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People v. Hardy

California Court of Appeals, Third District, Sacramento
Jun 10, 2024
No. C097693 (Cal. Ct. App. Jun. 10, 2024)

Opinion

C097693

06-10-2024

THE PEOPLE, Plaintiff and Respondent, v. TIJANN HARDY, Defendant and Appellant.


NOT TO BE PUBLISHED

(Super. Ct. No. 19FE009976)

DUARTE, J.

This is a homicide case arising out of a physical altercation followed by a deadly shooting in South Sacramento. A jury acquitted defendant Tijann Hardy of murder (Pen. Code, § 187), but found him guilty of the lesser offense of voluntary manslaughter (§ 192, subd. (a)) and unlawful possession of a firearm by a felon (§ 29800, subd. (a)(1)). The jury also found true the firearm enhancement. (§ 12022.5, subd. (a).) In a bifurcated proceeding, the trial court found defendant had a prior serious felony conviction (§ 667, subd. (a)) that qualified as a strike under the three strikes law (§§ 667, subds. (b)-(i), 1170.12, subd. (b)). The court also found true five factors in aggravation, including that defendant had engaged in violent conduct indicating he was a serious danger to society. (Cal. Rules of Court, rule 4.421.) The court sentenced defendant to an aggregate term of 38 years four months in prison.

Undesignated statutory references are to the Penal Code.

In the trial court, the parties agreed that the verdict form given to the jury regarding the voluntary manslaughter offense improperly identified the firearm enhancement connected to that offense. The verdict form listed the firearm enhancements under section 12022.53, subdivisions (b) through (d) rather than under section 12022.5, subdivision (a). The parties agreed that the verdict could be amended to correct the clerical error and reflect that the jury had found true the firearm enhancement under section 12022.5, subdivision (a). On appeal, there is no dispute that the trial court had the authority to amend the verdict under the circumstances of this case. (See People v. Camacho (2009) 171 Cal.App.4th 1269, 1272-1275; People v. Trotter (1992) 7 Cal.App.4th 363, 369-371.)

All further rule references are to the California Rules of Court.

On appeal, defendant challenges only his sentence. He argues there was insufficient evidence to establish that his prior conviction for battery with serious bodily injury (§ 243, subd. (d)) qualified as a strike under the three strikes law, the trial court improperly relied on certain aggravating factors to impose an upper term sentence on the voluntary manslaughter conviction and the firearm enhancement, and the sentence violated Senate Bill No. 81 (2021-2022 Reg. Sess.) (Senate Bill No. 81). Finding no error, we affirm.

FACTUAL BACKGROUND

In view of the contentions raised on appeal, we briefly summarize the pertinent facts. Additional information related to the resolution of these contentions is set forth below in the Discussion section.

Around 2:00 a.m. on June 1, 2019, defendant and Keneitra Jackson got into an argument over a cell phone that resulted in a physical altercation. During the altercation, defendant and Jackson exchanged punches, with Jackson being punched in the face at least once. After the altercation ended, defendant walked away and Jackson got into a car, which her friend drove a short distance away and parked. Jackson, who was angry and upset because her lip was bleeding, got out of the car and approached defendant on foot. A group of people prevented Jackson and defendant from fighting again, although there was some pushing, yelling, and arguing. After the pushing stopped, defendant walked away. Around this same time, a bystander heard a man say, in an angry and aggressive tone, that he was going to get a gun. Shortly thereafter, defendant returned to the area near Jackson and fired multiple gunshots at her while she was running toward him. Jackson died at the scene from the injuries she sustained from two gunshot wounds. The police found a canister of pepper spray underneath Jackson's body and three expended .40-caliber shell casings nearby.

At trial, there was conflicting evidence as to whether defendant or Jackson threw the first punch.

The shooting, which occurred at approximately 2:13 a.m., was captured by a residential surveillance system, the video recording of which was admitted into evidence and played for the jury. At trial, there was evidence that defendant was a few inches taller than Jackson but weighed significantly less; she was approximately 210 pounds while he was approximately 140 pounds. There was also evidence that Jackson was intoxicated; her blood-alcohol level was 0.163 percent at the time of the shooting.

The defense theory was self-defense. Defendant, who testified on his own behalf, claimed that Jackson initiated the physical altercation and threatened to kill him immediately thereafter and also while she was running toward him just before the shooting. Defendant also claimed that Jackson grabbed the steering wheel of the car in which she was a passenger after the physical altercation and caused it to swerve and almost hit him, and that he feared for his life at the time of the shooting because he believed Jackson was holding a gun.

DISCUSSION

Defendant raises three claims of sentencing error, which we address in turn below. As we shall explain, no error appears.

I

Prior Strike Conviction

Defendant first argues there was insufficient evidence to establish that his prior conviction for battery with serious bodily injury (§ 243, subd. (d)) qualified as a strike under the three strikes law. He claims reversal is required because the accusatory pleading did not allege that he personally inflicted great bodily injury, and he did not admit to inflicting such injury on a victim who was not an accomplice when he pled guilty to the offense.

A. Additional Background

The first amended information alleged that defendant had suffered a prior strike conviction in 2014 for battery with serious bodily injury in violation of section 243, subdivision (d). After the jury rendered its verdicts, defendant waived a jury trial on the prior strike allegation. In connection with the subsequent court trial on the allegation, the People submitted certified records related to San Francisco County case No. 14004275, including the felony complaint, the reporter's transcript for the change of plea hearing, the sentencing minute order, the abstract of judgment, and the amended abstract of judgment.

After reviewing the records, the trial court found the prior strike allegation true beyond a reasonable doubt. The court therefore doubled defendant's sentence under the three strikes law.

B. Applicable Legal Principles and Standard of Review

Section 969f, subdivision (a) provides that whenever a defendant has committed a serious felony as statutorily defined in section 1192.7, subdivision (c), the prosecutor may charge the facts that designate the crime a serious felony in the accusatory pleading. "If the defendant pleads guilty of the offense charged, the question whether or not the defendant committed a serious felony as alleged shall be separately admitted or denied by the defendant." (§ 969f, subd. (a).)

At the time of defendant's plea (and currently), subdivision (d) of section 243 provided: "When a battery is committed against any person and serious bodily injury is inflicted on the person, the battery is punishable by imprisonment in a county jail not exceeding one year or imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years." (See Stats. 2012, ch. 867, § 15.)

Under the three strikes law, a prior conviction is a "serious felony" that qualifies as a strike for sentence enhancement purposes if it is a crime listed in section 1192.7, subdivision (c). (§ 667, subd. (d)(1).) Battery with serious bodily injury is not one of the crimes specified in section 1192.7, subdivision (c) as a "serious felony." (See § 1192.7, subd. (c); People v. Bueno (2006) 143 Cal.App.4th 1503, 1508; In re Jensen (2001) 92 Cal.App.4th 262, 268.) However, "any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice," is a "serious felony" under the three strikes law. (See § 1192.7, subd. (c)(8).) Accordingly, to establish that a battery qualifies as a "serious felony," the People must prove the defendant personally inflicted great bodily injury, rather than that he aided and abetted another, and that the victim was not an accomplice. (Bueno, at p. 1508.)

The People have the burden of proving each element of an alleged sentence enhancement beyond a reasonable doubt, including that a prior conviction is a serious felony. (People v. Delgado (2008) 43 Cal.4th 1059, 1065; People v. Frierson (2017) 4 Cal.5th 225, 233.) "A common means of proving the fact and nature of a prior conviction is to introduce certified documents from the record of the prior court proceeding and commitment to prison, including the abstract of judgment describing the prior offense." (Delgado, at p. 1066.) "On review, we examine the record in the light most favorable to the judgment to ascertain whether it is supported by substantial evidence. In other words, we determine whether a rational trier of fact could have found that the prosecution sustained its burden of proving the elements of the sentence enhancement beyond a reasonable doubt." (Id. at p. 1067.)

C. Analysis

We see no basis for reversal. In February 2014, defendant was charged with eight crimes, including forcible rape (§ 261, subd. (a)(2)), forcible sodomy (§ 286, subd. (c)(2)(A)), robbery (§ 211), and assault with force likely to produce great bodily injury (§ 245, subd. (a)(4)). At the change of plea hearing in May 2014, defense counsel advised the trial court that, in exchange for a sentence of five years and the dismissal of the remaining counts and allegations, defendant agreed to plead guilty to the assault offense (§ 245, subd. (a)(4)) and the newly added count of battery with serious bodily injury (§ 243, subd. (d)). Immediately after defendant entered his guilty pleas but prior to hearing the factual basis for those pleas and accepting the pleas, the trial court asked defense counsel if she had discussed with defendant the legal consequences of entering a guilty plea to the battery offense. In response, counsel stated: "I explained to [defendant] that . . . the 243(d), is considered a strike. It's considered a serious felony under the Penal Code." Thereafter, the following exchange occurred:

While assault with a deadly weapon is an enumerated serious felony under section 1192.7, subdivision (c)(31), an assault by means of force likely to cause great bodily injury is not.

At the change of plea hearing, the prosecutor requested permission to add a count to the information alleging a violation of subdivision (d) of section 243--battery with serious bodily injury. When asked, defense counsel indicated that she agreed with adding that count to the information and to waive the "filing of a formal written amended information."

"THE COURT: [Y]ou had a conversation with [defense counsel] about what that means potentially for the future if you should be arrested again?

"THE DEFENDANT: Yes.

"THE COURT: Okay. Any questions about what it means to have a prior serious felony on your record, also known as a strike?

"THE DEFENDANT: Say that again.

"THE COURT: Do you have any questions of either your attorney or this Court as to what it means to have a prior strike on your record?

"THE DEFENDANT: Yeah. Like if I were to get another strike, how would that work?

"[DEFENSE COUNSEL]: Mr. Hardy, as I explained to you, this is . . . considered a strike, so potentially what it could do to any future sentence on any felony would be to double that sentence automatically, not based on the new case, but based on the fact that you have a prior strike.

"THE DEFENDANT: Okay.

"THE COURT: Okay. Do you have any other questions of [defense counsel], or have we discussed this adequately, and do you feel that you understand what it means?

"THE DEFENDANT: I understand what it means."

Counsel and defendant then had an additional conversation about credits. Thereafter, the court made a finding that the pleas were informed and voluntary and accepted the pleas. The amended abstract of judgment indicates that defendant was sentenced to an aggregate term of five years (four years for the battery offense, plus one year for the assault offense), and that he was sentenced pursuant to section 667, subdivisions (b)-(i) or section 1170.12. Thus, the amended abstract of judgment reflects that defendant was sentenced under the three strikes law based on his admission that the battery offense was a strike.

Here, the amended abstract of judgment and defendant's acknowledgement at the change of plea hearing that the battery offense constituted a serious felony and a strike is sufficient evidence to establish that the conviction qualified as a strike under the three strikes law. (See People v. Delgado, supra, 43 Cal.4th at p. 1066 [the" 'trier of fact is entitled to draw reasonable inferences from certified records offered to prove a defendant suffered a prior conviction' "]; People v. Thomas (1986) 41 Cal.3d 837, 841-845 [defendant's admission he was convicted of a serious felony (burglary) within the meaning of section 667 and section 1192.7, conceded issue that he committed burglary in a manner rendering it a "serious felony" under § 1192.7]; People v. French (2008) 43 Cal.4th 36, 50 [noting Thomas established that "a defendant's admission of an alleged enhancement is valid even if it does not include specific admissions of every factual element required to establish the enhancement"].)

In urging a contrary result, defendant primarily relies on People v. Bueno, supra, 143 Cal.App.4th at page 1508, where the appellate court similarly considered whether a conviction for battery with serious bodily injury under section 243, subdivision (d) was a strike prior. In reversing, the Bueno court found there was no evidence showing the defendant admitted the allegations that would have rendered the battery offense a serious felony. (Bueno, at pp. 1507-1511.) The plea form and the minute order reflected a plea of no contest to the alleged violation of section 243, subdivision (d), but no admission that the offense was a serious felony. (Bueno, at p. 1508.) Further, neither the plea form nor the minute order reflected any advisement that defendant could face enhanced punishment in the future under the three strikes law. (Ibid.) But here, unlike in Bueno, the record contains evidence showing that defendant effectively admitted the battery offense to which he had pleaded was a serious felony that qualified as a strike under the three strikes law at the change of plea hearing, and that defendant was advised at the same hearing that he could face enhanced punishment in the future under the three strikes law based on his conviction for the battery offense. Bueno is not on point here.

Although defendant argues that his plea was entered prior to the conversation and admission about the strike nature of the battery offense as charged, this is not the case. As we have detailed above, although defendant said the words "guilty" immediately prior to the clarifying conversations about the strike as well as the calculation of credits, the factual basis was not yet presented and agreed upon and the court had not yet accepted the plea; the plea was ongoing at the time of the discussion and admission. The record of defendant's plea thus contains sufficient evidence to show he knowingly entered a guilty plea to a strike offense.

II

Prohibition Against Dual Use of Aggravating Sentencing Factors

Next, defendant argues the trial court prejudicially erred in imposing an upper term sentence on both his voluntary manslaughter conviction and the firearm enhancement. He claims the court improperly relied on aggravating factors that were elements of the offense and the enhancement. In other words, defendant asserts that reversal is required because the court violated the rule prohibiting dual or overlapping use of an aggravating factor to impose an upper term sentence.

A. Additional Background

After the jury rendered its verdicts, a bench trial was held on the aggravating circumstances alleged in the amended information. Following argument from counsel, the trial court found true five factors in aggravation: (1) "[T]he crime involved . . . great violence, great bodily harm, threat of great bodily harm or other acts disclosing a high degree of cruelty, viciousness, or callousness" (rule 4.421(a)(1)); (2) "[T]he defendant was armed with or used a weapon at the time of the commission of the crime" (rule 4.421(a)(2)); (3) "[T]he defendant engaged in violent conduct that indicates a serious danger to society" (rule 4.421(b)(1)); (4) "[T]he defendant's prior convictions as an adult were sustained Petitions in juvenile delinquency proceedings are numerous or of increasing seriousness" (rule 4.421(b)(2)); and (5) "The defendant served a prior prison term under Penal Code section 1170" (rule 4.421(b)(3)).

Prior to sentencing, defendant filed a sentencing memorandum. Citing rule 4.408, defendant identified the following circumstances in mitigation: (1) he did not initiate the altercation with Jackson and "disengaged" each time she fought with him; (2) Jackson, an "imposing woman who weighed 250 pounds," threatened to kill him and was attempting to attack him when he shot her; (3) Jackson was intoxicated and enraged at the time of the altercation; (4) he was attempting to leave the area but Jackson prevented him from doing so by charging at him, resulting in the need for him to defend himself; (5) he did not harm anyone else when he defended himself; and (6) he did not seek to harm Jackson; "she put into play the circumstances that resulted in her death."

For sentencing purposes, the circumstances in mitigation are set forth in rule 4.423. As for factors relating to the crime, those circumstances include that "[t]he victim was an initiator of, willing participant in, or aggressor or provoker of the incident." (Rule 4.423(a)(2).) The rule on which defendant relied, rule 4.408(a), provides: "The listing of factors in these rules for making discretionary sentencing decisions is not exhaustive and does not prohibit a trial judge from using additional criteria reasonably related to the decision being made. Any such additional criteria must be stated on the record by the sentencing judge."

The presentence report prepared by the probation department recommended the maximum sentence possible, 38 years four months. As support for the recommended sentence, the report cited the five factors in aggravation found true by the trial court. As for mitigation, the report identified the following circumstances: (1) "Application of an enhancement could result in a sentence over 20 years" (rule 4.423(b)(10)); (2) "Multiple enhancements are alleged in a single case" (rule 4.423(b)(11)); and (3) "An enhancement is based on a prior conviction that is over five years old" (rule 4.423(b)(13)). Although not cited as a circumstance in mitigation, the presentence report noted that defendant had experienced childhood trauma in the form of physical abuse by his alcoholic mother. According to defendant, his mother struck him with her fist and a belt on a regular basis.

At sentencing, defendant was given the maximum sentence possible. As relevant here, the trial court imposed an upper term sentence of 11 years for the voluntary manslaughter conviction "based on the aggravating circumstances under 4.421 subdivision (a)(1) or (a)(2) or (b)(3)," which was doubled to 22 years due to the strike prior. The trial court also imposed an upper term sentence of 10 years for the firearm enhancement "based on the aggravating factors in 4.421 (a)(1) or (b)(2)." In reaching its sentencing choices, the trial court explained:

"I have considered potentially mitigating factors such as the defendant's upbringing that he mentioned to the Probation Department that included repeated corporal punishment. I have also considered the factors that are stated in the Defense sentencing memorandum. To the extent that any of those were based on [defendant's] testimony that was provided in trial, I give those very little weight.

"The record of this trial, especially the video evidence shows the defendant went back towards the vehicle and returned with a gun on the night of the shooting. The defendant watched [sic] with a purpose towards where . . . Jackson was. His friend . . . begins to push him back, and as he is pushing him back, two things happen. Defendant's companion pulls up in a car, and . . . Jackson can be seen running toward the defendant. The defendant then pulls out a gun and shoots . . . Jackson in the middle of her chest and misses two other shots.

"The . . . evidence supports the fact that the defendant provoked the response by . . . Jackson when he returned to the scene and was walking in her direction when he clearly had the opportunity and the ability to return to his companion's vehicle and leave the scene. The defendant's testimony on the witness stand was contradicted by this and other evidence. The Court takes defendant's mandacity [sic] into consideration."

Later, in connection with its decision not to grant defendant's request to dismiss the enhancements (including the firearm enhancement), the trial court discussed defendant's violent criminal history; specifically, the facts underlying his 2014 strike prior for battery with serious bodily injury. Relying on the presentence report, the trial court summarized the facts as follows:

"According to San Francisco police report number 130-177624, on March 2nd, 2013, officers were dispatched to an alley in the area of Bush and Taylor Street regarding a female screaming for help. Officers contacted the victim who was frightened, crying and bleeding from her mouth. In addition, she had blood all over both of her legs.

"The victim reported an unknown male who was later identified as [defendant] through DNA profile and a positive identification by the victim opened the gate to the alley, told her to shut up, pushed her to the ground and punched her in the face several times while holding her down. He then told her, 'Let me fuck you,' and put his erect penis in her vagina several times while he held her down as well as he penetrated her anally. The victim attempted to use a pocket knife to defend herself, however, [defendant] grabbed the knife from her, and while they were struggling she was stabbed in her vagina.

"[Defendant] fled the scene after a tenant from a nearby apartment threw pots and pans down the alley. After the incident, the victim noticed her purse, wallet and cell phone were stolen. She was transported to the hospital for her injuries which included a laceration to her right hip and six to seven centimeter laceration to her vagina."

In a minute order issued after sentencing, the trial court made the following supplemental finding: "The Court has considered the three mitigating factors listed in the probation report as well as defendant's mitigating facts and has weighed those factors against each circumstance in aggravation found true during the bench trial. The Court finds that each aggravating factor applied to the State Prison terms for Count One, voluntary manslaughter in violation of Penal Code section 192(a), and the enhancement found true pursuant to Penal Code section 12022.5(a), outweighs the mitigating factors and justifies the imposition of imprisonment exceeding the middle term sentences as pronounced on the record."

B. Applicable Legal Principles

When a statute specifies three possible terms, the trial court shall impose a sentence not to exceed the middle term, unless there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term, and the facts underlying those circumstances have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial. (§ 1170, subd. (b)(1), (2); rule 4.420(a), (b).) We review the trial court's sentencing decisions for abuse of discretion, which will be found only when its decision is irrational or arbitrary, or when it relied on circumstances that were irrelevant or otherwise constituted an improper basis for the decision. (People v. Sandoval (2007) 41 Cal.4th 825, 847; People v. Carmony (2004) 33 Cal.4th 367, 376-377.) The burden is on the party attacking the sentence to clearly show the sentencing decision was irrational or arbitrary. (Carmony, at p. 376; People v. Jones (2009) 178 Cal.App.4th 853, 861.)

Although a single fact may be relevant to more than one sentencing choice, the dual or overlapping use of an aggravating sentencing factor is prohibited in certain circumstances. (People v. Scott (1994) 9 Cal.4th 331, 350; People v. Moberly (2009) 176 Cal.App.4th 1191, 1197.) Of relevance here, a fact charged and found true as an enhancement may be used as a reason for imposing the upper term only if the court strikes the punishment for the enhancement. (§ 1170, subd. (b)(5); Scott, at p. 350; People v. Jones, supra, 178 Cal.App.4th at p. 862; rule 4.420(g).) Further, a fact that is an element of the crime upon which punishment is being imposed may not be used to aggravate or to enhance a sentence. (Scott, at p. 350; People v. Kurtenbach (2012) 204 Cal.App.4th 1264, 1292; rule 4.420(h).) But a court may use the same fact to impose the upper term on a conviction and the upper term on an enhancement. (See People v. Chism (2014) 58 Cal.4th 1266, 1336; Moberly, at p. 1198 ["dual use of a fact or facts to aggravate both a base term and the sentence on an enhancement is not prohibited"].) And only a single aggravating factor is necessary to make it lawful for the trial court to impose the upper term. (See People v. Black (2007) 41 Cal.4th 799, 813; People v. Nicolas (2017) 8 Cal.App.5th 1165, 1182.)

C. Analysis

We find no error. At sentencing, to support the selection of the upper term on the voluntary manslaughter conviction, the trial court cited defendant's prior prison term, his use of a weapon, and that the crime involved great violence, great bodily harm or other acts disclosing a high degree of cruelty, viciousness, or callousness. To support the upper term on the firearm enhancement, the court cited defendant's criminal history, and that the crime involved great violence, great bodily harm or other acts disclosing a high degree of cruelty, viciousness, or callousness. However, in a written order issued after the hearing, the court clarified that upper term sentences were justified because each of the five aggravating factors found true during the bench trial outweighed the mitigating circumstances identified in the probation report and the mitigating facts articulated by defendant in his sentencing memorandum. On appeal, defendant insists the trial court improperly relied on impermissible factors in imposing upper term sentences, including relying on the use of a weapon factor and the great violence/great bodily harm factor in selecting the upper term on the voluntary manslaughter conviction.

Under the circumstances presented, we need not decide whether there was any improper dual use of an aggravating sentencing factor, since the record makes clear the trial court relied on at least one permissible aggravating factor in deciding to impose an upper term sentence on the voluntary manslaughter conviction and the firearm enhancement. As one example, the court found that upper term sentences were warranted based on defendant's criminal history and because defendant had served a prior prison term. The trial court properly relied on these factors in selecting the upper term. Defendant does not argue otherwise. Moreover, even if we were to assume the trial court erred by relying on impermissible sentencing factors, any error was harmless.

The People concede that the trial court improperly relied on defendant's use of a weapon in imposing an upper term sentence on defendant's voluntary manslaughter conviction.

"When a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper." (People v. Price (1991) 1 Cal.4th 324, 492, superseded by statute on other grounds as stated in People v. Hinks (1997) 58 Cal.App.4th 1157, 1161-1165; see People v. McDaniels (2018) 22 Cal.App.5th 420, 426 ["When a trial court has abused its discretion in choosing among available sentencing options, such as by relying on an improper sentencing factor, a reviewing court must still affirm unless 'the error complained of has resulted in a miscarriage of justice.'" "In these situations, the trial court has revealed which sentencing choice it prefers, and the reviewing court must decide whether there is a reasonable probability that the trial court's lawful exercise of discretion on remand will lead it to make a different choice"].) A reasonable probability of a more favorable result exists where the improper factor was determinative for the sentencing court or where the reviewing court cannot determine whether the improper factor was determinative. (People v. Avalos (1984) 37 Cal.3d 216, 233.) On this record, including the trial court's remarks at sentencing and the supplemental finding made by the court thereafter, we are convinced that it is not reasonably probable defendant would obtain a more favorable result were we to remand for resentencing.

Because we reject defendant's claim of sentencing error on the merits, we need not and do not consider the parties' arguments related to forfeiture, including defendant's ineffective assistance claim.

III

Senate Bill No. 81

Finally, defendant argues the matter must be remanded for resentencing because the upper term imposed for the firearm enhancement increased his sentence "over 20 years" in violation of Senate Bill No. 81. In support of his position, defendant relies on section 1385, subdivision (c)(2)(C), which requires the trial court to consider as a mitigating circumstance that "[t]he application of an enhancement could result in a sentence of over 20 years" and that "[i]n this instance, the enhancement shall be dismissed."

A. Applicable Legal Principles

Effective January 1, 2022, Senate Bill No. 81 amended section 1385 to specify mitigating circumstances that the trial court must consider when deciding whether to dismiss enhancements from a defendant's sentence in the interest of justice. (Stats. 2021, ch. 721, § 1; People v. Sek (2022) 74 Cal.App.5th 657, 674.) These factors are set forth in subdivision (c)(2) of section 1385.

Subdivision (c)(1) of section 1385 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." Subdivision (c)(2) of section 1385 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." (Italics added.) Taken together, the parts of this provision direct the trial court to give great weight to evidence of the presence of the enumerated circumstances and that such proof weighs greatly in favor of dismissing the enhancement. However, if the court finds that dismissal of the enhancement would endanger public safety, proof of a mitigating circumstance does not weigh greatly in favor of dismissal.

Section 1385 identifies nine mitigating factors the trial court must consider, including, as relevant here, "application of an enhancement could result in a sentence of over 20 years," "[m]ultiple enhancements are alleged in a single case," the "current offense is connected to prior victimization or childhood trauma," and the "enhancement is based on a prior conviction that is over five years old." (§ 1385, subd. (c)(2).)

B. Analysis

We reject this claim of error. Section 1385 provides the trial court with the discretion to decide not to dismiss an enhancement due to the mitigating circumstances in section 1385, subdivision (c)(2), if the court finds the dismissal of the enhancement would endanger public safety. (People v. Mendoza (2023) 88 Cal.App.5th 287, 296; People v. Lipscomb (2022) 87 Cal.App.5th 9, 18.) Here, the trial court made such a finding. At sentencing, defendant objected to the court's "imposition of the enhancements" (e.g., the firearm enhancement), arguing that the application of the enhancements resulted in a sentence of over 20 years in violation section 1385. In response, the trial court summarized the facts underlying defendant's prior strike (as set forth ante), and then stated: "[E]xercising my discretion, I find that dismissing any of the enhancements would not be in the interest of justice based on the circumstances surrounding voluntary manslaughter of the victim in this case as well as the defendant's . . . violent criminal history. . . . [¶] I find there is a likelihood that dismiss[al] would result in serious danger to others as shown by the defendant's willingness to lie under oath, his complete lack of remorse, denial of responsibility for his actions and his serious and violent criminal behavior both in this case and in the prior strike. So for those reasons, the request to dismiss the enhancements is denied." On appeal, defendant does not challenge this factual finding, which is amply supported by the record. Defendant has failed to show the trial court abused its discretion under section 1385.

Although defendant does not argue otherwise, we note that the arguably mandatory language in subdivision (c)(2)(B) and (C) of section 1385--that an "enhancement shall be dismissed"--does not mandate dismissal or otherwise deprive the court of discretion under the statute. (See, e.g., People v. Mendoza, supra, 88 Cal.App.5th at pp. 295-297; People v. Lipscomb, supra, 87 Cal.App.5th at p. 18.)

IV

Abstract of Judgment

" 'Courts may correct clerical errors at any time, and appellate courts . . . that have properly assumed jurisdiction of cases have ordered correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts.'" (People v. Mitchell (2001) 26 Cal.4th 181, 185.) Here, the People correctly note the abstract of judgment does not accurately reflect that the 11-year sentence on the voluntary manslaughter conviction was doubled to 22 years due to the prior strike. Accordingly, we will direct the trial court to correct the clerical error. (People v. High (2004) 119 Cal.App.4th 1192, 1200.)

DISPOSITION

The judgment is affirmed. The trial court shall prepare a corrected abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation.

We concur: Earl, P. J., Krause, J.


Summaries of

People v. Hardy

California Court of Appeals, Third District, Sacramento
Jun 10, 2024
No. C097693 (Cal. Ct. App. Jun. 10, 2024)
Case details for

People v. Hardy

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. TIJANN HARDY, Defendant and…

Court:California Court of Appeals, Third District, Sacramento

Date published: Jun 10, 2024

Citations

No. C097693 (Cal. Ct. App. Jun. 10, 2024)