Opinion
C086480
10-30-2019
THE PEOPLE, Plaintiff and Respondent, v. EDWARD EMMANUEL REID, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15F04204)
A jury found defendant Edward Emmanuel Reid guilty of corporal injury, battery causing serious bodily injury, being a felon in possession of a firearm and ammunition, and seven counts of animal cruelty. The jury also found defendant personally used a weapon, namely a wooden sword, and caused great bodily injury during the commission of the corporal injury. The trial court further found defendant had been previously convicted of seven prior strike convictions in two criminal proceedings.
The jury acquitted defendant of making criminal threats. It neglected to make a finding of whether defendant inflicted serious bodily injury during the commission of the battery. The People later dismissed that allegation.
Defendant appeals contending the trial court abused its discretion in denying his Romero motion and asks we remand the case to allow the trial court to consider whether to exercise its discretion to strike his prior serious felony enhancements pursuant to Senate Bill No. 1393. (Stats. 2018, ch. 1013, §§ 1-2 (S.B. 1393).) We remand for the trial court to exercise its newly granted discretion under S.B. 1393 and otherwise affirm.
(People v. Superior Court (Romero) (1996) 13 Cal.4th 497.)
FACTUAL AND PROCEDURAL BACKGROUND
Defendant and C. D. married in 1998. In 2005, they moved into a rented home in Citrus Heights and in 2008, C. D. got a job at a hospital as a housekeeper. While C. D. worked, defendant would stay home to watch their seven dogs. Defendant occasionally worked at a recycling center on C. D.'s days off, but could not work more because someone had to stay with the dogs, which were his responsibility. As a result, defendant and C. D. struggled financially and often had disagreements about money.
On July 4 and July 5, 2015, defendant and C. D. had an argument that turned physical. Defendant grabbed and twisted C. D.'s wrist and beat her with a wooden sword. On July 9, 2015, C. D. returned to work and met with police about her injuries, which consisted of a broken wrist and bruising all over her body. During trial, C. D. testified about other relatively recent incidents of domestic violence, including one incident where defendant broke her other wrist.
During a search of their home, officers found a wooden sword, a high-powered rifle, ammunition, and other weapons. Officers also found seven extremely malnourished dogs. According to the treating veterinarian, the dogs showed symptoms of several weeks to months of inadequate nutrition, dehydration, and ingestion of non-food items. Only three dogs survived, the other four were euthanized due to parvovirus and behavioral issues.
During a bench trial on the prior strike convictions, the court found defendant had been previously convicted of assault with a deadly weapon and six counts of robbery with a firearm, resulting from two criminal proceedings. Moreover, the court denied defendant's Romero motion and motion to reduce the animal cruelty felony counts to misdemeanors.
The court sentenced defendant to 25 years to life for the corporal injury conviction, including one year for the weapon enhancement and the middle term of four years for the great bodily injury enhancement. For the battery conviction, the court imposed the upper term of four years, doubled for the prior strike convictions, but stayed it pursuant to Penal Code section 654. For the remaining counts, the court sentenced defendant to one-third the middle term, doubled for the prior strike convictions, amounting to one year and four months for each count. Finally, the court imposed 10 years for two prior serious felony enhancements for a total of 54 years and 8 months to life.
Further section references are to the Penal Code unless otherwise indicated.
DISCUSSION
In his opening brief, defendant raised the issue of whether the punishment for the seven counts of animal cruelty should be stayed under section 654. After receiving defendant's opening brief, defendant requested this court to deem the argument withdrawn. The People agree. We therefore do not consider this contention. --------
I
The Trial Court Did Not Abuse Its Discretion By
Denying Defendant's Motion To Strike His Prior Strike Convictions
Defendant contends the trial court abused its discretion by denying his request to strike his prior strike convictions because those crimes were committed many years ago during a short period of time and he remained nearly crime free since. We disagree.
Our Supreme Court held in Romero that trial courts have discretion under section 1385 to dismiss a prior strike when a court finds a defendant falls outside the spirit of the three strikes law. (People v. Superior Court (Romero), supra, 13 Cal.4th at pp. 529-530.) In deciding whether to exercise this discretion, the court "must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the 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." (People v. Williams (1998) 17 Cal.4th 148, 161.)
A trial court's "failure to . . . strike a prior [felony] conviction allegation is subject to review under the deferential abuse of discretion standard." (People v. Carmony (2004) 33 Cal.4th 367, 374.) "[A] trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances." (Id. at p. 378.) The circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme is one such circumstance, but the showing must be extraordinary. (Ibid.) Reversal is also justified where the trial court was unaware of its discretion to dismiss a prior strike or considered impermissible factors in declining to dismiss. (Ibid.) But where the trial court, aware of its discretion, " 'balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court's ruling, even if we might have ruled differently in the first instance.' " (Ibid.)
Defendant argues the court abused its discretion because his prior strikes were old, the priors were not aggravated, and defendant suffered no more felony convictions. However, the court considered these factors, among others, when it denied defendant's Romero motion.
The court considered defendant's current crimes. It looked at defendant's attitude toward the crimes and noted defendant continued to deny culpability and blamed his wife for his criminal behavior. It further found, "the nature and circumstances of the current crime [were] severe. He beat his wife with a weapon. He broke her wrist. There was evidence, as I just mentioned before, that he beat his wife in the past, and he is guilty of seven different counts of animal abuse in this case. So the offense conduct in this case is, I think, very significant."
Indeed, when compared to defendant's prior crimes, the court recognized defendant's seven prior strikes including violence and weapons. Defendant's prior convictions were assault with a deadly weapon and six counts of robbery with a firearm. Here, defendant used violence and a weapon, just like he had in his previous convictions.
Next, the court looked at defendant's potential for rehabilitation and if he had acquired any valuable skills. The court found "defendant has demonstrated an extreme lack of potential for rehabilitation." Defendant never served in the armed forces, did not graduate from high school, and had no period of gainful employment. "I have no evidence that the defendant has developed any useful skills whatsoever in the employment marketplace."
Finally, the court considered defendant's criminal history. While defendant was released from state prison in 1996, discharged from parole in 2000, and had one misdemeanor conviction in 2011, the court found defendant was not free from misconduct. "[H]e is not free of other misconduct. He has, for instance, obviously the current convictions, and there was evidence presented during that trial of criminal activities which were never charged and never litigated. So there is a significant period of time in which he was free from convictions, but there's also some evidence that he engaged in criminal conduct during that period of time which did not result in convictions."
The court referenced evidence from trial about defendant repeatedly engaging in domestic violence against his wife. Without citation, defendant argues "The uncharged conduct considered by the trial court did not concern conduct that had been admitted by appellant, or for which he had been tried and convicted, and it was therefore improper for the court to consider it." However, this conduct is relevant to defendant's background, character, and prospects, and C. D. testified to it at trial under penalty of perjury. Although defendant did not admit the conduct, it was evidence before the court.
The record reflects the trial court considered all relevant factors when it made its decision. Accordingly, the trial court did not abuse its discretion by denying defendant's Romero motion.
II
Remand For Reconsideration Of Defendant's
Prior Serious Felony Enhancements Is Warranted
Defendant's sentence includes two five-year enhancements for his prior serious felony convictions. While the People agree with defendant that S.B. 1393 applies to defendant, they disagree remand is proper. We agree with both parties that the amended law applies retroactively to defendant because his case was not final on the date S.B. 1393 became effective. (People v. Garcia (2018) 28 Cal.App.5th 961, 973.) We agree with defendant remand is appropriate in this case.
When the trial court sentenced defendant, the five-year enhancement for a prior serious felony enhancement was mandatory. (Stats. 2018, ch. 1013, §§ 1-2.) S.B. 1393 amended section 667, subdivision (a), and section 1385, effective January 1, 2019, granting trial courts discretion to strike or dismiss the enhancement. (Stats. 2018, ch. 1013, §§ 1-2.)
" 'Defendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that "informed discretion" than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record.' " (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) "After taking into account the change in policy and after hearing argument from both sides, the trial court may feel differently than when it initially sentenced defendant to the enhancement." (People v. Franks (2019) 35 Cal.App.5th 883, 895 (conc. & dis. opn. of Robie, J.).)
The trial court here denied defendant's Romero motion and motion to reduce the animal cruelty felony convictions to misdemeanors. (§ 17, subd. (b).) However, the trial court did not have discretion to strike or dismiss defendant's prior serious felony enhancements at the time of sentencing. Now it does. Defendant should not be denied this opportunity. As such, remand is the general rule in this situation and we decline to abandon that rule.
Accordingly, we will remand the matter to allow the trial court to exercise its newly granted discretion.
DISPOSITION
We remand the matter for the trial court to exercise its newly granted discretion under S.B. 1393 and affirm the judgment in all other respects.
/s/_________
Robie, Acting P. J. We concur: /s/_________
Butz,, J. /s/_________
Hoch, J.