Opinion
C098951
04-05-2024
THE PEOPLE, Plaintiff and Respondent, v. EDWARD EMMANUEL REID, Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. No. 15F04204)
HULL, J.
Defendant Edward Emmanuel Reid appeals from his resentencing on remand. His appointed counsel asked this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.)
Defendant filed a supplemental brief raising numerous contentions. We have independently reviewed the contentions defendant has raised in his supplemental brief and conclude none of them have merit. We affirm the judgment.
Facts and History of the Proceedings
In July 2015, defendant and his wife had been married for 17 years. They engaged in an argument that turned physical, and, over the course of two days, defendant beat her with a wooden sword. The wife suffered a broken wrist and bruising. At trial, she testified there were other incidents of domestic violence, including one where defendant broke her other wrist. Responding police officers also found a firearm and ammunition, and seven extremely malnourished dogs. Only three of the dogs survived. (People v. Reid (Oct. 30, 2019, C086480) [nonpub. opn.].)
In October 2017, a jury found defendant guilty of inflicting corporal injury on a spouse (Pen. Code, § 273.5, subd. (a), count one, statutory section citations that follow are to the Penal Code unless otherwise stated); battery causing serious bodily injury (§ 243, subd. (d), count two); being a felon in possession of a firearm (§ 29800, subd. (a)(1), count four); unlawfully possessing ammunition (§ 30305, subd. (a)(1), count five); and seven counts of animal neglect involving seven different dogs (§ 597, subd. (b), counts six through twelve). As to count one, the jury found true that defendant personally used a deadly and dangerous weapon, to wit: a wooden sword (§ 12022, sub. (b)(1)) and inflicted great bodily injury (§ 12022.7, subd. (e)).
In January 2018, the trial court found true that defendant suffered seven strikes (§§ 667, subd. (e)(2), 1170.12, subd. (c)(2)) and two prior serious felony convictions (§ 667, subd. (a)). The allegations were based on his 1990 convictions for two counts of assault with a deadly weapon (§ 245, subd. (a)(1)) with a firearm enhancement (§ 12022.5) and his 1989 convictions for five counts of robbery (§ 211).
During that same hearing, the trial court denied defendant's Romero motion. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) The court sentenced defendant to state prison for an aggregate term of 54 years eight months to life, including 10 years consecutive for the two prior serious felony enhancements. On appeal, this court remanded for resentencing pursuant to Senate Bill No. 1393 (Stats. 2018, ch. 1013, §§ 1-2) and otherwise affirmed the judgment. (People v. Reid, supra, C086480.)
On remand, the prosecution filed a brief arguing the trial court should impose the two five-year prior serious felony enhancements. Although defendant's prior strikes were remote in time, they were for violent conduct, and he had continued to violate the law. Even though he was now in his 50s, defendant unlawfully possessed a firearm and ammunition, physically abused his wife, and fatally neglected his dogs. In addition, he had not been employed in a meaningful manner to contribute to his household.
Defendant filed a brief requesting the trial court strike the two five-year prior serious felony enhancements, strike all but one of the prior strikes, and refrain from imposing the main jail booking fee and the main jail classification fee (Gov. Code, former §§ 29550, 29550.1). Defendant noted he had no disciplinary record since entering prison, and he had worked as a porter and a recreational aid. In addition, defendant had obtained a GED while in prison and was currently studying for his associate of arts degree. He had also completed multiple self-help studies. Defendant argued the strikes were remote in time (25 years before the instant offenses). Moreover, all of the strikes occurred during the same two-month period in 1989, when defendant was only 22 years old. He had been released from prison for those crimes in 1996, and he mostly avoided illegal activity after his release, with only one misdemeanor conviction for assault between 1996 and 2017. He also had held multiple jobs since 1996. Defendant further argued no additional justice would be served here by using the same convictions to impose both a life sentence under the Three Strikes law and two additional five-year prior serious felony enhancements.
Defendant subsequently filed additional materials, including his community college transcript and completion certificates for programs in anger management, nonviolent conflict resolution, religious studies, and domestic violence.
The trial court held a sentencing hearing in June 2023. At the outset of the hearing, defendant himself asked for a continuance so he could present additional paperwork showing he had been trained in printing and that he had been tentatively accepted to a local state university's program for formerly incarcerated individuals. The court denied defendant's request, stating it was "already convinced . . . that you are making very impressive efforts, and you will continue to make very impressive efforts in prison in terms of educating yourself, and I am also willing to assume for purposes of sentencing that you did, in fact, receive that [printing] training."
The court then addressed the animal abuse charges (counts six through twelve), opining that, although defendant did not beat the dogs, his actions amounted to "extreme neglect," meaning it was "not misdemeanor conduct."
The court proceeded to impose sentence as follows: 25 years to life for the corporal injury count (§§ 273.5, subd. (a), 667, subds. (b)-(i), 1170.12); plus four years consecutive for the great bodily injury enhancement (§ 12022.7, subd. (e)) and one year consecutive for the firearm enhancement (§ 12022, subd. (b)(1)); eight years for the battery count (§ 243, subd. (d)) stayed pursuant to section 654; four years consecutive for being a felon in possession of a firearm (§ 29800, subd. (a)(1)); one year four months consecutive for unlawful possession of ammunition (§ 30305, subd. (a)(1)); and two years eight months concurrent for each of the seven animal neglect counts (§ 597, subd. (b)). The court dismissed both of the serious prior felony enhancements in the interest of justice. (§§ 667, subd. (a), 1385.)
The court also imposed a $300 restitution fine (§ 1202.4, subd. (b)); a corresponding $300 parole revocation fine (suspended unless parole is revoked) (§ 1202.45); a $400 court operations fee (§ 1465.8, subd. (a)(1)); and a $300 criminal conviction assessment fee (Gov. Code, § 70373).
In reaching its sentencing decision, the court indicated it had reviewed the 2018 probation report, the parties' briefing, defendant's supplemental materials, this court's prior opinion, and the transcript of the 2018 sentencing hearing. The court noted that defendant was making "impressive efforts" to educate himself while he was in prison. And the seven prior strikes were from a limited period 25 years ago. Still, in aggravation, the corporal injury and assault were "horrific" in nature and involved great violence, bodily harm, and a high degree of cruelty and callousness. Defendant was armed with a wooden sword during the crime. The victim was vulnerable, there had been prior altercations, and she suffered a fractured wrist. Defendant had also served prior prison terms. Although defendant had a relatively clean criminal history after his release from prison for the prior strikes, this was only because his wife never contacted police about defendant's ongoing domestic abuse. In addition, defendant continued to blame his wife after the conviction.
Defendant timely appealed the resentencing.
Discussion
Appointed counsel filed an opening brief setting forth the facts of the case and asking this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.)
Defendant filed a supplemental brief arguing: (1) this court should review his two Marsden motions from 2017 (People v. Marsden (1970) 2 Cal.3d 118); (2) he received ineffective assistance of counsel during his original trial and original appeal; (3) the trial court in 2023 erroneously denied his request for a continuance so that he could submit additional documentation "for [his] defense"; (4) the trial court in 2023 erroneously failed to consider his employment history; (5) the trial court in 2023 violated Government Code section 6111 by erroneously failing to dismiss the restitution and court fees in this case; and (6) the trial court in 2023 violated former section 987.8 by erroneously failing to hold a hearing regarding his ability to pay as required.
He further asks this court to (1) dismiss the strikes; (2) dismiss the great bodily injury enhancement on count one; (3) stay or dismiss count two; (4) reduce the sentence on counts four and five to be "two years, 8 months, doubled"; (5) either dismiss or reduce counts six through twelve to be misdemeanors; (6) dismiss the prior serious felony convictions; (7) consider defendant's rehabilitative efforts; and (8) grant relief so he can continue his academic and rehabilitative endeavors.
As a preliminary matter, given that defendant has appealed from resentencing on remand, we focus our record review on the resentencing alone. (See People v. Senior (1995) 33 Cal.App.4th 531, 535 ["California law prohibits a direct attack upon a conviction in a second appeal after a limited remand for resentencing"].)
1. The Trial Court's Denial of Defendant's Romero Motion
To the extent defendant is arguing the trial court erred in denying his Romero motion to strike his strikes, we disagree.
Although the Three Strikes law is intended to "punish recidivists more harshly [citation], not all recidivists fall within the spirit of that law." (People v. Avila (2020) 57 Cal.App.5th 1134, 1140.) A trial court therefore has discretion to strike or dismiss a prior conviction in the furtherance of justice. (§ 1385, subd. (a).) When a court considers whether to strike a prior conviction, it should consider the following factors: "whether, in light of the nature and circumstances of the defendant's present felonies and prior serious and/or violent felony convictions, and the particulars of the defendant's 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 the defendant had not previously been convicted of one or more serious and/or violent felonies." (Avila, at p. 1140.)
We review a trial court's denial of a Romero motion for abuse of discretion and will not reverse unless the decision was irrational or arbitrary. (People v. Avila, supra, 57 Cal.App.5th at p. 1140.) As courts have explained, the Three Strikes law" 'not only establishes a sentencing norm, it carefully circumscribes the trial court's power to depart from this norm . . . [T]he law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper.' [Citation.] Only extraordinary circumstances justify finding that a career criminal is outside the Three Strikes law. [Citation.] Therefore, 'the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary.' [Citation.]" (Ibid.)
Here, the trial court acted within its discretion in denying defendant's motion to strike his prior strike conviction findings. The court indicated it understood its discretion during the hearing and discussed multiple ameliorating circumstances, including that defendant had made "impressive" rehabilitation efforts while incarcerated, the prior strikes were 25 years old and were from a limited two-month period, and defendant had a minimal criminal record after his release from prison for the prior strikes. Still, it was not in the interest of justice to strike the prior strikes because the corporal injury and assault were "horrific" and involved great violence, bodily harm, and a high degree of cruelty and callousness. Moreover, the only reason defendant had a minimal official criminal history was his wife's failure to tell police that defendant was regularly abusing her physically. Under the circumstances, the court acted within its discretion in denying defendant's Romero motion.
2. The Great Bodily Injury Enhancement on Count One
To the extent defendant is arguing the trial court should have dismissed the great bodily injury enhancement on count one pursuant to section 1385, he has forfeited the issue because his counsel failed to ask the trial court to do so during resentencing. (People v. Lowery (2020) 43 Cal.App.5th 1046, 1054 ["a party must raise an issue in the trial court if they would like appellate review"].)
3. Fines, Fees, and Defendant's Ability to Pay
We find no merit in defendant's argument the trial court was required to dismiss any fines or fees pursuant to Government Code section 6111. That statute deems unenforceable and uncollectable any unpaid balance of any court-imposed costs pursuant to Government Code former sections 27712, subdivision (c) or (f), 29550, 29550.1, 29550.2, and 29550.3. (Gov. Code, § 6111, subd. (a).) Because no such fines or fees were imposed by the trial court during resentencing in this case, defendant is not entitled to relief.
We similarly find no merit in defendant's argument that he was entitled to a hearing regarding his ability to pay under former section 987.8. That statute was repealed effective June 30, 2021, meaning it is inapplicable to defendant's resentencing hearing in 2023. (Assembly Bill No. 1869 (Stats. 2019-2020, ch. 92, § 37).)
4. Remainder of Defendant's Arguments
We also find no merit in the remainder of defendant's arguments. Despite defendant's contentions, the court made clear when it denied defendant's request for a continuance that it was assuming for purposes of sentencing that defendant was making "very impressive efforts" to educate himself, and that he had received the training in printing. Given these comments, we also conclude that, during the 2023 resentencing, the trial court properly considered defendant's rehabilitative efforts.
With respect to count two, the trial court properly stayed that sentence pursuant to section 654. As to counts four and five, we note that the trial court already imposed an aggregate term of five years four months on those counts. We do not take issue with the trial court's dismissal of the prior serious felony enhancements.
With respect to counts six through twelve, we find the trial court did not abuse its discretion in declining to reduce the animal abuse charges to be misdemeanors. (§ 17, subd. (b) [giving trial courts the discretion to reduce a "wobbler" (i.e. a crime that may be classified as either a felony or a misdemeanor) charged as a felony to a misdemeanor at sentencing].) Given that authorities found defendant's seven dogs severely malnourished and only three of the dogs survived, it was reasonable for the trial court to conclude defendant engaged in felonious misconduct.
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
Disposition
The judgment is affirmed.
We concur: EARL, P. J., WISEMAN, J.
Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.