Opinion
F075908
11-14-2019
THE PEOPLE, Plaintiff and Respondent, v. LARRY MENDOZA, Defendant and Appellant.
Jennifer A. Mannix, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Jennifer Oleksa, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF166558A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. John D. Oglesby, Judge. Jennifer A. Mannix, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Jennifer Oleksa, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Larry Mendoza challenges his convictions and sentence in this appeal. With respect to his convictions, he challenges the voluntariness of a statement he made to the police as well as the admission of eyewitness identifications. We reject his contentions. As to his sentence, Mendoza challenges the trial court's denial of his Romero motion and argues the case must be remanded for resentencing in light of Senate Bill No. 620 (2017-2018 Reg. Sess.) (Senate Bill 620), which gave trial courts new discretion to strike firearm enhancements, and Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Senate Bill 1393), which gave trial courts new discretion to strike prior serious felony enhancements. We reject his challenge to the denial of his Romero motion but agree the case must be remanded for resentencing in light of Senate Bills 620 and 1393.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
On remand, the trial court shall also address the applicability of Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill 136), which the Governor recently signed into law and which amends, effective January 1, 2020, the prior prison term enhancement statute (see below).
Mendoza's sentence is vacated, and the matter remanded for resentencing. The judgment is affirmed in all other respects.
PROCEDURAL HISTORY
Mendoza was charged by an information filed in the Kern County Superior Court with second degree robbery (count 1; Pen. Code, § 212.5, subd. (c)), attempted robbery (count 2; §§ 664/212.5, subd. (c)), possession of a firearm by a felon (count 3; § 29800, subd. (a)(1)), and possession of ammunition by a felon (count 4; § 30305, subd. (a)(1)). The information further alleged, as to counts 1 and 2, that Mendoza personally used a firearm (§§ 12022.5, subd. (a), 12022.53, subd. (b)), and as to all counts, that he had two prior strike convictions (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)), two prior serious felony convictions (§ 667, subd. (a)), and three prior prison terms (§ 667.5, subd. (b)).
Subsequent statutory references are to the Penal Code unless otherwise specified.
The section 667, subdivision (a), allegations were later dismissed as to counts 3 and 4, in the interest of justice.
A jury found Mendoza guilty on all four counts and found true the allegations that he personally used a firearm in the commission of the robbery and attempted robbery charged in counts 1 and 2, respectively. Subsequently, in a bifurcated proceeding, the court found true the remaining enhancement allegations with the exception of two section 667, subdivision (a), allegations attached to counts 3 and 4; the latter allegations were dismissed.
Mendoza was sentenced to a total of 26 years to life, plus 28 years, in prison.
FACTS
Prosecution Case
On July 13, 2016, Gabriel D. was working at a recycling center in Bakersfield. His girlfriend, I.B., was there with him. Both Gabriel and I.B. testified at trial.
That day, at approximately 2:30 p.m., a blue Ford Victoria with a black bumper pulled into the recycling center. A man—later identified as Mendoza—got out with two bags containing recyclables. While Gabriel sorted the items, Mendoza walked back to the car and spoke to the driver, who stepped out of the car. Mendoza returned, showed Gabriel a silver handgun tucked into the waistband of his pants, and demanded money. Mendoza took the money in the cashbox. Mendoza also asked for I.B.'s cell phone, but she refused to hand it over. Mendoza was standing close to both I.B. and Gabriel during the incident. Mendoza then got in the passenger seat of the waiting car and drove off. I.B. took pictures of the departing car and its license plate, then called 911. The entire incident lasted approximately four minutes.
I.B. described the gun as a "shiny silver gun." Gabriel simply said the gun was of "a silver color."
Deputies from the Kern County Sheriff's Department ran a record check on the license plate number, discovering the car was registered to Mendoza. The deputies were able to track down an address for Mendoza at an apartment complex in Bakersfield. Within an hour of the robbery, the deputies arrived at the apartment complex. They saw the blue Ford Victoria parked outside. The officers contacted Mendoza in the back bedroom of an apartment within the complex. Benjamin G., Harley B., and Jessica G. (Mendoza's girlfriend), were present in the apartment as well. Upon searching the apartment, the deputies found a silver handgun inside a black purse that was lying on the bed on which Mendoza was seated.
Two or three hours after the robbery occurred, the deputies arranged for an in-field show-up, taking Gabriel and I.B. individually to the apartment complex to look at Benjamin, Harley, and Mendoza. Both Gabriel and I.B. identified the blue Ford (which was parked at the complex) as the car used in the robbery at the recycling center. They both identified Mendoza as the man who demanded and took the money from the cashbox and asked for I.B.'s phone. Gabriel and I.B. further indicated Benjamin was the driver of the blue Ford but were not completely sure on the point.
Gabriel and I.B. also identified Mendoza in court during the trial. I.B., in addition, identified photographs of the Ford that she had taken as the Ford departed the scene of the robbery.
The parties stipulated that Mendoza had a prior felony conviction.
Defense Case
David V. was Mendoza's supervisor at a farm labor contracting company. David testified that, on the day of the robbery, Mendoza worked in the fields from 6:30 a.m. to 2:00 p.m. Jessica and Harley also worked that day. David was not able to say whether Benjamin had worked that day because he had not checked the relevant sign-in sheets with regard to Benjamin. David estimated that it would take 20 or 30 minutes to drive to downtown Bakersfield from the fields where Mendoza and the others were working.
An investigator from the Kern County District Attorney's Office photographed the clothes Mendoza was wearing when he was arrested. Mendoza was wearing black pants with dirt on them.
DISCUSSION
I. Voluntariness of Statement Obtained During Police Interrogation
Mendoza argues the trial court prejudicially erred in denying his motion to suppress his statement to police to the effect that the silver handgun found in the apartment where he was apprehended, was his. Mendoza contends this statement was inadmissible because it was coerced by an implicit threat and, in turn, was involuntary. The People respond the challenged statement was voluntary and, even assuming otherwise, the court's failure to suppress it was harmless beyond a reasonable doubt. We agree with the People.
A. Background
At trial, defense counsel requested an Evidence Code section 402 hearing regarding the voluntariness of Mendoza's admission to the effect that the silver handgun found in the black purse at the time of his arrest belonged to him. The prosecutor informed the court that he would not use the admission in the People's case-in-chief but "needed the Court to make a ruling on the issue of voluntariness in the event the defense puts [certain evidence] on [in its case]."
Kern County Sheriff's Deputy Gilbert Valladolid testified that he was on duty with his partner, Deputy Lomas, on the afternoon of July 13, 2016. Valladolid contacted Mendoza in connection with the recycling center robbery investigation. As part of the investigation, Valladolid gave Mendoza Miranda warnings, confirmed he understood his Miranda rights, and briefly questioned him over two five-minute sessions that were about 10-15 minutes apart. Mendoza responded to the questioning and engaged in a back-and- forth with Valladolid. Mendoza was handcuffed and sitting in the back of a patrol car during the questioning.
Miranda v. Arizona (1966) 384 U.S. 436.
The second of the two five-minute exchanges between Valladolid and Mendoza occurred after sheriff's deputies had found a firearm in the room Mendoza shared with Jessica, who was the mother of Mendoza's children. Valladolid asked Mendoza whether the firearm belonged to him, but Mendoza initially did not admit to owning the gun.
Valladolid persevered. Jessica was present at the residence where Mendoza was detained; the minor children of Mendoza and Jessica were also present. Valladolid testified: "I asked [Mendoza] if the firearm belonged to him because we had located it in a female's purse, and the female in the residence was [Jessica]. And if the firearm didn't belong to him, then who else would it belong to? Possibly [Jessica]?" Valladolid told Mendoza that if Valladolid was unable to determine whether the firearm belonged to Mendoza or Jessica, he would have to "arrest both parents" and Child Protective Services (CPS) would have to get involved to "take care of the children." Mendoza thereafter admitted he owned the gun.
During the hearing, the court asked Valladolid: "Was there some initial resistance on Mr. Mendoza's part in admitting ownership of the gun so that you had to, then, bring up in your mind the CPS?" Valladolid answered: "Yes."
Valladolid testified that had he not been able to identify the owner of the gun, and arrested both parents, CPS would properly have been contacted on account of the minor children. Valladolid noted this would be normal procedure.
After Valladolid completed his testimony, the trial court commented: "Well, I think we have the facts before us. I think the issue is what does the law say in this particular area. Certainly, I'm flinching a little bit." The court further noted: "If I had to rule from the hip, I'd probably grant the motion [to suppress]." However, the court deferred ruling on the issue until after the parties had briefed the issue and the court had heard arguments from both sides.
Subsequently, the court denied Mendoza's motion to suppress. The court explained its reasoning: "I'm going to find it a voluntary confession, and deny the motion to suppress it at this stage, which is contrary to what my initial thinking was on it, and my - and the reason to me, the fact that - was significant in shifting - was that the mother clearly had some criminal liability and wasn't told by law enforcement." The court clarified that it agreed with the prosecutor's argument that Valladolid was simply informing Mendoza, "this is what's going to happen next."
Defense counsel later informed the court that Mendoza had decided not to testify in his own defense: "Mr. Mendoza has informed me that he's considered the Court's ruling, that if he testifies, his alleged confession that he possessed the gun would come in [based on] the Court's ruling that [it] was a voluntary statement. He's considered that as part of his decision to not testify."
Since Mendoza did not testify, the jury never heard his admission that he owned the silver gun found in the purse in the back bedroom of the apartment where he was apprehended.
B. Legal Standards
"An involuntary confession is inadmissible under the due process clauses of both the Fourteenth Amendment to the federal Constitution [citation] as well as article I, sections 7 and 15 of the California Constitution [citation]." (People v. Weaver (2001) 26 Cal.4th 876, 920.) "Under both state and federal law, courts apply a 'totality of circumstances' test to determine the voluntariness of a confession." (People v. Massie (1998) 19 Cal.4th 550, 576.) "[C]oercive police activity is a necessary predicate to the finding that a confession is not 'voluntary' within the meaning of the Due Process Clause of the Fourteenth Amendment." (Colorado v. Connelly (1986) 479 U.S. 157, 167.) In applying the totality of the circumstances test, among the factors courts consider are "'"'the crucial element of police coercion [citation]; the length of the interrogation [citation]; its location [citation]; its continuity' as well as 'the defendant's maturity [citation]; education [citation]; physical condition [citation]; and mental health.'"'" (People v. Boyette (2002) 29 Cal.4th 381, 411 (Boyette).) "[T]he question in each case is whether the defendant's will was overborne at the time he confessed. [Citations.] If so, the confession cannot be deemed 'the product of a rational intellect and a free will.'" (Lynumn v. Illinois (1963) 372 U.S. 528, 534.)
"Mere advice or exhortation by the police that it would be better for the accused to tell the truth, when unaccompanied by either a threat or a promise ... does not ... make a subsequent confession involuntary." (People v. Boyde (1988) 46 Cal.3d 212, 238, overruled on other grounds by People v. Johnson (2016) 62 Cal.4th 600.) "However, where a person in authority makes an express or clearly implied promise of leniency or advantage for the accused which is a motivating cause of the decision to confess, the confession is involuntary and inadmissible as a matter of law." (Boyde, supra, at p. 238.) Furthermore, "[a] threat by police to arrest or punish a close relative, or a promise to free the relative in exchange for a confession, may render an admission invalid." (People v. Steger (1976) 16 Cal.3d 539, 550.)
In short, a confession is involuntary if it is obtained by threats, violence, or promises of immunity or reward, such that the coercive police conduct is the "'motivating cause'" of the confession. (People v. Linton (2013) 56 Cal.4th 1146, 1176; People v. McWhorter (2009) 47 Cal.4th 318, 347 [for a statement to be involuntary, it must be "causally linked" to the inducement or threat].) In determining whether the coercive conduct caused a defendant to confess, we consider the latter's "sophistication, his prior experience with the criminal justice system, and his emotional state." (People v. Dowdell (2014) 227 Cal.App.4th 1388, 1404.)
"'"On appeal, the trial court's findings as to the circumstances surrounding the confession are upheld if supported by substantial evidence, but the trail court's finding as to the voluntariness of the confession is subject to independent review."'" (Boyette, supra, 29 Cal.4th at p. 411; see People v. Benson (1990) 52 Cal.3d 754, 779 [the trial court's determinations concerning whether coercive police activity was present, whether certain conduct constituted a promise or threat and, if so, whether it operated as an inducement to confess, are reviewed de novo].) The burden is on the prosecution to show by a preponderance of the evidence that the statement was voluntary. (People v. Vasila (1995) 38 Cal.App.4th 865, 873.)
C. Analysis
Here, Mendoza's admission that he owned the gun found in the purse in the bedroom he shared with Jessica, was arguably coerced by an implied threat to the effect that were he to persist in denying ownership of the gun, Jessica would be arrested and their children placed in the custody of CPS. However, even assuming the admission was involuntary, the court's ruling to the contrary did not amount to prejudicial error.
The erroneous admission into evidence of an involuntary confession is federal constitutional error that requires a reversal of the judgment unless the prosecution can establish the error was harmless beyond a reasonable doubt. (People v. Cahill (1993) 5 Cal.4th 478, 509-510; Chapman v. California (1967) 386 U.S. 18, 23.)
Here, the jury did not hear any evidence showing Mendoza told Valladolid the gun belonged to Mendoza. The statement itself thus had no effect on the verdict.
Mendoza argues the court's ruling nonetheless prejudiced him because he "chose not to testify, in part, because the court would permit the prosecutor to impeach his testimony with the confession." Mendoza notes his theory of defense was that he was at work until approximately 2:00 p.m. that day and played no part in the robbery. Defense counsel also vigorously attacked the reliability of the in-field identification made by I.B. and Gabriel. Mendoza argues his testimony would have bolstered his defense.
However, the case against Mendoza was very compelling. The robbers were in Mendoza's car as determined by a record check on its license plate (photographed by I.B.); I.B. and Gabriel saw Mendoza at close range in the course of the robbery and identified him in a field show-up only two to three hours later; and finally a silver handgun was used in the robbery and a silver handgun was found in a purse on the very bed that Mendoza was himself sitting on when police arrived at his apartment. Furthermore, Mendoza was able, through the testimony of his supervisor, to present his alibi defense, i.e., that he was at work in the fields until 2:00 p.m., whereas the robbery occurred at a recycling center in Bakersfield at 2:30 p.m.
Given this record, we conclude Mendoza's putative testimony would not have affected the outcome of the trial. (See People v. Jablonski (2006) 37 Cal.4th 774, 817 [defendant who chose not to testify after his illegally-obtained statement was held admissible for impeachment was not prejudiced, "because his putative testimony would not have affected the result," at trial].) In turn, even assuming the court erred in ruling Mendoza's admission was voluntary, the error was harmless beyond a reasonable doubt. II. Identification of Mendoza in In-field Show-up
Shortly after the robbery at the recycling center, I.B. and Gabriel identified Mendoza in an in-field show-up at the apartment complex where police had located Mendoza. Mendoza argues the trial court prejudicially erred in denying his motion to suppress these identifications. Mendoza argues the show-up was unduly suggestive and admission of the identifications therefore violated due process. We disagree.
A. Background
Defense counsel moved in limine to suppress the identifications obtained during the in-field show-up as well as future in-court identifications. The trial court held an Evidence Code section 402 hearing on the issue of the propriety of the in-field show-up. Kern County Sherriff's Deputy Ralph Lomas testified at the hearing.
As stated above, Deputy Lomas conducted the in-field show-ups at the apartment complex where police located Mendoza . Lomas separately transported I.B. and Gabriel to the site. In the course of doing so, he read to both I.B. and Gabriel, separately, a standard admonishment applicable to in-field identifications from a card he carried with him. The admonishment stated:
"'We are detaining a person for use of view who may or may not be the person who committed the crime now being investigated.
"'The fact that this person is detained and may or may not be handcuffed should not influence your decision. It is just as important to free innocent persons from suspicion as it is to identify guilty persons.
"'Please look at the detained person carefully. If you wish to see him or her walk or stand or move in any particular way, please tell me. Also if you wish to see the person under different conditions or speak certain words or phrases, please tell me.'"
Lomas testified: "Upon arriving [at the apartment complex], I.B. immediately identified a blue Ford vehicle as being the vehicle that was involved in the incident that was being investigated. Upon arrival, she said that was the vehicle. I asked her how sure she was. She told me she was pretty sure that was the vehicle. She recognized the black bumper on the blue vehicle." Lomas continued: "I informed Deputy Valladolid to escort Mendoza, who was being detained in [Valladolid's] vehicle, to escort him out to the back of [the patrol] vehicle so she [could] conduct a visual on him." Lomas added: "Deputy Valladolid escorted Mendoza out of his vehicle; Mendoza was handcuffed. I.B. was able to get a visual of him and positively identified him as the same person who was involved with the incident." Specifically, I.B. said, "'That's him,'" noting she was "95 percent sure" of the identification. It was sunny and bright and the distance between I.B. and Mendoza was about 20 feet. Lomas further testified: "Deputy Valladolid had two additional subjects detained. We conducted an in-field [show-up] on those two subjects." I.B. did not identify either of them as being involved in the incident.
Lomas then dropped I.B. off at a nearby park, from where he picked up Gabriel. Asked what happened at that point, Lomas testified: "Same thing. I advised Deputy Valladolid to escort Mendoza back to his vehicle where [Gabriel] [could] get a visual of him. Once [Gabriel] saw Mr. Mendoza, he positively identified him as the same suspect." Specifically, Gabriel said, "'Yeah, that's him,'" adding he was "[p]retty sure" of the identification. Lomas added: "[Gabriel] also identified the blue Ford vehicle that was parked in the complex as the same vehicle involved in the incident." Gabriel viewed Mendoza from a distance of about 20 feet; it was still sunny and bright. Subsequently, Valladolid brought over the other two suspects. Gabriel could not positively identify them. "[Gabriel] said that one of them did look like the driver but [he] wasn't sure."
The court thereafter found there was nothing unduly suggestive about the show-up. Specifically, the court stated: "Lineups of this type are designed to find the guilty as well as exclude the innocent. They're done in a hasty fashion and under field conditions, and I don't find anything that was impermissibly suggestible designed to taint or, in fact, having tainted the lineup."
At trial, I.B. and Gabriel both identified Mendoza as the individual who had robbed them of money and attempted to rob I.B. of her phone.
B. Analysis
In determining whether a trial court's admission of identification evidence violated a defendant's right to due process of law, a reviewing court considers: "(1) whether the identification procedure was unduly suggestive and unnecessary, and, if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the suspect at the time of the offense, the witness's degree of attention at the time of the offense, the accuracy of his or her prior description of the suspect, the level of certainty demonstrated at the time of the identification, and the lapse of time between the offense and the identification." (People v. Cunningham (2001) 25 Cal.4th 926, 989; see Simmons v. United States (1968) 390 U.S. 377, 384 [identification procedures violate a defendant's right to due process if the procedures are so unnecessarily suggestive as to create a "substantial likelihood of irreparable misidentification"].) The defendant bears the burden of demonstrating the identification procedure was impermissibly suggestive and unnecessary. (Cunningham, supra, 25 Cal.4th at p. 989.)
Mendoza argues "the practice of individual show-ups is unduly suggestive and should be abolished," but acknowledges, citing People v. Ochoa (1998) 19 Cal.4th 353, 413, that "California courts have not yet found individual show-ups inherently unfair." He further notes, quoting In re Carlos M. (1990) 220 Cal.App.3d 372, 386, that "California courts favor individual show ups due to the opportunity for 'an immediate determination as to whether the correct person has been apprehended' while the events are still fresh in the witness's mind." He contends, again quoting Carlos M., supra, at page 386, that the courts' validation of individual show-ups nonetheless "assumes the procedure was 'not so impermissibly suggestive as to give rise to a substantial likelihood of misidentification.'" Mendoza argues the in-field show-up here was unduly suggestive because the car used in the robbery was parked at the apartment complex, he was seated in the back of a patrol car, and he was handcuffed. Mendoza also contends the show-up was unnecessary "because there was no exigency preventing a proper lineup in the days following his arrest."
As Mendoza acknowledges, "the law favors field identification measures when in close proximity in time and place to the scene of the crime, with the rationale for the rule being stated: 'The potential unfairness in such suggestiveness ... is offset by the likelihood that a prompt identification within a short time after the commission of the crime will be more accurate than a belated identification days or weeks later.'" (In re Richard W. (1979) 91 Cal.App.3d 960, 970 (Richard W.).) Such prompt identification "'aids in quickly exonerating the innocent and discovering the guilty,'" (People v. Irvin (1968) 264 Cal.App.2d 747, 759), which is "of overriding importance and service to law enforcement, the public and the criminal suspect himself." (People v. Anthony (1970) 7 Cal.App.3d 751, 765.)
As for the procedures implemented in this case, we cannot say they were unduly suggestive or unnecessary. The suspects were apprehended within hours of the robbery and the in-field show-up occurred, at most, three hours after the robbery. Under the circumstances, it was not unreasonable that Mendoza was handcuffed. Courts have found in-field show-ups proper even when one person or a few individuals are handcuffed and seated in the back of a patrol car (surrounded by officers) or standing near a suspect vehicle. (See, e.g., Richard W., supra, 91 Cal.App.3d at pp. 969-970; People v. Craig (1978) 86 Cal.App.3d 905, 914; People v. Burns (1969) 270 Cal.App.2d 238, 244-246.)
Here, moreover, Deputy Lomas individually admonished both I.B. and Gabriel that the person they would be viewing may or may not be the person who committed the relevant crime, their decision should not be influenced by the fact that the person had been detained or handcuffed, and it was just as important to free an innocent person from suspicion as it was to identify a guilty person.
Finally, it is noteworthy that neither I.B. nor Gabriel positively identified either Harley or Benjamin as participants in the robbery under apparently identical conditions. This fact supports a conclusion that the witness identifications were not the product of unduly suggestive procedures, including the presence at the scene of the car used in the robbery.
We conclude the procedures used in conducting the in-field show-ups were not unduly suggestive or unnecessary and, in turn, admission of the eyewitness identifications of Mendoza did not violate due process.
In light of our conclusion, we need not determine whether the identifications, even if improper, were nonetheless reliable. However, here, in any event, the identifications were reliable. I.B. and Gabriel had an opportunity to see Mendoza up close for several minutes. Indeed, I.B. provided details of the incident as well as a description of the robbery suspect in the 911 call she made as the robbers fled the scene. I.B. carefully described the getaway car and noted that the suspect had a silver handgun. In addition, she described the suspect as a Hispanic male in his mid-thirties to early forties wearing a white shirt with dark jeans; she estimated he was five feet four inches tall and weighed 160 pounds. People's Exhibit No. 17, consisting of a Department of Motor Vehicles printout, that was introduced into evidence during the bifurcated trial on the prior conviction allegations, showed Mendoza was 35 years old at the time of the offense and that he was five feet eight inches tall and weighed 180 pounds. Thus, the description given by I.B. in the 911 call largely matched Mendoza's characteristics. Plus, both I.B. and Gabriel identified Mendoza without hesitation. And finally, the in-field show-up occurred within two to three hours of the robbery. (See People v. Garcia (2016) 244 Cal.App.4th 1349, 1360-1361 [approving in-field show-up identifications made six hours after robbery]; People v. Rodriguez (1987) 196 Cal.App.3d 1041, 1049 [nine hours].)
In short, the procedures used in this case were not unduly suggestive or unnecessary, and in any event the in-field eyewitness identifications were reliable; accordingly, admission of the pretrial identifications did not violate due process. Nor has Mendoza shown that admission of the in-court identifications made by I.B. and Gabriel violated due process. (See Gilbert v. California (1967) 388 U.S. 263, 272 [in-court identifications are inadmissible if tainted by an illegal show-up or lineup].) III. Trial Court's Denial of Mendoza's Romero Motion
Mendoza filed a Romero motion asking the trial court to strike, under section 1385, a prior strike conviction for second degree robbery, from 2001. (§ 212.5, subd. (c); see Romero, supra, 13 Cal.4th 497.) The court denied the motion. Mendoza challenges the trial court's denial of his Romero motion, arguing it constituted an abuse of discretion. We cannot say the court's ruling was an abuse of discretion.
Romero confirmed that, under the three strikes scheme, the trial court retains the discretion to dismiss or strike one or more of the defendant's prior serious or violent felony convictions, alleged as a recidivist enhancement under the scheme. (Romero, supra, 13 Cal.4th at pp. 504, 529-530.) More specifically, Romero clarified the court may strike prior "strike" convictions pursuant to section 1385, "in furtherance of justice." (§ 1385; Romero, supra, at p. 531.)
A request for such relief is commonly referred to as a Romero motion. (People v. Carmony (2004) 33 Cal.4th 367, 375 (Carmony).) The trial court's ruling on a Romero motion is reviewed for abuse of discretion. (Carmony, supra, at p. 375.) Our Supreme Court has noted this standard of review is deferential but not "empty." (People v. Williams (1998) 17 Cal.4th 148, 162 (Williams).) "Although variously phrased in various decisions [citation], it asks in substance whether the ruling in question 'falls outside the bounds of reason' under the applicable law and the relevant facts." (Ibid.) Indeed, "'all exercises of legal discretion must be grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue.'" (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.)
Williams addressed the scope of the inquiry to be undertaken by the trial court in ruling on a Romero motion. The touchstone of the Romero determination is "whether ... the defendant may be deemed outside the [three strikes] scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (Williams, supra, 17 Cal.4th at p. 161.)
Williams clarified that making the requisite assessment requires "balanc[ing]" the defendant's "constitutional rights," including "the guaranties against disproportionate punishment of the Eighth Amendment to the United States Constitution and article I, section 17 of the California Constitution" on the one hand, and "society's legitimate interests," including "the fair prosecution of properly charged crimes," on the other hand. (Williams, supra, 17 Cal.4th at pp. 160-161.) In striking the requisite balance, "preponderant weight must be accorded to factors intrinsic to the [three strikes] scheme, such as the nature and circumstances of the defendant's present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects." (Williams, supra, at p. 161; see Romero, supra, 13 Cal.4th at p. 531 [in exercising its discretion as to whether to strike a prior strike conviction, the court must consider the "'defendant's background,'" "'the nature of his present offenses,'" and other "'individualized considerations'"].) "'[W]hen the balance falls clearly in favor of the defendant, a trial court not only may but should exercise the powers granted to him by the Legislature and grant a dismissal in the interests of justice.'" (Carmony, supra, 33 Cal.4th at p. 375.)
People v. Cluff (2001) 87 Cal.App.4th 991, held the trial court there had "abused its discretion when it denied [the defendant's] Romero motion." (Cluff, supra, at p. 1004.) Cluff observed that, while the court "'must ... be mindful of the sentencing scheme within which it exercises its authority,'" it must also "'perform its obligation to tailor a given sentence to suit the individual defendant.'" (Ibid.) Thus, a Romero determination requires an "individualized" assessment based on "'the particular aspects of the current offenses for which the defendant has been convicted'" as well as "'the defendant's own history and personal circumstances.'" (Ibid., italics added.)
While a three strikes sentence is, as a general matter, imposed regardless of the "length of time between the prior serious and/or violent felony conviction and the current felony conviction," the remoteness of the prior strike conviction is nonetheless relevant for purposes of determining, in the first instance, whether to dismiss the strike conviction under section 1385. (§§ 667, subd. (c)(3), 1170.12, subd. (a)(3); People v. Bishop (1997) 56 Cal.App.4th 1245, 1251 [trial court properly considered remoteness of prior strike offenses, among other factors, in dismissing the strikes under § 1385].)
In assessing a defendant's "prospects" in terms of the commission of future crimes, the sentence imposed by the trial court is itself relevant, since the defendant is presumably unlikely to reoffend while imprisoned. In this context, our Supreme Court has observed: "[A] defendant's sentence is also a relevant consideration when deciding whether to strike a prior conviction allegation; in fact, it is the overarching consideration because the underlying purpose of striking prior conviction allegations is the avoidance of unjust sentences." (People v. Garcia (1999) 20 Cal.4th 490, 500 [in multiple "present felony" cases, a trial court may be justified in striking prior conviction allegations as to one such felony but not another].)
Here, the prosecutor opposed Mendoza's Romero motion at sentencing as follows:
"Judge, the People feel the defendant should not be given the benefit of the time from the strike in 2001 to the [second] strike in 2010 and also the current offense. As indicated in my reply to the defense's motion, the defendant did suffer several probation violations while on parole. And also as indicated in the probation report more extensively, it showed that the defendant was, in fact, [not] discharged from that 2001 strike until 2008. In 2009, he was arrested for 422 [criminal threats], [for] which he spent six months in jail.... In 2009, he was arrested for his second strike, 212, again, also a robbery, [for] which he got six years. He was paroled from that and while on parole for that violation picked up his current strike, which is the case at bar. It does not best serve the interest of justice to dismiss the strike and the people are opposed to that motion."
The court then ruled as follows:
"I have read the request for the Court to dismiss the strike filed by Mr. Mendoza through his attorney. I read the response. I've heard the argument of both counsel. The Court will deny the request to dismiss the 2001 strike prior largely based on the reasons articulated by the People. That while the Court does recognize that there's a significant lapse between this offense and the first strike allegation, much of it is repeated behavior. Much of that time he would get credit for remaining arrest free, he was actually incarcerated or on parole and as such the Court is not inclined to grant the request to dismiss under the Romero [case] giving this Court authority to do so. The issue of the length of the sentence is a separate issue and the Court is unsympathetic to the defense position of the length of time the defendant faces. It's a separate analysis. So with that, [the Romero motion] is denied."
We cannot say the court's ruling was an abuse of discretion. IV. Senate Bill 620 (Firearm Enhancements)
Senate Bill 620, signed by the Governor on October 11, 2017, and effective January 1, 2018, added the following language to the firearm enhancement provisions in sections 12022.5 and 12022.53:
"The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section." (§§ 12022.5, subd. (c), 12022.53, subd. (h); Stats. 2017, ch. 682, §§ 1, 2.)
Senate Bill 620 thus granted trial courts new discretion to strike firearm enhancements arising under sections 12022.5 and 12022.53.
Mendoza was sentenced in June 2017, prior to the effective date of the amendments effected by Senate Bill 620. The trial court therefore imposed, in connection with Mendoza's robbery conviction (count 1), a then-mandatory firearm enhancement under section 12022.53, subdivision (b), carrying a sentence of 10 years. The trial court also imposed and stayed a sentence of the upper term of 10 years for a second, then-mandatory, firearm enhancement under section 12022.5, subdivision (a), which provides for an additional term of imprisonment of "3, 4, or 10 years." Similarly, with regard to Mendoza's conviction for attempted robbery (count 2), the court imposed a then-mandatory firearm enhancement under section 12022.53, subdivision (b), carrying a sentence of 10 years. The court also imposed and stayed the upper term of 10 years, under the then-mandatory firearm enhancement set forth in section 12022.5, subdivision (a).
The parties agree the amendments effected by Senate Bill 620 apply retroactively to this case, which must be remanded to permit the trial court to exercise its discretion in light of these amendments. (See People v. Woods (2018) 19 Cal.App.5th 1080, 1090-1091 [retroactively applying Senate Bill 620 to case not yet final when law became effective]; People v. Robbins (2018) 19 Cal.App.5th 660, 678-679 [same].) The matter is therefore remanded.
On remand, the trial court will have the option to exercise its discretion to strike the firearm enhancements imposed under section 12022.53, subdivision (b) and to strike, or impose a lower term with respect to, the firearm enhancements imposed under section 12022.5, subdivision (a). V. Senate Bill 1393 (Prior Serious Felony Enhancements)
Senate Bill 1393, which was signed by the Governor on September 30, 2018, and became effective on January 1, 2019, gave "courts discretion to dismiss or strike a prior serious felony conviction for sentencing purposes." (People v. Garcia (2018) 28 Cal.App.5th 961, 965, 971 (Garcia).) More specifically, Senate Bill 1393 amended both section 667, subdivision (a), and section 1385, subdivision (b), to delete restrictions on the court's sentencing discretion to strike prior serious felony convictions for sentencing purposes. (See Stats. 2018, ch. 1013, §§ 1, 2.)
Here, the trial court found true two section 667, subdivision (a) prior serious felony convictions as to both counts 1 and 2 and imposed the statutorily-mandated consecutive five-year sentences when it sentenced Mendoza in June 2017, prior to the effective date of the new law. (See Garcia, supra, 28 Cal.App.5th at p. 971.)
Both parties agree the amendments effected by Senate Bill 1393 apply retroactively to this case, which must be remanded to permit the trial court to exercise its discretion in light of these amendments. (See Garcia, supra, 28 Cal.App.5th at p. 973.) The matter is therefore remanded to give the trial court the opportunity to exercise its newly conferred discretion under section 667, subdivision (a), and section 1385, subdivision (b), as amended by Senate Bill 1393. VI. Senate Bill 136 (Prior Prison Term Enhancements)
On October 8, 2019, the Governor signed Senate Bill 136 into law. Effective January 1, 2020, Senate Bill 136 amends section 667.5, subdivision (b), to remove the one year enhancement for prior prison terms, except when the offense underlying the prior prison term was a sexually violent offense. Section 667.5, subdivision (b), as amended by Senate Bill 136 provides, in pertinent part:
"[W]here the new offense is any felony for which a prison sentence or a sentence of imprisonment in a county jail under subdivision (h) of Section 1170 is imposed or is not suspended, in addition and consecutive to any other sentence therefor, the court shall impose a one-year term for each
prior separate prison term for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code ." (Italics added.)
When Mendoza was sentenced on June 22, 2017, the court imposed enhancements pursuant to former section 667, subdivision (b). Therefore, on remand, the trial court is directed to address the question of the applicability, to this case, of the recent amendments to section 667, subdivision (b), effected by Senate Bill 136.
DISPOSITION
The sentence is vacated and the case remanded to the trial court for resentencing pursuant to (1) sections 12022.5, subdivision (c), and 12022.53, subdivision (h), as amended by Senate Bill 620 and (2) sections 667, subdivision (a), and 1385, subdivision (b), as amended by Senate Bill 1393. The court shall also address the applicability of section 667.5, subdivision (b), as amended by Senate Bill 136. The judgment is otherwise affirmed.
/s/_________
SMITH, J. WE CONCUR: /s/_________
POOCHIGIAN, Acting P.J. /s/_________
MEEHAN, J.