Opinion
F078102
09-19-2019
THE PEOPLE, Plaintiff and Respondent, v. MATTHEW NAJERA, Defendant and Appellant.
Sylvia W. Beckham, 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, Kathleen A. McKenna and Clara M. Levers, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Kern Super. Ct. No. BF150312A)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. Kenneth C. Twisselman II, Judge. Sylvia W. Beckham, 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, Kathleen A. McKenna and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P. J., Poochigian, J. and Meehan, J.
-ooOoo-
INTRODUCTION
Appellant/defendant Matthew Najera robbed a store clerk in Bakersfield and resisted officers who tried to take him into custody. After a jury trial, defendant was convicted of robbery with the personal use of a firearm; two counts of felony resisting arrest of the two officers who arrested him; and possession of a firearm by a violent felon. Defendant was sentenced to the second strike term of 29 years in prison.
On appeal, this court affirmed defendant's convictions and ordered correction of the abstract of judgment. We remanded the matter for resentencing because of the recent enactment of Senate Bill No. 620 (Stats. 2017, ch. 682, § 2 (SB 620)), which amended the language of the Penal Code section 12022.53 firearm enhancement found true in this case, for the court to consider whether to exercise its discretion to strike that enhancement. On remand, the superior court declined to strike the firearm enhancement.
All further statutory citations are to the Penal Code unless otherwise indicated.
In this appeal, defendant does not challenge the court's decision not to strike the firearm enhancement. Instead, he argues the matter must again be remanded because of the recent enactment of additional legislation in Senate Bill No. 1393 (Stats. 2018, ch. 1013, §§ 1-2), which amended section 667, subdivision (a)(1) to give the court discretion to strike the five-year prior serious felony enhancement that was imposed in this case.
We find the matter need not be remanded based upon the court's findings at the resentencing hearing and affirm defendant's convictions and his sentence.
FACTS
On January 28, 2019, this court granted defendant's request to take judicial notice of the record on appeal in People v. Najera (March 28, 2018, F072180) [nonpub. opn.]. The following facts and procedural history are taken from that record.
The Robbery
On August 15, 2013, Guillermina Silva was working by herself at a Herbalife health food supplement store on Columbus Street in Bakersfield. Sometime before noon, Silva was standing outside the store and saw a man walk by. She gave the man a card about Herbalife products and invited him into the store.
Silva testified the man, later identified as defendant, entered the store. Silva could not speak English, and defendant did not appear to understand when she spoke Spanish. Silva presented defendant with English-language literature about the products. Defendant appeared interested and filled out an order form for $200 worth of products; he used the name "Jose Garcia." Defendant asked questions about the order. Silva called a friend on her cell phone, handed the cell phone to defendant, and the friend translated his questions.
Defendant produced a check and said something. Silva thought defendant wanted to cash the check, but she could not understand him. She again called her friend on the cell phone to translate.
After the second cell phone call, defendant asked for water and then to use the restroom. Defendant suddenly took Silva's cell phone from her hand. He produced a small black handgun and pointed it at her. Silva was frightened and tried to tell defendant that she did not have any money. Defendant pushed her into the restroom in the rear of the store and closed the door.
Silva was very scared. She waited for a while in the restroom and then went back into the store. Defendant was gone, and her purse and cell phone were missing. Her purse contained identification and credit cards. Silva ran outside the store and asked a bystander to call the police.
Silva testified that an officer later showed her two separate photographic lineups. She selected defendant's photograph from the second lineup and identified him as the robber.
The Investigation
Around 12:30 p.m., officers from the Bakersfield Police Department responded to Silva's location. Based on their interview with Silva, a dispatch was sent out that described the robbery suspect as a Hispanic male in his 30's, six feet tall with short hair, several facial piercings, a tattoo on his upper lip, and a tattoo of lips on his neck. He used a small silver handgun.
Later that day, the police department contacted AT&T and conducted a record check for Silva's stolen cell phone. This investigation led to the information that the cell phone was being used at a certain address on Alta Vista.
Around 10:00 p.m. that evening, Officer Berumen was on patrol in plainclothes and an unmarked vehicle and responded to the Alta Vista area in response to the cell phone information. He saw a man standing outside an apartment complex on Alta Vista and believed the man matched the description of the robbery suspect. Berumen immediately advised patrol units of his observations.
Officers Martin and Sims Contact Defendant
Bakersfield Police Officers Martin and Sims, with the Career Criminal Apprehension Team, responded to Officer Berumen's dispatch about the possible robbery suspect. They were wearing raid gear with vests that were clearly marked to indicate they were law enforcement officers. Sims parked their vehicle, and they walked toward defendant. The officers did not have any previous knowledge of defendant.
Officer Berumen remained in the area until he saw Officers Martin and Sims arrive, approach defendant, and follow him across the street. Once he saw the officers talking to defendant, Berumen drove away. Berumen did not try to detain defendant or see any physical altercation or struggle between defendant and the officers.
Officers Martin and Sims called out to defendant, identified themselves as officers, and said they needed to speak with him. Defendant was with an unidentified woman. Defendant turned around, looked at the officers, and ignored their requests to stop. Defendant and the woman crossed the street and went into a café. Defendant was carrying a backpack.
The officers followed defendant inside the café. The officers advised defendant that they were conducting an investigation, and they needed to speak with him outside. Defendant said he was not on probation or parole, and he did not want to talk to them.
Officer Martin testified that as he talked to defendant, he believed that he matched the description of the robbery suspect. Both officers knew the suspect had used a small firearm. They decided to detain defendant and escort him from the café for safety reasons. The officers flanked defendant, each held an arm, and escorted him to the sidewalk outside. Martin testified defendant did not have a choice at that point, and he was detained. The woman also went outside with them.
Once they were on the sidewalk, Officer Martin directed defendant to place his hands on top of his head, and that he was going to conduct a search. Martin asked defendant if he had any weapons or dangerous objects that could harm them. Defendant replied that he had a note in his pocket "that he wished to read to me," that "I got it from an attorney or somebody. It has your rights on it. I need to read these to you." The officers believed defendant could have a gun in his pocket, based on Silva's description that the suspect had a small firearm. They told defendant that he could not reach into his pocket.
Defendant Resists the Officers
Officer Martin testified defendant failed to put his hands on top of his head. Instead, defendant "tensed" his arms, hands, and shoulders, to restrict any movement of his hands above his head. Martin asked defendant to calm down, but defendant did not raise his hands as ordered.
Officer Martin testified that Officer Sims let go of defendant's left arm, and the following happened:
"... I took control of [defendant's] left arm and his right arm and I attempted to place them on his head.... I was asking him to place his hands on top of his head as I was trying to pull his fingers to interlock them behind his head this way in order for me to safely search him.... Once that happened, he actually started to flail both of his arms. And once the flailing began, Officer Sims, once again, took control of [defendant's] left arm, and I attempted to maintain control of his right."
As defendant flailed his arms, he moved his elbow backwards and hit Officer Martin's face. Martin felt the impact of the blow and let go of defendant's right arm. Martin testified:
"At that point [defendant] decided to try to pull away from Officer Sims, who still had control of his left arm. At that point they had stepped down into the gutter ... the area separating the asphalt to the street from the sidewalk. At that time Officer Sims used his body weight and pulled [defendant] backwards, and [defendant] essentially tripped over the curb and fell to the ground."
Officer Sims testified that he did not realize Officer Martin had been hit in the face. Sims ended up in the street with defendant once Martin lost control of him. Sims repeatedly yelled at defendant to stop resisting but could not gain control over him since defendant was a larger person. Sims used the curb to "essentially trip him and bring him to the ground."
Officers Martin and Sims testified defendant quickly stood up from the street and started to pull away from Sims. Defendant pulled Sims into the middle of the street, about 10 feet from the sidewalk. Sims used his body weight and pulled defendant to the ground, but defendant continued to resist.
Officer Martin retrieved his collapsible baton and repeatedly ordered defendant to stop resisting. Defendant failed to comply. Martin used the baton and hit defendant's lower right leg, and again ordered him to stop. Defendant still failed to comply, and actually stood up as Officer Sims continued to hold his arm.
Officer Martin testified that defendant reached for the same pocket that he previously indicated contained a note. Martin was again afraid that defendant was reaching for the small gun described by Silva. Martin used the baton and hit defendant's right arm two to three times. At the same time, Officer Sims pulled defendant back to the ground.
Officer Martin testified that defendant again managed to stand up, and Officer Sims again pulled him down to the ground. As the struggle continued, the officers repeatedly ordered defendant to stop resisting and put his hands behind his back, but defendant did not comply.
Officer Martin testified that Officer Sims managed to pull defendant toward the curb. Sims and defendant tripped over the curb and fell onto the sidewalk. Defendant was on his back and Sims was on top of him and held defendant on the ground.
Officer Sims testified that he was on top of defendant and tried to gain control of defendant's right hand. Defendant reached out and tugged on his gun holster. Sims looked down and saw defendant's left hand pull the handle of his service weapon. Sims was afraid defendant was going to release the holster lock and remove his weapon. Sims let go of defendant's right hand and grabbed his service weapon to make sure defendant did not remove it from his holster. Sims testified that he yelled to Officer Martin, "[H]e is going for my gun."
Officer Martin testified that defendant "actually reached up and grabbed Officer Sims'[s] holster or his firearm, and he started trying to pull that firearm out of the holster." Martin heard Sims say, "He is going for my gun."
Officer Martin was afraid defendant was going to get Officer Sims's gun. Martin testified he considered shooting defendant, but Sims was completely on top of him, and between Martin and defendant. In addition, Martin's Taser gun and his radio had fallen out of his raid vest during the struggle.
Officer Martin again used his baton and hit defendant's forehead. In response, defendant removed his hands from Officer Sim's firearm and raised his hands to protect his head, and again ignored the officers' repeated orders to stop resisting. Martin saw Sims reach for his firearm to ensure that defendant had not released the holster lock.
Defendant Escapes
Officer Martin testified defendant was still lying on his back, and Officer Sims was vulnerable. Martin intended to hit defendant's right leg with his baton. As he was about to do so, defendant moved his body so that Sims also moved, and their legs overlapped. When Martin delivered the baton blow, he accidentally hit Sims's leg.
Officer Sims testified that once he gained control of his service weapon, defendant used his feet to push him away. Sims's body turned, and he felt extreme pain on his right knee. He told Officer Martin, "[T]hat he hit me" in the lower leg, behind his knee.
Officer Sims rolled off defendant because of the pain. Defendant got up and ran into an alley. Defendant still had his backpack.
Officer Sims had no feeling in his lower leg and could not stand up. Officer Martin ran after defendant, who went through the alley and then turned into a dirt lot. Martin testified that defendant reached into that same right pocket and tossed a silver item toward a tree. Defendant kept running and threw away the backpack.
Officer Martin testified that he gave up the pursuit and lost sight of defendant because Officer Sims called out that he could not get up. Martin returned to Sims, who had already used his handheld radio to advise other officers about the pursuit and defendant's location.
Defendant was charged with resisting both Officers Martin and Sims.
Apprehension of Defendant
Officers Sims and Martin remained at the scene of the original encounter with defendant and did not participate in his arrest.
Officers Christopher Messick and Aaron Mundhenke responded to the dispatch about Officer Martin's initial pursuit of the robbery suspect. At the corner of North Inyo and Water Street, the officers saw someone who matched the suspect's description. He was crouched behind a trashcan and a chain link fence.
Officer Mundhenke testified he illuminated the man with his flashlight, yelled that he was a police officer, and ordered the man to get on the ground. The man, later identified as defendant, failed to comply and Mundhenke again shouted out these orders.
Instead of getting down, defendant stood up and walked to Officer Mundhenke, who grabbed defendant's left arm. Mundhenke testified he "assisted the defendant to the ground, he was in the face-down position with his chest on the ground. I still was able to maintain control of his left arm. I ordered him to place his right hand behind his back." Defendant did not comply. Mundhenke testified that he used his body weight with both knees to put defendant on the ground. Officer Messick arrived to assist. Defendant was placed in handcuffs.
Defendant was not charged with resisting Officers Messick and Mundhenke. --------
Recovery of the Gun and Backpack
A .25-caliber silver semiautomatic handgun with a black handle was found in the area where Officer Martin saw defendant toss a silver item from his pocket. There was one live round in the gun's chamber.
The backpack was also found in the area. The backpack contained items that had been in Ms. Silva's purse, along with an AT&T cell phone and one .25-caliber bullet.
Defendant's Injuries
The defense introduced photographs of defendant that were taken at the hospital after his arrest. The photographs showed injuries on defendant's forehead and leg, blood on his back, and possibly a bloody nose and lip.
Officer Martin testified that he never saw defendant after he was arrested; he did not transport defendant to the hospital; he did not search defendant's person or clothing; and he did not know what happened to defendant at the hospital.
Officer Martin testified that he hit defendant with his baton between eight and 10 times, and it was reasonable to believe he inflicted the leg and forehead injuries that were shown in the photographs. He did not know if Officer Sims inflicted any injuries on defendant during their struggle.
The defense did not introduce medical records or other evidence about the nature or extent of defendant's physical condition when he was arrested.
Charges and Convictions
An amended information charged defendant with count 1, robbery of Silva (§ 212.5, subd. (c)), with the special allegation of personal use of a firearm (§ 12022.53, subd. (b)); count 2, possession of a firearm by a felon (§ 29800, subd. (a)(1)); counts 3 and 4, felony resisting arrest by threats or violence as to, respectively, Officers Martin and Sims (§ 69); count 5, possession of a firearm by a violent felon (§ 29900, subd. (a)); and count 6, felony unlawful resisting arrest by Sims and causing serious bodily injury (§ 148.10, subd. (a)). The amended information also alleged defendant had one prior strike conviction, one prior serious felony enhancement (§ 667, subd. (a)(1)) and two prior prison term enhancements (§ 667.5, subd. (b)).
Convictions
On July 2, 2015, the jury found defendant guilty as charged in count 1, robbery of Silva, with the special allegation of personal use of a firearm found true; count 2, possession of a firearm by a felon; counts 3 and 4, felony resisting arrest by threats or violence as to, respectively, Officers Martin and Sims; and count 5, possession of a firearm by a violent felon.
The jury found defendant not guilty of count 6, felony unlawful resisting arrest by Officer Sims and causing serious bodily injury, but guilty of the lesser included offense of misdemeanor resisting a peace officer (§ 148, subd. (a)(1)).
The court found true the prior conviction allegations that defendant had one prior strike, one prior serious felony enhancement, and two prior prison term enhancements.
The First Sentencing Hearing
On August 13, 2015, the court convened the scheduled sentencing hearing. The court heard and denied defendant's motions pursuant to People v. Marsden (1970) 2 Cal.3d 118 and Faretta v. California (1975) 422 U.S. 806.
The court found no mitigating circumstances. It found aggravating circumstances that defendant's prior convictions were numerous; he was on misdemeanor probation when he committed the offenses; his prior performance on probation and parole was not satisfactory; and he showed that he was a serious danger to society.
The court found defendant was statutorily ineligible for probation based on three factors: his prior strike conviction; he used a deadly weapon in the commission of count 1 and there were no unusual circumstances, pursuant to section 1203, subdivision (e)(3); and the section 12022.53, subdivision (b) personal use enhancement was found true, pursuant to section 12022.53, subdivision (g).
The court further found that even if defendant was eligible for probation, he would not be suitable based on the serious nature of the offense, "including the use of a firearm on the 66-year-old victim" in the robbery.
The court found the term for count 5, possession of a firearm by a felon, should be consecutive to the term for count 1, robbery, because defendant was in possession of the firearm approximately eight hours after the robbery; and consecutive sentences were also appropriate for counts 3 and 4.
The court sentenced defendant to an aggregate term of 29 years: the upper term of five years for count 1, robbery, doubled to 10 years as the second strike term; plus consecutive terms of 10 years for the section 12022.53, subdivision (b) personal use enhancement, and five years for the prior serious felony enhancement; and three consecutive terms of 16 months (one-third the midterms, doubled) for counts 3 and 4, felony resisting arrest, and count 5, possession of a firearm by a violent felon.
The court stayed the term for count 2, possession of a firearm by a felon; and imposed a concurrent term for the misdemeanor resisting conviction in count 6. The court also ordered the prior prison term enhancements stricken.
The First Appeal
In People v. Najera, supra, F072180, defendant's first appeal, we affirmed defendant's convictions, and remanded the matter for the court to correct the abstract of judgment to show it decided to strike the two prior prison term enhancements.
We subsequently granted defendant's petition for rehearing based on the legislative amendment to the section 12022.53 firearm enhancement in SB 620, that occurred after the sentencing hearing in this case. Both defendant and the People agreed that SB 620's amendment to section 12022.53, subdivision (h) applied retroactively to cases not yet final on appeal. (In re Estrada (1965) 63 Cal.2d 740, 746; People v. Francis (1969) 71 Cal.2d 66, 75-76; People v. Brown (2012) 54 Cal.4th 314, 323.) They also agreed that defendant's case was not final, and it should be remanded for the trial court to exercise its discretion for possible resentencing under section 12022.53, subdivision (h).
We thus remanded the matter for the court to determine in the first instance whether to exercise its new statutory discretion to strike the firearm enhancement in this case under section 12022.53, subdivision (h). In doing so, we stated: "By remanding the matter, we do not find that the court must strike the enhancement, but only that the court must consider whether to exercise its discretion pursuant to the newly-enacted provisions of section 12022.53, subdivision (h)."
THE PROCEEDINGS ON REMAND
The Second Sentencing Hearing
On August 10, 2018, the court convened the second sentencing hearing on remand. The court stated it had read this court's opinion, and the original and supplemental probation reports. The probation officer did not take a position on whether the court should strike the firearm enhancement.
The court stated that it now had discretion under section 12022.53, subdivision (h) to strike the firearm enhancement in the interests of justice pursuant to section 1385. Defense counsel argued the enhancement should be stricken because the offense was "a simple robbery where nobody was hurt, no real threats were made, there was no violence, no injuries were involved," defendant was 26 years old at the time, and he had been doing well in prison.
The court rejected counsel's claim the crime was a "simple robbery" because defendant pointed the gun directly at the victim. Defense counsel replied that defendant did not fire the gun or hit the victim with it.
The prosecutor said the court should not dismiss the firearm enhancement based on the nature and circumstances of defendant's conduct in committing the offenses.
The Court's Denial of Defendant's Request to Strike
The court made extensive findings and denied defendant's request to strike the firearm enhancement.
"I believe that, in exercising my discretion under [section] 1385, I need to look at all the circumstances around the defendant, including his background, his prior history.
"And I am noting that starting in 2001 he's involved in theft-related conduct, receiving stolen property. He had a petty theft, another petty theft in 2001. Now he is committing second degree burglary in 2002. These are all juvenile offenses, but, nonetheless, they show a pattern that was developing much earlier. Then a robbery in 2005 that sent him off to state prison, second degree robbery. Another burglary in 2005. He's engaged in criminal conduct in 2011, 2013, resisting police officers. So I am considering all of that as well." (Italics added.)
Defense counsel replied that defendant could have grown and matured after the juvenile offenses. The court said defendant did not mature very well because he was getting more sophisticated and committed additional offenses as an adult.
The court said it was considering all the circumstances of the offense and the offender, and it decided not to strike the firearm enhancement.
"And considering the evidence presented during the trial, considering the circumstances that the Court is aware of about the defendant and his criminal history, the Court exercises its discretion to decide not to strike that enhancement.
"I do find that the defendant was threatening the life - either the life or potential great bodily injury when he pointed the firearm directly at the victim. No words are needed when it's clear that you have a gun pointed at you and the person is prepared to cause you death or great bodily harm.
"His prior convictions as an adult and sustained petitions in juvenile delinquency proceedings are numerous and have increased in seriousness, which led to his commitment to state prison for the robbery. And he continues to engage in criminal conduct. He is certainly not showing any indication that he's on a path for rehabilitation, looking at his criminal history as well as his current offenses.
"So the Court will not strike the enhancement." (Italics added.)
The court reimposed the same aggregate term of 29 years in prison, including 10 years for the section 12022.53, subdivision (b) firearm enhancement and five years for the section 667, subdivision (a)(1) prior serious felony enhancement. The court clarified that it intended to strike the two prior prison term enhancements under section 667.5, subdivision (b), and ordered an amended abstract of judgment to so reflect.
DISCUSSION
On appeal, defendant does not challenge the court's decision not to strike the firearm enhancement. Instead, defendant contends the matter must be remanded because of legislation enacted after the first and second sentencing hearings that amended another statute relevant to this case.
Prior to 2019, the trial court did not have authority to strike a prior serious felony enhancement found true under section 667, subdivision (a)(1). Senate Bill No. 1393, which became effective on January 1, 2019, amended section 667, subdivision (a)(1) to permit the trial court to strike a prior serious felony enhancement. (People v. Jones (2019) 32 Cal.App.5th 267, 272.) It applies retroactively in cases where a defendant's sentence is not yet final. (Id. at pp. 272-273; People v. Garcia (2018) 28 Cal.App.5th 961, 973.)
In this case, the court found true the allegation that defendant had a prior serious felony conviction pursuant to section 667, subdivision (a)(1), based on his conviction for second degree robbery in 2005. The court imposed a consecutive five-year term for this enhancement.
Defendant asserts that remand is necessary for the court to decide whether to exercise its discretion to dismiss the prior serious felony enhancement, since such discretion did not exist at the first or second sentencing hearings.
The People agree that the amendment to section 667, subdivision (a)(1) is retroactive and potentially applies since defendant's case is not yet final. However, the People argue the matter should not be remanded based on the entirety of the record.
"We are not required to remand to allow the court to exercise its discretion if 'the record shows that the trial court clearly indicated when it originally sentenced the defendant that it would not in any event have stricken [the] ... enhancement' even if it had the discretion. [Citation.]" (People v. Jones, supra, 32 Cal.App.5th at pp. 272-273.)
"The trial court need not have specifically stated at sentencing it would not strike the enhancement if it had the discretion to do so. Rather, we review the trial court's statements and sentencing decisions to infer what its intent would have been. [Citations.]" (People v. Jones, supra, 32 Cal.App.5th at p. 273.)
In this case, the court did not specifically address whether it would strike the five-year term for the section 667, subdivision (a)(1) enhancement at either the first or second sentencing hearing. Indeed, the court lacked discretion to make such a decision at both hearings. Nevertheless, the court's extensive findings at the second sentencing hearing clearly indicate it would not exercise its discretion to strike the prior serious felony enhancement. The court reviewed the entirety of the circumstances, including defendant's prior record, when it determined not to strike the section 12022.53 firearm enhancement. In doing so, the court cited defendant's prior serious felony conviction for robbery in 2005 as indicative of his commission of more serious and violent offenses as both a juvenile and an adult, as one of the reasons it was not going to strike the firearm enhancement. "He is certainly not showing any indication that he's on a path for rehabilitation, looking at his criminal history as well as his current offenses."
We thus conclude that based on the court's findings at the second sentencing hearing, and its express reliance on defendant's 2005 robbery conviction as one of the reasons not to strike the firearm enhancement, there is no possibility that it would strike the section 667, subdivision (a)(1) enhancement based on that same robbery conviction and remand is not required. (See, e.g., People v. Jones, supra, 32 Cal.App.5th at pp. 274-275; People v. McVey (2018) 24 Cal.App.5th 405, 419; People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896.)
DISPOSITION
The judgment is affirmed.