Opinion
A165435
06-13-2023
THE PEOPLE, Plaintiff and Respondent, v. ROY LACY, Defendant and Appellant.
NOT TO BE PUBLISHED
(Marin County Super. Ct. No. SC189115A)
TUCHER, P.J.
This appeal is from a postjudgment order denying Roy Lacy's motion to strike two prior serious felony sentence enhancements. (Pen. Code, § 667, subd. (a) (section 667(a)); statutory references are to this code.) Appellant's counsel has filed a brief that raises no issue for appeal and asks this court for an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). We affirm.
SUMMARY OF RECORD ON APPEAL
We take judicial notice of the appellate opinion in People v. Lacy (Oct. 18, 2018, Al47411) [nonpub. opn.] (Lacy I), and a November 16, 2018, order modifying the opinion in Lacy I (Lacy I Modification). Lacy's request for judicial notice of the entire record in Lacy I is denied. (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2 ["any matter to be judicially noticed must be relevant to a material issue"].) The Lacy I decision and modification order provide relevant background information sufficient to complete our review of the appealed order.
In 2015, a jury found Lacy guilty of six counts of robbery. (§ 211; see Lacy I, supra, A147411, at p. 1.) The trial evidence showed that on three separate dates in January 2013, Lacy went into a bank in Marin County where he acted as though he had a weapon to frighten employees into turning over cash. At each of the three banks where he committed these offenses, Lacy demanded and received money from two employees. Lacy subsequently admitted committing these robberies during a June 2013 interrogation conducted in Florida where he was in custody on other charges. (Lacy I, pp. 2-4.)
In addition to finding Lacy guilty of the Marin County robberies, the jury found true allegations that Lacy has two prior strike convictions, two five-year serious felony prior convictions, and four prior prison terms. (§§ 667(a), 667, subds. (b)-(i), 667.5, subd. (b), 1170.12.) The trial court sentenced Lacy to an aggregate sentence of 105 years to life in prison. (Lacy I, supra, A147411, at p. 2.)
In 2018, a different panel of this court affirmed the judgment against Lacy, rejecting contentions that his confession in Florida should have been excluded on multiple grounds. (Lacy I, supra, A147411, at pp. 4-13.) Following issuance of the Lacy I opinion, a petition for rehearing was denied, but the court modified its original opinion and changed the disposition by remanding this matter in order to give Lacy the benefit of amendments to the sentencing law that would go into effect before Lacy's judgment became final. (Lacy I Mod., p. 1.) The disposition as modified states: "Lacy's convictions are affirmed, but the case is remanded with directions to consider, after January 1, 2019, whether to strike the enhancements imposed under section 667, subdivision (a), and to resentence Lacy accordingly." (Lacy I Mod., p. 2.)
II. The Present Appeal
In March 2019, the trial court held the first of several status conferences pertaining to the remand order, continuing the matter for appointment of counsel. On April 5, the attorney who represented Lacy at his jury trial was reappointed to represent him in this matter. The matter was continued multiple times because Lacy was detained in San Francisco on two murder charges, San Francisco declined to release him to attend a hearing in Marin, and he was reluctant to waive his appearance.
On December 9, 2020, Lacy filed a motion requesting that the court exercise its discretion under section 1385 to strike the five-year sentence enhancements that were previously imposed pursuant to section 667(a) for two prior serious felony convictions: a 2001 conviction in San Mateo County for assault with a deadly weapon (§ 245, subd. (a)(1)); and a 2007 federal law conviction for bank robbery (18 U.S.C. § 2113(a)). In his motion, Lacy argued he is deserving of discretionary relief because he had a difficult childhood, he was young when he committed the prior offenses, he takes full responsibility for his current offenses, and his current sentence of 30 years plus 75 years to life constitutes cruel and unusual punishment.
On December 30, 2020, a status conference was held remotely, via ZOOM. Through counsel, Lacy waived his appearance at the hearing and at all future hearings pertaining to this matter.
On January 15, 2021, the People filed an opposition to Lacy's motion to strike the section 667(a) enhancements. They acknowledged the court has broad discretion to dismiss the enhancements in the interests of justice and argued there is no basis for doing so here. They contended that Lacy's crimes were "particularly egregious," as he threatened and terrified his victims, and they recounted Lacy's "disturbing" criminal history, which includes 10 prior felony convictions for robbery, grand theft, burglary, vehicle theft, and assault with a deadly weapon. Finally, the People highlighted the fact that there is no evidence of conduct by Lacy to suggest any "positive future prospects," noting that he was currently facing two serious charges in another county.
The People also requested that the court take judicial notice of three documents pertaining to Lacy's original sentencing hearing: An opposition to a defense motion to strike Lacy's prior strike convictions pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497; the People's Sentencing Statement; and the Presentence Report.
The hearing on Lacy's motion was held on January 20, 2021. The court discussed the purpose of the remand order and its new discretion to strike section 667(a) priors and then turned to the People's request for judicial notice of documents attached to its opposition brief. The court observed the documents were part of the court file and stated it would consider adopting the arguments set forth therein. However, the court would not take judicial notice of the truth of factual assertions in these attachments or use the judicial notice doctrine as a means of considering hearsay. Both parties concurred in this ruling and then presented argument on the pending motion.
Defense counsel argued Lacy's motion was not based primarily on a Romero-type analysis, but instead on the "principle of justice." Counsel acknowledged that evidence of guilt was overwhelming and that "technically" there were six separate victims. She reminded the court, however, that when deciding Lacy's sentence, the court considered equitable principles in recognizing that there were really only three robbery incidents and thus imposed only three consecutive 25 year to life sentences. By a parity of reasoning, defense counsel urged the court not to count the section 667(a) priors since they are also strikes and Lacy was already being punished with a three strikes sentence. Beyond that, defense counsel described Lacy as "very damaged," and opined that his criminality is intertwined with his "addiction" and difficult childhood.
Before the matter was submitted, the trial court inquired whether it was relevant that Lacy was potentially facing murder charges in San Francisco. After further discussion the parties agreed that the San Francisco matter was not relevant. Lacy's counsel also clarified for the court that Lacy had been convicted of bank robberies in Florida and was required to serve that sentence before he could begin serving his sentence for the current robberies.
After the matter was submitted, the court began by "acknowledg[ing]" its understanding that a change in the law gave it discretion to strike the section 667(a) priors in the interests of justice and then concluded: "When I do that evaluation, I end up deciding that it is not in the interests of justice to strike these priors. I just simply don't see anything that the Court can hang its hat on to conclude that it's in the interests of justice to do this, even though the numbers on Mr. Lacy's sentence are big."
The court outlined factors affecting its decision, including that Lacy's criminal history is "overwhelming," and includes a "prolific" pattern of committing bank robberies. The court described Lacy as a serial bank robber and found that these crimes are very dangerous, notwithstanding evidence that sometimes Lacy simulated weapons and other times he just threatened to use them but did not actually inflict injury. The court also acknowledged Lacy's "tragic and very unfortunate background," but had an overriding concern about the number of prior state prison terms and the fact that every time Lacy was released from prison, he committed more robberies. The court observed that Lacy was well aware that his prior offenses would increase his punishment if he reoffended and he continued to do so. The court also noted that it had considered factors bearing on the interests of justice when it calculated Lacy's sentence in 2015, as the sentence could potentially have been "more time" than he received. Ultimately, the court found that Lacy "presents a real safety risk," and despite significant struggles, he made little to no effort to change his "criminal lifestyle." Thus, the court concluded it would not be in the interests of justice to dismiss or strike the prior serious felony convictions.
At the original sentencing hearing, the People urged the court to impose a sentence of 150 years to life. The probation department recommended an aggregate sentence of 135 years to life.
DISCUSSION
The Wende brief filed by appellant's counsel raises no issues pursuant to Anders v. California (1967) 386 U.S. 738, 744. Lacy was appraised of his right to file a supplemental brief and to request to have his counsel relieved, but he did neither. (See People v. Kelly (2006) 40 Cal.4th 106, 110.) Following Wende guidelines, we have conducted an independent review and conclude there are no meritorious issues to be argued on appeal.
As discussed, the Lacy I Modification order identified a discrete issue for the trial court to address on remand-whether to strike the 667(a) enhancements pursuant to the newly amended statute. When Lacy's original sentencing hearing was conducted, the trial court did not have discretion to strike a section 667(a) enhancement. (Former § 1385, subd. (b) ["This section does not authorize a judge to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under section 667"].) But amended section 1385 deletes former subdivision (b), giving trial courts the discretion to dismiss five-year sentence enhancements under section 667(a), and Lacy is entitled to the benefit of that amendment. (Sen. Bill No. 1393 (2017-2018 Reg. Sess.); see e.g. People v. Garcia (2018) 28 Cal.App.5th 961, 972.) The record shows that the trial court understood its new discretion and properly followed the remand instruction.
When deciding whether to strike a five-year enhancement for a prior serious felony conviction under section 667(a), "courts 'must evaluate the nature of the offense and the offender.'" (People v. Brugman (2021) 62 Cal.App.5th 608, 638.) "As with our review of a decision on a motion to strike a prior strike, '[w]e review a court's decision to deny a motion to strike a five-year prior serious felony enhancement for an abuse of discretion.'" (Ibid.)
Here, the record shows that the trial court was familiar with the factual evidence and identified pertinent factors, including issues of safety, Lacy's pattern of serving prison terms and immediately reoffending, and Lacy's failure to make an effort to rehabilitate himself.
We find no basis for concluding the trial court abused its discretion. We note that the motion to strike the section 667(a) enhancements contains an argument that Lacy's sentence constitutes cruel and unusual punishment. That argument was made and rejected at the original sentencing hearing, and the issue was not pursued on appeal in Lacy I. We also note that at the post-remand hearing, Lacy's counsel argued that using a prior strike conviction to impose a section 667(a) enhancement seems unfair. She did not dispute that such dual use of a prior conviction is contemplated by the Three Strikes Law. (See People v. Williams (2004) 34 Cal.4th 397, 402-405; People v. Flores (2021) 63 Cal.App.5th 368, 380.)
Finally, the remand order did not trigger the so-called full resentencing rule. Under that rule, "when part of a sentence is stricken on review, on remand for resentencing 'a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.'" (People v. Buycks (2018) 5 Cal.5th 857, 893; see also People v. Valenzuela (2019) 7 Cal.5th 415, 425.) The Lacy I court did not find sentencing error and absent a decision to strike the section 667(a) enhancements there was no basis for reconsidering any other aspect of Lacy's sentence. (People v. Brooks (2020) 53 Cal.App.5th 919, 925.)
DISPOSITION
The appealed order is affirmed.
WE CONCUR: FUJISAKI, J. PETROU, J.