Opinion
F085366
12-05-2023
THE PEOPLE, Plaintiff and Respondent, v. RALPH SOTO, Defendant and Appellant.
Ross Thomas, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kimberley A. Donohue and Annabella Yousif, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of No. SC068836A Kern County. Chad A. Louie, Judge.
Ross Thomas, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kimberley A. Donohue and Annabella Yousif, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
INTRODUCTION
In 1997, a jury convicted defendant Ralph Soto of first degree burglary (Pen. Code, § 460, subd. (a)), and the court found true allegations defendant had previously suffered two serious felony convictions within the meaning of sections 667, subdivisions (a) through (j), and 1170.12, subdivisions (a) through (e). (Undesignated statutory references are to the Penal Code.) The court also found that defendant had served two prior prison terms (§ 667.5, former subd. (b)). In 1997, the court sentenced defendant to 25 years to life plus 12 years.
In 2022, after the Secretary of the California Department of Corrections and Rehabilitation (CDCR) identified him as an eligible individual, defendant petitioned for resentencing pursuant to former section 1171.1, now section 1172.75, to seek dismissal of his prison prior enhancements and resentencing. At resentencing, the court struck defendant's two prior serious felony enhancements (§ 667, subd. (a)(1)) and the prison prior enhancements (§ 667.5, former subd. (b)). It denied defendant's request to strike at least one of the two strike prior convictions and resentenced defendant to 25 years to life.
On appeal, defendant argues his counsel was ineffective in failing to argue at resentencing his prior strike convictions should have been stricken pursuant to amended section 1385, subdivision (c). Relatedly, he argues People v. Burke (2023) 89 Cal.App.5th 237, which concluded section 1385, subdivision (c) applies to enhancements and not to the "Three Strikes" law, was wrongly decided. Alternatively, defendant contends the trial court abused its discretion in refusing to strike his strike prior under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 527 (Romero)
We affirm.
FACTUAL AND PROCEDURAL HISTORY
In 1997, a jury convicted defendant of committing first degree burglary (§ 460, subd. (a)) in 1996, a serious felony within the meaning of section 1192.7, subdivision (c)(18). The court found true allegations defendant suffered two strike prior convictions that also qualified as prior serious felony convictions under section 667, subdivision (a)(1)-a May 25, 1989, residential burglary and an October 3, 1991, residential burglary-and that he served two prison prior terms within the meaning of section 667.5, former subdivision (b).
At sentencing, defense counsel moved to strike one of defendant's prior strike convictions and his prison priors. She argued, although defendant had a "lengthy record, there is no violence." She represented that, in relation to his latest arrest, when defendant was confronted he ran, "he did not make any attempts to engage the officer in any kind of combat." She noted defendant had "never been charged with any type of a weapons charge." She also asserted defendant did well on parole since his last prison conviction, which was a mitigating circumstance.
The prosecutor responded the instant conviction was "defendant's fifth conviction for a burglary," and his history "indicate[s] a pattern of behavior." He also argued defendant had "a drug problem, and instead of stealing for it in a way that is less dangerous or less offensive to society and less of intrusion, ... he has chosen a career as a residential burglar." The prosecutor asserted this was a "serious" case in part because the violation of a home is a "tremendous violation of the person's feeling of security," and defendant has "the propensity to do it when people are [at] home." The prosecutor asserted, though defendant successfully completed parole, he was committing another offense three months after his discharge from parole.
Defense counsel responded that defendant's juvenile convictions were from 1972, over 25 years earlier. She also denied the homes defendant burglarized were occupied. She asserted, someone came home during the 1991 burglary, which was the only instance during which someone was at home.
The court denied defendant's motion to strike either of his strike priors, concluding "it would not be in the interests of justice to grant" it "given the recency of these convictions, the fact that the defendant has not [sic] been convicted of another residential burglary." It sentenced him to a determinate term of 12 years-five years each for the two prior serious felony enhancements (§ 667, subd. (a)(1)) plus two years for the prior prison term enhancements (§ 667.5, former subd. (b)). The court sentenced defendant to the indeterminate term of 25 years to life, as prescribed by the Three Strikes law.
After the Secretary of the CDCR identified defendant as an individual serving a sentence that includes a prison term for a section 667.5, former subdivision (b) prior prison term enhancement, defendant filed a petition for recall and resentencing under former section 1171.1, now section 1172.75, asserting his prison prior enhancements were legally invalid in light of changes in the law. Defense counsel filed a separate "sentencing statement" in advance of the resentencing hearing, emphasizing that section 1172.75 permits the court to consider postconviction factors and changes in the law when resentencing. She argued one of the changes in the law that must be applied to this case is the enactment of Senate Bill No. 81 (2021-2022 Reg. Sess.) (Senate Bill 81), effective January 1, 2022, which amended section 1385. She asserted, in addition to the section 667.5, former subdivision (b) enhancements, defendant's section 667, subdivision (a) enhancements should also be dismissed. She argued there was no evidence in the record that, as an adult, defendant was a violent man; his criminal history mostly involved drug possession and being under the influence of drugs, and the burglaries were a way to provide for his drug use. Additionally, she asserted defendant had "exhibited the ability to maintain a non-criminal lifestyle," noting he was released on parole in 1995 and was discharged from parole a year later, on September 10, 1996. "He did not have a new case until the current offenses were committed." She also asserted defendant had been working while in prison and "his work is rated to be above average, and exceptional." She argued several mitigating circumstances listed in section 1385, subdivision (c) applied to defendant's case: multiple enhancements were alleged; the current offense is not a violent felony; and the enhancements in this case are based on prior convictions that were over five years old in that they occurred in 1989 and 1991. She also noted defendant was 63 years old and his criminal activities had significantly reduced over the past 20 years. Additionally, counsel asserted the court should strike at least one of defendant's strike priors considering defendant's "positive post-conviction behavior, [his] age, and the length of time he had been incarcerated (27 years)." She attached records related to defendant's work assignments in prison and evidence of programs and courses he had completed.
At the resentencing hearing, defense counsel again urged the court to strike the prior serious felony enhancements as well as defendant's prior strike convictions in addition to striking the invalid prison prior enhancements. In response, the People argued against the striking of the prior serious felony enhancements or the strike prior allegations, noting the offenses underlying them occurred close together (in 1989 and 1991) and were the same class as the current offense-they were all residential burglaries. He argued residential burglaries are serious and not the type of crime that people age out of.
The court struck defendant's prior prison enhancements and the sentence on both of the prior serious felony enhancements (§ 667, subd. (a)(1)). In deciding to strike the sentence on the prior serious felony conviction enhancements, the court noted it looked at the factors to be considered and afforded great weight pursuant to section 1385, including that defendant "does not have any significant prior criminal history of committing crimes that involve physical injury or serious danger to others in the sense that they are violent crimes, and there is no information that these residential burglaries were violent strikes." The court held, considering "the evidence offered to prove those factors as well as the mitigating circumstances" detailed in the defense's sentencing statement related to defendant's postconviction conduct, it would be striking the sentences as to the two 5-year priors under section 667, subdivision (a). The court, however, declined to strike defendant's prior strike convictions, concluding defendant did not fall outside of the spirit of the Three Strikes law. The court cited the relatively short time between the burglaries and the class of crimes, residential burglaries being serious felonies, in support of its decision not to strike the prior strike convictions. As a result of the stricken enhancements, defendant was resentenced to a term of 25 years to life.
DISCUSSION
I. Resentencing Proceedings Under Section 1172.75
Section 1172.75 establishes a mechanism to provide affected defendants an avenue for relief from now invalid prison prior enhancements. Subdivision (b) directs the Secretary of the CDCR and the correctional administrator of each county to "identify those persons in their custody currently serving a term for a judgment" that includes a now legally invalid prior prison enhancement. (§ 1172.75, subd. (b).) After the trial court receives from the CDCR and county correctional administrator the information included in subdivision (b) of section 1172.75, "the court shall review the judgment and verify that the current judgment includes a sentencing enhancement described in subdivision (a)," and if so, "recall the sentence and resentence the defendant." (§ 1172.75, subd. (c).) When resentencing a defendant under section 1172.75, the court must "apply the sentencing rules of the Judicial Council and apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing." (§ 1172.75, subd. (d)(2).) "The court may consider postconviction factors, including, but not limited to, the disciplinary record and record of rehabilitation of the defendant while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the defendant's risk for future violence, and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice." (§ 1172.75, subd. (d)(3).)
II. Defendant's Counsel Was Not Deficient at Resentencing
Defendant first argues his counsel provided ineffective assistance by failing to argue section 1385, subdivision (c) applied to the court's consideration of his prior strike convictions and supported striking them. For the reasons that follow, we reject defendant's contention.
A. Ineffective Assistance of Counsel
"To demonstrate ineffective assistance of counsel, a defendant must show that counsel's action was, objectively considered, both deficient under prevailing professional norms and prejudicial. (Strickland v. Washington (1984) 466 U.S. 668, 687.) To establish prejudice, a defendant must show a reasonable probability that, but for counsel's failings, the result of the proceeding would have been more favorable to the defendant. (Id. at p. 694.)" (People v. Hinton (2006) 37 Cal.4th 839, 876.)
We "'"defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a 'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance."'" (People v. Hinton, supra, 37 Cal.4th at p. 876 .) "'"[C]ourts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight" [citation]. "Tactical errors are generally not deemed reversible, and counsel's decisionmaking must be evaluated in the context of the available facts." [Citation.]' [Citation.]" (Ibid.)
B. Senate Bill 81
Effective January 1, 2022, Senate Bill 81 modified section 1385 with regard to the dismissal of enhancements in the interest of justice. As modified by Senate Bill 81, section 1385, subdivision (c) now provides, in part:
"(1) Notwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute.
"(2) In exercising its discretion under this subdivision, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances ... 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. 'Endanger public safety' means there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others."
The mitigating circumstances that courts are to afford great weight to in considering whether to strike an enhancement include, but are not limited to, whether an "enhancement is based on a prior conviction that is over five years old" and "[t]he current offense is not a violent felony as defined in subdivision (c) of Section 667.5."
Senate Bill 81 initially codified these provisions under section 1385, subdivision (c)(3)(H) and (F), respectively. (Stats. 2021, ch. 721, § 1.) But section 1385 was further amended pursuant to Assembly Bill No. 200 (2021-2022 Reg. Sess.), effective June 30, 2022, and these provisions were amended to fall under subdivision (c)(2)(H) and (F), respectively. (Stats. 2022, ch. 58, § 15.)
C. Analysis
Asserting the recent published case People v. Burke, supra, 89 Cal.App.5th 237 was wrongly decided, defendant contends section 1385, subdivision (c) applies to a sentence enhanced under section 667, subdivisions (b) through (j), and section 1170.12. In support of his argument that the use of the term "enhancement" in section 1385, subdivision (c) does not preclude application of this section to sentencing provisions under the Three Strikes law, he asserts section 1170.12, subdivision (b)(3) refers to the Three Strikes alternative sentencing scheme as a "sentence enhancement." He also contends the legislative history supports such an interpretation. Defendant argues "[r]easonably competent counsel would have pressed the court to exercise its discretion under section 1385, subdivision (c) and dismiss at least on [sic] of the 'strike' prior conviction [sic]." Thus, he contends, "counsel's omission was the product of counsel's negligence or ignorance of the law as opposed to a competent tactical decision." He asserts two mitigating circumstances detailed in section 1385, subdivision (c) are applicable to him: (1) the current offense was for a nonviolent felony and (2) his enhancements were based on prior convictions that were over five years old. And, he argues, his release would not endanger public safety. Accordingly, he argues, he was prejudiced in that the existence of such circumstances "coupled with the court's striking of the section 667, subdivision (a) enhancements establish that it is reasonably probable the court would have dismissed one of the 'strike' prior conviction [sic] if requested to do so." The People respond the plain language of Senate Bill 81 as well as "the Legislature's intent" establish the factors within section 1385, subdivision (c) do not apply to the Three Strikes law. They assert, because section 1385, subdivision (c) does not apply to Three Strike sentencing, defendant cannot establish deficient performance or establish that he was prejudiced based on his counsel's failure to argue section 1385, subdivision (c) should apply to consideration of his strike convictions. We agree with the People.
Initially, we reject defendant's claim that the Legislature intended section 1385, subdivision (c) to apply to sentencing provisions under the Three Strikes law. "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, supra, 89 Cal.App.5th at p. 242.) And, we agree with the Burke court's observation that "[s]ubdivision (c) of section 1385 expressly applies to the dismissal of an 'enhancement.'" (Id. at p. 243.) Additionally, it is well-established that a sentence enhancement is "an additional term of imprisonment added to the base term." (Cal. Rules of Court, rule 4.405(5); see People v. Tirado (2022) 12 Cal.5th 688, 695, fn. 9; accord, People v Gonzalez (2008) 43 Cal.4th 1118, 1124.) Furthermore, the California Supreme Court has held the Three Strikes law is an "alternative sentencing scheme" rather than an enhancement. (Romero, supra, 13 Cal.4th at p. 527; see generally People v. Jefferson (1999) 21 Cal.4th 86, 101 [explaining an enhancement provides for an additional term of imprisonment rather than an alternate penalty for the underlying felony itself].) We presume the Legislature was aware of, and acquiesced in, both this established judicial definition of enhancement and the distinction between an enhancement and an alternative sentencing scheme such as the Three Strikes law. (People v. Bonnetta (2009) 46 Cal.4th 143, 151.) Thus, the plain language of the statute establishes section 1385 subdivision (c)'s provisions regarding enhancements do not apply to sentencing under the Three Strikes law.
Defendant relies on the language of section 1170.12, subdivision (b)(3) (also set forth in § 667, subd. (d)(3)) to urge a different conclusion. Sections 1170.12, subdivision (b), and section 667, subdivision (d), define a "prior serious or violent felony conviction" for purposes of the Three Strikes law. To that end, subdivision (b)(3) of section 1170.12 and subdivision (d)(3) of section 667 provide: "A prior juvenile adjudication constitutes a prior serious or violent felony conviction for the purposes of sentence enhancement if it meets" certain detailed criteria. However, defendant construes the use of the phrase "sentence enhancement" in these statutes in isolation from the other words and provisions of the statute. "Such an approach is contrary to established principles of statutory construction." (People v. Zambia (2011) 51 Cal.4th 965, 977; accord, People v. Castillolopez (2016) 63 Cal.4th 322, 329 ["'We do not ... consider the statutory language in isolation, but rather examine the entire substance of the statute in order to determine the scope and purpose of the provision construing its words in context and harmonizing its various parts'"].) The California Supreme Court has considered this phrase, in context, as sentence enhancement (greater or enhanced sentencing) under the alternative sentencing scheme provided for in the Three Strikes law. (See People v. Nguyen (2009) 46 Cal.4th 1007, 1028 [juvenile adjudication of criminal misconduct may be used to "enhance" maximum sentence for subsequent adult felony offense by same person under Three Strikes law].) And we cannot conclude the isolated use of this phrase, in context, converts sentencing under the Three Strikes law into an "enhancement" as that term is technically defined and used in section 1385. Rather, as discussed, it is established the Three Strikes law is an alternative sentencing scheme that falls outside of the use of the term "enhancement" in section 1385. (See Romero, supra, 13 Cal.4th at p. 527 [concluding former § 1385, subd. (b)'s prohibition against striking a prior conviction of a serious felony for purposes of enhancement did not prohibit striking a strike under the Three Strikes law, concluding "one cannot reasonably assign much weight to the argument that section 1385(b) refers to the Three Strikes law"].)
Because section 1385, subdivision (c) does not apply to consideration of sentencing under the Three Strikes law, we cannot conclude defendant has established his counsel was deficient in failing to argue the court should apply the statute in this manner. (See People v. Ochoa (1998) 19 Cal.4th 353, 463 ["Representation does not become deficient for failing to make meritless objections"]; People v. Price (1991) 1 Cal.4th 324, 387 ["Counsel does not render ineffective assistance by failing to make motions or objections that counsel reasonably determines would be futile"].) Likewise, we cannot conclude defendant was prejudiced by the failure to raise this argument because it lacks merit. That is, we cannot conclude it was reasonably probable he would have obtained a more favorable result if his counsel had raised this argument.
Accordingly, we reject his contention that his counsel provided ineffective assistance on this basis.
III. The Court Did Not Abuse Its Discretion in Refusing to Strike Defendant's Strike Prior
We also reject defendant's argument the court abused its discretion in refusing to strike either of his prior strike convictions.
A. Standard of Review and Applicable Law
"'[T]he Three Strikes initiative, as well as the legislative act embodying its terms, was intended to restrict courts' discretion in sentencing repeat offenders.' [Citation.] To achieve this end, 'the Three Strikes law ... establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike, unless the sentencing court "conclud[es] that an exception to the scheme should be made because, for articulable reasons which can withstand scrutiny for abuse, this defendant should be treated as though he actually fell outside the Three Strikes scheme."'" (People v. Carmony (2004) 33 Cal.4th 367, 377.) "[T]he three strikes law not only establishes a sentencing norm, it carefully circumscribes the trial court's power to depart from this norm and requires the court to explicitly justify its decision to do so. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper." (Id. at p. 378.)
A trial court has discretion under section 1385, subdivision (a) to strike prior felony conviction allegations in cases brought under the Three Strikes law. (Romero, supra, 13 Cal.4th at pp. 529-530.) In deciding whether to strike a prior felony conviction allegation, 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 [Three Strikes] 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.)
We review a trial court's decision to deny a motion to strike prior strike allegations for an abuse of discretion. (People v. Carmony, supra, 33 Cal.4th at p. 374.)
"In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, '"[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review."' [Citations.] Second, a '"decision will not be reversed merely because reasonable people might disagree. 'An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.'"' [Citations.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (People v. Carmony, supra, at pp. 376-377.)
"Because the circumstances must be 'extraordinary ... by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack' [citation], 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." (People v. Carmony, supra, 33 Cal.4th at p. 378.)
B. Analysis
Alternatively, defendant argues the trial court abused its discretion when it refused to dismiss one of defendant's prior strike convictions. The People assert the court's sentencing decision was not irrational or arbitrary given the circumstances of the instant crime and defendant's habitual criminal history. Again, we agree with the People.
Here, the court was entitled to consider, as it did, defendant's criminal history and the nature of the instant offense. (See People v. Williams, supra, 17 Cal.4th at p. 161.) As the court noted, defendant was convicted of residential burglaries close in time to each other, in 1989 and then again two years later in 1991. Despite these convictions, defendant continued to reoffend, as evidenced by the instant conviction, and the convictions were all for the same class of offenses-residential burglaries-which are serious felonies. In light of these factors, we cannot say the trial court's conclusion that defendant did not lie outside of the intent of the Three Strikes law was so irrational or arbitrary that no reasonable person could agree with it. (See People v. Stone (1999) 75 Cal.App.4th 707, 717 [no abuse of discretion in refusing to vacate one of defendant's strikes because defendant "is an exemplar of the 'revolving door' career criminal to whom the Three Strikes law is addressed"]; see also People v. Gaston (1999) 74 Cal.App.4th 310, 320 [reversing order vacating 17-year-old strike given defendant's "unrelenting record of recidivism"; "[defendant] is the kind of revolving-door career criminal for whom the Three Strikes law was devised"]; People v. Humphrey (1997) 58 Cal.App.4th 809, 812-813 [reversing order dismissing prior robbery conviction that was nearly 20 years old where "the defendant has led a continuous life of crime after the prior," including drug use, two counts of burglary, robbery, and current conviction of grand theft].) Accordingly, we cannot conclude it abused its discretion in refusing to strike one of defendant's prior strikes.
DISPOSITION
The judgment is affirmed.
[*]Before Levy, Acting P. J., Pena, J. and De Santos, J.