Opinion
A166989
11-07-2023
THE PEOPLE, Plaintiff and Respondent, v. HAROLD MALBROUGH, Defendant and Appellant.
NOT TO BE PUBLISHED
(City & County of San Francisco Super. Ct. Nos. CRI-18002505, SCN229017)
TUCHER, P.J.
Harold Malbrough appeals from an order sentencing him to a 19-year prison term for convictions he suffered in 2018. Malbrough's convictions were affirmed in 2020, but his case was twice remanded for resentencing. (People v. Malbrough (Aug. 12, 2020, A155835) [nonpub. opn.] (Malbrough I); People v. Malbrough (Mar. 21, 2022, A162132) [nonpub. opn.] (Malbrough II).) In the present appeal, Malbrough contends this case must be remanded for a fourth resentencing hearing because the trial court failed to consider dismissing one or more of his sentencing enhancements due to mitigating factors. (Penal Code, § 1385; statutory references are to this code, unless another statute is cited.) Rejecting this claim of error, we will affirm Malbrough's sentence and the judgment. However, we direct the superior court to correct clerical errors in the abstract of judgment.
BACKGROUND
The January 2018 Incident
The events that precipitated charges against Malbrough occurred on January 19, 2018. Both parties adopt a summary of the 2018 incident that appears in Malbrough II. We quote that summary here:
"Alan K. was working at a store in San Francisco when a man approached the counter, forcibly took Mr. K.'s laptop, and ran. Mr. K. followed the assailant, who got into the passenger seat of a white car. Then, the car and Mr. K. collided under circumstances that were disputed at trial. As the car pulled away, Mr. K. fell to the ground and suffered a traumatic brain injury. The car fled the scene. Subsequently, the car was returned to a rental car agency in a different city without its license plates. Agency records disclosed that Malbrough had rented the car. Video from outside the store where Mr. K. was injured showed that prior to the incident, Malbrough got in and out of the white car near Mr. K.'s store. The police also obtained video of Malbrough driving away in the white car after Mr. K. was injured."
Malbrough's 2018 Convictions and Original Sentence
In September 2018, a jury convicted Malbrough of second degree robbery (§ 211); assault with a deadly weapon (§ 245, subd. (a)(1)); and hit and run (Veh. Code, § 20001, subd. (a)). The jury also found true allegations that the robbery caused great bodily injury (§ 12022.7, subd. (b)) and involved use of a deadly weapon (§ 12022, subd. (b)(1)); the assault caused great bodily injury (§ 12022.7, subd. (b)); and the hit and run caused permanent, serious injury (Veh. Code, § 20001, subd. (b)(2)).
Following a court trial, the trial court made findings regarding prior conviction sentence enhancements alleged against Malbrough. Specifically, the court found that Malbrough had a prior strike conviction (§§ 667, subds. (d)-(e) &1170.12, subds. (b)-(c)), and a prior serious felony conviction (§ 667, subd (a)(1)), and had served a prior prison term for burglary (former § 667.5, subd. (b)).
At his original sentencing hearing, Malbrough was sentenced to 24 years in prison. For the robbery, the court calculated a principal term of 10 years; an upper five-year term, doubled due to the strike prior. A consecutive two-year term was imposed for the hit and run, and sentence for the assault was stayed pursuant to section 654. The trial court imposed an additional 12 years for the following sentence enhancements: five years for inflicting great bodily injury; one year for use of a deadly weapon; five years for the prior serious felony; and one year for the prior prison term.
In Malbrough I, a different panel of this division affirmed Malbrough's convictions, but remanded his case for resentencing to afford him the benefit of an amendment to section 667.5, subdivision (b) (section 667.5(b)) that went into effect during the pendency of his appeal.
The 2021 Resentencing Order
In February 2021, Malbrough was resentenced to 23 years in prison. Finding that section 667.5(b) no longer applied, the trial court did not impose a one-year enhancement for Malbrough's prior prison term. The court also changed its prior ruling regarding fines and fees, ordering them to be stayed pursuant to People v. Duenas (2019) 30 Cal.App.5th 1157. However, the court denied defense requests to further reduce the length of Malbrough's aggregate prison term.
In his appeal from the resentencing order, Malbrough argued the trial court made two reversible errors: (1) imposing an upper term for the robbery by relying on improper aggravating factors; and (2) violating section 654 by imposing consecutive sentences for the robbery and hit-and-run convictions.
In Malbrough II, this court rejected Malbrough's section 654 argument and most of his objections to the aggravating factors upon which the trial court based its decision to impose an upper term. However, the parties stipulated that Malbrough was entitled to resentencing under recently enacted ameliorative amendments to section 1170, and this court agreed.
Accordingly, the case was remanded for the trial court to decide whether Malbrough should be sentenced to a middle or lower term under newly amended provisions of section 1170.
The 2022 Resentencing Order
On November 16, 2022, the trial court held another resentencing hearing. The court stated that, in preparing for the hearing, it had considered the remittitur and the parties' resentencing briefs, the record of the trial, at which the court had presided, and "all the previous appellate proceedings that I've been involved in." The court then announced its intention to impose a sentence of 19 years in prison, based on four primary findings.
First, applying section 1170, the court found that aggravating factors far outweigh mitigating factors, thus warranting a midterm base sentence of three years for the robbery, rather than a lower term. Relatedly, the court found that it had previously erred by considering the fact that Malbrough inflicted great bodily injury on Alan K. as an aggravating circumstance, since that factor was used to support a separate enhancement. However, all other aggravating factors delineated at the original sentencing continued to apply, the court found. The court emphasized the following aggravating circumstances, which were based on facts that had been proven beyond a reasonable doubt at Malbrough's trial: Alan K. was particularly vulnerable; the manner of the crime indicated planning; Malbrough "engaged in violent conduct that indicated a danger to society"; Malbrough has a criminal record "with a pattern of escalation"; and his past performance on probation was unsatisfactory.
Second, the court found it would be contrary to the interests of justice to impose a lower term sentence, notwithstanding Malbrough's young age when the robbery was committed, because the aggravating factors outweighed factors in mitigation. (Citing § 1170, subd. (b)(6).)
Third, the court renewed it previous finding that the robbery and hit and run were motivated by different objectives, thus making it proper to impose consecutive sentences for these offenses. (See § 654.)
Fourth, the court declined to exercise its discretion to strike any of the enhancements that it had previously imposed on Malbrough at the prior sentencing hearings.
Accordingly, the court proposed an aggregate sentence of 19 years, calculated as follows: For the robbery, a 17-year term, consisting of a three-year middle term, plus consecutive terms of three years for the strike prior (§ 667, subds. (d)-(e)), five years for causing great bodily injury (§ 12022.7, subd. (b)), one year for use of a deadly weapon (§ 12022, subd. (b)(1)), and five years for the prior serious felony conviction (§ 667, subd. (a)). For the hit and run, a consecutive two-year term, consisting of a one-year base term (one-third the middle term), plus one year for the strike prior. For the assault, a six-year term, stayed under 654, consisting of a three-year middle term, plus three years for the strike prior.
Before the court announced its final ruling, it gave the parties the opportunity to respond to the tentative. The defense presented a statement of remorse offered by Malbrough, and then objected to a midterm sentence. Defense counsel argued that mitigating factors warranted a lower term, and that "those same factors should be considered in whether or not to strike one or more of the enhancements." The People agreed with the court's tentative ruling, and advised the court that Alan K. was still unable to walk or talk due to injuries inflicted by Malbrough. After the matter was submitted, the court adopted its intended ruling and sentenced Malbrough to 19 years in prison.
The defense also renewed objections to the trial court's findings regarding factors in aggravation, notwithstanding that those objections were denied by this court in Malbrough II.
DISCUSSION
In this appeal, Malbrough does not challenge the trial court's decision to impose a midterm sentence pursuant to section 1170. Instead, he contends the court erred by failing to seriously consider dismissing one or more sentence enhancement pursuant to section 1385, which was also amended during the period between his two resentencing hearings.
Senate Bill No. 81 (2021-2022 Reg. Sess.) "amended section 1385 to specify mitigating circumstances that the trial court should consider when deciding whether to strike enhancements from a defendant's sentence in the interest of justice." (People v. Lipscomb (2022) 87 Cal.App.5th 9, 16.) Specifically, section 1385, subdivision (c) (section 1385(c)) now provides that "[n]otwithstanding any other law," a sentencing court "shall dismiss" a sentence enhancement "if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute." (§ 1385(c)(1).) The amended statute further provides that in "exercising its discretion under this subdivision, the court shall consider and afford great weight to" nine mitigating circumstances listed in the statute, and provides that "[p]roof 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." (§ 1385(c)(2).)
Malbrough contends that two mitigating circumstances listed in section 1385(c) apply to him, and that the trial court committed reversible error by failing to consider and give great weight to either factor when it declined to exercise its discretion to dismiss any of the sentence enhancements in this case. For clarity, we address separately the two mitigating factors upon which Malbrough bases this claim of error.
The first factor arises when "[m]ultiple enhancements are alleged in a single case. In this instance, all enhancements beyond a single enhancement shall be dismissed," the statute provides. (§ 1385(c)(2)(B).) This factor was relevant since the court had found true multiple enhancements.
Although section 1385(c)(2)(B) states that enhancements beyond a single enhancement "shall be dismissed," this provision does not constitute a mandatory rule of automatic reversal. (People v. Mendoza (2023) 88 Cal.App.5th 287, 295-297 [construing parallel language in section 1385(c)(2)(C)]; Lipscomb, supra, 87 Cal.App.5th at p. 18 [same]; see also People v. Walker (2022) 86 Cal.App.5th 386, 397-398, review granted Mar. 22, 2023, S278309 [construing section 1385(c)(2)(B)]; People v. Anderson (2023) 88 Cal.App.5th 233, 240, review granted Apr. 19, 2023, S278786 [construing section 1385(c)(2)(B) &(C)].) This is because courts do not construe statutory language in isolation, but consider it in the context of the statute as a whole, and the overall statutory framework. (See e.g. People v. Valencia (2017) 3 Cal.5th 347, 358.) Here, as we have noted, section 1385(c) preserves the court's discretion to decide whether dismissing an enhancement will be in the interests of justice by requiring the court to consider and weigh multiple factors. This statutory procedure would be largely superfluous if a single mitigating factor is deemed to be outcome determinative. Moreover, section 1385(c)(2) also requires the court to consider whether dismissal of an enhancement" 'would endanger public safety,'" in which case the court need not consider the listed mitigating factors at all. (Mendoza, at pp. 296-297.)
In the present appeal, Malbrough does not argue that all but one of his sentence enhancements should have been stricken pursuant to section 1385(c)(2)(B). Instead, he contends the trial court abused its statutory discretion because the court did not consider and give great weight to the fact that multiple enhancements were alleged in a single case when it denied Malbrough's request to dismiss the enhancements for his prior strike and prior serious felony. Malbrough does not point to anything in the record, which shows the court ignored this factor. Instead, he assumes that because the trial court did not explicitly address section 1385(c)(2), it must not have considered the fact that multiple enhancements were at play. We are not persuaded by Malbrough's reasoning, which ignores at least three pertinent facts.
Malbrough did not request that the trial court dismiss the other two enhancements-for using a deadly weapon, and for causing great bodily injury to Alan K. We note that section 1203.075 appears to prohibit a trial court from using its authority under section 1385 to strike an enhancement for causing great bodily injury during a robbery. (§ 1203.075, subd. (a)(2).)
First, the judge who resentenced Malbrough made a record of the fact that he is the same judge who presided at Malbrough's trial and conducted each of his sentencing hearings. We note too that the prior conviction findings at issue here were proven at a trial before the judge acting as the trier of fact. In other words, this judge had extensive first-hand knowledge about the relevant facts and circumstances.
Second, the court stated expressly that it considered the parties' resentencing briefs, both of which contain substantive analysis of the section 1385(c) mitigating factors and their significance. After listing all nine mitigating circumstances, Malbrough requested that the court dismiss his strike and prior serious felony enhancements in the interests of justice. The People opposed the request and also pointed out that the court had previously declined to strike either enhancement. In their resentencing brief, the People argued that while the presence of multiple enhancements weighed in favor of dismissal, the interests of justice weighed against dismissing the strike and serious felony enhancements, particularly because aggravating factors outweighed mitigating circumstances.
Third, the trial court provided a tentative sentence, and then entertained arguments from both parties before announcing Malbrough's sentence. During oral argument, Malbrough's counsel argued that mitigating factors, including factors listed in section 1385(c), justified a lower term sentence for the robbery and dismissing the prior conviction sentence enhancements. Again, the People disagreed based on countervailing aggravating circumstances, and urged the court to exercise its discretion under section 1385 to impose both prior conviction enhancements.
Malbrough's only counterpoint is that the trial court was "terse" when declining to strike enhancements that it had previously imposed. In light of the circumstances outlined above, we disagree with Malbrough that the brevity of the court's ruling is indicative of a lack of deliberation. This particular judge was thoroughly familiar with the relevant facts, had already explained his reasons for making sentencing choices at two previous hearings, and considered the parties' respective arguments regarding section 1385(c) factors prior to making its rulings. These circumstances indicate that the court did seriously consider the fact that multiple enhancements had been alleged in a single case before concluding that this mitigating factor was outweighed by aggravating factors, and that dismissing the two prior conviction enhancements would not be in the interests of justice.
We reach a similar conclusion about the second mitigating factor Malbrough addresses on appeal. Section 1385(c) instructs the court to consider and give great weight to the fact that a sentence enhancement is "based on a prior conviction that is over five years old." (§ 1385(c)(2)(H).) Citing his trial court resentencing brief, Malbrough argues that his strike and serious felony sentence enhancements are based on a 2011 robbery conviction. However, at Malbrough's request, we have taken judicial notice of an amended information, which shows that these enhancements are based on a robbery committed in September 2012, five years and four months before the incident that gave rise to the current offenses. Thus, although subdivision (c)(2)(H) is relevant, Malbrough's prior felony is not particularly stale by the standard it sets forth.
Once again, the record shows that the court took account of this factor by reviewing the evidence and considering the parties' resentencing briefs prior to issuance of its ruling. In their resentencing brief, the People acknowledged that Malbrough's strike enhancement and prior serious felony enhancement are based on a conviction "that occurred just beyond five years" of the robbery and hit and run of Alan K. But the People pointed out that the 2012 robbery, like the current robbery, was a violent felony, which is also a pertinent consideration. (§ 1385(c)(2)(F).) Moreover, the People emphasized aggravating factors that had been found by the court, which show that during the time gap between the 2012 robbery and Malbrough's commission of his current offenses, he engaged in a pattern of escalating criminal conduct, which included two other burglary convictions and a failure successfully to complete probation. Since section 1385(c) mitigating factors are not rules of automatic reversal, aggravating factors, including Malbrough's escalating criminal conduct, were relevant to the court's determination of how much weight to give the fact that the 2012 felony was more than five years old.
We note one additional factor the court considered, which was consistent with finding that the two additional section 1385(c) mitigating factors did not warrant dismissing either prior conviction sentence enhancement. The trial court made an express finding that Malbrough's conduct toward Alan K. shows that he is a danger to society. On appeal, Malbrough would have us disregard this finding since the court characterized it as an aggravating factor rather than a basis for its decision not to dismiss the prior conviction enhancements. We are not persuaded by this reasoning. The danger that Malbrough poses to society was one of many aggravating factors that the trial court found in reaching its conclusion that aggravating factors far outweigh mitigating factors. This core analysis was equally relevant to the court's determination that it would not exercise its discretion to dismiss the prior conviction sentence enhancements. To be sure, the court did not characterize Malbrough's dangerousness as the overriding factor. But the finding that Malbrough poses a danger to the community is relevant to the court's implicit finding that dismissing the prior conviction enhancements would not be "in the furtherance of justice." (§ 1385(c)(1).)
Considering all the circumstances attendant to Malbrough's third resentencing hearing, we conclude that the record does not support Malbrough's assumption that the trial court failed to consider the two section 1385(c) mitigating factors relevant to his case. Accordingly, we deny his request to remand this case for another resentencing hearing.
II. The Abstract of Judgment Shall Be Corrected
The parties agree that the current abstract of judgment, filed November 17, 2022, fails accurately to reflect the trial court's pronouncement of sentence pertaining to fines and fees imposed on Malbrough. At Malbrough's original sentencing hearing, the court imposed a $300 restitution fund fine pursuant to section 1202.4, and an additional parole restitution fine of $300 pursuant to section 1202.45, which was stayed. After the case was remanded pursuant to the appellate decision in Malbrough I, the trial court stayed both of these fines pursuant to People v. Duenas, supra, 30 Cal.App.5th 1157. However, the current abstract of judgment states that the court imposed a $600 fine pursuant to section 1202.4, and an additional $600 restitution fund fine pursuant to section 1202.45, which was stayed.
"Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls." (People v. Zackery (2007) 147 Cal.App.4th 380, 385.) Moreover, because the current abstract of judgment's reference to two $600 fines instead of two stayed $300 fines is a clerical error, it may be corrected "at any time." (People v. Mitchell (2001) 26 Cal.4th 181, 185.) Accordingly, we shall order correction of the abstract of judgment so that it accurately reflects the oral judgment of the sentencing court. (Ibid.)
We have noticed another clerical error in the abstract of judgment that is not mentioned by the parties. In recording Malbrough's 2018 conviction for the hit-and-run felony, the superior court clerk cited Vehicle Code section 20000(1)(a), which does not exist. The applicable provisions are Vehicle Code section 20001, subdivisions (a) and (b)(2). We shall order correction of this error as well.
DISPOSITION
Malbrough's sentence and the judgment are affirmed. The superior court is directed to prepare an amended abstract of judgment that reflects imposition of a $300 stayed fine under section 1202.4, and a $300 stayed fine under section 1202.45, and that correctly records Malbrough's conviction for violating Vehicle Code section 20001, subdivisions (a) and (b)(2). A certified copy of the corrected abstract of judgment shall be forwarded to the Department of Corrections and Rehabilitation.
WE CONCUR: FUJISAKI, J., PETROU, J.