Summary
holding § 1385, subd. (c) does not apply to the Three Strikes law
Summary of this case from People v. MooreOpinion
A166288
12-21-2023
The PEOPLE, Plaintiff and Respondent, v. Deryll Teaorio OLAY, Defendant and Appellant.
Keith Fox, By Appointment of the First District Court of Appeal under the First District Appellate Project, for Defendant and Appellant. Rob Bonta, Attorney General of California; Lance E. Winters, Chief Assistant Attorney General; Susan Sullivan Pithey, Senior Assistant Attorney General; Scott A. Taryle, Supervising Deputy Attorney General; Nicholas J. Webster, Deputy Attorney General; for Plaintiff and Respondent.
Trial Court: Superior Court of Napa County, Trial Judge: Hon. Mark Boessenecker (Napa County Super. Ct. Nos. 22CR000828, 19CR000600)
Keith Fox, By Appointment of the First District Court of Appeal under the First District Appellate Project, for Defendant and Appellant.
Rob Bonta, Attorney General of California; Lance E. Winters, Chief Assistant Attorney General; Susan Sullivan Pithey, Senior Assistant Attorney General; Scott A. Taryle, Supervising Deputy Attorney General; Nicholas J. Webster, Deputy Attorney General; for Plaintiff and Respondent.
CHOU, J.
Defendant Deryll Teaorio Olay appeals following the trial court’s denial of his motion to strike a prior conviction under Penal Code section 1385. Olay argues that the court erred in denying his motion pursuant to People v. Superior Court (Romero) 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628 (Romero) and in concluding that the term "enhancement" in section 1385, subdivision (c) does not include prior strike allegations. Olay further contends that his case must be remanded based on newly added section 17.2, which requires that trial courts consider alternatives to incarceration. We find no error and affirm. In the portion of our opinion certified for publication, we conclude that the term "enhancement" in section 1385, subdivision (c) does not include prior strikes. In the unpublished portion of our opinion, we conclude that Olay’s other arguments lack merit as well.
All further statutory references are to the Penal Code unless otherwise specified.
I. BACKGROUND
In April 2022, plaintiff and respondent the People of the State of California (People) filed an information charging Olay with one count of grand theft (§ 487, subd. (a)) and one count of vandalism (§ 594, subd. (b)(2)). The information included an allegation that Olay had suffered a prior strike conviction for attempted robbery in 2018. In June 2022, Olay pled no contest to grand theft and admitted the prior strike allegation. Olay further admitted he violated his probation from another case in 2019.
The record contains little detail about this attempted robbery conviction presumably because the attempt occurred in another county.
Prior to sentencing, Olay filed a motion to dismiss his prior strike pursuant to Romero and Senate Bill No. 81 (2021-2022 Reg. Sess.) (SB 81). SB 81 amended section 1385 by requiring that a trial court "dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by an initiative statute." (§ 1385, subd. (c)(1).) Olay also asked the court to grant probation and allow him to participate in drug court. The People opposed the motion.
This case involved Olay’s theft of a catalytic converter. In April 2022, Mark A. called the police and reported that a male wearing a face covering had knocked on his door. Mark A. was alarmed by this and did not answer the door. From his security camera, he saw the male (later identified as Olay) drive up and park across the street. Olay went between Mark A.’s two parked cars for a few minutes before getting back into his car and driving away. Olay was holding a catalytic converter. The police detained Olay the next day and found a handheld saw, bolt cutters, and a hydraulic vehicle jack in the car Olay was driving.
Olay’s 2019 case involved vehicle theft and extortion. In February 2019, 76-year old Richard W. reported that his car was stolen and that he had received multiple calls from an unknown male (later identified as Olay) who was asking him for money in exchange for returning his car. Olay identified himself as Deryll and told Richard W. that his friend had found Richard W.’s car and could tow it to Richard W. for $800.00. With the police listening in, Richard W. agreed and asked that his car be towed to a designated location. The police arrested Olay when he went to that location to meet Richard W.
Richard W. also reported that on the previous day, he was working on his car when unknown males in a truck pulled up next to him and asked if he needed help. Richard W. responded he did not. He later noticed that the key from his vehicle was missing from the door and believed that these males had stolen it.
The trial court denied Olay’s motion. The court first concluded that section 1385, subdivision (c) did not apply to prior strikes because the Three Strikes law was not an enhancement but a "voluntary sentencing scheme." The court then denied the Romero motion on the grounds that Olay’s prior strike was very recent and that his offenses were not "low level cases." Olay’s current offense involved the theft of a catalytic converter and his prior offense involved the attempted extortion of a vulnerable victim. The court also noted that Olay had violated probation more than once in his attempted robbery case. The court denied probation in the grand theft case and sentenced Olay to a low term of 16 months, doubled to 32 months due to his prior strike. In the extortion case, the court revoked and terminated probation and sentenced Olay to a midterm of two years on the attempted extortion count (§ 564) and a midterm of two years on the vehicle theft count (Veh. Code, § 10851, subd. (a)). These two sentences were ordered to run concurrent to each other.
Olay timely appealed. II. DISCUSSION
A. The Trial Court Properly Denied the Romero Motion.
See footnote *, ante.
* See footnote *, ante.
B. SB 81 Does Not Apply to Prior Strike Allegations
Effective January 1, 2022, SB 81 added section 1385, subdivision (c)(1) to require that a trial court "dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by an initiative statute." (Italics added.) "In exercising its discretion [under subdivision (c)] … the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in subparagraphs (A) to (I) are present. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety." (§ 1385, subd. (c)(2), italics added.) One such mitigating circumstance is that: "The defendant was a juvenile when they committed the current offense or any prior offenses, including criminal convictions and juvenile adjudications, that trigger the enhancement or enhancements applied in the current case." (Id., subd. (c)(2)(G), italics added.) Olay argues that the trial court erred in refusing to apply subdivision (c) because it erroneously concluded that the term "enhancement" does not include a prior strike allegation. We disagree.
The original text of section 1385, subdivision (c)(2)(G) only included the term "juvenile adjudication." The term "criminal convictions" was subsequently added by Assembly Bill No. 200 (2021-2022 Reg. Sess.) that same year. The legislative history describes this addition as a "technical, non-substantive" one. (Sen. Com. on Budget and Fiscal Rev., Rep. on Assem. Bill 200 (2021-2022 Reg. Sess.) as amended June 26, 2022, p. 2.)
[1–6] "Whether the amendments to section 1385 apply to prior strike convictions is a question of statutory interpretation which we review de novo." (People v. Burke (2023) 89 Cal.App.5th 237, 242, 305 Cal.Rptr.3d 641 (Burke).) To answer this question, "we are guided by familiar canons of statutory construction. ‘[I]n construing a statute, a court [must] ascertain the intent of the Legislature so as to effectuate the purpose of the law.’ [Citation.] In determining that intent, we first examine the words of the respective statutes: ‘If there is no ambiguity in the language of the statute, then the Legislature is presumed to have meant what it said, and the plain meaning of the language governs.’ [Citation.] ‘Where the statute is clear, courts will not "interpret away clear language in favor of an ambiguity that does not exist." [Citation.]’ [Citation.] If, however, the terms of a statute provide no definitive answer, then courts may resort to extrinsic sources, including the ostensible objects to be achieved and the legislative history. [Citation.] ‘We must select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences.’ " (People v. Coronado (1995) 12 Cal.4th 145, 151, 48 Cal. Rptr.2d 77, 906 P.2d 1232.)
[7–10] "When we interpret statutes, we usually begin by considering the ordinary and usual meaning of the law’s terms, viewing them in their context within the statute." (In re Friend (2021) 11 Cal.5th 720, 730, 280 Cal.Rptr.3d 313, 489 P.3d 309.) But when "a term has developed a particular meaning in the law, we generally presume the legislative body used the term in that sense rather than relying on ordinary usage. ‘It is a well-recognized rule of construction that after the courts have construed the meaning of any particular word, or expression, and the legislature subsequently undertakes to use these exact words in the same connection, the presumption is almost irresistible that it used them in the precise and technical sense which had been placed upon them by the courts.’ " (Ibid.) Indeed, "when a word used in a statute has a well-established legal meaning, it will be given that meaning in construing the statute." (Arnett v. Dal Cielo (1996) 14 Cal.4th 4, 19, 56 Cal. Rptr.2d 706, 923 P.2d 1, italics in original; see also Civ. Code, § 13.)
Based on this canon of statutory construction, the court of appeal in Burke, supra, 89 Cal.App.5th at page 244, 305 Cal.Rptr.3d 641, recently concluded that "section 1385, subdivision (c)’s provisions regarding enhancements do not apply to the Three Strikes law." According to the court, "[t]he term ‘enhancement’ has a well-established technical meaning in California law" and means " ‘an additional term of imprisonment added to the base term.’ " (Id. at p. 243, 305 Cal.Rptr.3d 641; see also Cal. Rules of Court, rule 4.405, subd. (5).) The court then observed "that the Three Strikes law is not an enhancement; it is an alternative sentencing scheme …. " (Burke, at p. 243, 305 Cal. Rptr.3d 641, citing Romero, supra, 13 Cal.4th at p. 527, 53 Cal.Rptr.2d 789, 917 P.2d 628 ["The Three Strikes law … articulates an alternative sentencing scheme for the current offense rather than an enhancement"].) Presuming that the Legislature "was aware of[ ] and acquiesced in" this legal definition and distinction (Burke, at p. 243, 305 Cal.Rptr.3d 641) and concluding that the pertinent statutory language "is clear and unambiguous" (ibid.), Burke held that section 1385, subdivision (c) did not apply to prior strike allegations (Burke, at p. 244, 305 Cal. Rptr.3d 641).
We would agree with the reasoning of Burke but for the language of section 1385, subdivision (c)(2)(G)—which Burke did not consider. That subdivision states that a "criminal conviction[ ] [or] juvenile adjudication[ ] that trigger[s] the enhancement or enhancements applied in the current case" is a mitigating circumstance to which a trial court must "afford great weight" in deciding whether to dismiss an "enhancement." (§ 1385, subds. (c)(2) & (c)(2)(G), italics added.)
Presumably, the court of appeal in Burke did not do so because the appellant failed to raise it.
[11] According to Olay, the term "enhancement" in section 1385, subdivision (c) should not be given its established legal meaning because there is no enhancement that is "trigger[ed]" by a "juvenile adjudication[ ]." Like Olay, we were unable to find any such enhancement, and the People do not argue that one exists. This is presumably because juvenile adjudications cannot be considered " ‘convictions’ " for purposes of an enhancement. (People v. West (1984) 154 Cal.App.3d 100, 108, 201 Cal.Rptr. 63.) Juvenile adjudications may, however, be a strike under the Three Strikes law. (§§ 667, subd. (d)(3); 1170.12, subd. (b)(3).) Thus, Olay argues, to give the phrase "juvenile adjudications[ ] that trigger the enhancement or enhancements applied in the current case" in section 1385, subdivision (c)(2)(G) any purpose or meaning, the term "enhancement" should include prior strike allegations. (See People v. Valencia (2017) 3 Cal.5th 347, 357, 220 Cal.Rptr.3d 230, 397 P.3d 936 ["we generally must ‘accord[ ] significance, if possible, to every word, phrase and sentence in pursuance of the legislative purpose,’ and have warned that ‘[a] construction making some words surplusage is to be avoided’ "].) This, in turn, would mean that the pertinent language of section 1385, subdivision (c) is ambiguous. (See In re Jesusa V. (2004) 32 Cal.4th 588, 622, 10 Cal.Rptr.3d 205, 85 P.3d 2 [where dueling interpretations of a statutory term would render other language in the statute meaningless, the statutory language is ambiguous]; Kennedy Wholesale, Inc. v State Bd. of Equalization (1991) 53 Cal.3d 245, 249, 279 Cal.Rptr. 325, 806 P.2d 1360 [a "latent" ambiguity may exist based on the effect that proposed interpretations of statutory language would have on other provisions or statutes].)
Olay also argues that adopting the legal meaning of enhancement would render meaningless the language in section 1385, subdivision (c)(1) that makes the subdivision inapplicable if dismissal of the enhancement is "prohibited by any initiative statute." But even if Olay is correct that no existing initiative measure prohibits the dismissal of an enhancement that falls under the legal definition, statutory language that is otherwise unnecessary may "clarify … a point notwithstanding the rule against surplusage." (Farmers Ins. Exchange v. Superior Court (2006) 137 Cal.App.4th 842, 858, 40 Cal. Rptr.3d 653.) As explained in the legislative history, the Legislature included that language in section 1385, subdivision (c)(1) to ensure that SB 81 would never run afoul of any initiative measures. (See Assem. Com. on Public Safety, Analysis of Sen. Bill No. 81 (2021-2022 Reg. Sess.) as amended Apr. 27, 2021, p. 6.)
[12] Nonetheless, we still agree with Burke’s ultimate conclusion—that section 1385, subdivision (c) does not apply to the Three Strikes law. (Burke, supra, 89 Cal. App.5th at p. 244, 305 Cal.Rptr.3d 641.) In particular, we are skeptical the Legislature would have expressed an intent to reject the well-established legal meaning of "enhancement" in such a roundabout manner by obliquely referencing "juvenile adjudications" as one of the relevant mitigating circumstances. Indeed, " ‘[t]he principle of Occam’s razor—that the simplest of competing theories should be preferred over more complex and subtle ones—is as valid juridically as it is scientifically.’ " (Brodie v. Workers’ Comp. Appeals Bd. (2007) 40 Cal.4th 1313, 1328, fn. 10, 57 Cal.Rptr.3d 644, 156 P.3d 1100 (Brodie).) If the Legislature had wanted section 1385, subdivision (c) to apply to prior strikes as well as to enhancements as legally defined, it would have said so.
The legislative history confirms the Legislature had no such intent. (See People v. Coronado, supra, 12 Cal.4th at p. 151, 48 Cal.Rptr.2d 77, 906 P.2d 1232 [courts may "resort" to legislative history when statutory language is ambiguous].) The June 2021 bill analysis of SB 81 by the Assembly Committee on Public Safety distinguished an "enhancement" from "an alternative penalty scheme" like the Three Strikes law. (Assem. Com. on Public Safety, Analysis of Sen. Bill No. 81, supra, as amended Apr. 27, 2021, at pp. 5-6, citing Cal. Rules of Court, rule 4.405, subd. (3), Robert L. v. Superior Court (2003) 30 Cal.4th 894, 898-899, 135 Cal.Rptr.2d 30, 69 P.3d 951, and People v. Jefferson (1999) 21 Cal.4th 86, 101, 86 Cal.Rptr.2d 893, 980 P.2d 441.) After making that distinction, the bill analysis states, in no uncertain terms, that "[t]he presumption created by this bill applies to enhancements [ ] but does not encompass alternative penalty schemes." (Assem. Com. on Public Safety, Analysis of Sen. Bill No. 81, supra, as amended Apr. 27, 2021, at p. 6, italics added.) A more unambiguous statement of the Legislature’s intent to adopt the legal meaning of enhancement for section 1385, subdivision (c) can hardly be imagined. (See Wendz v. California Dept. of Education (2023) 93 Cal.App.5th 607, 630, 311 Cal.Rptr.3d 213 ["Only ‘[a] clear statement of intent allows a court to reasonably indulge the inference that the individual members of the Legislature may have given at least a little thought to the statement before voting on the bill’ "].)
The Legislature’s intent to adopt the legal meaning of enhancement is further confirmed by the legislative history after the June 2021 bill analysis. That subsequent history makes no reference whatsoever to the Three Strikes law or any other alternative sentencing scheme. (See Assem. Com. on Appropriations, Analysis of Sen. Bill No. 81 (2021-2022 Reg. Sess.) as amended July 1, 2021; Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 81, supra, as amended Aug. 30, 2021; Sen. Rules Com., Off. of Sen. Floor Analyses, Unfinished Business, supra, as amended Aug. 30, 2021.) Instead, the only enhancement identified in the legislative history after the June 2021 bill analysis falls squarely within the legal definition of enhancement. (See Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 81, supra, as amended Aug. 30, 2021, at p. 2 [referencing "a gun enhancement imposed under Penal Code Section 12022.53"].)
This also suggests that the "juvenile adjudications" language—which was added after the June 2021 bill analysis—was not intended to make section 1385, subdivision (c) applicable to the Three Strikes law. (See Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 81 (2021-2022 Reg. Sess.) as amended Aug. 30, 2021, p. 1; Sen. Rules Com., Off. of Sen. Floor Analyses, Unfinished Business (2021-2022 Reg. Sess.) as amended Aug. 30, 2021, p. 3.) If, in the future, a juvenile adjudication is deemed an appropriate basis for an enhancement, no further amendment to section 1385, subdivision (c)(2)(G) will be necessary.
Despite this, Olay, citing to a footnote in Burke, argues that the legislative history of SB 81 is ambiguous as to the meaning of the term enhancement. (See Burke, supra, 89 Cal.App.5th at 243, fn. 3, 305 Cal. Rptr.3d 641 ["We recognize much of the legislative history is inconsistent … and suggests that the term enhancement includes the Three Strikes law"].) However, a closer look at that legislative history reveals that there is no ambiguity and that the Legislature did not intend for that term to include prior strikes.
SB 81 "codifie[d] a recommendation [by the] Committee on the Revision of the Penal Code [(CRPC)] to improve fairness in sentencing" and help ensure that penalties more closely reflect the circumstances of the crime. (Sen. Com. on Public Safety, Analysis of Sen. Bill No. 81 (2021-2022 Reg. Sess.) Mar. 16, 2021, p. 3.) As Burke correctly noted, the CRPC’s report "repeatedly refers to ‘strikes’ as enhancements rather than using the technical legal meaning and does not separate ‘strikes’ from inclusion in its recommendation." (Burke, supra, 89 Cal.App.5th at p. 243, fn. 3, 305 Cal.Rptr.3d 641.) If the legislative history indicated that the Legislature, in enacting SB 81, intended to adopt the CRPC’s recommendation in its entirety, then we would agree that the history is inconsistent as argued by Olay. But the June 2021 bill analysis makes it clear that SB 81 only codified the CRPC’s "recommendation [on the application of] sentence enhancements" (Assem. Com. on Public Safety, Analysis of Sen. Bill No. 81, supra, as amended Apr. 27, 2021, at p. 3), as defined by rule 4.405, subdivision (3) of the California Rules of Court (Assem. Com. On Public Safety, Analysis of Sen. Bill No. 81, supra, as amended Apr. 27, 2021, at pp. 2 & 5)—which does not encompass alternative sentencing schemes like the Three Strikes law (id. at p. 4). Thus, the broader understanding of the term enhancement used by the CRPC is irrelevant here. And to the extent the legislative history may have been unclear about the meaning of the term enhancement before June 2021, the June 2021 bill analysis cleared up that confusion.
Indeed, aside from the June 2021 bill analysis, the legislative history of SB 81 does not directly address the meaning of the term enhancement as used in section 1385, subdivision (c). If, as Olay contends, the Legislature intended to depart from existing law by adopting a more expansive understanding of that term, presumably, the legislative history would have expressed this intent far less obliquely. (Cf. Brodie, supra, 40 Cal.4th at p. 1329, 57 Cal.Rptr.3d 644, 156 P.3d 1100 [an omission in the description of changes made by a bill to existing law in the legislative history indicates that the omission was intentional].) More notably, the legislative history would not have expressed the exact opposite: an intent to adopt the narrower, legal meaning of the term enhancement for purposes of section 1385, subdivision (c). (See Assem. Com. on Public Safety, Analysis of Sen. Bill No. 81, supra, as amended April 27, 2021, at p. 4.)
Finally, our interpretation is consistent with the purpose behind SB 81: to improve "fairness in sentencing while retaining a judge’s authority to apply an enhancement to protect public safety." (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading of Sen. Bill No. 81, supra, as amended Aug. 30, 2021, at p. 5; Assem. Com. on Appropriations, Analysis of Sen. Bill No. 81, supra, as amended July 1, 2021, at p. 2.) Accomplishing this purpose does not require interpreting an enhancement to include a prior strike. And the omission of prior strike allegations from the purview of section 1385, subdivision (c) does not support a contrary conclusion. Accordingly, we hold that section 1385, subdivision (c) does not apply to the Three Strikes law.
C. Remand for Resentencing is Not Required Under Section 17.2
III. DISPOSITION
The judgment is affirmed.
We concur.
JACKSON, P. J.
SIMONS, J.