Opinion
B324114
01-29-2024
THE PEOPLE, Plaintiff and Respondent, v. KELVIN JELKS, Defendant and Appellant.
Karyn H. Bucur, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and Rama R. Maline, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BA418329, Craig Elliott Veals, Judge. Affirmed.
Karyn H. Bucur, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and Rama R. Maline, Deputy Attorney General, for Plaintiff and Respondent.
BAKER, J.
A jury convicted defendant and appellant Kelvin Jelks (defendant) of second degree robbery and assault with a firearm; the trial court sentenced him to 40 years to life in prison. Years later, defendant filed a motion to modify his sentence in light of the intervening legislation: Senate Bill No. 81 (2021-2022 Reg. Sess.) (Senate Bill 81) and Senate Bill No. 567 (2020-2021 Reg. Sess.) (Senate Bill 567). As explained at greater length post, the former enactment requires trial courts to give great weight to certain mitigating circumstances when deciding whether to dismiss an enhancement in furtherance of justice unless doing so would endanger public safety; the latter enactment permits a sentence exceeding the middle term only when an aggravating circumstance has been admitted by a defendant or found true beyond a reasonable doubt. The trial court denied defendant's sentence modification motion, and we are asked to decide whether this was an abuse of the court's discretion.
I. BACKGROUND
A. Defendant's Crimes, Convictions, Sentencing, and Direct Appeal
In 2014, the Los Angeles County District Attorney charged defendant with the second degree robbery of Roberto Hernandez (Hernandez) (Pen. Code, § 211) and an assault with a semiautomatic firearm on Raul Justiniano (Justiniano) (§ 245, subd. (b)). The amended information also alleged, in connection with the robbery count, that defendant personally and intentionally discharged a firearm causing great bodily injury (§ 12022.53, subds. (b)-(d)) and, in connection with the assault count, that defendant personally used a firearm (§ 12022.5). In connection with both counts, the District Attorney alleged defendant had sustained a prior "strike" conviction (§§ 667, subd. (d), 1170.12, subd. (b)), a prior serious felony conviction (§ 667, subd. (a)(1)), and had served a prior prison term (§ 667.5, subd. (b)).
Statutory references that follow are to the Penal Code.
At trial on the charges, the prosecution presented evidence that defendant (who was then on parole) approached Hernandez in the morning on November 12, 2013, as Hernandez was about to open a recycling business where he worked. Defendant pointed a gun at Hernandez and demanded a bag he was carrying that contained a computer, cash, and other items. When defendant fled with Hernandez's bag, Hernandez and Justiniano, another employee of the recycling center, chased after defendant. During the chase, defendant briefly turned and shot at his pursuers, striking Hernandez.
After the presentation of evidence, the jury found defendant guilty as charged and found true all of the firearm enhancement allegations. Defendant admitted he sustained a prior conviction in 2011 for another robbery. The trial court sentenced defendant to a total term of 40 years to life, which included (among other things) high term sentences on both counts of conviction and a 25 years to life enhancement for the section 12022.53 firearm enhancement the jury found true. In pronouncing sentence, the court found there were no mitigating circumstances but there were several circumstances in aggravation.
The trial court imposed a 10-year term for the section 12022.5 firearm enhancement alleged in connection with the assault conviction, but the sentence on that conviction (including the 10-year enhancement term) was ordered to run concurrent with the sentence on the robbery conviction.
When defendant's case initially came to this court on direct appeal, the opinion for the court affirmed his convictions but reversed the sentence and remanded to permit the trial court to decide whether to exercise its discretion to strike defendant's firearm enhancements. Our Supreme Court then returned the case to us with directions to consider intervening legislation giving trial courts new discretion to strike a five-year prior serious felony conviction enhancement of the type defendant received. We then issued a new opinion that remanded with directions to consider whether to dismiss defendant's firearm enhancement in furtherance of justice, to consider whether to dismiss defendant's prior serious felony conviction enhancement in furtherance of justice, and to disclose additional discovery to defendant and determine whether the defense was prejudiced by the nondisclosure.
The discovery issue was addressed on remand and is not at issue in this appeal.
B. Defendant's Motion for Resentencing
In February 2022, defendant filed a motion to "modify the judgment" that asked the trial court to reduce his sentence in accordance with recent legislative amendments to criminal sentencing laws. He argued, first, that at least the "gun allegation" (the section 12022.53 enhancement) should be dismissed in furtherance of justice because his case involved three mitigating circumstances identified in Senate Bill 81 as weighing greatly in favor of striking the firearm enhancement: application of the enhancement would have a discriminatory racial impact (defendant is Black), multiple enhancements were imposed, and application of enhancement resulted in a sentence exceeding 20 years. He argued, second, that the high term sentence the trial court imposed on both counts of conviction should not have been imposed because there were no aggravating circumstances that he admitted or that were proven true beyond a reasonable doubt. Defendant asked the court to resentence him to an aggregate determinate term of 16 years in prison.
The People opposed defendant's motion. On the issue of whether defendant's firearm enhancement should be stricken in light of Senate Bill 81's identification of mitigating circumstances, the People argued the circumstances were irrelevant because defendant posed a risk to public safety that precluded a reduction in sentence-as shown by his commission of a robbery and shooting at two unarmed pursuers all while on parole from a prior robbery conviction. As to whether the high term sentences on the crimes of conviction were proper, the People argued that the court could rely on defendant's prior convictions as an aggravating circumstance justifying imposition of the high term.
Submitted with the People's opposition was a certified copy of defendant's criminal record. The certified record showed that, prior to his convictions in this case, defendant had been (1) convicted of being a minor in possession of a concealable firearm for which he was committed to the California Youth Authority, (2) convicted of robbery and sentenced to prison for two years, and (3) violated his parole once released from prison on the robbery conviction.
The trial court heard defendant's motion in May 2022. Defense counsel conceded the trial court had to "high term" his client, but counsel argued the law had changed since the original sentencing hearing and the court "now ha[d] the power," which it should exercise, to strike the 25-year section 12022.53 enhancement. The People argued there was no basis for a change in defendant's sentence given the "extremely egregious and worrisome" facts of the case.
Following argument by counsel, the trial court heard from defendant directly. He said could not justify his actions in November 2013 because they were "completely wrong," but he maintained he had used his time in prison "to work on my life and get myself together ...." The trial court advised that it remembered defendant's trial and his demeanor at the time, and remarked that it "s[aw] a real difference in [defendant] today." The court commented, however, that it was not inclined to modify the sentence in any significant degree despite the difference it observed in defendant. The court continued the hearing to give the victims the opportunity to be heard and to give the court additional time to review the case file.
At the continued hearing in September 2022, neither of the victims attended. The prosecution submitted on its previous argument. Defense counsel acknowledged his client's criminal history was undisputed: "He was released from state prison [for the earlier robbery] on March 25th 2013, had absconded from parole [on] April 20th, 2013. The [underlying] crime[s] w[ere] committed November 12th 2013." But defense counsel urged the court once more to dismiss the 25-year firearm enhancement based on two Senate Bill 81 mitigating factors: discriminatory racial impact and enhancements resulting in a sentence exceeding 20 years.
The trial court denied defendant's motion for a reduction in sentence. The court explained that while "there has been a remarkable change" in defendant, that change was counterbalanced by the "seriousness of the underlying crimes." In particular, the court observed defendant "gratuitous[ly]" shot at two unarmed men, wounding one of them. The court ruled as follows: "If the court had the discretion at the time to strike the [section] 12022.53(d) allegation, I can say with absolute certainty that it would not have exercised the discretion in the way it's requested now. [¶] So regretfully I think that [defendant], based upon his previous history and the circumstances of the case, was appropriately punished in this case. [¶] So I'll respectfully deny his request. [¶] . . . [¶] And this is for the reasons I previously stated and the degree of danger that was posed to the community."
II. DISCUSSION
Defendant advances three arguments for reversal; two concern Senate Bill 81's amendments to section 1385 (the statute that permits dismissing an enhancement in furtherance of justice) and the third concerns Senate Bill 567's amendments to provisions of section 1170 governing when a high term sentence may be imposed. All three arguments are unavailing.
First, defendant contends the trial court was unaware of Senate Bill 81's clarification on how courts should exercise their section 1385 discretion. Defendant's position is belied by the record which shows the trial court was well aware of the changes made by Senate Bill 81: the parties briefed the issue for the court and defense counsel argued the issue at the hearing.
Second, defendant maintains that even if the trial court was aware of its discretion under section 1385, it abused that discretion because Senate Bill 81's amendments require an exercise of discretion to strike the firearm enhancements under the circumstances. This argument is wrong on the law: the statute as amended-as confirmed by the statutory language, legislative history, and persuasive recent authority-does not require a court to strike an enhancement when the court determines that doing so would jeopardize public safety. As we read the record, that is what the trial court determined here.
Finally, defendant argues the trial court erred in imposing high term sentences because section 1170, as amended by Senate Bill 567, does not allow a high term sentence unless the circumstances justifying the high term are admitted by a defendant or found true beyond a reasonable doubt. That is also wrong on the law. Section 1170, even as amended by Senate Bill 567, allows a trial court to sentence a defendant to the upper term based on facts in a certified record of conviction. That is what happened in this case.
A. Section 1385 As Amended by Senate Bill 81
Under section 1385, a trial court may dismiss an action or a sentence enhancement, or strike an enhancement or its punishment "in furtherance of justice." (§ 1385, subds. (a) &(b)(1).)
Recognizing that "in furtherance of justice" is an "'amorphous concept,'" our highest court has identified principles to guide trial courts in exercising their discretion. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530-531.) In Senate Bill 81, the Legislature similarly sought to provide trial courts with "clear guidance on how and when" to "dismiss sentencing enhancements and other allegations that would lengthen a defendant's sentence" by specifying circumstances for courts to consider. (Sen. Rules Com., Off. of Sen. Floor Analyses, Sen. Bill No. 81 (2021-2022 Reg. Sess.) as amended Aug. 30, 2021, p. 5; see also Assem. Com. on Public Safety, Sen. Bill No. 81 (2021-2022 Reg. Sess.) as amended Apr. 27, 2021, p. 3.)
As amended by Senate Bill 81, section 1385, subdivision (c), states: "(1) 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. [¶] (2) 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." Among the circumstances listed in the subparagraphs that follow are those in the first three that were invoked by the defense here: "(A) Application of the enhancement would result in a discriminatory racial impact .... [¶] (B) Multiple enhancements are alleged in a single case. In this instance, all enhancements beyond a single enhancement shall be dismissed. [¶] (C) The application of an enhancement could result in a sentence of over 20 years. In this instance, the enhancement shall be dismissed." (§ 1385, subd. (c)(1)-(2).)
B. The Record Demonstrates the Trial Court Was Aware of the Law As Amended by Senate Bill 81
Reviewing courts, as a general rule, presume trial courts are aware of and follow applicable law. (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 398; People v. Carmony (2004) 33 Cal.4th 367, 378; People v. Gutierrez (2009) 174 Cal.App.4th 515, 527 ["in light of the presumption on a silent record that the trial court is aware of the applicable law, including statutory discretion at sentencing, [a reviewing court] cannot presume error where the record does not establish on its face that the trial court misunderstood the scope of [its] discretion"].) The record must affirmatively show a trial court misunderstood the law, or at least reveal some significant ambiguity about whether the court applied the correct law (see, e.g., People v. Panozo (2021) 59 Cal.App.5th 825, 839 [remand required because the record was "ambiguous" as to whether the trial court was aware of its statutory obligations]), to overcome the general presumption.
There is no affirmative misunderstanding of the law or ambiguity on this record. The scope of discretion under section 1385 as amended by Senate Bill 81 was briefed for the trial court by both sides. Changes in sentencing law, including the changes worked by Senate Bill 81, were also argued by the defense during the hearing on the sentence modification motion. The court itself never misstated the law, nor did it display any lack of awareness or confusion that could give rise to serious doubts about the court's understanding of its discretion.
Defendant asserts the trial court revealed it was somehow unaware of Senate Bill 81 because it remarked, ""If the court had the discretion at the time to strike the [section] 12022.53(d) allegation, I can say with absolute certainty that it would not have exercised the discretion in the way it's requested now." Defendant believes this refers to an earlier legislative amendment to section 1385, not Senate Bill 81. Even if defendant is right about that, the remark betrays no unawareness of applicable law. Though Senate Bill 81 makes a number of changes in how courts should consider exercising section 1385 discretion, it is still the earlier legislative amendment that provided the discretion in the first place.
C. The Trial Court Did Not Abuse Its Discretion When It Declined to Strike Defendant's Enhancements
Because section 1385's subdivisions (c)(2)(B) (multiple enhancements) and (C) (sentence exceeding 20 years) state enhancements "shall be dismissed," defendant contends the trial court abused its discretion when it elected not to dismiss the 25 years to life firearm enhancement and the five year prior serious felony enhancement. Defendant's argument is based on a misreading of the amended statute, its legislative history, and pertinent precedent.
The statutory language stating a trial court "shall" dismiss certain enhancements appears as a subpart to the general provision that a "court shall dismiss an enhancement if it is in the furtherance of justice to do so." (§ 1385, subd. (c)(1), italics added.) The nature of this express condition is further explained by the Legislature's directive that the trial court, while "exercising its discretion under this subdivision, . . . shall consider and afford great weight" to evidence of certain factors, and proof of one of the factors "weighs greatly" in favor of dismissal "unless" the court finds dismissal would endanger public safety. (§ 1385, subd. (c)(2), italics added.) "This language, taken together, explicitly and unambiguously establishes: the trial court has discretion to dismiss sentencing enhancements; certain circumstances weigh greatly in favor of dismissal; and a finding of danger to public safety can overcome the circumstances in favor of dismissal." (People v. Anderson (2023) 88 Cal.App.5th 233, 239, review granted Apr. 19, 2023, S278786; People v. Mendoza (2023) 88 Cal.App.5th 287, 296 ["The 'shall be dismissed' language in section 1385(c)(2)(C), like the language of all of the listed mitigating circumstances, applies only if the court does not find that dismissal of the enhancement would endanger public safety"]; see also People v. Lara (2010) 48 Cal.4th 216, 227 ["With regard to defendant's reliance on the use of the word 'shall,' it should not be assumed that every statute that uses that term is mandatory.... The context of the language, as well as other indicia of legislative intent, must be considered"].)
Rejecting a reading of section 1385's "shall" references as unqualified mandatory commands accords with the legislative history of Senate Bill 81. As one court recently observed, "There is no indication in the legislative history, . . ., that these changes were intended to require that multiple enhancements and enhancements for sentences over 20 years be struck even when doing so would endanger public safety. To the contrary, one committee report states-without differentiating multiple enhancements or enhancements for sentences over 20 years- that Senate Bill 81 would require dismissal of enhancements in the furtherance of justice 'except (i) when the dismissal of an enhancement is prohibited by an initiative statute or (ii) upon a showing of clear and convincing evidence that dismissal of the enhancement would endanger public safety.' (Sen. Com. on Appropriations, Rep. on Sen. Bill No. 81 (2021-2022 Reg. Sess.) as amended Apr. 27, 2021, p. 2.) Another report states that under Senate Bill 81 'the following circumstances' weigh greatly in favor of dismissal 'unless the court finds that dismissal of the enhancement would endanger public safety' before listing nine mitigating circumstances, including multiple enhancements and sentences over 20 years with the 'shall be dismissed' language. (Sen. Rules Com., Office of Sen. Floor Analyses, Sen. Bill No. 81 (2021-2022 Reg. Sess.) as amended Aug. 30, 2021, p. 3.)" (People v. Renteria (2023) 96 Cal.App.5th 1276, 1289.)
Based on the statute's language and legislative history, the courts have repeatedly rejected arguments similar to defendant's that rely on the "shall be dismissed" language of subdivision (c)(2)(B) and (c)(2)(C) of section 1385 to argue a trial court had no choice but to exercise its discretion to dismiss an enhancement. (See, e.g., People v. Cota (2023) 97 Cal.App.5th 318, 337 ["The phrase 'shall be dismissed,' as used in section 1385, subdivision (c)(2)(B), is not mandatory and does not require dismissal of any enhancement when doing so would endanger public safety"]; Renteria, supra, 96 Cal.App.5th 1276, 1284 [rejecting argument that dismissal of enhancements pursuant to section 1385, subdivisions (c)(2)(B) &(C) is mandatory]; Mendoza, supra, 88 Cal.App.5th at 294-297; Anderson, supra, 88 Cal.App.5th at 239, rev. gr.; People v. Lipscomb (2022) 87 Cal.App.5th 9, 15-21; see also People v. Walker (2022) 86 Cal.App.5th 386, 396-398, review granted Mar. 22, 2023, S278309 [if the court were to read subdivisions (c)(2)(B) and (C) as mandatory, then the existence of the mitigating factors therein "would not 'weigh greatly' in favor of dismissal-it would weigh dispositively"].)
We have the same view of the matter. The trial court here did not abuse its discretion when declining to strike defendant's enhancements notwithstanding enactment of Senate Bill 81. We read the court's comments at the hearing as a finding that dismissing the enhancements would endanger public safety and, certainly with that finding, the trial court retained the discretion to refuse to strike defendant's enhancements. The court also balanced several facts in reaching its decision, including defendant's age at the time of the commitment offenses, defendant's change in demeanor, his criminal record, and the seriousness of the commitment offenses. Because the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with applicable law, including as amended by Senate Bill 81, we hold there was no abuse of discretion. (See Carmony, supra, 33 Cal.4th at 378.)
We acknowledge the court's oral ruling was couched in oddly retrospective terms (e.g., "the degree of danger that was posed to the community" and "If the court had the discretion at the time to strike the [section] 12022.53(d) allegation, I can say with absolute certainty that it would not have exercised the discretion in the way it's requested now"). But we believe there is no way to understand the full import of the court's remarks except as a finding that exercising its discretion to strike the enhancements would endanger public safety given the facts of the offenses of conviction and defendant's criminal history.
D. Imposing the Upper Term on Both Convictions Does Not Warrant Reversal
Before Senate Bill 567's passage, section 1170, subdivision (b), permitted sentencing courts to impose determinate sentences comprised of either the lower, middle, or upper terms. Sentencing courts had broad discretion to impose any of the three terms and could make factual findings on aggravating or mitigating circumstances as described in California Rules of Court, rules 4.421 and 4.423.
Senate Bill 567 made the middle term the presumptive maximum term of imprisonment. (§ 1170, subd. (b)(1).) Under recently amended section 1170, sentencing courts may now impose the upper term only when there are circumstances in aggravation that justify imposition of a term of imprisonment exceeding the middle term, and the facts underlying the aggravating circumstances have been stipulated to by the defendant or are found true beyond a reasonable doubt by a jury or a trial court. (§ 1170, subd. (b)(1), (2).)
Section 1170 as amended, however, "preserves [the] distinction" in Sixth Amendment jurisprudence establishing "'the right to a jury trial does not apply to the fact of a prior conviction.'" (People v. Pantaleon (2023) 89 Cal.App.5th 932, 938.) While section 1170, subdivision (b)(1) and (2) generally require that aggravating factors supporting an upper term be submitted to a jury, section 1170, subdivision (b)(3), in pertinent part, states: "Notwithstanding paragraphs (1) and (2) [of section 1170, subdivision (b)], the court may consider the defendant's prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury." (§ 1170, subd. (b)(3); People v. Lopez (2022) 78 Cal.App.5th 459, 465-466 [section 1170, subdivision (b)(3) is an exception to subdivisions (b)(1) and (2)]; People v. Flowers (2022) 81 Cal.App.5th 680, 685 [same], review granted Oct. 12, 2022, S276237.)
Attached to the People's opposition to defendant's motion was a certified copy of defendant's criminal record, which showed crimes of increasing seriousness for which he had been incarcerated and a parole violation. (People v. Towne (2008) 44 Cal.4th 63, 79-82 [determinations that a defendant's prior convictions are numerous or of increasing seriousness, prior prison term, parole status, and prior unsatisfactory performance on probation or parole may be determined by the record of prior convictions]; People v. Black (2007) 41 Cal.4th 799, 815, 819-820 ["determinations whether a defendant has suffered prior convictions, and whether those convictions are 'numerous or of increasing seriousness' [citation], require consideration of only the number, dates, and offenses of the prior convictions alleged" and a jury determination on these aggravating factors is not necessary if a record of prior convictions support them], overruled on other grounds in Cunningham v. California (2007) 549 U.S. 270.)
By relying on the certified conviction record documenting what the court called defendant's "previous history," the trial court had a proper basis to impose the upper term and reversal is unwarranted even assuming the more defense-favorable standard of assessing prejudicial error applies. (People v. Lopez (2022) 78 Cal.App.5th 459, 467, fn. 11; see also Cal. Rules of Court, rule 4.421(b)(2)-(b)(4).)
DISPOSITION
The order denying defendant's motion to modify the judgment is affirmed.
We concur: RUBIN, P. J. MOOR, J.