Opinion
F084554
06-10-2024
THE PEOPLE, Plaintiff and Respondent, v. CARLOS GUTIERREZ, Defendant and Appellant.
Michelle T. LiVecchi-Raufi, 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, Ivan P. Marrs and Jennifer M. Poe, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County, Nos. BF188631A, BF187449A John W. Lua, Judge.
Michelle T. LiVecchi-Raufi, 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, Ivan P. Marrs and Jennifer M. Poe, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
Defendant Carlos Gutierrez was convicted by a jury of seven offenses related to his commission of two assaults and his subsequent arrest. He was sentenced to an aggregate term of 15 years; defendant's base terms were doubled because he had suffered a prior "strike" conviction within the meaning of the "Three Strikes" law (Pen. Code, §§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)). Defendant argues that the trial court erred in denying his Romero motion because he falls outside the spirit of the Three Strikes law and because the trial court was required to strike the prior strike conviction allegations pursuant to the amendments to section 1385, subdivision (c). The People disagree. We affirm.
All further undesignated statutory references are to the Penal Code.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
PROCEDURAL HISTORY
On May 12, 2022, the Kern County District Attorney filed an amended information charging defendant with felony assault with a deadly weapon (a pointed object) upon D.C. (§ 245, subd. (a)(1); count 1); felony assault with a deadly weapon (a pointed object) upon A.R. (§ 245, subd. (a)(1); count 2); misdemeanor assault with a deadly weapon (a beer can) upon D.C. (§ 245, subd. (a)(1); count 3); misdemeanor assault with a deadly weapon (a beer can) upon A.R. (§ 245, subd. (a)(1); count 4); petty theft (§ 488; count 5); resisting, delaying, or obstructing a peace officer (§ 148, subd. (a)(1); count 6); and misdemeanor assault with a deadly weapon (a toolbox) upon A.R. (§ 245, subd. (a)(1); count 7). As to counts 1 and 2, the amended information also alleged that defendant had suffered a prior strike conviction within the meaning of the Three Strikes law (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)) and that defendant had suffered a prior serious felony conviction (§ 667, subd. (a)(1)). Finally, as to counts 1 and 2, the first amended information alleged six aggravating factors (two of which were subsequently dismissed on the prosecution's motion).
On that same day, defendant was found guilty by a jury on all counts. At a bifurcated court trial on May 13, 2022, the trial court found true two aggravating factors, the prior strike conviction allegation, and the prior serious felony conviction allegation attached to both counts 1 and 2. The trial court also found two aggravating factors not true. Finally, the trial court found that defendant violated the terms of probation in case No. BF187449A.
Defendant was sentenced on June 29, 2022. The trial court denied defendant's Romero motion and imposed an aggregate term of 15 years in state prison, consisting of: on count 1, eight years (the upper term of four years, doubled due to the prior strike conviction), plus five years for the serious violent felony enhancement; and on count 2, two years (one-third the middle term of three years, doubled due to the prior strike conviction), to be served consecutively to the term on count 1. As to the misdemeanor convictions, the trial court sentenced defendant to one year in jail on counts 3, 4, and 7, and six months in Kern County jail on counts 5 and 6, to be served concurrently. Finally, the trial court revoked probation in case No. BF187449A and sentenced defendant to the upper term of six years, to be served concurrently with the 15-year sentence listed above.
On that same day, defendant timely filed a notice of appeal.
On April 11, 2023, defendant filed a motion to construe the notice of appeal to include case No. BF187449A. The motion was granted. However, defendant makes no arguments addressing the parole revocation or sentence in case No. BF187449A. Accordingly, we treat any contentions regarding case No. BF187449A as forfeited. (Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99 ["Issues do not have a life of their own: if they are not raised or supported by argument or citation to authority, we consider the issues" forfeited].)
FACTUAL SUMMARY
The Prosecution's Case
D.C. was working at an automotive shop on January 10, 2022. D.C. was working inside the office, where there was a screen that allowed him to monitor the work area.
On the screen, D.C. saw defendant walk in and start talking to A.R., a technician. D.C. watched as defendant left, and he noticed that A.R. was "kind of upset." D.C. also noticed that defendant had something in his hand that he did not have before, so D.C. went outside to see what defendant had in his hand. It was a toolbox from the shop.
D.C. approached defendant and told defendant he could not take the toolbox. In response, defendant threw the toolbox at D.C. Defendant also threw two beer cans, one at D.C. and one at A.R. Both missed.
After that, defendant ran toward A.R. A.R. ran away and went into the shop.
D.C. went to pick up the toolbox because he thought the altercation was over. However, defendant grabbed one of the beer cans he had previously thrown and threw it at D.C. Additionally, after D.C. picked up the toolbox, he saw that defendant was holding an object he believed to be a knife (although it could have been a screwdriver).
A.R., who had grabbed bolt cutters, confronted defendant. Defendant then "kind of charg[ed]" at D.C. After that, defendant left.
The jury was shown video footage of the incident.
D.C. called 911. Christian Melero, a sergeant with the Kern County Sheriff's Office, responded to the call. Melero located defendant and ordered him to stop via the public address system in his patrol car. Defendant continued walking, so Melero exited his vehicle and told defendant to stop. Defendant yelled that he did not do anything and then started to run.
Melero pursued and caught defendant. Melero searched defendant and found a screwdriver.
Defendant's Case
Defendant testified on his own behalf. Defendant lived around the block from the automotive shop. On the day of the incident, defendant was at home working on a book he was writing. As he was writing, he noticed that he had defecated on himself. Defendant looked at the television, and "the TV started laughing at [him], they started talking to [him], like the FBI knowing that they were the ones at fault who did the-they were just playing with [defendant's] soul like they always do, … with the monitor."
Defendant left his house with two tall boy beers, and at this point he was "kind of emotionally disturbed." Defendant walked to the automotive shop, drinking beer on the way. Defendant went inside the shop and asked A.R. if he could borrow a dollar so that he could get on the bus. A.R. refused. Defendant turned to leave, and as he walked out he grabbed a toolbox because he thought A.R. was being greedy. Defendant planned to sell the toolbox so he could get on the bus.
A.R. and D.C. approached defendant and yelled at him to give back the toolbox. Defendant threw the toolbox and the beer cans, but his intention was to scare A.R. and D.C. away. He did not intend to hit anyone and missed on purpose. Later he also threw one of the beer cans to the ground, next to D.C. However, he did so because he was mad that the can was empty. He did not throw it at D.C. or intend to harm D.C.
A.R. approached defendant with bolt cutters. Defendant told A.R. and D.C. to "stop tripping." Defendant also raised a screwdriver that he had with him above his head. While it might have looked like defendant was trying to hit A.R. and D.C. with the screwdriver, he was not. He just wanted A.R. and D.C. to back off. Additionally, while defendant previously held this screwdriver while he ran, he was running towards a beer can that he threw, not A.R.
Defendant had the screwdriver because he knew he was going to be walking at night and he wanted protection from dogs. Defendant did not have a knife.
Defendant walked away, and eventually "cops" showed up. Defendant ran from Melero because Melero "was mind-reading."
DISCUSSION
Defendant argues that the trial court was required to strike the prior strike conviction pursuant to the amendments to section 1385, subdivision (c). Defendant also argues that he falls outside the spirit of the Three Strikes scheme, regardless of whether section 1385, subdivision (c) applies. Both arguments fail.
I. Additional Background
On June 29, 2022, the trial court held defendant's sentencing hearing. At the hearing, defense counsel made an oral motion pursuant to Romero. Specifically, defense counsel argued as follows:
"[C]onsidering that the serious or violent prior offense was two decades old and, as has been previously discussed on the record during in limine motions, while [defendant] has been in trouble and has had significant contacts over the course of the last two decades with law enforcement, I don't believe the nature of his behavior has increased in seriousness or risen to the level of the spirit of exercising the three-strikes law."
Defense counsel asked the court "to use its discretion in not applying the sentencing enhancements for those purposes."
The trial court denied the motion, stating:
"Counsel, in considering the appropriate sentence to be handed down to [defendant], the [c]ourt has to consider the evidence that was actually presented to the jury, as well as the additional findings regarding conduct and status enhancements.
"Firstly, in determining whether this [c]ourt should exercise its discretion in granting a Romero motion regarding the 2002 felony conviction for robbery, the [c]ourt must consider not only the circumstances of the offense presently before it, but also the circumstances of the defendant's criminal history.
"Presented within the probation officer's report includes a criminal history of the defendant wherein he has routinely, regularly, and consistently suffered criminal convictions, both felonies and misdemeanors, and while his first conviction involved the strike that is directly before this [c]ourt, the other convictions steadily obtained by [defendant] definitely demonstrate a revolving door within our criminal justice system, so much so that the [c]ourt cannot find that the 2002 conviction suffered by [defendant] was a single course of aberrant behavior. To make such a finding would determine, ostensibly, that the defendant's strike prior, while it is 20 years old, is not remote in time so as to grant him the relief in not imposing it at a sentencing hearing. The [c]ourt has considered this analysis specifically related to the defendant's criminal history alone.
"When determining the facts and circumstances of this particular case, the [c]ourt is drawn to the substantive charges to which [defendant] has been charged and verdicts have been rendered.
"Counts 1 and 2 in this case directly before this [c]ourt do involve assault with a deadly weapon, and while one might try to mitigate the video footage, the [c]ourt did consider, as the jurors considered, the video footage in this case, coupled with the testimony obtained from a civilian witness, to understand the nature of the defendant's conduct and the support regarding the jury's finding of determining [defendant] was guilty of those allegations.
"An assault with a deadly weapon is definitely a serious felony, and it is in a similar state or similar class of those that would include robbery, consistent with the defendant's initial conviction.
"In determining the overall circumstances, the [c]ourt cannot find that the defendant is outside the realm of … Romero or outside the spirit of the three-strikes law, and for that reason the defense's motion to dismiss the strike prior conviction under Romero is denied."
II. Applicable Law
A trial court has discretion to dismiss a prior strike conviction alleged under the Three Strikes law if the dismissal is in the furtherance of justice, "subject … to strict compliance with the provisions of section 1385." (§ 1385, subd. (a); Romero, supra, 13 Cal.4th at p. 504.) "[T]he underlying purpose of striking prior conviction allegations is the avoidance of unjust sentences." (People v. Garcia (1999) 20 Cal.4th 490, 500.) In exercising its discretion, the trial court "must consider 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 (1998) 17 Cal.4th 148, 161.) These are "stringent standards." (People v. Carmony (2004) 33 Cal.4th 367, 377 (Carmony).)
On January 1, 2022, Senate Bill No. 81 (2021-2022 Reg. Sess.) (Senate Bill 81) went into effect (Stats. 2021, ch. 721, § 1), amending section 1385, subdivision (c) "to specify factors that the trial court must consider when deciding whether to strike enhancements from a defendant's sentence in the interest of justice." (People v. Sek (2022) 74 Cal.App.5th 657, 674.)
Section 1385, subdivision (c)(1), provides: "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." Section 1385, subdivision (c)(2), provides: "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."
III. Standard of Review
We review the denial of a motion to dismiss prior strike convictions for abuse of discretion. (Carmony, supra, 33 Cal.4th at p. 374.) The Three Strikes law establishes that not dismissing a prior strike conviction is the "norm," and there is a "strong presumption that any sentence that conforms to these sentencing norms is both rational and proper." (Id. at p. 378.) Abuse of discretion in failing to dismiss a prior strike conviction occurs in limited circumstances, such as where the trial court was not aware of its discretion; where the trial court considered impermissible factors; or where applying the Three Strikes law would produce an arbitrary, capricious, or patently absurd result under the specific facts of a particular case. (Ibid.) Additionally, abuse of discretion occurs when the trial court's findings of fact are not supported by substantial evidence. (Haraguchi v. Superior Ct. (2008) 43 Cal.4th 706, 711.) Substantial evidence is" 'evidence that is reasonable, credible, and of solid value.'" (People v. Cravens (2012) 53 Cal.4th 500, 507; People v. Reyes (2023) 14 Cal.5th 981, 988.)
We review issues of statutory construction de novo. (People v. Gonzales (2018) 6 Cal.5th 44, 49.) Our goal is to determine the legislative intent of the statute. (People v. Johnson (2022) 79 Cal.App.5th 1093, 1108.) "Because the statutory language is generally the most reliable indicator of that intent, we look first at the words themselves, giving them their usual and ordinary meaning." (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1040, overruled on other grounds in Facebook, Inc. v. Superior Court (Touchstone) (2020) 10 Cal.5th 329, 345, fn. 6.) When the statutory language is unambiguous, its plain meaning controls. (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735.) We also "generally must 'accord[] significance, if possible, to every word, phrase and sentence in pursuance of the legislative purpose,' and [the Supreme Court] ha[s] warned that '[a] construction making some words surplusage is to be avoided.'" (People v. Valencia (2017) 3 Cal.5th 347, 357.) Where the language supports more than one reasonable construction, we may look to extrinsic aids, including the legislative history, for additional guidance. (People v. Ruiz (2018) 4 Cal.5th 1100, 1105-1106.)
IV. Analysis
A. Defendant Forfeited His Claims of Error
" '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.) "Strong policy reasons support this rule: 'It is both unfair and inefficient to permit a claim of error on appeal that, if timely brought to the attention of the trial court, could have been easily corrected or avoided. [Citations.]' [Citation.] '"' "The law casts upon the party the duty of looking after his legal rights and of calling the judge's attention to any infringement of them. If any other rule were to obtain, the party would in most cases be careful to be silent as to his objections until it would be too late to obviate them, and the result would be that few judgments would stand the test of an appeal." '" '" (People v. Stowell (2003) 31 Cal.4th 1107, 1114; accord, People v. Salazar (2016) 63 Cal.4th 214, 239-240; People v. French (2008) 43 Cal.4th 36, 46.)
As to defendant's argument that the trial court was required to strike the prior strike conviction allegations or the prior serious felony conviction allegations pursuant to the amendments to section 1385, subdivision (c), at sentencing defendant did not make any arguments regarding, or even direct the trial court's attention to, this section. Defendant also failed to object when the trial court imposed his sentence without directly addressing this section. Finally, the People argued forfeiture in their brief, but defendant failed to address the People's argument in his reply brief. Given this, we find that defendant forfeited this argument.
As to defendant's argument that he falls outside the spirit of the Three Strikes law regardless of whether section 1385, subdivision (c) applies, defendant failed to comply with California Rules of Court, rule 8.204(a)(1)(B), which requires a brief to "[s]tate each point under a separate heading or subheading summarizing the point, and support each point by argument and, if possible, by citation of authority." Instead of providing an argument under a separate subheading in his opening brief as required, defendant only cites to law regarding the application of Romero. Accordingly, defendant forfeited this argument as well. (Estate of Cairns (2010) 188 Cal.App.4th 937, 949 [when a party fails to present argument on an issue, the party forfeits that issue on appeal]; Pizarro v. Reynoso (2017) 10 Cal.App.5th 172, 179 ["Failure to provide proper headings forfeits issues that may be discussed in the brief but are not clearly identified by a heading."].)
Based on the foregoing, we need not address any of the issues raised by defendant and could affirm on this basis alone.
B. A Trial Court May Not Strike a Prior Strike Conviction Pursuant to Section 1385, Subdivision (c)
Even if defendant's claim that the trial court was required to strike the prior strike conviction pursuant to section 1385, subdivision (c) was not forfeited, the claim fails on the merits.
In People v. Burke (2023) 89 Cal.App.5th 237, the Third District Court of Appeal considered whether section 1385, subdivision (c) applies to prior strike convictions. The Burke court concluded it did not. (Id. at p. 244.) The court explained that "[t]he term 'enhancement' has a well-established technical meaning in California law," specifically,"' "an additional term of imprisonment added to the base term." '" (Id. at p. 243.) Additionally, "[i]t is equally well established that the Three Strikes law is not an enhancement; it is an alternative sentencing scheme for the current offense." (Ibid.) The Burke court also noted that" '[o]rdinarily words used in a statute are presumed to be used in accordance with their established legal or technical meaning.'" (Ibid.) Accordingly, the Burke court held that "the statutory language is clear and unambiguous." (Ibid.) "The plain language of subdivision (c) of section 1385 applies only to an 'enhancement,' and the Three Strikes law is not an enhancement." (Id. at p. 244.)
We agree with the analysis in Burke and adopt it here. (See also People v. Dain (2024) 99 Cal.App.5th 399, 411, review granted May 29, 2024, S283924 ["[s]ection 1385(c) does not apply to a decision whether to dismiss a strike because the subdivision 'applies only to an "enhancement," and the Three Strikes law is not an enhancement' "].)
As the statute is not ambiguous, we need not address the legislative history cited by defendant. (Hunt v. Superior Ct. (1999) 21 Cal.4th 984, 1000 ["If there is no ambiguity in the [statute's] language, we presume the Legislature meant what it said, and the plain meaning of the statute governs"]; Curle v. Superior Ct. (2001) 24 Cal.4th 1057, 1063.) However, we note that in People v. Olay (2023) 98 Cal.App.5th 60, the First District Court of Appeal recently analyzed Senate Bill 81's legislative history and concluded that it shows the Legislature intended "enhancement" to accord with its well-established technical meaning. (Id. at pp. 67-68.)
Finally, defendant argues that we must apply the rule of lenity, which "generally requires that 'ambiguity in a criminal statute should be resolved in favor of lenity, giving the defendant the benefit of every reasonable doubt on questions of interpretation.'" (In re M.M. (2012) 54 Cal.4th 530, 545.) As we find that the statute is not ambiguous, the rule of lenity does not apply. (People v. Soria (2010) 48 Cal.4th 58, 65 [The rule of lenity" 'applies "only if two reasonable interpretations of the statute stand in relative equipoise"' "].)
Accordingly, based on the plain language of the statute, a trial court may not strike a prior strike conviction pursuant to section 1385, subdivision (c), and defendant's argument fails on the merits.
We note that this analysis applies only to prior strike conviction allegations and not prior serious felony conviction allegations. As discussed above, defendant forfeited his argument that the trial court was required to strike the prior serious felony conviction allegations pursuant to section 1385, subdivision (c).
C. The Trial Court Did Not Abuse Its Discretion When It Denied Romero Relief
In his reply brief, defendant argues that the trial court abused its discretion when it denied his request for Romero relief because he falls outside the spirit of the Three Strikes scheme. Even if we were to consider this argument, it fails on the merits.
"Because the circumstances must be 'extraordinary … by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack' [citation], 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." (Carmony, supra, 33 Cal.4th at p. 378.) And here, there is nothing about the nature and circumstances of the present felonies and the prior strike conviction, or the particulars of defendant's background, character, and prospects, that suggest that the trial court abused its discretion by concluding that defendant did not fall outside the spirit of the Three Strikes scheme.
The trial court gave adequate consideration to defendant's criminal history. As the court noted at the sentencing hearing, since defendant's 2002 felony conviction for robbery (the strike conviction), defendant "routinely, regularly, and consistently suffered criminal convictions, both felonies and misdemeanors …." Moreover, defendant was convicted in this case of two counts of felony assault with a deadly weapon, which the trial court found "is definitely a serious felony, and it is in a similar state or similar class of those that would include robbery, consistent with the defendant's initial conviction." (See § 1192.7, subd. (c)(23).) Notably, defendant was on probation for burglary when he committed the felonies in this case. Accordingly, we cannot find that the trial court abused its discretion when it denied defendant's Romero motion.
Defendant also argues that the trial court did not give adequate consideration to his serious mental health issues. However, trial counsel made no arguments regarding mental health issues and did not object when the court failed to explicitly reference defendant's mental illness when denying his Romero motion. As discussed above in the section regarding forfeiture, defendant cannot appeal an alleged sentencing error such as this, which could have been easily corrected or avoided had it been brought to the court's attention.
DISPOSITION
The judgment is affirmed.
[*] Before Levy, Acting P. J., Smith, J. and DeSantos, J.