Opinion
D076396
03-19-2020
THE PEOPLE, Plaintiff and Respondent, v. STEPHEN JOSEPH DRAGASITS, Defendant and Appellant.
Doris M. LeRoy, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers and Christopher P. Beesley, Deputy Attorneys General, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD233681) APPEAL from judgment of the Superior Court of San Diego County, Timothy R. Walsh, Affirmed. Doris M. LeRoy, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
This appeal is from a resentencing hearing to permit the trial court to exercise discretion to determine whether to strike a firearm enhancement under Penal Code section 12022.53. The court declined to strike or modify the enhancement and imposed the original sentence. Dragasits appeals contending the court abused its discretion in denying his request. As we will explain, we find the trial court acted well within the bounds of its discretionary power in denying the request.
All further statutory references are to the Penal Code unless otherwise specified. --------
FACTS AND PROCEDURAL BACKGROUND
In 2013, a jury convicted Stephen Joseph Dragasits of shooting at occupied vehicles (§ 246) and assault with a firearm (§ 245, subd. (a)(2)). The jury found he personally discharged a firearm causing injury (§ 12022.53, subd. (d)) and personally caused great bodily injury (§ 12022.7, subd. (a)).
Dragasits was originally sentenced to a determinate term of 11 years four months, consecutive to a 25 year-to-life term for the discharge of the firearm.
Dragasits appealed. We affirmed his convictions; however, while the matter was pending review by our Supreme Court, Senate Bill No. 620 passed granting trial courts the power to strike firearm enhancements under section 12022.53 in the furtherance of justice. The case was remanded for resentencing. (People v. Dragasits (Oct. 2, 2018, D064288) [nonpub. opn.].)
The original trial judge retired while this case was pending on the first appeal. Judge Walsh was assigned to handle the resentencing. Prior to the hearing, Judge Walsh reviewed the trial transcripts, all of the previous motions, and this court's earlier opinion. After hearing argument, the court found the original sentence to be appropriate and imposed the same sentence again.
The facts of the underlying offense are set forth in our previous opinion. We will not repeat them here. (People v. Dragasits, supra, D064288.) We will adopt the People's summary of those facts to provide context for our discussion.
In February 2011, Dragasits threw rocks onto State Route 163 from a motorhome parked on a road next to the freeway. One rock hit a vehicle traveling on the freeway, knocking off one of the mirrors. Police arrested Dragasits in connection with the incident and took a buccal swab to collect his DNA incident to the arrest.
In April 2011, Dragasits fired at least 11 rounds of a .22 caliber rifle at passing cars driving southbound on State Route 163. Two of the bullets hit cars, one of which pierced the side of a victim. A third bullet struck a building across the freeway. A dash camera picture captured and some witnesses saw Dragasits's motorhome parked in the area where the gun shots were heard. Officers recovered 11 shell casings along the side of the freeway and submitted them for analysis. DNA on the shell casings matched Dragasits's DNA and so police arrested him in connection with the freeway shootings.
DISCUSSION
In ruling on the defense request to strike the firearm enhancement, the court stated in part:
"I glean from that that these were not random shots. These were almost professional-type of shots being aimed at moving vehicles occupied by individuals, in my Court's mind—this Court's mind,
demonstrating probably as callous a violent crime as there might be. I mean, these are individuals he doesn't know who were making their way to school, making their way to work, actually physically at their workplace, with bullets lodging in them, in their cars and buildings where they work. [¶] . . . [¶]
" . . . this isn't the first time the defendant has engaged in conduct putting in jeopardy people operating motor vehicles. . . .
"And it's those things taken together that cause me to believe that no action should be taken. The interest of justice does not support the Court striking Penal Code Section 12022.5[, subdivision] (a) and does not support the Court striking Penal Code Section 12022.53[, subdivision] (d), which imposes the 25-years-to-life term. I do believe the defendant's actions not only terrified those directly . . . but every person that heard about this while it was being investigated and drove on the highway not knowing whether or not this person had been apprehended."
A. Legal Principles
Senate Bill No. 620 changed the law regarding the trial court's ability to exercise its discretion to strike a firearm enhancement under section 12022.53. Previously courts had no such discretion. Senate Bill No. 620 amended the code to permit courts to strike such enhancements in the furtherance of justice under section 1385. (People v. Billingsley (2018) 22 Cal.App.5th 1076, 1079-1080; People v. Robbins (2018) 19 Cal.App.5th 660, 678.)
A trial court's decision to grant or deny a motion to strike or dismiss under section 1385 are reviewed for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 374; Cal. Rules of Court, rule 4.423(b)). In such cases, the court must consider the interests of the defendant as well as the interest of protection of society. Where a court consider dismissal " 'At the very least, the reason for dismissal must be "that which would motivate a reasonable judge." [Citations.]' " (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530-531.)
B. Analysis
The trial court was fully aware of the facts of the offenses, the harm to the victim, and the danger to the public by Dragasits's earlier action of throwing rocks at cars driving on the freeway as well as the current acts of firing at least eleven rounds at cars traveling down the same road. The court also was aware of Dragasits's age, prior military service, subsequent civilian employment, and limited criminal history.
The victim in this case suffered life-threatening injuries. Dragasits's continued violence toward motorists and his recent escalation of violence by the discharge of a firearm eleven times at innocent motorists amply justifies the court's exercise of discretion.
Dragasits argues that given his age, the imposition of a determinate term sentence would adequately protect the public and would be a fairer sentence. Perhaps another judge might agree with that argument. The possibility that another judge might reach a different result does not indicate this trial judge abused his discretion. (People v. Willover (2016) 248 Cal.App.4th 302, 323.)
Our review of the record demonstrates a careful, well informed trial judge appropriately exercised his discretion. There is nothing in the record to support a finding of abuse of the broad sentencing discretion afforded to trial judges.
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J. WE CONCUR: O'ROURKE, J. AARON, J.