Opinion
E071726
10-31-2019
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL SILVA, Defendant and Appellant.
Randi Covin, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Andrew Mestman, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1303719) OPINION APPEAL from the Superior Court of Riverside County. Mac R. Fisher, Judge. Affirmed with directions. Randi Covin, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Andrew Mestman, Deputy Attorney General, for Plaintiff and Respondent.
In 2017, we affirmed defendant Michael Silva's conviction for, inter alia, second degree murder and denied his request to remand for resentencing in light of then-recently enacted Senate Bill No. 620 (2017-2018 Reg. Sess.), which amended Penal Code section 12022.53, subdivision (h) (Stats. 2017, ch. 682, § 2) to give the trial court discretion to strike or dismiss firearm enhancements imposed under section 12022.53. On February 14, 2018, the California Supreme Court granted review, and transferred the matter back to this court with directions to vacate our decision and reconsider the cause in light of the amended statute. (People v. Silva (Feb. 14, 2018, S245881) ___ Cal.5th ___ .) Upon reconsideration, we affirmed defendant's convictions and remanded his case to give the trial court an opportunity to exercise its discretion under section 12022.53, subdivision (h). (People v. Silva (Mar. 22, 2018, E065151) [nonpub. opn.] (Silva I, E065151).)
All further statutory references are to the Penal Code unless otherwise indicated.
In defendant's first appeal, the opinion was filed October 31, 2017, modified November 28, 2011, and subsequently vacated February 15, 2018.
On November 9, 2018, the trial court resentenced defendant (§ 1170, subd. (h)(3)), striking a gun use enhancement (§ 12022.53, subd. (b)) and denying his Romero motion to dismiss his prior strike conviction allegation (§§ 1385, 667, subds. (b)-(i), 1170.12). The trial court also denied defendant's requests to strike his prior prison term (§ 667.5, subd. (b)) and out-on-bail enhancements (§ 12022.1, subd. (b)).
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
The trial court sentenced defendant to a total term of 39 years to life in state prison, "nine years determinate [and] 30 years to life . . . indeterminate." (§ 1170, subd. (h)(3).)
The November 9, 2018 minute order and amended abstract of judgment reflect "a determinate sentence of 11 years . . . plus an indeterminate sentence of 30 years to life." We order the minute order and the amended abstract of judgment be corrected. The trial court's oral ruling prevails over the discrepant minute order. (People v. Hartley (2016) 248 Cal.App.4th 620, 637 ["When there is a discrepancy between the record of the court's oral pronouncement of judgment and the clerk's minute order, the oral pronouncement controls."].)
In this appeal, defendant contends the trial court abused its discretion in denying his motion to dismiss his 20-year-old juvenile prior strike conviction allegation (Romero motion) as well as strike his prior prison term and out-on-bail enhancements. He further asserts, and the People concede, the amended abstract of judgment must be corrected to accurately reflect the trial court's oral pronouncement of a two-year prison term for the out-on-bail enhancement. The November 9, 2018 minute order and the amended abstract of judgment must be corrected; otherwise, we reject defendant's contentions and affirm.
I. PROCEDURAL BACKGROUND AND FACTS
On May 16, 2019, we granted defendant's request to take judicial notice of the record in his prior appeal, Silva I, E065151.
On the evening of March 20, 2013, defendant and the victim, a female friend, were working on defendant's car in the garage of their house. When the victim went inside the house to get ready to go out, defendant (who was under the influence of methamphetamine) turned off the garage lights to test his newly purchased gun, which was equipped with a laser attachment. During his test, defendant pointed the gun toward the door to the house. The victim walked out and the gun discharged, fatally wounding her. (See Silva I, E065151.)
On August 4, 2015, a jury convicted defendant of second degree murder on an implied malice theory (Pen. Code, § 187, subd. (a)), being a felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1)), and being under the influence of a controlled substance while personally possessing a loaded, operable firearm (Health & Saf. Code, § 11550, subd. (e)). The jury also found true defendant had personally used a firearm. (Pen. Code, §§ 12022.53, subd. (b), 1192.7, subd. (c)(8).) In a bifurcated proceeding, the trial court found defendant had served three prior prison terms (Pen. Code, § 667.5, subd. (b)), had one prior strike conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12), and had committed the current offenses while out on bail (Pen. Code, § 12022.1, subd. (b)). On January 4, 2016, defendant was sentenced to 49 years to life in state prison (19 years determinate and 30 years to life indeterminate). (§ 1170, subd. (h)(3); see Silva I, E065151.)
On the same day, defendant pleaded guilty to possession of a controlled substance (Health & Saf. Code, § 11370.1; Super. Ct. No. RIF1210288), and he was sentenced to one year in state prison, to run consecutive to his sentence in this murder case. He also pleaded guilty to possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1); Super. Ct. No. RIF1210637), and he was sentenced to eight months in state prison, also to run consecutive to this case. (See Silva I, E065151.)
In his first appeal, defendant challenged the sufficiency of the evidence supporting his murder conviction and the gun use enhancement. He also sought remand for resentencing under amended section 12022.53, subdivision (h), which permits the trial court to strike a firearm enhancement. We denied remand for resentencing and affirmed the judgment. (See Silva I, E065151.) Defendant filed a petition for review based on amended section 12022.53, subdivision (h), which took effect on January 1, 2018. The Supreme Court granted his petition and transferred the case to us with directions to vacate our opinion and reconsider the matter in light of the new law. (People v. Silva (Feb. 14, 2018, S245881) ___ Cal.5th ___ .)
On reconsideration, we again affirmed defendant's conviction; however, we remanded the matter to the trial court to "exercise its discretion pursuant to section 12022.53, subdivision (h)." (See Silva I, E065151.) On remand, at the November 9, 2018 hearing, the trial court resentenced defendant (§ 1170, subd. (h)(3)), striking a gun use enhancement (§ 12022.53, subd. (b)) and denying his Romero motion to dismiss his one prior strike conviction allegation (§§ 1385, 667, subds. (b)-(i), 1170.12). The trial court also denied defendant's requests to strike his prior prison term (§ 667.5, subd. (b)) and out-on-bail enhancements (§ 12022.1, subd. (b)). Defendant was subsequently sentenced to a total term of 39 years to life in state prison (9 years determinate and 30 years to life indeterminate). (§ 1170, subd. (h)(3).)
See footnote 4, ante.
II. DISCUSSION
A. The Trial Court Properly Denied Defendant's Romero Motion and Refused to Strike His Prior Prison Term and Out-On-Bail Enhancements.
Defendant contends the trial court abused its discretion in denying his motion to dismiss his 20-year-old juvenile prior strike conviction allegation (Romero motion) as well as strike his prior prison term and out-on-bail enhancements. We disagree.
1. Additional background facts.
The trial court found defendant had served three prior prison terms (§ 667.5, subd. (b)), had one prior strike conviction (§§ 667, subds. (b)-(i), 1170.12), and had committed the current offenses while out on bail (§ 12022.1). (See Silva I, E065151.) At his initial sentencing, defendant filed a Romero motion arguing his prior strike conviction allegation should be dismissed. The trial court denied the motion on the grounds his criminal record "is replete with conviction after conviction," and "[m]uch of that which he has been convicted for is the root cause for the unfortunate death of [the victim], involving drugs and possession of weapons." The trial court continued, "It seems ill-advised . . . to now strike the strike, based upon the happenstance that the ultimate consequence of the conduct of combining drugs with the use of a gun caused somebody's death." Noting defendant's "better than two and a half decades of criminal activity" and the totality of the circumstances, the trial court refused to dismiss his prior strike conviction allegation. For the same reasons, the trial court also denied defendant's request to strike the prior prison term and out-on-bail enhancements.
In September 2018, on remand for resentencing, defendant again filed a Romero motion to dismiss his prior strike conviction allegation, and also moved to strike his prior prison term and out-on-bail enhancements. In support of his requests, he introduced documents showing (1) he had earned a total of 30.5 college credits at Riverside Community College District from 1992 through 2011; (2) while in prison for his current offense, he had earned certificates of achievement in bible study, spiritual counseling, anger and stress management, self-improvement, and victim awareness, and distinguished himself as a model prisoner, working as a custodian; and (3) his chaplain, family, and friends witnessed the change in defendant during incarceration, with the chaplain observing defendant's "growth and maturity in faith and conduct as well as his increasing participation in rehabilitative programming" during the past five and a half years. Defendant read a letter he wrote to the victim's family, wherein he expressed his "deep remorse" for causing her death. He told the trial court, "this was not [an] intentional murder . . . this [was] not an accident. It's somewhere in between." He begged for forgiveness and explained how he has his own personal pain from knowing that his actions had cost the life of the victim. He described a difficult childhood, being on the streets at 11 or 12 years old and being surrounded by crime and gang violence, and his many, early mistakes, including shooting at a car when he was 16 years old to protect a friend. He claimed that he possessed firearms to protect himself and his family, not to hurt anyone.
The trial court denied the motion "for the same reasons it was denied previously," concluding defendant came "within the spirit of the three strikes law." It reiterated that defendant had "suffered from one strike, had a continuous history of being in and out of prison, being found convicted, spending time in prison, placed on probation, [and] fail[ing] on probation." The trial court further explained, "And what we have . . . is this argument that I have now learned my lesson. And it was a combination of various factors, . . . that I led a difficult life. I was put out on the streets. . . . I don't think anything has changed in regard to the decision I must make relative to the Romero motion. So I believe it's well within the spirit of the three strikes law. [¶] Having heard the argument of counsel, and listening . . . to the people that have come before the Court, to deny the Romero motion, I do this for another reason, my personal judicial standard is that I will entertain Romero motions. I will in fact grant Romero motions based on a particular set of circumstances and facts. This does not fit within that profile given his lengthy criminal history. [¶] And I articulated that . . . rather loudly and clearly at the last sentencing." The trial court acknowledged defendant was not a "horrible person" or a "depraved person that goes around killing people purpose[ful]ly or intentionally"; however, he was a "horrible person when [he has] guns and drugs."
Relying on the same reasons stated ante, the trial court also denied defendant's motion to strike the prior prison term and out-on-bail enhancements.
2. Applicable law and standard of review.
The California Supreme Court determined in Romero that section 1385, subdivision (a), gives the trial court the discretion to dismiss prior felony conviction allegations brought under the three strikes law. (Romero, supra, 13 Cal.4th at p. 529.) Though the trial court has broad power to dismiss previous felony convictions, it is required to grant a dismissal only "in furtherance of justice." (Id. at p. 530.) Case law has established the general principle that a trial court must consider both the "'"constitutional rights of the defendant and the interests of society represented by the People, in determining whether there should be a dismissal."'" (Id. at p. 530.) The trial court must consider intrinsic and individualized facts such as "'the nature and circumstances of the defendant's present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects'" in determining whether a defendant falls outside the spirit of the three strikes law. (People v. Garcia (1999) 20 Cal.4th 490, 498-499.)
The trial court's discretion to dismiss prior strike conviction allegations under section 1385 is subject to appellate review under the abuse of discretion standard. (People v. Garcia, supra, 20 Cal.4th at p. 503.) The trial court's decision must be reviewed to see if the ruling "'falls outside the bounds of reason'" under the applicable law and relevant facts. (People v. Williams (1998) 17 Cal.4th 148, 162.) The burden is on the party attacking the sentence to show irrationality or arbitrariness. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) Absent such a showing, we presume the trial court engaged in a proper exercise of discretion to achieve legitimate sentencing objectives. (Id. at pp. 977-978.)
3. Analysis.
Here, the record demonstrates the trial court considered evidence relevant to defendant's background, character, and future prospects, and arrived at a reasonable decision to deny his Romero motion. Defendant has a lengthy criminal record, which began before he had reached the age of 13. He was in and out of juvenile hall and state prison for various assault, theft, and drug offenses. His criminal history includes few long stretches of time between offenses since his first involvement in the court system in 1985. His prior strike conviction was from 1989, when he was 16 years old, where he was convicted of violating section 246 (discharging a firearm into an inhabited dwelling or vehicle) based on his involvement in a drive-by shooting, during which his shots struck both a vehicle and a house. He has abused drugs since his teen years and continued doing so while in possession of various firearms. Up until the time he fatally wounded the victim, he exhibited no desire to reform. He continued to justify his possession of firearms on the ground he needed to protect himself because he lived in constant fear of gang and street violence.
On the positive side, the trial court noted that defendant did take the victim to the hospital in an attempt to help her, he was not a "depraved person" who goes around killing people, and he was a "good prisoner, with some hope and aspiration of rehabilitation." The trial court weighed these factors, including defendant's claim to being a "changed man," noted that his inability to access guns and drugs enables him to follow the right path, but did conclude he fell within the spirit of the three strikes law.
Defendant argues the fact that he was a juvenile when he committed his one prior strike conviction "weighs in favor of dismissal in the interests of justice" because of the growing "recognition that juvenile crimes should not be treated like adult crimes." We disagree. This argument boils down to the notion that the trial court should have given more weight to the circumstance of defendant's youth than the fact that he shot at an occupied vehicle and house. However, the offense (discharge of a firearm) that constitutes that strike, when considered with defendant's subsequent offenses, weighs against dismissal. As the trial court observed, defendant's past criminal convictions are the "root cause for the unfortunate death of [the victim], involving drugs and possession of weapons." Given such root cause, the court concluded defendant fell within the spirit of the three strikes law. We see nothing irrational or arbitrary about that determination and, therefore, find no abuse of discretion.
For the same reasons, the trial court also did not abuse its discretion by refusing to strike the prior prison term and out-on-bail enhancements.
B. The November 9, 2018 Minute Order and the Amended Abstract of Judgment Must Be Corrected.
Defendant contends the amended abstract of judgment must be corrected to reflect the imposition of two years consecutive for the out-on-bail enhancement.
At defendant's first sentencing hearing, the trial court expressly stated it was imposing two years for the out-on-bail enhancement, which was attached to the second degree murder count. (§ 12022.1, subd. (b).) At resentencing on November 9, 2018, the trial court stated it was imposing the same determinate sentence previously imposed, except it exercised its discretion to strike the firearm enhancement. (§ 12022.53, subd. (h).) However, both the November 9, 2018 minute order and the amended abstract of judgment reflect a four-year term was imposed for the out-on-bail enhancement. (§ 12022.1, subd. (b).) We agree, as do the People, that this is a clerical error. A section 12022.1 enhancement is related to the nature of the offender, not the nature of the offense and, thus, imposition of an out-on-bail enhancement, "[l]ike a prior conviction, . . . may be added only once to the defendant's sentence." (People v. Nguyen (1988) 204 Cal.App.3d 181, 196.) Because the trial court sentenced defendant to a two-year term for the section 12022.1, subdivision (b) enhancement attached to his second degree murder count, we will order the minute order and the amended abstract of judgment be corrected accordingly. (People v. Mitchell (2001) 26 Cal.4th 181, 185 ["It is, of course, important that courts correct errors and omissions in abstracts of judgment. An abstract of judgment is not the judgment of conviction; it does not control if different from the trial court's oral judgment and may not add to or modify the judgment it purports to digest or summarize."].)
III. DISPOSITION
The trial court is directed to correct the November 9, 2018 minute order and the amended abstract of judgment to reflect defendant was sentenced to (1) two years in state prison for the out-on-bail enhancement (§ 12022.1, subd. (b)) in count 2, and (2) the total determinate sentence of nine years, plus an indeterminate sentence of 30 years to life. The trial court is further directed to forward certified copies of the minute order and second amended abstract to the Department of Corrections and Rehabilitation. Otherwise, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. MILLER
J.