Opinion
F086456
10-08-2024
THE PEOPLE, Plaintiff and Respondent, v. LARRY GENE FISHER, Defendant and Appellant.
Richard Oberto, 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, Julie A. Hokans and Jeffrey A. White, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. No. MF015077A David R. Zulfa, Judge.
Richard Oberto, 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, Julie A. Hokans and Jeffrey A. White, Deputy Attorneys General, for Plaintiff and Respondent.
HILL, P. J.
Appellant Larry Gene Fisher appeals from aspects of his sentencing following his conviction for assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1); count 2) with an enhancement for causing great bodily injury (§ 12022.7, subd. (a)), battery with serious bodily injury (§ 243, subd. (d); count 6) with an enhancement for use of a deadly weapon (§ 12022, subd. (b)(1)), and additional enhancements for suffering a prior strike conviction under the "Three Strikes" law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and two prior serious felony convictions (§ 667, subd. (a)). Appellant contends the court erred by not explicitly considering factors enumerated under section 1385 that could have supported dismissing one or more of the enhancements underlying his sentence. For the reasons set forth below, we affirm.
Undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
As this case focuses upon issues arising at sentencing, we only briefly outline the underlying facts of the case before focusing on the sentencing.
In August 2022, appellant drove his girlfriend to work using her car. Appellant had apparently been agitated that day and eventually expressed beliefs that his girlfriend was being harassed at work and was romantically involved with another person at the office. Appellant's girlfriend denied these claims.
Appellant brought a small baseball bat with him into the office and used it to strike another employee. Appellant left his girlfriend at her work and drove away. He was apprehended shortly thereafter. The employee he struck suffered a cut on his head, became lightheaded, and was eventually transported to the hospital.
Appellant was charged with a host of offenses, with the top offense being attempted murder. He proceeded to trial where the jury found him guilty of some offenses and not guilty of several others and additional offenses were willingly dismissed. He was ultimately convicted of counts 2 and 6 as noted above, along with a misdemeanor for possession of methamphetamine (Health &Saf. Code, § 11377, subd. (a); count 8). In a bifurcated court trial, the court found appellant had suffered three prior strike convictions under the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and three prior serious felony convictions (§ 667, subd. (a)). The court also found that the evidence demonstrated certain aggravating factors were proven true for one or more of the charges.
In April 2023, prior to sentencing, appellant moved under section 1385, subdivision (a) and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 to have his prior felony convictions under the Three Strikes law struck from consideration. Appellant did not raise any arguments relating to section 1385, subdivision (c) in the same filing. Prior to sentencing, the court agreed to strike two of the prior strike convictions it had previously found true and one of the enhancements under section 667, subdivision (a). The court found this appropriate because it would retain a potential 21-year sentence that provided "an opportunity to impose the significant prison sentence as well as take[] into consideration the factors related to what is appropriate and what is within the Court's discretion."
The court next heard comments from appellant, a witness on his behalf, and argument from counsel. During these arguments, no discussion of section 1385, subdivision (c) occurred. The court then proceeded to sentencing. In doing so, the court explained that it had noticed changes in appellant's behavior which showed a change in attitude but noted it could not "overlook the serious public safety impact that action like this can have if it goes without serious consequence." The court reviewed factors in mitigation and aggravation, as well as appellant's suitability for probation. The court concluded that despite "repeated attempts at both the state and local level to deter additional criminal activity and encourage law abiding behavior, [appellant] has failed to reform and poses a legitimate risk to the community; therefore a State prison sentence is necessary and justified."
Based on this analysis, the court stated, "After review of the fact as referenced in the evaluation of [sic] section of this report, the upper term for Counts Two and Six is warranted. [¶] And for anyone that looks at that in the future, the Court has considered all of its discretion in exercise-in imposing this sentence including its discretion under the Romero line of cases and any other statutorily warranted discretionary considerations. I want to be very clear on the record about that." (Italics added.) For count 2, the court sentenced appellant to "the upper term of eight years; said sentence[] is to be enhanced by three years pursuant to Section 12022.7[, subdivision (a)] of the Penal Code; said sentence is further enhanced by ten years pursuant to two Section[] 667[, subdivision (a)] Penal Code priors for a total fixed term of 21 years." The court made similar findings for count 6, resulting in a 19-year sentence, but stayed that term pursuant to section 654 and imposed a one-year concurrent sentence for the misdemeanor (count 8). No objections were raised by counsel at this time, although counsel did seek clarification regarding which offenses had been struck.
This appeal timely followed.
DISCUSSION
Appellant claims the trial court failed to consider certain factors supporting dismissal of the enhancements affecting appellant's sentence disclosed in section 1385 in violation of his due process rights. The People contend that this claim has been forfeited, but further note that due process does not require an oral consideration of the relevant factors.
Standard of Review and Applicable Law
"Effective January 1, 2022, Senate Bill No. 81 [(2021-2022 Reg. Sess.)] amended section 1385 to add subdivision (c), which states: '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.' (§ 1385, subd. (c)(1), amended by Stats. 2021, ch. 721, § 1.) In exercising its discretion, '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.' (§ 1385, subd. (c)(2).)" (People v. Coleman (2024) 98 Cal.App.5th 709, 723-724.) Appellant contends at least three of these circumstances apply to this case: (1) "[m]ultiple enhancements are alleged in a single case" (§ 1385, subd. (c)(2)(B)); (2) "[t]he application of an enhancement could result in a sentence of over 20 years" (§ 1385, subd. (c)(2)(C)); and (3) "[t]he enhancement is based on a prior conviction that is over five years old" (§ 1385, subd. (c)(2)(H)). In applying the statute, a trial court retains its discretion, absent a finding that dismissal would endanger public safety, to impose or dismiss enhancements provided that it assigns significant value to the enumerated mitigating circumstances when they are present. (People v. Walker (2024) 16 Cal.5th 1024, 1029.)
"Under section 1385, a defendant 'ha[s] the right to "invite the court to exercise its power by an application to strike a count or allegation of an accusatory pleading" .... [Citation.] However, 'any failure on the part of a defendant to invite the court to dismiss under section 1385 . waives or forfeits his right to raise the issue on appeal.'" (People v. Coleman, supra, 98 Cal.App.5th at p. 724, second bracketed insertion added.)" 'A party in a criminal case may not, on appeal, raise "claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices" if the party did not object to the sentence at trial. [Citation.] The rule applies to "cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons .." '" (People v. Scott (2015) 61 Cal.4th 363, 406.) If the issue is not forfeited, we review any decision to impose sentencing enhancements for an abuse of discretion. (People v. Mendoza (2023) 88 Cal.App.5th 287, 298.)
Appellant Has Forfeited the Claimed Error
Appellant argues the trial court violated his due process rights by failing to explicitly consider the three factors under section 1385, subdivision (c) that appellant contends apply to his sentence. We conclude this argument has been forfeited.
Despite raising issues under section 1385, subdivision (a) and engaging the court extensively regarding the request to dismiss certain strike convictions appellant previously suffered, appellant raised no additional arguments that further reductions in his sentence were appropriate under section 1385, subdivision (c). Nevertheless, the court provided no indication that it had failed to review or consider additional reasons to strike enhancements from appellant's sentence. Rather, the court indicated that it had reviewed appellant's prior strike convictions, the recommended sentence based on those strikes and the enhancements, and all of its discretion, including both that raised by appellant "and any other statutorily warranted discretionary considerations." Further, the court expressly found sufficient factors in aggravation to warrant the upper term sentence. Based on this, the court expressly determined a "significant prison sentence" of up to 21 years was appropriate taking into consideration relevant factors. As part of this review, the court recognized appellant's apparent change in behaviors but found it could not "overlook the serious public safety impact" appellant's conduct could have if not subject to serious consequences.
The record is thus far from implying that the trial court was unaware of its authority under section 1385, subdivision (c) or that it failed to consider the relevant factors when determining which enhancements to strike when formulating an appropriate sentence within its discretionary range. In light of the strong record demonstrating the court weighed how best to reach an appropriate sentence range, the failure to object clearly supports forfeiture.
That the trial court did not expressly state and consider each potentially applicable mitigating circumstance on the record does not indicate the court misunderstood its discretion. Nothing in section 1385 requires the court to articulate each mitigating factor it considers during sentencing. In fact, the statute only expressly requires placing its reasoning on the record when it dismisses an action under subdivision (a), as it did in this case. And the relevant statutory discretion had been in place since 2022, well before appellant was even charged in this matter. As nothing in the record"' "affirmatively demonstrate[s] that the trial court misunderstood its sentencing discretion" '" (People v. Fredrickson (2023) 90 Cal.App.5th 984, 988), we must "presume that the trial court knew and applied the governing law" (People v. Gutierrez (2014) 58 Cal.4th 1354, 1390). Appellant was thus obligated to raise any issues regarding the court's discretionary decisions or related due process concerns to preserve his claim. Having failed to do so, appellant has forfeited any claimed error.
DISPOSITION
The judgment is affirmed.
WE CONCUR: DETJEN, J., SNAUFFER, J.