Opinion
B271528
03-19-2018
THE PEOPLE, Plaintiff and Respondent, v. MANUEL TREJO, Defendant and Appellant.
Susan Morrow Maxwell, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr., and Daniel C. Chang, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA420112) APPEAL from a judgment of the Superior Court of Los Angeles County, Frederick N. Wapner, Judge. Remanded for resentencing; judgment of conviction otherwise affirmed. Susan Morrow Maxwell, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr., and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.
____________________
Defendant and appellant Manuel Trejo pleaded guilty to, among other things, second degree robbery and a firearm enhancement under Penal Code section 12022.53, subdivision (b). He was sentenced as a second striker, and the trial court imposed a sentence on the enhancement. Trejo appealed, contending only that the trial court misunderstood the scope of its discretion when denying his Romero motion. In an opinion filed September 11, 2017, we rejected that contention and affirmed the conviction. Trejo petitioned for review of our decision and also applied for leave to amend his petition to raise newly enacted Senate Bill No. 620, which was to take effect January 1, 2018 and which gives trial courts the discretion to strike certain firearm enhancements. The Supreme Court granted Trejo's application and petition for review and transferred the matter to this court "with directions to vacate [our] decision and reconsider the cause in light of S.B. 620 (Stats. 2017, ch. 682)."
All further undesignated statutory references are to the Penal Code.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
In accordance with that order, we vacate our September 11, 2017 opinion and reconsider the matter in light of the amended statute. On reconsideration, our decision regarding the Romero motion remains the same. However, we remand the cause for resentencing in light of Senate Bill No. 620.
BACKGROUND
The facts underlying Trejo's crimes are from the preliminary hearing.
Ana Cisneros worked at the Family Dollar Store. At approximately 6:15 p.m. on December 15, 2013, Trejo, wearing a scarf over his mouth and nose, was in the store. It being cold outside, Cisneros initially thought nothing of Trejo's attire. But, as Cisneros walked toward the cash registers, Trejo told Cisneros to "listen." He showed Cisneros something wrapped in a black stocking. Although Cisneros could see only a metal handle, it appeared to be a gun. Another witness, however, saw Trejo lift his shirt to reveal a gun. Trejo took $108 from a cash register. When Cisneros told Trejo she could not open another cash register without the code, he "backed away." Trejo took a handful of beef jerky before leaving.
Almost two hours later, Deputy Sheriff Eva Robles saw Trejo driving a car that had been connected to a domestic violence investigation. Robles activated her car's lights and sirens, but Trejo did not yield. Instead, Trejo's car continued through intersections and stop signs at approximately 40 miles per hour. Trejo's car crashed into a parked vehicle, but he continued on, eventually stopping. Robles found Jack Link's beef sticks in Trejo's car.
Based on these events, an information was filed alleging that Trejo committed count 1, second degree robbery (§ 211) with a gun (§ 12022.53, subd. (b)), and count 2, evading an officer, willful disregard (Veh. Code, § 2800.2, subd. (a)). The information alleged that Trejo had two prior second degree robbery convictions, the first from 1996 and the second from 2005, within the meaning of the "Three Strikes" law; three prior prison terms (§ 667.5, subd. (b)); and two prior convictions of a serious felony (§ 667, subd. (a)(1)). On May 19, 2015, Trejo pleaded guilty to the charges and admitted the allegations, including that he was convicted of two prior strikes.
At the April 11, 2016 sentencing hearing, defense counsel asked the trial court to strike one or both priors. Counsel argued that Trejo had been doing "really swell on parole from January through December" 2013, but Christmas was coming, "money was short" and Trejo "fell back and hit the pipe and in one night blew it."
When Trejo was arrested on these current charges, he had a methamphetamine pipe.
The trial court noted that Trejo seemed like a "decent enough guy" and had done exceptionally well on parole. The court said it "would like to do something for him, but I have to follow the law which says that I have to look at the nature and circumstances of the present offense, the nature and circumstances of the strikes, and his background, character, and prospects and make a determination as to whether he falls partially or wholly outside the scope of the Three-Strikes law. [¶] And I don't think he does." The court noted that although the age of the first strike (20 years) mitigated in favor of striking it, the circumstances of it (a codefendant's use of a gun, a shootout and a wounded victim) mitigated against striking it. During the second robbery, Trejo wore a mask and simulated using a gun, which caused the victim to stab Trejo. The court observed that "these are the kinds of things that happen when people walk around with masks and simulating guns." Trejo went to prison for that robbery, and, within 10 and one-half months of his release, he committed the current crimes. The court acknowledged that Trejo had a history of mental illness and although medication controlled it, "no doubt, that was a contributing factor to when things went south." "The problem is that his M.O. for dealing with things when things don't work out is to get a mask and a gun and people can get really, really hurt. [¶] And so I cannot, with a straight face, say that he falls even partially outside the scope of the Three-Strikes law." The court said it could not take its personal "view of what might be enough and substitute it for my judgment about whether he falls" outside the scope of the Three Strikes law.
The trial court therefore sentenced Trejo, on count 1, to 25 years to life plus 10 years for the gun enhancement (§ 12022.53, subd. (b)) plus two 5-year terms (§ 667, subd. (a)(1)). On count 2, the court sentenced Trejo to a consecutive term of eight months doubled to 16 months. The court, however, struck a one-year prior and stayed two 1-year priors (§ 667.5, subd. (b)). Trejo's total sentence was 46 years 4 months.
At the end of the sentencing hearing, defense counsel asked for clarification of the sentence on count 2. The court clarified that it was striking one of "the strikes as to count 2 only." After the hearing, the court issued an order nunc pro tunc "to reflect that count 2 is not a serious or violent felony and therefore the defendant cannot be sentenced to a third strike sentence as to that count. Accordingly, the order striking the strike as to count 2 is vacated. Both parties have been reached and have agreed."
DISCUSSION
I. Romero
Trejo contends that the trial court erred in believing its discretion was limited to factors in People v. Williams (1998) 17 Cal.4th 148 and "by not understanding" it could consider Trejo's "overall sentence" when ruling on the Romero motion. We disagree that the court misunderstood the scope of its discretion.
In the furtherance of justice, a trial court may strike or dismiss a prior conviction allegation. (§ 1385, subd. (a); Romero, supra, 13 Cal.4th at p. 504.) We review a court's ruling on a Romero motion under the deferential abuse of discretion standard; that is, the defendant must show that the sentencing decision was irrational or arbitrary. (People v. Carmony (2004) 33 Cal.4th 367, 375, 378.) It is not enough to show that reasonable people might disagree about whether to strike a prior conviction. (Id. at p. 378.) The Three Strikes law "not only establishes a sentencing norm, it carefully circumscribes the trial court's power to depart from this norm . . . . [T]he law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper." (Ibid.) Only extraordinary circumstances justify finding that a career criminal is outside the Three Strikes law. (Ibid.) Therefore, "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." (Ibid.)
When considering whether to strike prior conviction allegations, the factors a court considers are "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." (People v. Williams, supra, 17 Cal.4th at p. 161.) A court also has the discretion to dismiss a prior conviction allegation with respect to fewer than all counts. (People v. Johnson (2015) 61 Cal.4th 674, 689; People v. Garcia (1999) 20 Cal.4th 490.) Where the record affirmatively discloses that the sentencing court misunderstood the scope of its discretion, remand is required. (People v. Fuhrman (1997) 16 Cal.4th 930, 944.)
No such misunderstanding affirmatively appears on this record. Instead, in an attempt to show that the trial court did not understand it could consider Trejo's "overall sentence," Trejo isolates comments the court made. The court said, for example, that it wanted "to do something" for Trejo and suggested that a sentence of "32 years and four months at 85 percent" would be "probably enough." But when these comments are considered in the context of the entire sentencing hearing, it is clear the court properly understood the scope of its discretion. The court, for example, also said that "my view of what might be enough" was not a substitute for "my judgment about whether he falls" outside the Three Strikes law. (Italics added.) Thus, placing all comments in context shows that the court was merely expressing sympathy for Trejo. However, we decline to equate that expression of sympathy with a misunderstanding of the scope of the court's discretion. To the contrary, the court's recognition it should not be guided by personal sentiment shows a perfect understanding of the scope of its discretion. (See, e.g., Romero, supra, 13 Cal.4th at p. 531 [court may not strike sentencing allegation based solely on personal antipathy for effect the Three Strikes law would have on a defendant while ignoring Williams factors].)
The trial court showed that it understood the scope of its discretion when it explained why it was finding Trejo outside the scope of the Three Strikes law: Trejo's first robbery involved the use of a gun and injury to a victim, and he simulated the use of a gun during his second robbery, which caused the victim to use a knife to defend himself. Trejo committed the current offense about 10 and one-half months after release from prison on the second strike. During the current robbery, Trejo used a gun. Thus, Trejo's modus operandi "for dealing with things when things don't work out is to get a mask and a gun," which can lead to people getting "really, really hurt." Hence, the court found him to be a career criminal within the scope of the Three Strikes law. II. Senate Bill No. 620
When Trejo was originally sentenced in April 2016, the trial court lacked discretion to strike the enhancement found true under section 12022.53, subdivision (b). However, Trejo contends that he is entitled to the benefit of a new amendment to section 12022.53 giving trial courts discretion to strike an enhancement under that section. (§ 12022.53, subd. (h).) Newly amended section 12022.53, subdivision (h), which became effective January 1, 2018, provides: "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law."
As the People correctly concede, the amendment to section 12022.53 applies retroactively to cases, such as Trejo's, that were not final when the amendment became operative. (People v. Woods (2018) 19 Cal.App.5th 1080 [amendment to section 12022.53, subd. (h) is retroactive].) Under In re Estrada (1965) 63 Cal.2d 740, we presume that, absent contrary evidence, an amendment reducing punishment for a crime applies retroactively to all nonfinal judgments. (Id. at p. 745; People v. Brown (2012) 54 Cal.4th 314, 323; People v. Vieira (2005) 35 Cal.4th 264, 305-306 [judgment is not final for purposes of retroactivity analysis until time for petitioning United States Supreme Court has expired].) The Estrada rule has been applied to penalty enhancements, as well as to amendments giving the court discretion to impose a lesser penalty. (People v. Nasalga (1996) 12 Cal.4th 784, 792; People v. Francis (1969) 71 Cal.2d 66, 75-76.)
The People argue remand is unnecessary because the trial court, having refused to exercise its discretion to strike the prior strike, would not then exercise its discretion to strike the firearm enhancement. (See People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 [remand to consider striking a prior conviction pursuant to Romero unnecessary when the record demonstrated the court would not have exercised its discretion to impose a lesser sentence].) To the contrary, although the court, as we have explained, fully understood the scope of its discretion regarding the Romero motion, it commented it wanted to do "something" for Trejo. (See People v. Deloza (1998) 18 Cal.4th 585, 599-600 [remand for resentencing where trial court understood its discretion to strike a prior conviction under Three Strikes law and declined to do so, but did not understand it had discretion to impose concurrent rather than consecutive sentences].) Newly amended section 12022.53 gives the court that opportunity, if it chooses, to exercise its discretion. Whether it so chooses is wholly in the court's discretion, and we offer no opinion as to how its discretion should be exercised.
DISPOSITION
The judgment of conviction is affirmed but the sentence is vacated and the matter is remanded for resentencing in accordance with the views expressed in this opinion.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------
EDMON, P. J.
LAVIN, J.