Opinion
F086248
10-24-2024
THE PEOPLE, Plaintiff and Respondent, v. KENDERICK CHARLES GRACE, Defendant and Appellant.
Toni White, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Merced County. No. 18CR-00795 Jennifer O. Trimble, Judge.
Toni White, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
OPINION
THE COURT [*]
INTRODUCTION
In 2018, appellant and defendant Kenderick Charles Grace (appellant) pleaded no contest to robbery and burglary and admitted prior conviction allegations, for a negotiated disposition of 11 years four months. In 2023, the trial court recalled that sentence and resentenced appellant to dismiss the prior prison term enhancement, denied his motion to further reduce his sentence, and imposed an aggregate term of 10 years four months.
On appeal from the trial court's resentencing order, appellate counsel filed a brief that summarized the facts with citations to the record, raised no issues, and asked this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) Appellant did not file a supplemental brief on his own behalf. We affirm.
The following factual summary is taken from the prosecution's sentencing memorandum that was filed for the trial court's hearing on recall; it is provided only to give context for the parties' arguments and the court's resentencing ruling.
On February 28, 2018, officers responded to a 911 call of a burglary in progress. Appellant had kicked in the door to an apartment, and the occupants were able to call 911. Appellant ordered the occupants to get on their stomachs and used a couch to barricade the front door. Appellant took cash and cellphones and fled when the police arrived. Shortly afterward, appellant went to another residence, kicked down the door, threatened to kill the occupants, and kissed a female occupant against her will. The occupants did not know appellant.
PROCEDURAL BACKGROUND
On March 2, 2018, a complaint was filed in the Superior Court of Merced County charging appellant with committing the following offenses on February 28, 2018: count 1, first degree residential robbery (Pen. Code, § 211); counts 2 and 3, first degree burglary (§ 459); counts 4 and 5, criminal threats (§ 422, subd. (a)); count 6, false imprisonment by violence (§ 236); counts 7 and 8, misdemeanor vandalism under $400 (§ 594, subd. (a)); and count 9, misdemeanor resisting an officer (§ 148, subd. (a)(1)); with allegations that he had one prior strike conviction (§§ 667, subd. (d) & 1170.12, subd. (b)), one prior serious felony conviction enhancement (§ 667, subd. (a)(1)), and one prior prison term enhancement (§ 667.5, subd. (b)).
All further statutory citations are to the Penal Code.
Plea and Sentence
On October 24, 2018, appellant pleaded no contest to count 2, burglary, and count 6, false imprisonment; and admitted the prior strike conviction, the prior serious felony conviction enhancement, and the prior prison term enhancement (§ 667.5, subd. (b)), for a negotiated disposition of 11 years four months. The trial court dismissed the remaining charges and allegations.
On the same day, the trial court sentenced appellant to an aggregate second strike sentence of 11 years four months, based on the lower term of two years for count 2, doubled to four years, plus five years for the prior serious felony enhancement and one year for the prior prison term enhancement; and as to count 6, a consecutive term of eight months (one-third the midterm), doubled to 16 months.
RECALL AND RESENTENCING
In 2022, the California Department of Corrections and Rehabilitation advised the trial court that appellant's sentence should be recalled because it included a prior prison term enhancement that was no longer valid pursuant to section 1172.75. The court appointed counsel and set a hearing to recall appellant's sentence and conduct a resentencing hearing.
Appellant's Sentencing Memorandum
Appellant's counsel filed a sentencing memorandum and argued the prior prison term enhancement had to be stricken pursuant to section 1172.75, subdivision (a).
Appellant argued the trial court should rely on section 1385, subdivision (c) to further reduce his sentence because multiple enhancements were still being imposed, based on the prior strike conviction and prior serious felony enhancements, and his risk for future violence had been reduced as a result of his good behavior in prison.
Appellant suggested two possible sentencing choices: (1) the trial court should dismiss the prior serious felony conviction enhancement, and impose the lower term of two years for count 2, burglary, doubled to four years; and eight months for count 6, doubled to 16 months, for an aggregate second strike term of five years four months; or (2) the court should dismiss the prior strike conviction and impose the lower term of two years for count 2, plus five years for the prior serious felony enhancement; and a consecutive term of eight months for count 6, for an aggregate term of seven years eight months.
The Prosecution's Opposition
The prosecution agreed the trial court had to dismiss the prior prison term enhancement. The prosecution opposed any additional reduction of appellant's sentence because of his lengthy prior record and the risk of danger to public safety. The prosecution argued that once the court dismissed the prior prison term enhancement, appellant was only being sentenced on one remaining enhancement for the prior serious felony conviction, because a prior strike allegation is not an enhancement.
The Trial Court's Resentencing Hearing
On May 5, 2023, the trial court conducted the hearing on recall. The court dismissed the prior prison term enhancement, and denied appellant's motion to further reduce his sentence.
The trial court agreed with the prosecution that the prior strike allegation was not a "true enhancement" and instead constituted an "alternative sentencing scheme." The court stated that once it dismissed the prior prison term enhancement, appellant was being sentenced on only one enhancement for the prior serious felony conviction.
The trial court stated it considered appellant's post-conviction conduct, and said it was "great that you have continued your education, that you have obtained your diploma, that you are working on yourself and on your skills for when you do come out of prison so that you can be a productive citizen," and encouraged him to continue his work. The court also gave "very much thought" as to whether to dismiss the five-year term for the prior felony enhancement imposed pursuant to section 667, subdivision (a), "[b]ut, not having to give any great weight to any factors pursuant to [section] 1385, also considering the circumstances of the offense were very violent and dangerous to public safety, as well as the [appellant's] prior record, I am going to sentence him pursuant to [the prior felony enhancement] to an additional term of five years."
The trial court ordered the one-year term for the prior prison term enhancement stricken, and reduced appellant's aggregate sentence to 10 years four months.
On May 10, 2023, appellant filed a timely notice of appeal from the trial court's recall and resentencing order.
DISCUSSION
As noted above, appellate counsel filed a Wende brief with this court. The brief also includes counsel's declaration that appellant was advised he could file his own brief with this court. This court also advised appellant by letter that he could file a supplemental letter or brief raising any arguable issues. Appellant did not do so.
As to appellant's arguments at the resentencing hearing, "[t]he plain language of subdivision (c) of section 1385 applies only to an 'enhancement,' and the Three Strikes law is not an enhancement. We therefore conclude that section 1385, subdivision (c)'s provisions regarding enhancements do not apply to the Three Strikes law." (People v. Burke (2023) 89 Cal.App.5th 237, 244; People v. Olay (2023) 98 Cal.App.5th 60, 67-68.)
We also note that in People v. Walker (2024) 16 Cal.5th 1024, our Supreme Court recently held that section 1385 does not create a rebuttable presumption in favor of dismissal of an enhancement. (Id. at p. 1036.) "[A]bsent a danger to public safety, the presence of an enumerated mitigating circumstance will generally result in the dismissal of an enhancement unless the sentencing court finds substantial, credible evidence of countervailing factors that 'may nonetheless neutralize even the great weight of the mitigating circumstance, such that dismissal of the enhancement is not in furtherance of justice.'" (Ibid.) The trial court considered appellant's claims of mitigating factors but concluded that further reduction of appellant's sentence would not be in the interests of justice.
After independent review of the record, we find no reasonably arguable factual or legal issues exist.
DISPOSITION
The trial court's resentencing order of May 5, 2023, is affirmed.
[*] Before Meehan, Acting P. J., Snauffer, J., and DeSantos, J.