Opinion
B296812
06-30-2020
THE PEOPLE, Plaintiff and Respondent, v. ALLWYNE LAMONT JACKSON, Defendant and Appellant.
Mark McKenna, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Attorney General, Scott A. Taryle and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a). Los Angeles County Super. Ct. No. GA102179 APPEAL from a judgment of the Superior Court of Los Angeles County, Michael D. Carter, Judge. Remanded with directions. Mark McKenna, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Attorney General, Scott A. Taryle and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
A jury convicted appellant and defendant Allwyne Lamont Jackson of two counts of assault with a deadly weapon and found true the allegation that he personally inflicted great bodily injury. On appeal, he argues: (1) the trial court abused its discretion by considering impermissible factors when denying his motion to strike the prior strike conviction under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero); and (2) the court erred by imposing and staying the great bodily injury enhancement instead of striking it. The Attorney General agrees with Jackson's second argument. Finding no abuse of discretion, we reject Jackson's Romero argument. We remand the matter so the trial court can strike the great bodily injury enhancement or strike the additional punishment for the enhancement and state its reasons for doing so. In all other respects, the judgment is affirmed.
PROCEDURAL BACKGROUND
The Los Angeles County District Attorney filed an information charging Jackson with two counts of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1); counts one [victim Decorey Harrington] and two [victim Ruben Hernandez]). The information further alleged Jackson inflicted great bodily injury in the commission of count one (§ 12022.7, subd. (a)), sustained a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and sustained a prior serious felony conviction (§ 667, subd. (a)(1)).
All undesignated statutory references are to the Penal Code. --------
The jury found Jackson guilty of both counts and found true the great bodily injury allegation. The court found true the prior conviction allegations and denied Jackson's Romero motion. The court sentenced Jackson to 11 years in state prison, consisting of a lower term of two years on count one, doubled to four years for the prior strike, a one-year term on count two (one-third the midterm of three years), doubled to two years for the prior strike, plus a five-year prior serious felony conviction enhancement. The court imposed and stayed the great bodily injury enhancement.
Jackson timely appealed.
FACTUAL BACKGROUND
On the evening of September 27, 2017, Jackson and Ruben Hernandez got in a fight in front of a liquor store in Pasadena. Decorey Harrington tried to separate them but was unsuccessful. The fight lasted 10 to 15 minutes. After the fight ended, Jackson walked over to Harrington and tried to punch him. Harrington avoided the punch and exchanged words with Jackson. Jackson left and went into an apartment building.
Jackson returned five minutes later. As Harrington was leaving on his bicycle, Jackson hit him in the back with a two-foot long four-by-four piece of wood, then hit him in the leg with the lumber, causing him to fall over. Jackson then hit Hernandez with the wood.
Harrington sustained a cracked spleen that caused internal bleeding. He could have bled to death, but surgery was performed to stop the bleeding. Because of the injury, Harrington had to miss work for almost a year.
DISCUSSION
I. The trial court did not abuse its discretion in denying Jackson's Romero motion
Jackson argues the trial court abused its discretion by considering impermissible factors in denying his Romero motion. Specifically, he argues: "The court inferred from [his] exercise of his Sixth Amendment right to a jury trial that he lacked remorse, and explained that it was punishing him in part for displaying no remorse." The Attorney General argues the trial court considered appropriate factors in making its decision, and the record does not show the court denied the Romero motion because Jackson showed lack of remorse or exercised his Sixth Amendment right. We agree with the Attorney General.
A trial court must make its decision to strike or not strike a prior conviction by considering factors that are intrinsic to the Three Strike law's sentencing scheme. (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).) The factors a trial court must consider include: (1) the nature and circumstances of the current conviction; (2) the nature and circumstances of the prior strike conviction; and (3) the defendant's "background, character, and prospects." (Ibid.) If the defendant falls outside the spirit of the Three Strikes law, the court may, in furtherance of justice, treat the defendant "as though he had not previously been convicted of one or more serious and/or violent felonies." (Ibid.; see also Romero, supra, 13 Cal.4th at pp. 529-530; § 1385, subd. (a).) We review a trial court's denial of a Romero motion for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 374.) "[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Id. at p. 377.) A court may not impose a harsher sentence as punishment for exercising the right to a jury trial, but we will not conclude a court has done so absent a persuasive showing. (People v. Ghebretensae (2013) 222 Cal.App.4th 741, 762 (Ghebretensae).)
Applying these principles, we find no abuse of discretion. In denying Jackson's Romero motion, the court properly considered the factors stated in Williams. The court considered Jackson's prior strike conviction for shooting at an inhabited dwelling, explaining the conviction showed a history of violent conduct. (Williams, supra, 17 Cal.4th at p. 161.) The court also properly considered the nature and circumstances of Jackson's current strike, noting Jackson had been convicted of assault with a deadly weapon and the jury had also found he had caused the victim great bodily injury. (Ibid.) The court further noted Jackson had struck the victim several times, causing internal bleeding that could have been life-threatening had the victim not received immediate medical attention. The court next weighed Jackson's "background, character, and prospects." (Ibid.) The court noted this factor was more of a "mixed bag" than the others, explaining on one hand the letters from Jackson's place of employment showed he displayed a gentle nature and patience toward children with special needs, but that his prior criminal record and current offense showed an inclination toward violence. Weighing all these factors, the court concluded it would be in society's interest and within the spirit of the Three Strikes law to deny Jackson's Romero motion.
After the court denied the Romero motion, the parties discussed the factors in aggravation and mitigation. The People recommended a sentence of 16 years in state prison, and Jackson's trial counsel requested a sentence in the six to nine year range. The court found Jackson's work as an instructional aide to be a mitigating factor and sentenced him to an aggregate term of 11 years in state prison.
After imposing sentence, the court addressed Jackson. The court complimented Jackson for his knack for working with children with special needs, and recommended that he use his time in prison to address his anger management issues. In advising Jackson to resolve his anger management issues, the judge commented he had not seen Jackson express remorse for the current offense, and urged him to assess his reactions to situations moving forward. Critically, the court made these statements to Jackson after denying his Romero motion and stating appropriate reasons for doing so. The statements were simply post-sentencing advice from the court to Jackson on how to rehabilitate himself and avoid future recidivism. The record in no way suggests the court denied Jackson's Romero motion to punish him for exercising his Sixth Amendment right to a jury trial. (Ghebretensae, supra, 222 Cal.App.4th at p. 762 ["Although a court may not impose a harsher sentence on a defendant as punishment for exercising his or her jury trial right, '[t]here must be some showing . . . that the higher sentence was imposed as punishment for exercise of the right. [Citation.]'"].) Nor does the record show the court denied the motion because Jackson did not express remorse. Rather, the record shows the court, in denying the Romero motion, properly focused on the violent nature of the current and prior strike convictions. We reject Jackson's contention that the court impermissibly denied his Romero motion based on lack of remorse or as punishment for exercising his constitutional right. We find no abuse of discretion.
II. The trial court should strike the great bodily injury enhancement and state its reasons for doing so
The jury found true the allegation that Jackson inflicted great bodily injury in the commission of count one (§ 12022.7, subd. (a)). The court imposed and stayed the three-year great bodily injury enhancement. The parties agree that the trial court should have stricken the enhancement rather than imposing and staying it. We agree. Section 1385 authorizes a trial court to "strike or dismiss an enhancement" or "the additional punishment for that enhancement in furtherance of justice . . . ." (§ 1385, subd. (b)(1); see also People v. Flores (2005) 129 Cal.App.4th 174, 178 [under section 1385, a trial court has the authority to dismiss or strike an enhancement, but is not authorized to stay punishment].) The court should strike the enhancement or the additional punishment for the enhancement and orally state its reasons for doing so on the record. (§ 1385, subds. (a), (b)(1).)
DISPOSITION
The matter is remanded for the trial court to either strike the great bodily injury enhancement or strike the additional punishment for the enhancement and state its reasons for doing so. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, J. We concur: WILLHITE, Acting P.J. COLLINS, J.