Opinion
B299708
06-16-2020
THE PEOPLE, Plaintiff and Respondent, v. RONNIE GEORGE REYES, Defendant and Appellant.
Carolyn D. Phillips, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Scott A. Taryle, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. NA107924) APPEAL from a judgment of the Superior Court of Los Angeles County. Richard M. Goul, Judge. Affirmed. Carolyn D. Phillips, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Scott A. Taryle, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant and appellant Ronnie George Reyes was convicted by a jury of two counts of attempted robbery (Pen. Code, §§ 664/211), as lesser included offenses of robbery. Defendant admitted two prior robbery convictions for purposes of the "Three Strikes" Law (§§ 667, subds. (b)-(j), 1170.12), one of which was also the basis for a prior serious felony enhancement (§ 667, subd. (a)). On defendant's motion, the trial court dismissed the two "strikes" in the interest of justice. Defendant was sentenced to a total of six years four months in state prison, based on the low term of 16 months for one robbery count, plus a five-year prior serious felony enhancement (§ 667, subd. (a)). The sentence on the second robbery count was stayed under section 654. (People v. Reyes (June 3, 2019, B290827) [nonpub. opn.] (Reyes I).)
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant timely filed a notice of appeal. (Reyes I, supra, B290827, at p. 2.) While his appeal was pending, Senate Bill No. 1393 (2017-2018 Reg. Sess.) (SB 1393) took effect, granting the trial court discretion to dismiss prior serious felony enhancement in the interest of justice. (§ 667, subd. (a)(1).)
On June 3, 2019, we affirmed defendant's conviction but remanded the matter to the trial court to consider its newly conferred discretion to dismiss the five-year enhancement. (Reyes I, supra, B290827, at p. 8.)
At the July 2, 2019, resentencing hearing, the trial court declined to dismiss the enhancement, and imposed the same sentence previously imposed: a total of six years four months, plus a five-year enhancement under section 667, subdivision (a).
Defendant appeals. He argues that the trial court abused its discretion in declining to strike the five-year enhancement at the resentencing hearing.
We affirm.
FACTUAL BACKGROUND
"Tina Davis (Davis) was a manager at an Albertson's grocery store in Long Beach. One of her duties was to watch for shoplifters. On November 26, 2017, she saw defendant, who was in one of the store aisles, put on a blue denim jacket that the store was carrying as merchandise. Davis approached defendant and asked him if she could have her merchandise back. Defendant told her, in an aggressive tone, that he did not have her 'f—king stuff' and that he was not going to give anything back. Davis replied that if he did not give her the merchandise, she would call the police. Defendant appeared to be under the influence of something.
"Davis met with security guard Ruben Ramirez (Ramirez), who was standing near the front doors, and told him to keep an eye on defendant while she went to check the surveillance cameras. The surveillance videos showed defendant had been looking up and down the aisles in an anxious manner.
"Defendant walked past the cashiers' stations wearing the jacket and headed towards the exit, without making any effort to pay. At that point, Davis could see a container of beer protruding from defendant's pants. As defendant was exiting the store, Davis again asked him to give her back the merchandise or she would call the police. Ramirez was standing by the exit with Davis at that time. Defendant told Davis that he did not care if she called the police and that he had a gun. Davis called 911. While she was on the phone, defendant again stated that he had a gun and asked Davis if she wanted to see it. Davis then asked defendant if he was threatening her and told him that she was on the phone with the police. Defendant responded that it would take a while before the police arrived and that he would have a seat in the meantime.
"Defendant told Davis at least three times during the incident that he had a gun. He further said that he would use the gun. Davis believed him and, as a result, she was afraid for her life. Davis and Ramirez were each about three feet from defendant when defendant stated that he had a gun.
"The police arrived almost immediately after Davis's 911 call. Defendant was in front of the Albertson's grocery store. He was belligerent towards the police officers and refused to follow their commands. Eventually, the police were able to handcuff him. When a police officer asked him where the gun was, defendant told the officer that he had a Colt .45, but then added that it was only a Colt .45 beer. The police found a Modelo beer, still cold, in defendant's waistband. He was wearing a blue denim jacket with a price tag on it. Davis identified the jacket and the beer as the store's merchandise." (Reyes I, supra, B290827, at pp. 3-4.)
DISCUSSION
Defendant contends that the trial court abused its discretion by declining to strike the five-year prior serious felony enhancement imposed under section 667, subdivision (a).
1. Proceedings below
Following our opinion in Reyes I, upon remand, the trial court held a resentencing hearing to determine whether to dismiss or strike the five-year sentencing enhancement. At that resentencing hearing, defense counsel argued that defendant's crime was at "the lowest level" of attempted robberies, that substantial evidence showed that defendant was intoxicated during the commission of the crimes, that defendant used no actual weapon, and that, rather than fleeing, defendant sat down and waited for police to arrive. Defense counsel opined that defendant's conduct was more akin to the misdemeanors of public drunkenness or disturbing the peace as opposed to attempted robbery. Counsel therefore asked the trial court to strike the five-year enhancement and sentence defendant to the low term, as it had previously done, which would likely result in time-served and immediate release on parole. Counsel reminded the trial court that defendant would still have two "strikes" on his record.
The prosecutor noted that "although this was a low level Estes type robbery, the defendant did ask or state, 'I have a gun. Do you want me to use my gun? I am letting you know I have a gun and will use it.'" The prosecutor added that defendant had two prior robberies, which the trial court had dismissed for purposes of the Three Strikes law.
An Estes robbery is a robbery in which the assailant uses force or fear after the initial taking, as described in People v. Estes (1983) 147 Cal.App.3d 23.
After entertaining oral argument, the trial court declined to dismiss the five-year enhancement. It explained: "The court agrees with [defense counsel] that this is definitely on the low scale of robbery where it didn't even end up being a robbery but two counts of attempted robbery. [¶] At the same time, at the conclusion of the trial, the court did strike his priors, . . . showing mercy to the defendant because he was at that time facing a significant life sentence. The court then also could have imposed the high term. [¶] The court believes we treated you with mercy on that sentence by giving you the low term and letting it run concurrent. Given your past history, given the threats which you did make with the gun, 'I have a gun,' there was some evidence you might or probably were intoxicated, I will give you that, but nonetheless the court feels even had the court had that discretion, and indeed when the court does now have that discretion, the court does still wish to impose the prior, so the sentence would remain unchanged."
Defendant's priors included (1) first degree robbery of a person using an automated teller machine in 1996, for which defendant was sentenced to nine years in state prison; and (2) battery in 2010, for which defendant was placed on three years probation with a 90-day jail sentence.
In addition to the priors mentioned above, defendant's criminal history also includes three sustained juvenile petitions for theft-related offenses, the last of which was for a robbery that defendant committed three months before reaching adulthood. As an adult, he was convicted of misdemeanor reckless driving in 1989, misdemeanor willful cruelty to a child or child endangerment in 1994, a possible robbery in 1994, eight misdemeanors between 2000 and 2008, and three more misdemeanor convictions in 2012, 2013, and 2016. --------
2. Relevant law
As the parties agree, we review a trial court's decision not to dismiss an enhancement for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 371.) Under this standard, the defendant bears the burden of showing that the trial court's sentencing decision was irrational and arbitrary. (Id. at p. 376.) We are not free to substitute our judgment for that of the trial court (id. at p. 377) or to assign a different weight to the various factors informing a discretionary decision (People v. Willover (2016) 248 Cal.App.4th 302, 323). "Where, as here, a discretionary power is inherently or by express statute vested in the trial judge, his or her exercise of that wide discretion must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Jordan (1986) 42 Cal.3d 308, 316.)
In determining whether the trial court abused its discretion, we are guided by case law interpreting the Three Strikes law. We consider whether the trial court evaluated the nature and circumstances of the defendant's felonies (present and prior) and the particulars of his background and character. (See, e.g., People v. Williams (1998) 17 Cal.4th 148, 161.)
3. Analysis
Applying these legal principles, we conclude that the trial court did not abuse its discretion in declining to strike or dismiss the five-year enhancement. In so ruling, the trial court relied upon defendant's repeated threats to use a gun against two victims, defendant's criminal history, and the considerable leniency that it had otherwise granted defendant by (1) selecting the low term, and (2) dismissing two prior strikes, which could have resulted in a 30-year-to-life sentence. The trial court understood its discretion and exercised it appropriately.
In urging us to reverse, defendant argues that these were "lowest level" attempted robberies, there was substantial evidence that defendant was intoxicated at the time he committed his crimes, he did not actually use a firearm, he remained at the scene until police arrived, and his prior robberies were remote in time. These circumstances were brought to the trial court's attention and considered at sentencing; in other words, defendant's argument notwithstanding, the trial court did not rely upon "less than the 'entire picture'" when it declined to strike the five-year enhancement. Rather, the trial court just did not agree with defendant that those circumstances warranted striking the five-year enhancement. And, as set forth above, we do not substitute our judgment for the trial court's judgment.
Because the trial court made an informed discretionary sentencing decision that was neither irrational nor arbitrary, we must affirm.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
/s/_________, Acting P. J.
ASHMANN-GERST We concur: /s/_________, J.
CHAVEZ /s/_________, J.
HOFFSTADT