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People v. Angel Mike Chapa

California Court of Appeals, Fifth District
Jun 6, 2023
No. F084263 (Cal. Ct. App. Jun. 6, 2023)

Opinion

F084263

06-06-2023

THE PEOPLE, Plaintiff and Respondent, v. ANGEL MIKE CHAPA, Defendant and Appellant.

Kendall Dawson Wasley, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez, Kari Mueller, and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Tulare County No. PCF323529. Antonio A. Reyes, Judge.

Kendall Dawson Wasley, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez, Kari Mueller, and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

THE COURT[*]

INTRODUCTION

On January 1, 2022, Senate Bill No. 81 (2021-2022 Reg. Sess.) (Senate Bill No. 81) went into effect, amending Penal Code section 1385 to require dismissal of eligible enhancements where certain mitigating circumstances are present, "if it is in the furtherance of justice to do so." (Id., subd. (c)(1).) As relevant here, one of the enumerated circumstances provides that where "application of an enhancement could result in a sentence of over 20 years.the enhancement shall be dismissed." (Id., subd. (c)(2)(C), italics added.)

All further undefined statutory citations are to the Penal Code unless otherwise indicated.

Mike Angel Chapa, now appealing for the third time, contends that pursuant to the "shall be dismissed" language within section 1385, subdivision (c)(2)(C), dismissal of an enhancement resulting in a potential sentence of over 20 years is mandatory, even where the court finds that dismissal would endanger the public safety. As a result, Chapa argues the trial court erred by failing to dismiss a section 12022.53, subdivision (b) gun use enhancement applied to his sentence. In the alternative, he contends the trial court erred by failing to find that dismissal of the enhancement was not warranted because it would endanger public safety.

We conclude that the phrase "shall be dismissed" within subdivision (c)(2)(C) of section 1385, does not compel dismissal of an enhancement where its application could result in a sentence of over 20 years, if dismissal would endanger public safety. The trial court was therefore not required to dismiss the gun use enhancement here, the application of which resulted in a prison sentence of over 20 years. Insofar as Chapa contends the trial court failed to make required findings in declining to dismiss the enhancement, the record shows otherwise. We therefore affirm.

PROCEDURAL HISTORY

In 2016, Chapa was convicted by jury of attempted murder (§§ 664/187, count 1), assault with a firearm (§ 245, subd. (a)(2), count 2), attempted second degree robbery (§§ 664/211, count 3), and felon in possession of a firearm (§ 29800, count 4). The jury also found true firearm enhancement allegations. (§ 12022.5, subd. (a)(1), count 2;

§ 12022.53, subd. (b), counts 1, 3, &4.) In addition, the court found true prior conviction allegations based upon the fact that Chapa had suffered a prior serious felony conviction and a prior strike conviction. (§§ 667, subd. (a)(1), 667, subds. (b)-(i), 1170.12, subds. (a)-(d).)

In 2019, a majority of this court reversed Chapa's conviction for assault with a firearm for insufficient evidence. Additionally, based upon the enactment of new legislation, this court concluded that Chapa was entitled to a resentencing hearing. We vacated Chapa's sentence and remanded the case back to the lower court for this purpose. (See People v. Chapa (Jan. 14, 2019, F075097) [nonpub. opn.] (Chapa I).)

In 2021, on review from his second appeal, this court vacated Chapa's sentence again. We concluded that the record failed to show that Chapa had knowingly, voluntarily, and intelligently waived his right to be present at the resentencing hearing. We further concluded that the trial court had stayed the sentence on Chapa's gun use enhancement (§ 12022.53, subd. (b)) based upon an erroneous interpretation of our prior opinion. (See People v. Chapa (Jun. 16, 2021, F080211) [nonpub. opn.] (Chapa II).)

In 2022, Chapa was resentenced. The trial court imposed an aggregate prison term of 24 years, which included a 10-year determinate term for the firearm use enhancement (§ 12022.53, subd. (b)) applied to his conviction for attempted murder. The court stayed the prior serious felony enhancement.

Chapa filed a timely notice of appeal.

STATEMENT OF FACTS

The Underlying Offense

We summarize the facts underlying Chapa's conviction as they are not directly relevant to the issues on appeal. A full recitation of the facts underlying Chapa's criminal conviction is recited in this court's unpublished opinion in Chapa I, supra, F075097.

In 2015, Chapa ran into a store, pointed a gun at the cashier, and demanded money from the cashier's pocket. When the cashier told Chapa that he would open the cash register for Chapa to take money from the register, Chapa pulled the gun's trigger. The gun did not fire.

The cashier repeated that he would open the cash register so that Chapa could take money from it. Chapa repeated," 'Give me money from your pocket.'" The cashier did not comply, and Chapa pulled the gun's trigger again. The gun failed to fire.

Chapa demanded,"' "Give me the money" '" and pulled the trigger a third time. The gun failed to fire a third time. Chapa fled in the passenger's seat of a vehicle waiting outside.

The Resentencing Hearing

The parties submitted sentencing briefs to the court in advance of Chapa's resentencing hearing. In his brief, trial counsel explained that dismissal of the gun use enhancement and the prior serious felony conviction enhancement were required under amended section 1385 if dismissal would be in the interest of justice. Trial counsel cited several mitigating factors in support of his assertion that the enhancements should be dismissed, including: the fact that application of the enhancements would result in a prison sentence of over 20 years (see § 1385, subd. (c)(2)(C)), the age of Chapa's prior serious felony conviction (see id., subd. (c)(2)(H)), and the fact that the gun used in the robbery was inoperable (see id., subd. (c)(2)(I)). Trial counsel further alleged that the current offense was connected to Chapa's childhood trauma (see id., subd. (c)(2)(E)).

In her brief, the prosecutor argued that dismissal of the enhancements would not be in the "interests of justice," and that it would endanger public safety. According to the prosecutor, Chapa had used a firearm to commit robberies in 2005 and 2015, and he had an extensive criminal history in between these offenses. The prosecutor further asserted there was no evidence that any childhood trauma Chapa may have suffered was connected to the current offense.

At the sentencing hearing, the prosecutor repeated her assertion that dismissal of the enhancements would endanger public safety (see § 1385, subd. (c)(2)), explaining:

"[THE PROSECUTOR]: When this defendant wants money and doesn't have it, then he goes after what he thinks is easy, which is targeting victims who are vulnerable, isolated, alone and unarmed. And then he robs them. And the fact that he's done self-help while he's been in prison, as the defense's moving papers state, does not negate the overarching complaint of Penal Code Section 1385(c)(2), which says that if a defendant is dangerous to society, if he poses a dangerousness, a threat, that that is the overarching rule that is supposed to be applicable to any kind of consideration by the Court of whether or not to strike any allegations. And this defendant has a proven track record.

[¶....¶]

"[W]hen you look at the enhancement within Penal Code Section 12022.53, the gun allegation, which gives the Court the discretion as to whether or not to impose that, that goes back to Penal Code Section 1385(c) in this case, which says that it has to be in the interest of justice for the Court to dismiss or not impose any of the allegations. And it also has to be something that is not going to place the community in danger. Here the defendant is a danger. There is no amount of events that he's been able to do while incarcerated that give us a real proper sampling of what would happen on the outside."

After further argument by the parties, the trial court made the following relevant comments:

"[THE COURT]: When you look at the factors for the Court to consider why, even considering the Romero motion or Romero issues, the factors consider the nature of the current offense is a less serious other felony. It's just as serious, if not more. The current offense, is it a violent or serious felony? Obviously, it is. The facts and circumstances of the current offense technically, to me, indicate a greater degree of danger to society. There was no physical injury, but there was definitely a threat of injury. There obviously was a weapon used.

"[Chapa] was not a passive participant. He was actively involved. He's the one that entered the store with the gun and made the threat. I don't see how his conduct was excusable in any way, shape, or form. So using those factors, I just don't see any reason for me to consider striking the strike. And I don't see any reason for me to consider -- I understand life is tough. You grow up in a certain family. Things happen in the felony. I acknowledge that. Mr. Chapa, but it doesn't justify the violent crime that you committed. That's why you're here. [¶ ] Now, I do acknowledge the significant things you've done since your conviction.... [But,] [b]ased on all the factors that I've set out, I'm gonna choose the midterm of 14 years as to Count 1. There was a gun used. The gun imposed a threat to the victim. I choose to impose the 12022.5[3] for ten years. So that's 24 years."

ANALYSIS

I. The Trial Court Was Not Required to Dismiss the Gun Use Enhancement

Chapa contends the gun use enhancement applied to his sentence must be stricken following the enactment of Senate Bill No. 81. Chapa was sentenced to an aggregate term of 24 years in state prison, 10 of which was based upon a section 12022.53 gun use enhancement. He submits that under newly added subdivision (c)(2)(C) of section 1385, the trial court was required to dismiss this enhancement because it resulted in a prison sentence of over 20 years.

Other California courts have unanimously rejected this same argument in interpreting the" 'shall be dismissed'" language of subdivision (c)(2)(B) and (c)(2)(C) of amended section 1385. (See People v. Mendoza (2023) 88 Cal.App.5th 287, 294-297;

People v. Anderson (2023) 88 Cal.App.5th 233, 239, review granted Apr. 19, 2023, S278786; People v. Lipscomb (2022) 87 Cal.App.5th 9, 15-21; People v. Walker (2022) 86 Cal.App.5th 386, 396-398, review granted Mar. 22, 2023, S278309.) Consistent with our colleagues' decisions, we reject Chapa's assertion that the trial court was required to dismiss his firearm use enhancement under subdivision (c)(2)(C) of section 1385.

Dismissal of an enhancement which would result in a possible prison sentence of over 20 years is not required where dismissal would endanger the public safety, which is consistent with the trial court's findings below.

A. Senate Bill No. 81 and Amended Section 1385

On January 1, 2022, Senate Bill No. 81 went into effect, amending section 1385 to add subdivision (c). (Stats. 2021, ch. 721.) Subdivision (c) provides the following, in relevant 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. 'Endanger public safety' means there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others.

[¶....¶]

"(B) Multiple enhancements are alleged in a single case. In this instance, all enhancements beyond a single enhancement shall be dismissed.

"(C) The application of an enhancement could result in a sentence of over 20 years. In this instance, the enhancement shall be dismissed."

[¶...¶]

"(4) The circumstances listed in paragraph (2) are not exclusive and the court maintains authority to dismiss or strike an enhancement in accordance with subdivision (a)."

B. Analysis

"' "Our fundamental task in construing" ... any legislative enactment, "is to ascertain the intent of the lawmakers so as to effectuate the purpose of the statute." [Citation.] We begin as always with the statute's actual words, the "most reliable indicator" of legislative intent, "assigning them their usual and ordinary meanings, and construing them in context. If the words themselves are not ambiguous, we presume the Legislature meant what it said, and the statute's plain meaning governs. On the other hand, if the language allows more than one reasonable construction, we may look to such aids as the legislative history of the measure and maxims of statutory construction. In cases of uncertain meaning, we may also consider the consequences of a particular interpretation, including its impact on public policy." '" (People v. Adams (2018) 28 Cal.App.5th 170, citing Even Zohar Construction &Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 837-838.)

Beginning with the plain language of subdivision (c)(1) of section 1385, the statute provides that the trial court "shall" dismiss an enhancement "if it is in the furtherance of justice to do so." The following subdivision, (c)(2), refers to nine mitigating circumstances for the trial court to consider in making this determination. (See § 1385, subd. (c)(2)(A)-(I).) Subdivision (c)(2) specifies that proof of any of the enumerated mitigating 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), italics added.) Thus, dismissal is clearly conditioned upon a finding that it would not endanger the public safety.

Section 1385, subdivision (c)(2)(B) and (C) both explicitly command that an enhancement "shall be dismissed" where "[m]ultiple enhancements are alleged in a single case," (id., subd. (c)(2)(B)) or if "[t]he application of an enhancement could result in a sentence of over 20 years" (id., subd. (C)). However, the presence of these circumstances do not override the public safety exception.

Dismissal of an enhancement is only appropriate if the court finds "it is in the furtherance of justice." (§ 1385, subd. (c)(1).) Clearly, it would not further the interests of justice to dismiss an enhancement if dismissal would endanger the public safety. (§ 1385, subd. (c)(1) &(2).) Under such circumstances, "dismissal would not be authorized, let alone required." (People v. Mendoza, supra, 88 Cal.App.5th at p. 297, fn. 6.) Thus, notwithstanding the mandatory dismissal language in subdivision (c)(2)(B) and (C) of section 1385, dismissal of an enhancement is not required if it would endanger the public safety.

When the language of a statute is clear and unambiguous, the court need not turn to extrinsic sources to discern the Legislature's intent. (Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th 911, 919.) Nonetheless, our interpretation is consistent with the legislative materials preceding the enactment of Senate Bill No. 81.

A prior version of Senate Bill No. 81, amended in the Senate on February 8, 2021, stated that "the court shall dismiss an enhancement upon finding any of the following circumstances to be true," including where "[m]ultiple enhancements are alleged in a single case or the total sentence is over 20 years." (Senate Bill No. 81 (2021-2022 Reg. Sess.).) However, even this version of the statute preserved a judge's discretion to impose an enhancement where public safety concerns prevail. The language of the proposed statute provided: "[t]he court may decline to dismiss a charged sentencing enhancement ... upon a showing by clear and convincing evidence that dismissal of an enhancement would endanger public safety." (Ibid.)

A report from the Senate Committee on Public Safety is replete with references to the fact that Senate Bill No. 81 was intended to provide the trial court with guidance with factors it should consider in determining whether an enhancement should be stricken or imposed. (Sen. Com. on Public Safety, Analysis of Sen. Bill. No. 81 (2021-2022 Reg. Sess.), March 15, 2021, at pp. 1-3, 5.) This report also states that Senate Bill No. 81 was based, in part, on reforms recommended by the Committee on the Revision of the Penal Code (Committee). The report states that the Committee recommended that "judges should retain authority to impose sentence enhancements in appropriate cases. The Committee's recommendation leaves to judges the authority to impose sentence enhancements to protect public safety." (Id. at p. 4.)

Subsequently, an amendment was made to Senate Bill No. 81 in the Assembly on August 30, 2021 to "[r]emove the presumption that it is in the interests of justice to dismiss an enhancement when specified circumstances are found to be true and instead provides that the court shall, in exercising its discretion to dismiss an enhancement in the interests of justice, consider and afford great weight to evidence of those specified circumstances." (Sen. Rules Com., Off. of Sen. Floor Analyses, Unfinished Business on Sen. Bill No. 81 (2021-2022 Reg. Sess.), as amended Aug. 30, 2021, p. 2.) This version of Senate Bill No. 81 is the version that is currently in effect.

In a September 8, 2021 Office of Senate Floor Analyses, the author of Senate Bill No. 81, Senator Nancy Skinner, clarified that Senate Bill No. 81 was intended to preserve a judge's authority to impose an enhancement where doing so would protect the public safety. Senator Skinner explained, "SB 81 codifies a recommendation developed with the input of the judges who serve on the Committee on the Revision of the Penal Code for the purpose of improving fairness in sentencing while retaining a judge's authority to apply an enhancement to protect public safety." (Sen. Rules Com., Off. of Sen. Floor Analyses, Unfinished Business on Sen. Bill No. 81 (2021-2022 Reg. Sess.), prepared Sept. 8, 2021, p. 5.)

Senator Skinner also submitted a letter for placement in the Senate Daily Journal clarifying her intent in drafting Senate Bill No. 81, which was attached to the Attorney General's appellate brief. The letter, dated September 10, 2021, states that the August 30, 2021 amendment removed the presumption that the court must dismiss an enhancement if certain mitigating circumstances are present, and instead requires the court to place great weight on the presence of mitigating circumstances. Senator Skinner explained, "The retention of the word 'shall' in Penal Code § 1385(c)(3)(B) and (C) should not be read as a retention of the previous presumption language - the judge's discretion is preserved in Penal Code § 1385(c)(2) ." (Sen. Skinner, author of Sen. Bill No. 81 (2021-2022 Reg. Sess.), letter to Secretary of the Senate, Sept. 10, 2021.)

Section 1385, subdivision (c)(3)(B) and (C) were subsequently renumbered and now appear as subdivision (c)(2)(B) and (C).

We acknowledge that "the statements of an individual legislator, including the author of a bill, are generally not considered in construing a statute, as the court's task is to ascertain the intent of the Legislature as a whole in adopting a piece of legislation." (Quintano v. Mercury Casualty Co. (1995) 11 Cal.4th 1049, 1062.) This is particularly true here because Senator Skinner's letter is dated the day after Senate Bill No. 81 had been passed in the Senate. However, because Senator Skinner's intent is reflected in the clear and unambiguous language of the statute, it is logical to presume that the Legislature shared her intent in passing Senate Bill No. 81.

Focusing on the "shall be dismissed" language within subdivision (c)(2)(B) and (C) of section 1385, Chapa insists that dismissal under the circumstances set forth within these subdivisions is compulsory, regardless of public safety concerns. However, we do not read statutory language in isolation. (See People v. Cole (2006) 38 Cal.4th 964, 975

["we look to the entire substance of the statutes in order to determine their scope and purposes"], accord, People v. Rizo (2000) 22 Cal.4th 681, 685; People v. Peyton (2022) 81 Cal.App.5th 784, 800.) Considering subdivision (c)(2)(B) and (C) of section 1385 "in the context of [its] statutory frame work as a whole" (People v. Cole, supra, 38 Cal.4th at p. 975), amended section 1385 makes clear that where these mitigating circumstances are present, the court "shall" dismiss an enhancement unless dismissal would endanger the public safety.

Chapa further contends the mandatory language of dismissal within subdivision (c)(2)(B) and (C) of section 1385 must be given effect to avoid surplusage. We find his argument unpersuasive for two reasons.

First, contrary to Chapa's assertion, it is possible to give effect to all provisions within amended section 1385, without rendering the "shall be dismissed" language in subdivision (c)(2)(B) and (C) surplusage. As our colleges in the Fourth District, Division 2, Court of Appeal explained in People v. Mendoza, "if the court does not find that dismissal of the enhancement would endanger public safety, then the court must dismiss any enhancement that 'could result in a sentence of over 20 years' (§ 1385(c)(2)(C)) or 'all enhancements beyond a single enhancement' when multiple enhancements are proven (§ 1385(c)(2)(B))." The seven other mitigating circumstances (see § 1385, subd. (c)(2)(A), (D)-(I)), if proven, "weigh 'greatly in favor of dismissing the enhancement' (§ 1385(c)(2)), but the court is not required to dismiss the enhancement if the court otherwise concludes that dismissal is not 'in the furtherance of justice' (§ 1385(c)(1))." (People v. Mendoza, supra, 88 Cal.App.5th at p. 297, fn. 6.) In our view, this is a reasonable interpretation of the statute that would avoid surplusage.

Second, even assuming our interpretation of amended section 1385 rendered the "shall be dismissed" language in subdivision (c)(2)(B) and (C) surplusage, the rule against surplusage is merely an interpretive aide. It"' "is not an inexorable command to override common sense and evident statutory purpose." '" (People v. Anderson (1987) 43 Cal.3d 1104, 1145-1146.) Generally speaking, the "[c]anons of statutory construction may assist courts in ascertaining legislative intent. [Citation.] 'But it is well established that "canons of statutory construction are merely aids to ascertaining probable legislative intent"' and are not to be' "applied so as to defeat the underlying legislative intent otherwise determined." '" (People v. Superior Court (Ortiz) (2022) 81 Cal.App.5th 851, 862.)

" '" 'No single canon of statutory construction is an infallible guide to correct interpretation in all circumstances.'" '" (People v. Superior Court (Ortiz), supra, 81 Cal.App.5th at p. 862.) Thus, "[a]lthough 'a construction that renders part of a statute to be surplusage should be avoided [citation], this rule is not absolute and "the rule against surplusage will be applied only if it results in a reasonable reading of the legislation" [citation].'" (MCI Communications Services, Inc. v. California Dept. of Tax &Fee Administration (2018) 28 Cal.App.5th 635, 650, citing Park Medical Pharmacy v. San Diego Orthopedic Associates Medical Group, Inc. (2002) 99 Cal.App.4th 247, 254, fn. 5.)

Chapa's interpretation of the "shall be dismissed" language in section 1385, subdivision (c)(2)(B) and (C) is not a reasonable reading of the statute. Under Chapa's interpretation, any enhancement resulting in a possible total sentence of over 20 years, would be struck down regardless of public safety concerns. The implications of this would be profound. If this is what the Legislature truly had intended, we think it would have stated its intention without ambiguity.

II. The Trial Court's Findings Supporting its Sentencing Decision

In a supplemental brief, Chapa contends the trial court did not make a finding that dismissal of the gun use enhancement would endanger public safety. The record shows otherwise.

At sentencing, the trial court acknowledged that it had read the parties' briefs, both of which had thoroughly discussed the application of Senate Bill No. 81. In addition, the prosecutor explicitly argued that dismissal of the enhancement would not be in furtherance of justice and would endanger public safety.

In explaining its sentencing decision, the trial court stated, "The facts and circumstances of the current offense technically, to me, indicate a greater degree of danger to society. There was no physical injury, but there was definitely a threat of injury. There obviously was a weapon used." We interpret the court's statement to mean that it had found dismissal of the enhancement would endanger public safety under the standard set forth in amended section 1385. (§ 1385, subd. (c)(2).) Contrary to Chapa's implied assertion, a talismanic incantation of the standard set forth under amended section 1385 is not required.

Chapa does not assert that the trial court abused its discretion by determining that dismissal of the firearm enhancement would endanger public safety. He merely argues the trial court failed to make these findings, and as a result, dismissal of the enhancement was required. We reject his assertion.

DISPOSITION

The judgment is affirmed.

[*] Before Detjen, Acting P. J., Franson, J. and Smith, J.


Summaries of

People v. Angel Mike Chapa

California Court of Appeals, Fifth District
Jun 6, 2023
No. F084263 (Cal. Ct. App. Jun. 6, 2023)
Case details for

People v. Angel Mike Chapa

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ANGEL MIKE CHAPA, Defendant and…

Court:California Court of Appeals, Fifth District

Date published: Jun 6, 2023

Citations

No. F084263 (Cal. Ct. App. Jun. 6, 2023)