bar on top. He was driving northbound on Cedar Avenue at the posted speed limit of 40 miles per hour. He observed a Harley-Davidson motorcycle up ahead, driven by defendant, as it took off quickly and pulled away at about 55 miles per hour. Hurley caught up with the motorcycle at a red light where it was stopped at the front of the left turn lane. Hurley pulled directly behind the motorcycle in the left turn lane, noticing it did not have its turn signal on. As they waited for the light, defendant turned around and looked directly at Hurley. Defendant turned back around, and when the light turned green, he made a left turn into the far right lane of Herndon Avenue. Hurley followed directly behind him.
Once on Herndon Avenue, a 50-mile-per-hour zone, defendant drove about 30 miles per hour, illegally impeding traffic. The traffic was heavy because it was the Friday evening rush hour. Vehicles had to slow down and swerve around defendant and Hurley to avoid running into them from behind. Suddenly, defendant changed lanes from lane three directly into lane one, an illegal maneuver. Hurley followed. As they approached Millbrook Avenue, Hurley activated his lights to initiate a traffic stop. But rather than slowing down, defendant sped up to go through the intersection. The traffic light turned red before he entered the intersection, a Vehicle Code violation, and the turning traffic had already started entering the intersection from the other direction. As defendant went through the intersection, he nearly hit a white sport utility vehicle (SUV) head-on, missing it by only about six inches. Defendant swerved to get around the front of the SUV. Hurley was shocked that defendant did not hit the SUV.
Hurley had to stop and turn on his siren to clear the traffic and move through the intersection. By this time, defendant was about one-quarter mile ahead, moving at approximately 70 miles per hour. Hurley was the next vehicle behind defendant, but he was some distance back. His siren and lights were still activated. At the red light, defendant pulled into the right turn lane and turned without stopping, another Vehicle Code violation. Hurley turned and followed, but defendant was accelerating at a rapid pace. He turned right on Locust Avenue, which did not require a stop. Hurley followed and could see defendant making his next turn, rolling through a stop sign in violation of the Vehicle Code. Defendant turned right on Bond Street and Hurley followed. Then they turned onto Fir Avenue. As they entered the residential area, people were on the sidewalk and in their front yards. Hurley turned off his siren and lights for public safety, hoping to encourage defendant to slow down. Hurley slowed and tried to keep defendant in sight. Defendant then turned south on Sixth Street. Hurley followed but did not see defendant. A pedestrian pointed into the apartment complex and Hurley entered. He drove through the complex but did not see defendant. As soon as he left the complex, he saw defendant getting off his motorcycle in front of a building. Defendant tried to hide behind a pillar, but Hurley could see him.
Hurley drew his gun and approached defendant. Defendant complied with Hurley's orders and Hurley handcuffed him. Defendant's eyes were red and watery and his speech was slurred. Hurley could smell alcohol on him. Hurley read defendant his Miranda rights before taking a statement from him. Defendant said he knew he was speeding and admitted seeing Hurley's lights behind him. He knew Hurley was trying to stop him. He said he was scared and did not want to get another speeding ticket. He was trying to get away and thought he had succeeded. He admitted he had been drinking and said he was sorry.
Miranda v. Arizona (1966) 384 U.S. 436.
When Officer Justin Steinhardt arrived to administer field sobriety tests on defendant, Hurley returned to vehicle patrol. Based on Steinhardt's observations and defendant's performance on the tests, Steinhardt believed defendant was driving under the influence of alcohol. Steinhardt thought defendant's blood alcohol level exceeded the legal limit.
A blood test determined that defendant's blood alcohol level was 0.10 percent.
DISCUSSION
I. Pitchess Motion
Defendant's Pitchess motion requested disclosure of Hurley's and Steinhardt's personnel records relevant to false arrest or fabrication of charges/evidence. The trial court held an in camera review regarding Hurley's records and denied the motion to disclose records.
We have received a settled statement from the trial court, filed on March 6, 2017, stating that three of the files reviewed by the trial court at the Pitchess hearing have been "purged" in the normal course of business. One file is extant and has been provided to this court. Another file was not provided because it concerns only Steinhardt; the trial court ruled at the Pitchess hearing that defendant had not met the minimum standard for an in camera hearing of Steinhardt's records.
"A criminal defendant has a limited right to discovery of a peace officer's personnel records. [Citation.] Peace officer personnel records are confidential and can only be discovered pursuant to Evidence Code sections 1043 and 1045." (Giovanni B. v. Superior Court (2007) 152 Cal.App.4th 312, 318.) "[O]n a showing of good cause, a criminal defendant is entitled to discovery of relevant documents or information in the confidential personnel records of a peace officer accused of misconduct against the defendant. [Citation.] Good cause for discovery exists when the defendant shows both ' "materiality" to the subject matter of the pending litigation and a "reasonable belief" that the agency has the type of information sought.' [Citation.] ... If the defendant establishes good cause, the court must review the requested records in camera to determine what information, if any, should be disclosed. [Citation.] Subject to certain statutory exceptions and limitations [citation], 'the trial court should then disclose to the defendant "such information [that] is relevant to the subject matter involved in the pending litigation." ' " (People v. Gaines (2009) 46 Cal.4th 172, 179 (Gaines).)
In situations where confidential personnel files reviewed by the trial court at a Pitchess hearing are subsequently destroyed, and there is no evidence of bad faith, the appellate court may instead consider secondary evidence, including the superior court's statements about the contents of the files, in order to determine whether the court abused its discretion when it denied a defendant's Pitchess motion. (People v. Jackson (1996) 13 Cal.4th 1164, 1221, fn. 10; People v. Memro (1995) 11 Cal.4th 786, 831-832, overruled on other grounds in Gaines, supra, 46 Cal.4th 172, 181, fn. 2; People v. Prince (2007) 40 Cal.4th 1179, 1285.) It is common practice for law enforcement agencies to destroy citizen complaints after five years and the Pitchess procedures contemplate destruction of such complaints after five years. (City of Los Angeles v. Superior Court (2002) 29 Cal.4th 1, 11; see § 832.5, subd. (b) [complaints and any reports or findings relating to these complaints shall be retained at least five years].)
A trial court's decision on a Pitchess motion is reviewed under an abuse of discretion standard. (People v. Prince, supra, 40 Cal.4th at p. 1285.) The exercise of that discretion "must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Jordan (1986) 42 Cal.3d 308, 316.) We review the record for "materials so clearly pertinent to the issues raised by the Pitchess discovery motion that failure to disclose them was an abuse of Pitchess discretion." (People v. Samayoa (1997) 15 Cal.4th 795, 827.) The record of the trial court's in camera hearing is sealed, and appellate counsel are not allowed to see it. (See People v. Hughes (2002) 27 Cal.4th 287, 330.) Thus, on request, the appellate court must independently review the sealed record. (People v. Prince, supra, at p. 1285.)
Here, there is no evidence the records were destroyed in bad faith. We have reviewed the records available to us, including the transcript of the Pitchess hearing. In the transcript, the trial court described the contents of all the records as it reviewed them, and none contained information relevant to deception or dishonesty. In addition, we have reviewed the extant personnel record and find no relevant information in it. We conclude the trial court did not abuse its discretion by deciding not to disclose any records. II. Romero Motion
A. Law
Section 1385 grants trial courts the discretion to strike a prior felony conviction allegation if doing so is in furtherance of justice. (§ 1385, subd. (a); Romero, supra, 13 Cal.4th at pp. 529-530.) A defendant bears the burden of clearly showing the trial court's decision not to do so was arbitrary or irrational. Absent such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives. (Carmony, supra, at pp. 376-377.)
A defendant's request for this type of leniency is commonly referred to as a "Romero motion," although defendants do not actually have a right to make motions under section 1385, subdivision (a). (People v. Carmony (2004) 33 Cal.4th 367, 375, 379 (Carmony).)
" 'A court's discretion to strike [or vacate] prior felony conviction allegations [or findings] in furtherance of justice is limited. Its exercise must proceed in strict compliance with ... section 1385[, subdivision] (a).' " (People v. Williams (1998) 17 Cal.4th 148, 158.) The Three Strikes law "was intended to restrict courts' discretion in sentencing repeat offenders." (Romero, supra, 13 Cal.4th at p. 528; People v. Garcia (1999) 20 Cal.4th 490, 501 ["a primary purpose of the Three Strikes law was to restrict judicial discretion"].) The Three Strikes law establishes " 'a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike,' " unless the sentencing court finds a reason for making an exception to this rule. (Carmony, supra, 33 Cal.4th at p. 377.) There are "stringent standards that sentencing courts must follow in order to find such an exception." (Ibid.) In order to strike a prior serious felony conviction, "the court in question must consider whether, in light of 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, 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." (People v. Williams, supra, at p. 161.)
"[A] trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances. For example, an abuse of discretion occurs where the trial court was not 'aware of its discretion' to dismiss [citation], or where the court considered impermissible factors in declining to dismiss [citation]. Moreover, 'the sentencing norms [established by the Three Strikes law may, as a matter of law,] produce [] an "arbitrary, capricious or patently absurd" result' under the specific facts of a particular case. [Citation.] [¶] But '[i]t is not enough to show that reasonable people might disagree about whether to strike one or more' prior conviction allegations. [Citation.] ... Because the 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' [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary. Of course, in such an extraordinary case—where the relevant factors ... manifestly support the striking of a prior conviction and no reasonable minds could differ—the failure to strike would constitute an abuse of discretion." (Carmony, supra, 33 Cal.4th at p. 378.)
B. Background
In this case, the probation officer's report chronicled defendant's long criminal history, as follows:
In 1970, defendant was convicted of misdemeanor receiving stolen property.
In 1973, he was convicted of murder: He "shot the victim in the head with a .22 caliber rifle, causing the victim's death." He was sentenced to five years and was paroled in 1977.
In 1980, he was convicted of robbery and assault with a deadly weapon: "[H]e robbed two employees at a Big 5 Sporting Goods store. He asked to see a .45 caliber automatic pistol. When one was displayed to him, he produced a loaded .45 clip from his waistband and placed the clip in the weapon. He left the store with the weapon by threatening to shoot the two employees." Shortly thereafter, he was convicted of being a felon in possession of a .30-caliber rifle. He was sentenced to 10 years and was paroled in 1986.
In 1987, he violated parole, was returned to prison, and was paroled in 1988.
In 1989, he violated parole and was convicted of misdemeanor battery.
In 1990, he was convicted of assault with a firearm: He "fired five or six shots at the victim, who was standing in front of his own residence. The defendant had conflict with the victim's wife. It also involved the victim and the defendant's girlfriend." Defendant was sentenced to five years and was paroled sometime thereafter.
In 1992, he twice violated parole and was returned to prison.
In 1993, he violated parole and was returned to prison.
In 1995, he was convicted of being a felon in possession of a firearm, a federal offense. He "twice [shot] the tires of his brother's vehicle, as his brother attempted to flee (after his brother refused to lend his vehicle to the defendant)." He was incarcerated until January 2011, when he was placed on supervised release, which he violated in May 2011. His performance was deemed poor and his conditions of supervision were modified to include a prohibition on alcohol.
On July 1, 2011, he committed the current offenses.
The probation officer concluded as follows:
"[Defendant] is 61 years old and he is before the Court for sentencing on his seventh felony conviction, as well as a misdemeanor conviction. The Court found true four prior 'strike' convictions, so he is not eligible for a grant of probation .... [¶] Since 1974, the defendant has spent the majority of his life in prison. He has been convicted of murder, robbery, and assault, which all involved firearms. He served a federal term from 1995 to 2011, for being in possession of a firearm. He was out on supervised release[] for a very short time when he committed the current offenses. Although his current conviction is not for a violent or serious offense, his actions should not be taken lightly. He drove a motorcycle while under the influence at 70 MPH, ran red lights and stop signs, and almost hit a vehicle head on. He continues to be a danger to the community. The defendant was right when he said to your officer that he has never had much of a life. He can only blame himself for the choices he made that led to him spending the majority of his adult life in prison. He is mandated to serve a term in state prison. [¶] Pursuant to [sections] 667(e)(2)(C)(iv)(IV)[ and ]1170.12(c)(2)(C)(iv)(IV), the defendant is mandated to serve a term of 25 years to life in prison, because of his prior [section] 187 conviction...."
Defense counsel argued extensively that the trial court should strike three of defendant's four prior serious felony convictions as follows:
"So what I'm going to be asking the Court to do is to strike three of those four. And here's how I'm going to get there. First of all, as to the 1980 prior or priors, those are essentially a single act, a single incident, and it would be appropriate to treat it as a single strike. [People v. Vargas (2014) 59 Cal.4th 635 (Vargas)] deals with—that's pending before the State Supreme Court—deals with a situation where it's not a single transaction but a single act. It's a little unclear from the record if Vargas, whichever way it's ultimately decided, would apply here, but it seems appropriate to treat that 1980 prior as one strike.
"Fundamentally, [defendant] is only before the Court facing a third strike sentence because of the 1972 murder conviction and so the electorate of this state and the legislators have decided that somebody whose strike
priors include a murder is eligible for a three strike sentence. So now we have to consider which people with a prior murder will get a three strike sentence. [¶] And as to ... the fact of this murder conviction is from 1972, which is 28 plus 13, that's 41 years ago, a 41-year-old murder. So what the Court would be evaluating is, is this man a less serious murderer for three strikes purposes than most. And the answer is obviously he is, because of all three strikes people, very few will come before the Court with a 41-year-old murder conviction. [¶] [S]o we have extreme, extreme remoteness as to that murder conviction.
"Secondly, we have to look to the serious[ness] of that murder conviction. Murder is extremely serious, but some are more serious than others. This is clearly a second degree murder conviction, and he served five years to the day in prison for this. Some of that time was obviously served in the county jail awaiting sentencing. But if we look at the [probation officer's report], we can see the date he was arrested, we can see the date he was paroled. It's very unfortunate for everyone's sake perhaps that he was paroled so quickly, but he was, and that was because, clearly, it was a less serious murder conviction than ... most.
"Now, turning to his record since then, he has never again injured anyone in his life. He has not injured anyone since 1972. He has not stolen from anyone since 1972, with the exception of the 1980 robbery case. He has not committed any crime against any person since 1989. [¶] Now we can talk about the fact that he's been in prison almost continuously, but the fact remains that there are plenty of people who commit crimes in prison.
"And we also have to consider the fact that this case perfectly illustrates how backward chronologically the three strikes law can be in which we imprison people for lengthy periods at the wrong time and give people short sentences at the wrong time. He received five years for murder. Now when he's aged out of dangerousness, now when he's no longer carrying a gun, now when he's no longer threatening people or engaging in violent acts, now it's proposed to give him 25 to life. This is why we're going broke. This is why this country has lost its mind. This is why this country has 5 percent of the world's population and 25 percent of the world's prisoners. A man who is 64 years old, as he would approximately be were he to receive a six-year sentence, is simply not the danger to society that he was when he was young.
"And as a third thing I'd like to bring up about that prior murder case, and that is that the Court, I know, has considered the packet of materials relating to the [section] 1368 [mental competency] aspects of the murder case. It's very clear that [defendant] at a very young age, as young
as 14, was using drugs and it's very offensive to me that on the weighing pages of the probation report that it's said that he's made some bad choices. I don't think that a person who is using drugs at 14 has made a lot of choices. I think they've been embarked on the wrong path very early on, usually due to mental illness. And we saw that that culminated in this murder case.
"And I've highlighted some of the points in the [section] 1368. He was hospitalized at age 15 for LSD, he had made—by the time he was evaluated for [section] 1368 he had made six suicide attempts, ... he had horrible fantasies of killing people, he was committed at least once, perhaps more than once, to the Atascadero State Hospital. This isn't—he was strung out on heroin. He was in urgent need of psychological and psychiatric care. In the psychiatric report in 1972 which Dr. Glenn and 1972 report by Mary Robinson and also by Paul Levy he was diagnosed as having depression, schizophrenic reaction, schizoaffective type.
"The fact is that the man who killed in 1972 is not the man that the Court would be sentencing today, and yet it's only that 1972 murder case that makes it even possible for the Court to even consider giving him a three strike sentence. [¶] ... [¶]
"And the fact is that he drove while intoxicated at a not particularly elevated blood alcohol level, he ultimately was found and was cooperative when found, did not hurt anybody. He can, I think, speak to the Court on what his health situation is, and I hope he will. I think it would be absolutely horrifying, I think it would be a nightmare if this man were to receive a life sentence. I'd urge the Court to recognize the age, the psychiatric difficulties inherent in the murder, the fact that as murders go this was a less serious murder, and to treat him like the vast majority of third strikers are now being treated who have not committed a serious or violent offense...." (Italics added.)
The prosecutor responded that the People had voiced their will in the recent election with Proposition 36, expressing their intent that a person with a homicide conviction is to be excluded from the provision that limits 25-year-to-life sentences. He continued:
"Now, let's look at the arguments made, defendant's life history, the defendant is not a danger to the public, as he says. His entire history as reflected in the probation officer's report is of chances given to him to rehabilitate his behavior and he has chosen not to, repeatedly, not just once,
not just twice, not just three times. If we just count the felony convictions, this is his seventh felony conviction before this court. If we count his misdemeanors and his felony convictions, we're in the teens.
"As to the homicide conviction and the sentence of five years, that was the punishment at that time. He served that time. The public somehow became outraged and that is why eventually the Three Strikes legislation was passed. They decided that ... if an individual decides to commit another crime and they have a serious or violent felony in their history, their punishment will be enhanced because they have demonstrated their inability to comport with the rules of society. Defendant has done that once, twice, three times since that homicide conviction.
"This argument that he is no longer a danger to the community in that he has aged out, in this case alone—I will not recite the facts of this case because the court heard those, I did not.... This defendant turned a DUI into a dangerous activity that endangered not only the officers that were pursing him but all others who were on the road at the time. To say he's no longer a danger belies the facts of this specific case alone.
"Defendant says since the homicide he has not hurt anyone else and he is not a threat to anyone else. Since that homicide conviction he has picked up three separate new felony offenses, all involving guns, all involving individuals, all involving the threat of violence. Notably, the [section] 211 [robbery] and the [section] 245 [assault] is a crime so he can obtain the gun where he went into Big 5 and used the gun on the individuals who were there in Big 5, to take the gun after he provided a magazine with loaded rounds, plucked it in there and pointed the gun at them. He did his time on that. He was subsequently released.
"Then he picks up his other [section] 245 [assault]. In this case, according to the probation officer's report he fired five or six shots at the victim, the victim who is standing in front of his own house, because the defendant had a conflict with the victim's girlfriend. To say that he is not a danger to anyone, he is not a threat to anyone belies his history in that case.
"When we look at the totality of his crimes and the totality of the nature of those offenses, [murder, robbery, assault with a gun, assault with a gun], his various parole violations, his felon in possession of a firearm for the federal offense, we look at the time he has spent in custody, this is an individual that Three Strikes was designed to remove from sight to protect the law-abiding citizens of not only Fresno County but of all counties and all citizens throughout this country. The defendant has demonstrated time and time again his selfish disregard for the rights of others, his selfish
disregard for the rules of society, and for that he has earned the sentence as being recommended in the probation officer's report."
After hearing argument from both sides, the trial court denied defendant's Romero motion, as follows:
"All right. Well, the Court recognizes that I have discretion and I have carefully considered this case, because as felony offenses go, it's a relatively minor current felony offense, and obviously [defendant] is an older gentleman. However, I am profoundly concerned by the length of violent activity that dates back to the 1970's and a clear, it seems to the Court, inability by [defendant] to refrain from criminal conduct, including violent criminal conduct. And, you know, for some people, and maybe for [defendant], they can't stop drinking and when they drink they commit crimes. And I will say that alcohol and/or drugs are a constant threat throughout this. And so the difficulty that the Court has is that at some point we say we're not going to take another chance on a question on whether [defendant] can refrain from drinking and refrain from committing new offenses given a long history of failure to comply and an inability to comply with societal laws.
"The Court knows that even after his last offense, which was a federal offense, the circumstances of the offense were that he shot out tires of his brother's vehicle as his brother attempted to flee when his brother refused to lend the vehicle to the defendant. So that's his federal offense.
"Then having this long history of significant violations, he was released in January 2011. Within four months of his release he picked up a DUI which was ultimately dismissed, but the conditions of his supervision were modified. He was not to have any alcohol, he was to do mental health treatment. He apparently ignored that because he was clearly drinking at the time of this offense. [¶] ... [¶] ... Well, I'm not considering the DUI as a substantive offense. What I am considering it for, though, is the fact that he was placed—his supervision conditions were modified, he was ordered to do mental health treatment, ordered not to drink, and within a very few months thereafter he's drinking and out committing this offense. So the concept that somehow or another if we were only to give him treatment he'd be okay, he has had a variety of opportunities for that over the years and continues to reoffend. So the Court is not prepared to exercise its discretion to strike the strikes.
"With reference to the [section] 211 [robbery] and the [section] 245 [assault] and whether those should count as two strikes or one, it's really to
some degree irrelevant to the Court's mind because there are four strikes.... [¶] ... [¶] So whether there's three strikes or four, I think the sentence is still 25 to life. The Court is not prepared to strike any of the strikes. There are two employees at Big 5, so I think contrary to Vargas, where you have a single act with a single victim and two charges, according to the probation report there are two employees at Big 5, so I have ... one strike for each employee, and the Court intends to keep those.
"Therefore, it seems to the Court that the sentence of 25 to life, while it does make the People of the State of California responsible for his housing and food for the rest of his days, is really the only way that the Court can keep the public—can assure itself that the public will be safe. This gentleman has been committing violent or dangerous offenses for a long, long time and that pattern is a habit and I can't justify striking any of these strikes." (Italics added.)
C. Analysis
1. Vargas
Defendant contends the trial court abused its discretion when it refused to strike one of the two 1980 convictions for robbery and assault with a deadly weapon because they arose from a single criminal act. He argues dismissal was required by Vargas, supra, 59 Cal.4th 635, and the trial court's failure to dismiss one of the convictions pursuant to Vargas was inconsistent with the spirit of the Three Strikes law. The People do not address Vargas at all.
Vargas had not been decided at the time of defendant's trial, but as the trial court correctly foresaw, it does not apply in this case. In Vargas, the Supreme Court stated: "Defendant's two prior felony convictions—one for robbery and one for carjacking—were not only tried in the same proceeding and committed during the same course of criminal conduct, they were based on the same act, committed at the same time, against the same victim. As we explain, because neither the electorate (§ 1170.12) nor the Legislature (§ 667, subds. (b)-(i)) could have intended that both such prior convictions would qualify as separate strikes under the Three Strikes law, treating them as separate strikes is inconsistent with the spirit of the Three Strikes law, and the trial court should have dismissed one of them and sentenced defendant as if she had only one, not two, qualifying strike convictions." (Vargas, supra, 59 Cal.4th at pp. 638-639.)
In this case, the transcript from the 1980 change of plea hearing provides some further facts of the robbery and assault with a deadly weapon. During defendant's testimony regarding the factual bases of his pleas, the trial court asked him specific questions to determine whether the crimes were committed against two victims. Defendant testified that he walked into a Big 5 Sporting Goods store, unarmed, and asked to see a .45-caliber automatic pistol. A clerk behind the counter, Mr. P., handed the gun to defendant and let him see it. Defendant took a clip of bullets out of his pocket and put the clip into the gun. Then he showed the gun to the clerk so he could see it was loaded. Defendant admitted he intended to steal the gun by loading it with a clip of bullets from his pocket. The parties stipulated that Mr. P. was the victim from whom defendant took the gun.
We augmented the record on our own motion with the transcript of this hearing. Defense counsel was provided a copy of the record.
A second clerk, Mr. A., was also behind the counter, standing about three to four feet from Mr. P. Defendant spoke to both clerks as he held the loaded gun. Defendant testified, "[I] [t]old them not to follow me, to stay where they was at. [¶] ... [¶] ... I told them not to follow me out the door. Just stay where ... don't follow me out the door." Both clerks were looking at him, and it was his intention to let them both know they should not do anything. He turned and walked out of the store with the gun.
After this testimony, the trial court accepted defendant's guilty pleas to the robbery of Mr. P. and the assault with a deadly weapon of Mr. A.
Because this case involved two separate acts—(1) taking the gun from Mr. P. and (2) brandishing the loaded gun and telling Mr. A. not to follow him—and two separate victims, Vargas does not apply here. (Vargas, supra, 59 Cal.4th at pp. 638-639; see People v. Rusconi (2015) 236 Cal.App.4th 273, 275, 281 (Rusconi).) The trial court was not required to strike one of the 1980 prior convictions under Vargas.
Rusconi held that Vargas is inapplicable when two prior convictions involve a single act but "multiple victims of violence." (Rusconi, 236 Cal.App.4th at pp. 279-281.)
2. Remoteness and Mental Illness
Defendant also contends the trial court abused its discretion when it refused to strike the 1973 murder conviction because it was more than 40 years old and because not striking it prevented him from qualifying for a lighter punishment under the new provision of the Three Strikes law (Prop. 36). He maintains the trial court failed to adequately consider his apparent mental illness at the time of the murder that reduced his culpability. He explains that this case presents the extraordinary circumstances in which no reasonable persons could disagree that he falls fully or partially outside the spirit of the Three Strikes law, and that its application to impose a 25-year-to-life sentence produced an arbitrary, capricious, or patently absurd result in this case. He requests that we vacate his sentence and remand to the trial court for reconsideration of his Romero motion.
We disagree that this is one of the extraordinary cases imagined by Carmony, where there can be no doubt that the defendant, although a career criminal, nevertheless falls outside the spirit of the Three Strikes law. (Carmony, supra, 33 Cal.4th at p. 378.) Nothing about defendant's case compels such a conclusion. Indeed, as the trial court recognized, defendant's criminal history is long and relentless. He is a lifelong criminal who has been refractory to rehabilitation and appears to have no desire to reform or change. He has been in and out of prison (mostly in) for four decades and has performed poorly when out on parole. He seems to be precisely " 'the kind of revolving-door career criminal for whom the Three Strikes law was devised.' " (People v. Strong (2001) 87 Cal.App.4th 328, 340, fn. omitted.)
Defendant focuses on the remoteness of his murder conviction and the possibility he was suffering from mental illness at the time he committed the murder. But he did not only commit murder. When he was not incarcerated, he repeatedly committed crimes, many involving firearms, over the course of about 40 years. He has seven felony convictions. His alleged mental illness in 1972 and his ongoing alcohol abuse in no way mitigate his repeated crimes over the decades and the continuing danger he poses to the public. Repeated efforts to rehabilitate him have clearly failed.
Given defendant's record, there is no basis for reversing the trial court's denial of his Romero motion. The court's decision was far from arbitrary, capricious, irrational, or absurd. In our opinion, defendant falls squarely within the spirt of the Three Strikes law, and the trial court acted fully within its discretion when it denied his motion and sentenced him under that law. Contrary to defendant's claim, most people would not agree that he should not be sentenced pursuant to the Three Strikes law—a law that punishes him not only for his current offense, but for his decades of recidivism.
III. Custody Credit
Defendant contends he is entitled to one additional day of actual presentence custody credit because the sentencing hearing was scheduled for a certain date but continued to the following day. The People concede. We will modify the sentence accordingly.
IV. Section 4019
Lastly, defendant asserts that he is entitled to additional credits pursuant to section 4019. We disagree.
Under California law, criminal defendants are entitled to credit against their sentence for all days spent in custody while awaiting trial or sentencing. (§ 2900.5, subd. (a); People v. Rajanayagam (2012) 211 Cal.App.4th 42, 48 (Rajanayagam).) Custody credits are calculated from the date of arrest through the time of sentencing. (Rajanayagam, supra, at p. 48.) Section 4019 provides for additional presentence credits based on work time and good behavior, collectively referred to as "conduct credit," and specifies the rate at which such credit can be earned. (§ 4019, subds. (a), (b) & (c); People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.)
"In conjunction with the '2011 Realignment Legislation addressing public safety,' section 4019 was amended to provide for deductions for every four days of confinement, so that if all possible days are earned, four days will now be deemed served for every two days of actual confinement." (People v. Ellis (2012) 207 Cal.App.4th 1546, 1549 (Ellis), internal citations omitted). This formula applies "to prisoners who are confined to a county jail ... for a crime committed on or after October 1, 2011. Any days earned by a prisoner prior to October 1, 2011, shall be calculated at the rate required by the prior law." (§ 4019, subd. (h).)
A. Equal Protection
Defendant argues that the trial court should have calculated his presentence conduct credits under the current formula set forth in section 4019 rather than the formula in effect at the time of his offenses. He claims the failure to apply the current formula violates his constitutional equal protection rights.
We have rejected this argument in prior decisions, including our published opinion in Ellis, supra, 207 Cal.App.4th 1546. There we concluded: "In our view, the Legislature's clear intent was to have the enhanced rate apply only to those defendants who committed their crimes on or after October 1, 2011. [Citation.] The second sentence [of section 4019, subdivision (h)] does not extend the enhanced rate to any other group, but merely specifies the rate at which all others are to earn conduct credits." (Ellis, supra, at p. 1553.) We held that such a construction of the statute does not result in an equal protection violation. (Id. at pp. 1549-1551.) Other districts have reached the same conclusion. (See, e.g., People v. Ramirez (2014) 224 Cal.App.4th 1078, 1086 [Sixth District]; People v. Miles (2013) 220 Cal.App.4th 432, 435-436 [Second District]; Rajanayagam, supra, 211 Cal.App.4th at pp. 55-56 [Fourth District]; People v. Kennedy (2012) 209 Cal.App.4th 385, 396-399 [Sixth District].) We decline to reconsider Ellis.
B. Rule of Lenity
In a related argument, defendant contends the rule of lenity requires that the more generous two-for-two credit provisions of the current version of section 4019 should be applied to presentence custody on or after October 1, 2011, for crimes that occurred prior to that date. We disagree.
"The rule of lenity does not apply every time there are two or more reasonable interpretations of a penal statute. [Citation.] Rather, the rule applies ' "only if the court can do no more than guess what the legislative body intended; there must be an egregious ambiguity and uncertainty to justify invoking the rule." ' [Citation.] In other words, 'the rule of lenity is a tie-breaking principle, of relevance when " 'two reasonable interpretations of the same provision stand in relative equipoise ....' " ' " (People v. Manzo (2012) 53 Cal.4th 880, 889.)
"[U]nder the rule of lenity[,] California [courts] will ' "construe a penal statute as favorably to the defendant as its language and the circumstances of its application may reasonably permit ...." ' [Citation.] However, application of the rule of lenity is inappropriate unless, after consideration of the intent of the statute, the canons of statutory construction, and an analysis of the legislative history, the statute is still ambiguous." (In re Michael D. (2002) 100 Cal.App.4th 115, 125.)
As noted above, section 4019, subdivision (h) provides: "The changes to this section ... shall apply prospectively and shall apply to prisoners who are confined to [specified facilities] for a crime committed on or after October 1, 2011. Any days earned by a prisoner prior to October 1, 2011, shall be calculated at the rate required by the prior law." While the first sentence of subdivision (h) expresses the Legislature's intent that application of the enhanced conduct credits are limited to defendants whose crimes are committed on or after October 1, 2011, the second sentence of the subdivision arguably implies any days earned by a defendant on or after October 1, 2011, should be calculated at the rate required by the current law.
This court and another court have addressed this ambiguity and interpreted section 4019, subdivision (h) to give effect to both sentences, such that neither sentence will be rendered inoperative, superfluous, void, or insignificant. In Ellis, we concluded: "In our view, the Legislature's clear intent was to have the enhanced rate apply only to those defendants who committed their crimes on or after October 1, 2011. [Citation.] The second sentence does not extend the enhanced rate to any other group, but merely specifies the rate at which all others are to earn conduct credits. So read, the sentence is not meaningless, especially in light of the fact the October 1, 2011, amendment to section 4019, although part of the so-called realignment legislation, applies based on the date a defendant's crime is committed, whereas section 1170, subdivision (h), which sets out the basic sentencing scheme under realignment, applies based on the date a defendant is sentenced." (Ellis, supra, 207 Cal.App.4th at p. 1553.)
In Rajanayagam, the court concluded: "[W]e cannot read the second sentence to imply any days earned by a defendant after October 1, 2011, shall be calculated at the enhanced conduct credit rate for an offense committed before October 1, 2011, because that would render the first sentence superfluous." (Rajanayagam, supra, 211 Cal.App.4th at p. 51.) The Rajanayagam court explained its reasoning: "[S]ubdivision (h)'s second sentence attempts to clarify that those defendants who committed an offense before October 1, 2011, are to earn credit under the prior law. However inartful the language of subdivision (h), we read the second sentence as reaffirming that defendants who committed their crimes before October 1, 2011, still have the opportunity to earn conduct credits, just under prior law. [Citation.] To imply the enhanced conduct credit provision applies to defendants who committed their crimes before the effective date but served time in local custody after the effective date reads too much into the statute and ignores the Legislature's clear intent in subdivision (h)'s first sentence." (Id. at p. 52.) We agree with the reasoning of Ellis and Rajanayagam. Because the ambiguity cited by defendant has been properly resolved by statutory construction of section 4019, subdivision (h), the rule of lenity is not applicable.
DISPOSITION
The judgment is modified to reflect one additional day of actual presentence custody credit. As so modified, the judgment is affirmed. The trial court is directed to forward a certified copy of the amended abstract of judgment to the appropriate authorities.