Opinion
E080373
09-29-2023
THE PEOPLE, Plaintiff and Respondent, v. ROBERT DALE LAWSON, Defendant and Appellant.
James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Paige Hazard and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Super. Ct. No. FVI21001345 Shannon L. Faherty, Judge. Affirmed.
James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Paige Hazard and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKINSTER Acting P. J.
The court denied defendant and appellant Robert Dale Lawson's motion to strike the prior strike conviction finding (Pen. Code, §§ 667, subds. (b)-(i) &1170.12)pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). On appeal, defendant contends the court abused its discretion by failing to apply the proper legal standard. We affirm.
All further statutory references are to the Penal Code.
The People filed a request that we take judicial notice of the legislative history of Assembly Bill No. 81, which we reserved for consideration with the appeal. We deny the request as unnecessary to the resolution of the issue on appeal.
On May 13, 2021, defendant entered a CVS store, where the manager welcomed him. Defendant removed a can of beer from the cooler at the back of the store, placed it in his pocket, and moved to exit the store. The manager asked defendant to surrender the beer. Defendant "became very belligerent, started yelling and screaming." "He was cussing and screaming at me."
The manager responded that he would call the police. Defendant said, "I don't care. I'll fight you right now. I'll fucking kill you." While reaching into his pocket, defendant said, "I'll shoot you. I'll fucking kill you." The manager was afraid because he thought defendant might have a knife or gun.
The manager called 911 and gave the dispatcher directions as to defendant's subsequent route as he left the store. Officers found defendant, who matched the description given by the manager. They retrieved two cans of beer and a bottle of vodka from his pockets. The manager identified defendant from an infield show up.
On April 14, 2022, a jury convicted defendant of second-degree robbery (§ 211, count 1). In a separate proceeding, the trial court found true allegations that defendant had suffered a prior serious felony conviction (§ 667, subd. (c)) and a prior strike conviction (§§ 667, subds. (b)-(i) &1170.12).
The court dismissed a count 2 charge of criminal threats (§ 422) upon the People's motion after the jury hung as to that count.
Defense counsel filed a Romero motion in which he argued that since defendant's prior strike conviction, defendant had suffered five misdemeanor convictions and one felony conviction, all in decreasing severity. Defense counsel noted that defendant's prior strike conviction was 19 years ago, and defendant was only 21 years old when he committed it. He cited as a mitigating factor that defendant "exercised caution to avoid harm to persons or damage to property, or the amounts of money or property taken were deliberately small, or no harm was done or threatened against the victim."
The People filed opposition in which they itemized defendant's criminal record as including three felony convictions, five misdemeanor convictions, a parole violation, a probation violation, two violations of Post Community Release Supervision (PCRS), two flash incarcerations, and several additional arrests. The People argued the court should deny defendant's motion because his strike offense was not remote, defendant had not led a legally blameless life, and he continued to commit criminal offenses.
At the hearing on the motion on June 24, 2022, defense counsel argued defendant's prior strike conviction for second degree robbery was 20 years old, and that defendant was 21 years old at the time he committed the offense. Defense counsel noted that in the instant offense, defendant had taken only a couple bottles of alcohol.
Both defendant and the People, in their moving papers, incorrectly listed the date of defendant's prior strike conviction as having occurred on February 11, 2003, which was also the date listed on the complaint and information. The correct date is December 14, 1999.
The court recognized that it had discretion to strike the offense and noted that the prior strike offense occurred "approximately 18 years ago." The court noted "it is the position of the defense that since then his crimes have been of decreasing severity, but he's not remained essentially clean during that time. There have been eight convictions since, one of them being a felony as well as numerous PRCS violations, probation violations, and parole violations." "I am quite persuaded by that as well as the fact that this is the same category of crime that the prior strike was. It's actually the same charge." The court denied defendant's Romero motion. The court sentenced defendant to 11 years of imprisonment.
II. DISCUSSION
Defendant contends the court abused its discretion in denying his motion to strike. He maintains that Senate Bill No. 81's amendments to section 1385 apply to a court's determination of whether to strike a prior strike conviction finding. Defendant argues that the court's failure to apply the mitigating criteria in amended section 1385 was an abuse of discretion.
The People counter that defendant's failure to raise below the purported applicability of Senate Bill No. 81 to his Romero motion forfeited the issue on appeal. They additionally maintain that Senate Bill No. 81's liberalized criteria are not applicable to a court's decision to strike a prior strike conviction finding. We agree with the People.
A. Forfeiture
The People contend defendant forfeited any purported applicability of Senate Bill No. 81 to his Romero motion by failing to raise that specific basis below. We agree.
Failure to raise an issue at sentencing forfeits the issue on appeal. (People v. Keene (2019) 43 Cal.App.5th 861, 862; see People v. Romero and Self (2015) 62 Cal.4th 1, 49 ["He did not object on this basis below, and the claim is therefore forfeited."].)
Here, defense counsel did not raise any issue at the hearing below with respect to Senate Bill No. 81's purported applicability to his Romero motion. Thus, the issue was forfeited. Nonetheless, we can decline to find forfeiture or reach the merits even if the issue has been forfeited. (People v. Monroe (2022) 85 Cal.App.5th 393, 400.) We do so here.
B. Application of Senate Bill No. 81
Defendant acknowledges, "Caselaw has held the Three Strikes Law to be an alternative sentencing scheme, not an enhancement." Nevertheless, defendant argues "that under principles of statutory interpretation, the word 'enhancement' is used in [amended] section 1385[, subdivision] (c) in a broader sense that includes strikes and the greater sentences that go with them." We disagree.
"Whether the amendments to section 1385 apply to prior strike convictions is a question of statutory interpretation which we review de novo. [Citation.] 'To resolve whether defendant's interpretation of the . . . statute[] is correct, we are guided by familiar canons of statutory construction. "[I]n construing a statute, a court [must] ascertain the intent of the Legislature so as to effectuate the purpose of the law." [Citation.] In determining that intent, we first examine the words of the respective statutes: "If there is no ambiguity in the language of the statute, 'then the Legislature is presumed to have meant what it said, and the plain meaning of the language governs.' [Citation.] 'Where the statute is clear, courts will not "interpret away clear language in favor of an ambiguity that does not exist." [Citation.]'" [Citation.] If, however, the terms of a statute provide no definitive answer, then courts may resort to extrinsic sources, including the ostensible objects to be achieved and the legislative history. [Citation.] "We must select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences."' [Citation.]" (People v. Burke (2023) 89 Cal.App.5th 237, 242 (Burke).)
"Effective January 1, 2022, Senate Bill No. 81 (Stats. 2021, ch. 721, § 1) amended section 1385 to add specific mitigating factors the trial court must consider when deciding whether to strike enhancements from a defendant's sentence in the interest of justice. [Citations.] Section 1385, subdivision (c) now provides: '(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 . . . 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.'" (Burke, supra, 89 Cal.App.5th at pp. 242-243.)
"Subdivision (c) of section 1385 expressly applies to the dismissal of an 'enhancement.' (§ 1385, subd. (c)(1).) 'Ordinarily words used in a statute are presumed to be used in accordance with their established legal or technical meaning.' [Citation.] The term 'enhancement' has a well-established technical meaning in California law. [Citation.] 'A sentence enhancement is "an additional term of imprisonment added to the base term."' [Citations.] It is equally well established that the Three Strikes law is not an enhancement; it is an alternative sentencing scheme for the current offense. [Citations.] We presume the Legislature was aware of, and acquiesced in, both this established judicial definition of enhancement and the distinction between an enhancement and an alternative sentencing scheme such as the Three Strikes law. [Citation.] The Legislature did not otherwise define the word 'enhancement' in section 1385. Because the statutory language is clear and unambiguous, we follow its plain meaning and do not consider the legislative history .... [Citation.] The plain language of subdivision (c) of section 1385 applies only to an 'enhancement,' and the Three Strikes law is not an enhancement. We therefore conclude that section 1385, subdivision (c)'s provisions regarding enhancements do not apply to the Three Strikes law." (Burke, supra, 89 Cal.App.5th at pp. 243-244, fn. omitted.)
"[S]ection 1385, subdivision (c) applies to enhancements. A prior strike conviction is not an enhancement but part of an alternative sentencing scheme. Accordingly, section 1385, subdivision (c) does not apply to prior strike convictions. [Citation.]" (People v. Tilley (2023) 92 Cal.App.5th 772, 776, fn. 2.)
We agree with the courts in Burke and Tilley that Senate Bill No. 81 applies only to enhancements and that prior strike conviction findings are not enhancements. Thus, the court did not abuse its discretion in not considering the mitigating factors enumerated in amended section 1385 when denying defendant's Romero motion.
III. DISPOSITION
The judgment is affirmed.
We concur: MILLER J. CODRINGTON J.