Opinion
F086376
10-21-2024
THE PEOPLE, Plaintiff and Respondent, v. SCOTT ARLAN HENDRIX, Defendant and Appellant.
Robert F. Kane, 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, Eric L. Christoffersen and Brook A. Bennigson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County. No. 64385 Carrie M. Stephens, Judge.
Robert F. Kane, 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, Eric L. Christoffersen and Brook A. Bennigson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT[*]
Defendant Scott Arlan Hendrix appeals following a resentencing hearing. This hearing occurred after defendant's sentence was recalled in 2022, because the original sentence included an enhancement that had been repealed by the legislature. Thereafter, defendant filed a petition with the trial court pursuant to Penal Code section 1172.75, challenging not only the enhancement imposed for a prior prison term, but also other aspects of the sentence he received in 1996. After our review of the record provided to this court, we affirm the new sentence imposed by the trial court.
All further statutory references are to the Penal Code.
This summary provides background for the sentence originally imposed and information about events that occurred following the imposition of that sentence.
Within a week of the filing of a felony complaint, defendant pled guilty on August 2, 1996, to a charge of first degree burglary (§§ 459, 460), a felony, and further admitted that he had two prior serious felony convictions, which meant he would be subject to 25 years to life in state prison under the "Three Strikes" law (§ 667, subd. (e)). At this time, defendant also admitted he had a prior prison commitment for a prior felony offense, adding a one-year enhancement to his sentence. This resulted in a sentence of 26 years to life. Defendant was 25 years old when this sentence was imposed.
A little less than 23 years after he was originally sentenced in this case, defendant participated in a parole suitability hearing on July 18, 2019. During this hearing, defendant described how he started experimenting with drugs at a young age, namely, marijuana when he was 15 years old, and methamphetamines at the age of 17. Defendant admitted he supported this drug use by committing burglaries. As a result, before he reached the age of 18, defendant was sent to the California Youth Authority (CYA) after committing a burglary.
Following his release from CYA, defendant was convicted of committing a number of first degree burglaries before he was charged with committing the first degree burglary in 1996 that resulted in the sentence at issue here. The felony complaint filed in the 1996 case alleged one count of burglary and included additional allegations listing four separate first degree burglary convictions as potential "strikes" under section 667, subdivisions (d) and (e). As noted above, when defendant quickly pled guilty to this new charge of first degree burglary, two of these strike priors were used to create his base sentence of 25 years to life, with an additional one-year enhancement imposed for serving a prior prison term.
With respect to his time in prison, defendant admitted at a parole hearing in 2019 that he associated with a prison gang and participated in various violent incidents while in prison on behalf of the gang. Defendant also admitted his continued use of methamphetamines during the early part of his prison term, some involvement in the trafficking of drugs, and making weapons for others to use when committing crimes in the prison. After being questioned on a number of subjects and admitting a lack of support from his family over the years, defendant admitted he might not yet be a suitable candidate for release.
Ultimately the parole board concluded defendant was not a suitable candidate for parole because he continued to pose a threat to public safety. The parole board specifically stated defendant had an "unstable social history in prison," and that his most recent violent act in prison was less than five years before the hearing. After listing a variety of other concerns, the board concluded parole would be denied hoping to see further attempts at rehabilitation and insight from defendant.
In his opening brief, defendant's appellate counsel indicated a request for judicial notice would be made to present documents related to defendant's continued participation in various programs at the prison. No documents have been provided, and no request for judicial notice has been made.
In April 2022, defendant was identified as an inmate who might be serving a sentence with an enhancement that had been recently invalidated. As a result, defendant's sentence was now subject to recall. On October 26, 2022, defendant filed a resentencing brief with the trial court, asking not only that the section 667.5, subdivision (b) one-year enhancement be removed from his sentence, but also asking the court to strike his prior strike convictions allowing for a full resentencing. In response, the prosecution agreed defendant's section 667.5, subdivision (b) enhancement should be stricken, but argued a full resentencing should be denied.
As a result of legislation that went into effect on January 1, 2022, sentencing enhancements authorized by section 667.5, subdivision (b), but imposed prior to January 1, 2020, were no longer valid and had to be removed from a defendant's sentence. (§ 1172.75, subd. (a).)
Following a resentencing hearing held on April 21, 2023, the trial court dismissed the section 667.5, subdivision (b) one-year enhancement. However, while the court concluded it had the ability to revisit the entire sentence pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, the court found defendant was not outside the spirit of the Three Strikes law. As a result, defendant's new sentence was 25 years to life.
A notice of appeal was filed on behalf of defendant on June 1, 2023.
DISCUSSION
Defendant raises three issues he believes call into question the new sentence he received after his original sentence was recalled pursuant to section 1172.75.
I. The Failure of the Trial Court to State Defendant Had the Right to Allocution
On the question of "allocution," we begin with the language of section 1200:
"When the defendant appears for judgment he must be informed by the Court, or by the Clerk, under its direction, of the nature of the charge against him and of his plea, and the verdict, if any thereon, and must be asked whether he has any legal cause to show why judgment should not be pronounced against him." (§ 1200.)
The record reveals the trial court failed to make a specific statement to defendant prior to resentencing asking him if there was any legal cause to show why judgment should not be pronounced. Defendant contends this right to allocution also applies to resentencing. Our review of the relevant legal authorities on this subject leads us to conclude the failure of the court to make the statement embodied in section 1200 did not result in prejudice to defendant.
"[N]o court has held that in a noncapital case a trial court must, on its own initiative, offer the defendant allocution." (People v. Lucero (2000) 23 Cal.4th 692, 718.) In fact, the right to allocution "is forfeited if the defendant does not offer to testify before pronouncement of sentence." (People v. Nitschmann (2010) 182 Cal.App.4th 705, 708.) Furthermore, while compliance with section 1200 is reversible error when the defendant is deprived of counsel (In re Levi (1952) 39 Cal.2d 41, 45) it will not be considered reversible when the defendant is represented by counsel, or has waived counsel, and no prejudice exists. (In re Grayson (1966) 242 Cal.App.2d 110, 114.)
No prejudice exists here. Defendant was represented by counsel and a prehearing brief expressing his arguments about the need to strike the prior strike convictions was submitted to the trial court along with a variety of supporting exhibits. Before the court imposed the new sentence, defendant's trial attorney again reiterated the request that prior strikes not be used in the calculation of the new sentence. However, no request was made for defendant to testify before the new sentence was imposed.
The trial court's failure to make the statement embodied in section 1200 did not result in reversible error.
II. The Lack of a Probation Report
Defendant next contends a probation report should have been prepared, while acknowledging there is no requirement for an updated probation report at the time of resentencing. A probation report is specifically not required when a defendant is not eligible for probation. (§ 1203, subd. (b)(1).) Defendant's guilty plea in 1996 was for a crime not eligible for probation. (§ 667, subd. (c)(2).)
Defendant, however, argues that the trial court abused its discretion when it failed to order a probation report because there was no information available to the court on his performance in prison after the parole hearing in 2019 and before his resentencing in 2023. In his reply brief, defendant further argues there was a requirement that the report be prepared "unless the parties stipulate to waive the preparation of such a report," noting such a report was especially required because of the significant passage of time. (See California Rules of Court, rule 4.411(a).) However, when a defendant does not "request a supplemental probation report or [does not] object to proceeding without one" and is ineligible for probation, "such omissions result in waiver of a supplemental report in the trial court and forfeiture of the right to object to the absence of such a report on appeal." (People v. Franco (2014) 232 Cal.App.4th 831, 834.)
Again, as the party seeking a reduced sentence, defendant could have requested the preparation of a report, which he did not do. Defendant also had the ability to present evidence about the prior four-year period since the 2019 parole suitability hearing, or to offer testimony about any beneficial new information that might have been available. (See People v. Evans (2008) 44 Cal.4th 590, 598.) Defendant's silence before resentencing resulted in a forfeiture of the issue on appeal. (See People v. Johnson (1999) 70 Cal.App.4th 1429, 1431-1432.)
III. The Trial Court's Refusal to Remove the Prior "Strikes" From Any Calculation of the New Sentence
In his brief to the trial court, defendant cited Romero to argue a trial court has the ability to dismiss prior felony conviction allegations in cases brought under the Three Strikes law. The brief also recognized that while this power to dismiss is broad, but "by no means, absolute," it is dependent on whether exercising this power furthers justice. (People v. Superior Court (Romero), supra, 13 Cal.4th at pp. 529-530.)
Section 1385, subdivision (a) states a trial court "may, ... in furtherance of justice, order an action to be dismissed." This authority "includes the power to 'strike or vacate an allegation or finding under the three strikes law that a defendant has previously been convicted of a serious and/or violent felony ..'" (People v. Burke (2023) 89 Cal.App.5th 237, 242, citing People v. Williams (1998) 17 Cal.4th 148, 158.) A trial court's decision to dismiss or to strike a sentencing allegation under section 1385, subdivision (a) is reviewed using a deferential abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 373-374.)
When engaging in this review, we must consider two "fundamental precepts." The first precept states a defendant has the burden of showing the sentencing decision was irrational or arbitrary. (People v. Carmony, supra, 33 Cal.4th at pp. 376-377.) Without such a showing,"' "the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review." '" (Id. at pp. 376-377.) The second precept is that a trial court's decision on sentencing will not be set aside if the challenge is simply based on the concept that reasonable people might disagree. (Id. at p. 377.) These precepts therefore place limitations on our ability to substitute our judgment for that of the trial court. (Ibid.)
Based on this standard of review we cannot conclude the trial court's refusal to remove the prior strike convictions for first degree burglary from the calculation of the sentence was irrational, arbitrary, or beyond anything a reasonable person would support. When expressing the decision not to strike the two strike priors, the trial court first noted defendant's association with a violent prison gang when he first entered prison, and his subsequent participation in various acts on behalf of that gang. The court then stated:
We note that defendant's reliance on the case of People v. Avila (2020) 57 Cal.App.5th 1134, as factually analogous is misplaced. In Avila, the appellant's third strike crimes were not statutorily considered "violent crimes," as they involved attempted robbery and attempted extortion. (§§ 664/211, §§ 664/518; see also § 667.5 [defining violent crimes].) Only the crime of attempted robbery could be considered a serious crime. (§ 1192.7 [defining serious crimes].) In addition, there was a significant gap in Avila between the time the first two strikes were committed and when the new crimes were committed. (See Avila, supra, at pp. 1142-1143.) In comparison, the third strike in this case was one of several first degree burglaries committed by defendant shortly after being released from CYA. There was not a significant gap in time between the time he was released from CYA and when he started to offend again. Defendant committed a first degree burglary just four months after being released from CYA. Furthermore, defendant's guilty plea to committing a first degree burglary of an inhabited dwelling is specifically recognized by statute as both a violent and a serious crime for purposes of the Three Strikes law. (§ 667.5, subd. (c)(21), § 1192.7, subd. (c)(18).)
"He made weapons and moved weapons among prisoners. While serving this term defendant got at least four gang tattoos. And as of 2019 he had 21 serious rule violations; 11 of which involved violence; the last one was in 2016. He used methamphetamine in prison; his last known use was in 2001. He was disciplined for falsifying documents while working as a chaplain's court clerk. He was diagnosed, at least as part of his parole considerations, with a personality disorder with antisocial features."
While acknowledging defendant's behavior had started to improve since 2016, the court could not find defendant was yet outside the spirit of the Three Strikes law and chose to impose the sentence of 25 years to life.
We cannot conclude this decision, based on the findings made by the trial court, constituted an abuse of discretion. The decision is supported by the record.
DISPOSITION
The new sentence imposed by the trial court is affirmed. We, however, direct the trial court to correct the amended abstract of judgment filed on May 15, 2023, to reflect the crime committed by defendant was first degree burglary. Once this correction is made, the trial court shall forward a second amended abstract of judgment to the appropriate authorities.
[*] Before Levy, Acting P. J., Smith, J. and Snauffer, J.