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The People v. Mejia

California Court of Appeals, Fifth District
Aug 22, 2023
No. F084045 (Cal. Ct. App. Aug. 22, 2023)

Opinion

F084045

08-22-2023

THE PEOPLE, Plaintiff and Respondent, v. GERONIMO MEJIA, Defendant and Appellant.

Donn Ginoza, 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, Julie A. Hokans and Henry J. Valle, Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Fresno County. No. F15907983 F. Brian Alvarez, Judge.

Donn Ginoza, 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, Julie A. Hokans and Henry J. Valle, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

MEEHAN, J.

Defendant Geronimo Mejia was convicted of attempted murder and assault with a deadly weapon. Defendant contends there is insufficient evidence to support the attempted murder conviction. Defendant also contends the trial court erred by failing to apply recent statutory amendments related to sentence enhancements and, alternatively, if this issue is deemed forfeited for failure to object at sentencing, defendant contends defense counsel rendered ineffective assistance of counsel (IAC). Defendant also argues in the alternative the trial court abused its discretion by failing to dismiss the five-year enhancement for his prior serious felony conviction.

The People respond that there is sufficient evidence to support the attempted murder conviction. The People also argue that defendant forfeited challenge to his sentence by failing to ask the court to apply the recent statutory amendments at the time of sentencing. If the issue is not forfeited, the People argue the court retained its discretion regarding sentence enhancements despite recent statutory amendments and the court was aware of its discretion to dismiss the five-year enhancement. The People further contend that defense counsel did not render IAC. We affirm.

PROCEDURAL SUMMARY

On December 19, 2016, the Fresno County District Attorney filed an information charging defendant with: attempted murder (Pen. Code, §§ 664, 187, subd. (a); count 1) and three counts of assault with a deadly weapon (§ 245, subd. (a)(1); counts 2-4). The information also alleged that defendant personally used a deadly or dangerous weapon (§ 12022, subd. (b)(1)) as to count 1 and personally inflicted great bodily injury (GBI) as to all four counts (§ 12022.7, subd. (a)). The information further alleged that defendant had suffered one prior "strike" conviction within the meaning of the "Three Strikes" law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) which also qualified as a serious felony conviction (§ 667, subd. (a)(i)).

All further statutory references are to the Penal Code unless otherwise stated.

The information identified three victims: L.L.S. for counts 1 and 2, F.M. for count 3, and G.R. for count 4.

The trial was bifurcated for the prior conviction at defendant's request. Defendant waived his right to a jury trial regarding his prior conviction.

On November 9, 2021, the jury found defendant guilty on counts 1 and 2, but not guilty on counts 3 and 4. The jury also found true the enhancements for personal use of a deadly or dangerous weapon on count 1, and personal infliction of GBI for counts 1 and 2. In a bifurcated proceeding, defendant admitted his prior strike conviction.

On January 13, 2022, the trial court sentenced defendant to 23 years as follows: on count 1, the middle term of 14 years (seven years doubled per the prior strike), plus one year for the deadly weapon enhancement, plus three years for the GBI enhancement, plus five years for the serious felony prior conviction enhancement; on count 2, the middle term of six years (three years doubled per the prior strike), plus three years for the GBI enhancement, all stayed per section 654.

Defendant filed a timely notice of appeal.

The People note in their response that they could not locate a notice of appeal in the record. Although the notice of appeal is not in the clerk's transcript as required, this court's docket No. 10 is defendant's notice of appeal filed with the Fresno Superior Court and date stamped on March 9, 2022.

FACTUAL SUMMARY

A. Prosecution Evidence

On December 25, 2015, L.L.S. and his wife, M.L., had their family at their house in Sanger to celebrate Christmas and their son F.M.'s birthday. There were about 15-20 people there. Five of L.L.S. and M.L.'s children were present: L.L.J., F.M., J.L., C.L. and A.L. C.L. was living at home at that time. F.M. came with his wife, S.M., and two of their children. A.L. came with her fiance, G.R., and their three children. Defendant lived in his mother's house next door to L.L.S. and M.L.

At some point in the evening, C.L.'s niece told C.L. the neighbor was outside asking for her and looking for "Albert." Albert L. was C.L.'s boyfriend at the time. C.L. went outside onto the porch. Defendant was outside and asked C.L. "'Where is Albert?'" C.L. told defendant "'Albert's not here.'" Defendant responded "'Yeah he is,'" to which C.L. said "'He's not allowed here.'" C.L. then walked away and back into the house.

Albert L. was not at the house that night.

About 30-45 minutes later, L.L.S., L.L.J., F.M., and C.L. went out on the front porch to smoke a cigarette. S.M. went outside with them. After five minutes, defendant, a bald man, and another man walked over to L.L.S.'s porch. Defendant said he was looking for "Albert L[.]" Defendant demanded to be let inside to look for "Albert." Defendant was looking for Albert L. because he believed Albert L. stole his mother's car. L.L.S., L.L.J. and F.M. told defendant Albert L. was not there and they were having a family gathering. Defendant insisted Albert L. was there and said "'tell him to come out.'" L.L.S. told defendant that Albert L. was not there because he is not allowed at the house. The bald man pointed at F.M. and L.L.S. and told them to "'come down here.'" F.M. and L.L.S. laughed. A fourth man started to come over from defendant's house taking off his shirt and cussing. One of defendant's cohorts told the fourth man that he "got it" and the man put his shirt back on.

During this exchange, M.L. and A.L. came out onto the porch. A.L. said "'It's Christmas, let us just go back inside. Whoever you're looking for isn't here.'" M.L. tried to talk to defendant, saying "'What are you doing here? We're having Christmas, you know.'"

A fourth man jumped over the porch wall and came at C.L., hitting the top of her head. C.L. hit the man back. F.M. came behind C.L. and began hitting the man. The man threw F.M. over the porch wall onto a grassy area. F.M. ran towards the porch wall to climb back up. F.M. felt two people pull him off the wall and toss him on the ground against the wall. Two people began stomping F.M.

During the fighting, defendant went to his house and came back less than a minute later. After defendant came back, defendant and the bald man rushed towards the porch. Defendant pushed M.L. out of the way and M.L. fell down on the porch steps. Defendant and the bald man attacked L.L.S. L.L.S. fell backwards and turned on his side trying to get away. Defendant hit L.L.S. in the stomach and right arm. The hitting by defendant felt different than a punch to L.L.S. A.L. saw something gray and shiny flashing during defendant's swinging at L.L.S. A.L. was unsure what she was seeing at first, but then realized defendant was holding a knife. M.L. saw the knife in defendant's hand and said, "'Oh, my God, you have a knife?'" Defendant looked at M.L. and said "'Yeah, and I'll use it on you too.'"

The bald man was punching L.L.S. at the same time as defendant. The bald man also had a knife. A.L. started punching the bald man's head. The bald man called A.L. a "f**king b*tch" and charged at her. The bald man punched A.L. twice in the face and A.L. fell to the ground.

G.R. ran out of the house and threw himself at defendant and the bald man. G.R. pushed the two away from L.L.S. G.R. landed on the house walkway and started being kicked by two people. Defendant said to G.R. "'This is what you get,'" while kicking G.R. The kicking stopped when the police came down the street. G.R. stood up and felt wetness on his shirt. G.R. pulled off his jacket and shirt. His shirt was drenched with blood and blood was dripping from his left side. G.R.'s sister-in-law put pressure on the biggest wound on G.R.'s left shoulder.

G.R. had four wounds and later received staples and stitches.

S.M. was fist fighting with a man in a black jacket. Somebody pulled S.M. back into the house and closed the door. S.M. went back outside with L.L.J. S.M. saw five people, including defendant, stomping on F.M. on the grassy area near the porch. F.M. was laying on his side on the ground covering his face. S.M. picked up rocks on the porch and began throwing rocks at the five people, yelling at them to leave F.M. alone. C.L. also threw a rock at the men kicking F.M. A rock was thrown back and hit L.L.J. After the people stopped stomping on F.M., one of the assailants asked defendant, "'Did you get him?'" Defendant said, "'Yeah, I got 'em all,'" while wiping a knife blade on a cloth material. A woman on the neighbor's porch yelled for the assailants to come inside.

L.L.J. dragged F.M. into the house. L.L.J. put pressure on F.M.'s wound. S.M. found a Raiders hat, a 5-6 inch kitchen knife and a tan jacket outside the house. S.M. heard somebody inside screaming that F.M. had been stabbed. S.M. ran back inside the house with the hat, knife and jacket she had found. S.M. pushed L.L.J. aside and took over putting pressure on F.M.'s wound.

S.M. gave the items she found to the police, who booked them into evidence.

L.L.S. crawled and then staggered up the porch steps and told A.L. "'I was stabbed.'" L.L.S. was bleeding and fell to his knees on the porch. A.L. and C.L. laid L.L.S. on his back and opened his shirt. C.L. saw stab wounds on L.L.S.'s lower abdomen. C.L. put pressure on L.L.S.'s wounds with towels. L.L.S. told C.L. "'Whatever happens, just know that the guy with the braids-the big guy stabbed me.'" C.L. understood L.L.S. to be talking about defendant.

During the melee, J.L. called 911. Sanger Police Sergeant Augustine Villatoro was the first officer to arrive at the house. Villatoro saw several people outside L.L.S.'s house yelling. A female yelled "'They are getting away, getting away'" and pointed at the neighboring house to the south. Villatoro ran toward the neighboring house and went through the side gate towards the backyard. A dark vehicle with four occupants, including defendant, was parked in the backyard. Villatoro drew his weapon and approached the vehicle with his gun pointed. Villatoro advised dispatch he had the vehicle occupants at gunpoint and requested backup. Villatoro yelled to the occupants to put their hands up. The occupants all complied. Sanger Police Officer Brendan Johnson arrived in the backyard with his gun drawn to assist. Villatoro ordered the occupants to exit the vehicle and the occupants complied with their hands up. The occupants were ordered to lay down on the ground with their hands behind their back.

Defendant and the other vehicle occupants were handcuffed and detained by Villatoro and Johnson. Villatoro found a bloody knife on the vehicle's rear floorboard behind the driver seat, which was where defendant had been sitting in the vehicle.

Emergency medical personnel attended to L.L.S. at the house and took him away in an ambulance. The ambulance took L.L.S. to a school from which he was airlifted to Community Regional Medical Center in Fresno. L.L.S. had seven wounds from the encounter. Dr. John Bilello, a trauma and critical care surgeon, provided treatment to L.L.S. after he arrived at the hospital. Dr. Bilello performed an exploratory laparotomy on L.L.S. to examine the intra-abdominal contents for injury. L.L.S. had a grade three laceration to the liver, a hematoma and a laceration to the cecum (part of the small intestine). Dr. Bilello repaired the lacerations to the liver and cecum. Dr. Bilello testified that a person can bleed to death or get biliary sepsis from a grade three liver laceration. Dr. Bilello confirmed that L.L.S. could have bled to death if he was not treated. It was estimated that L.L.S. lost 1.5 liters of blood. Dr. Bilello considered 1.5 liters of blood to be a significant amount to lose. L.L.S. was also treated by a hand surgeon for hand lacerations. L.L.S. stayed in the hospital for 10 days, including four days in intensive care and received multiple stitches for his wounds.

B. Defense Evidence

Defendant has been diagnosed with right foot drop. Dr. Rashell Reynoso-Garza is defendant's treating physician. He ordered a bariatric wheelchair for defendant, but could not say why this was ordered. Dr. Reynoso-Garza confirmed that a person with right foot drop can walk.

Defendant's half brother, Gabriel Alvarado, testified at trial. Alvarado went to his mother's house on December 25, 2015. Alvarado confirmed that he went with defendant and one other person to talk to the neighbors that evening. Alvarado was bald at that time. Defendant was in a wheelchair as "always." Alvarado denied knowing the name of the third person who accompanied him and defendant to the neighbor's house.

Alvarado was incarcerated at the time of his testimony because he pled no contest to all charges brought against him related to the December 25, 2015 incident.

Alvarado was talking to the people on the neighbor's porch and confirmed the conversation got "heated." Alvarado began fighting with an older man wearing a black jacket. Alvarado felt rocks, sticks and a skateboard thrown at him. Alvarado pulled out his knife and stabbed the older man he was fighting "six, seven times." Alvarado denied punching a female in the face or being punched by a female. A man jumped at Alvarado from the porch and Alvarado stabbed that man. Alvarado then went around to the side of the house and stabbed a third person. When Alvarado was stabbing the third person, defendant stopped him by grabbing his knife. Defendant asked Alvarado what he was doing and said that defendant and his mother live there. Alvarado denied asking defendant if he "got 'em all?" Alvarado "snapped out of it" after defendant stopped him and took off running. Alvarado ran and got into a car behind his mother's house with three other individuals. Defendant took the knife away from Alvarado.

Alvarado had an "everyday knife" he carried everywhere with him.

DISCUSSION

I. Sufficiency of the Evidence of Attempted Murder

Defendant contends there is insufficient evidence to support the attempted murder conviction due to a lack of evidence that he had the specific intent to cause L.L.S.'s death.

A. Standard of Review

"To assess the evidence's sufficiency, we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict-i.e., evidence that is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.] 'Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]' [Citation.] A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support"' the jury's verdict." (People v. Zamudio (2008) 43 Cal.4th 327, 357; see People v. Johnson (1980) 26 Cal.3d 557, 562; Jackson v. Virginia (1979) 443 U.S. 307, 317-320.)

B. Applicable Law and Analysis

Section 187, subdivision (a), provides: "Murder is the unlawful killing of a human being, or a fetus, with malice aforethought." "Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing." (People v. Lee (2003) 31 Cal.4th 613, 623.) "Although malice may be express or implied with respect to a charge of murder, implied malice is an insufficient basis upon which to sustain a charge of attempted murder because specific intent is a requisite element of such a charge." (People v. Chinchilla (1997) 52 Cal.App.4th 683, 690.) "Express malice requires a showing that the assailant '"'either desire[s] the result [i.e., death] or know[s], to a substantial certainty, that the result will occur.' [Citation.]"'" (People v. Smith (2005) 37 Cal.4th 733, 739 (Smith).)

"There is rarely direct evidence of a defendant's intent." (People v. Chinchilla, supra, 52 Cal.App.4th at p. 690 .) "[I]t is well settled that intent to kill or express malice, the mental state required to convict a defendant of attempted murder, may in many cases be inferred from the defendant's acts and the circumstances of the crime." (Smith, supra, 37 Cal.4th at p. 741.) "Whether a defendant possessed the requisite intent to kill is, of course, a question for the trier of fact. While reasonable minds may differ on the resolution of that issue, [the reviewing court's] sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (People v. Lashley (1991) 1 Cal.App.4th 938, 946.)

The jury was instructed on the charge of attempted murder per CALCRIM No. 600, as follows: "To prove that the defendant is guilty of attempted murder, the People must prove that: [¶] 1. The defendant took at least one direct but ineffective step toward killing another person; [¶] AND [¶] 2. The defendant intended to kill that person. [¶] A direct step requires more than merely planning or preparing to commit murder or obtaining or arranging for something needed to commit murder. A direct step is one that goes beyond planning or preparation and shows that a person is putting his or her plan into action. A direct step indicates a definite and unambiguous intent to kill. It is a direct movement toward the commission of the crime after preparations are made. It is an immediate step that puts the plan in motion so that the plan would have been completed if some circumstance outside the plan had not interrupted the attempt."

Defendant primarily argues there is insufficient evidence of his intent to kill L.L.S. by citing to secondary sources regarding the mortality rate of knife wounds versus gunshot wounds. The sources relied on by defendant are not part of the record. We may not consider evidence not presented at trial to determine the sufficiency of the evidence. (In re Carpenter (1995) 9 Cal.4th 634, 646 ["appellate jurisdiction is limited to the four corners of the record on appeal"]; see People v. Waidla (2000) 22 Cal.4th 690, 743-744 [claims based on evidence outside the record must be raised in habeas corpus proceedings].) Further, a defendant "does not show the evidence is insufficient by citing only his own evidence, or by arguing about what evidence is not in the record .." (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.) The lack of evidence about the mortality rate for abdominal stab wounds does not demonstrate insufficient evidence of defendant's intent to kill.

On June 13, 2023, defendant filed a motion for judicial notice of the medical journal articles cited in his opening brief. The People filed an opposition to the motion for judicial notice on June 27, 2023. We decline to take judicial notice of these articles. (Evid. Code, § 452.) Insofar as defendant argues the prosecutor was obligated to present evidence that a knife wound is less likely to be mortal, this contention misconstrues the People's burden. The prosecutor is required to prove every element of the offense beyond a reasonable doubt (In re Winship (1970) 397 U.S. 358, 360); the prosecutor is not required to prove a negative-that defendant's stabbing of L.L.S. in the abdomen may not have been likely to result in death due to ready access to medical treatment (see People v. Le (2000) 82 Cal.App.4th 1352, 1362 ["'To require a prosecutor to prove a negative as an element of an offense defies the grand logic of the law.'"]).

Defendant also argues that although he had a motive to inflict grievous injury on the L. family, there is no evidence of a motive to specifically kill L.L.S. Although "evidence of motive is often probative of intent to kill[,] .. evidence of motive is not required to establish intent to kill .." (Smith, supra, 37 Cal.4th at p. 741.) Motive is not an element of attempted murder. (Id. at p. 740.) An intent to kill may be inferred from the circumstances "even without evidence of motive." (Id. at p. 742.) Defendant repeatedly stabbed L.L.S. while he was unarmed, wounding L.L.S. in the stomach and arm. This alone constitutes substantial evidence of an intent to kill. (People v. Avila (2009) 46 Cal.4th 680, 701-702 [intent to kill shown by repeated attempts to stab the unarmed victim, wounding the arm and leg]; People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1552 [intent to kill demonstrated where the defendant repeatedly stabbed an unarmed victim in an unprovoked attack]; People v. Moore (2002) 96 Cal.App.4th 1105, 1114 [intent to kill shown where the defendant stabbed victim "in the abdomen, an extremely vulnerable area of the body"].)

Defendant argues the evidence points to defendant and "his confederates seeking to send a message of vigilante justice commensurate with the perceived offense of vehicle theft ._" It is unclear how this motive is inconsistent with an intent to kill. (People v. Arias (1996) 13 Cal.4th 92, 162 ["an intent to kill could be inferred, even if the act was done without advance consideration and only to eliminate a momentary obstacle or annoyance"].)

Equally unavailing is defendant's argument there is insufficient evidence of his intent to kill L.L.S. because defendant knew or should have known L.L.S. would have access to emergency medical treatment. That L.L.S. had access to medical treatment and was promptly dispatched to the hospital is happenstance rather than evidence of a lack of intent to kill.

Defendant essentially argues L.L.S.'s injuries were not as serious as portrayed by the prosecution. The "degree of the resulting injury is not dispositive of [the] defendant's intent. Indeed, a defendant may properly be convicted of attempted murder when no injury results." (People v. Avila, supra, 46 Cal.4th at p. 702.) The jury could reasonably infer that L.L.S. did not suffer greater injuries than he did because the police's arrival on the scene curtailed the attack. In any event, defendant's contention is without merit because L.L.S.'s injuries were serious. Two of the lacerations required surgical repair. L.L.S. lost 1.5 liters of blood, an amount Dr. Bilello considered significant. Dr. Bilello testified that a person can bleed to death or get biliary sepsis from a grade three liver laceration. He specifically testified L.L.S. could have bled to death if he had not gotten treatment. L.L.S. was hospitalized for 10 days for his injuries, including four days in intensive care. While not dispositive of an intent to kill, the severity of L.L.S.'s injuries could reasonably lead the jury to conclude defendant's attack was a "direct but ineffectual act" toward killing L.L.S. (People v. Lee, supra, 31 Cal.4th at p. 623.)

Lastly, we reject defendant's argument that a layperson would not have appreciated the substantial certainty of death from a liver laceration. This contention presupposes that defendant would have directed his stabbing to a less vulnerable location if he had been aware of the risks posed by stabbing L.L.S.'s liver. The evidence does not indicate defendant selectively stabbed L.L.S. in a manner to avoid vital organs. The jury could reasonably infer that defendant's indiscriminate and repeated stabbing evinced an intent to mortally wound L.L.S.

II. Senate Bill No. 81

Defendant contends the trial court failed to apply the "mandatory provisions" of Senate Bill No. 81 (2021-2022 Reg. Sess.) (Senate Bill 81) to dismiss all but one enhancement or dismiss an enhancement that causes the term to exceed 20 years. We disagree.

A. Additional Background

Probation recommended a total term of 23 years as follows: on count 1, the middle term of 14 years (seven years doubled per the prior strike), plus one year for the deadly weapon enhancement, plus three years for the GBI enhancement, plus five years for the prior serious felony conviction; on count 2, the middle term of six years (three years doubled per the prior strike), plus three years for the GBI enhancement, all stayed per section 654. The probation officer recommended the trial court find no circumstances in mitigation and recommended the court find true four circumstances in aggravation: defendant has engaged in violent conduct that indicates a serious danger to society (Cal. Rules of Court, rule 4.421(b)(1)); defendant's prior convictions as an adult are numerous (rule 4.421(b)(2)); defendant was on probation when the crime was committed (id., (b)(4)); and defendant has served a prior prison term (id., (b)(3)). The probation officer's report was dated January 6, 2022.

Further reference to rules are to the California Rules of Court unless otherwise stated.

On January 13, 2022, the trial court held a sentencing hearing. At the hearing, the People requested an aggravated term of 23 years. The prosecutor "recognize[d] that there has been a change in the law as of this year." The court asked the prosecutor "How would you have [the] Court calculate the aggregated or maximum term under [Senate Bill No.] 567 and new Penal Code Section 1170?" The prosecutor acknowledged that the trial occurred the previous year, but there was no trial regarding aggravating factors. The prosecutor conceded the changes in the law per Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill No. 567) were in effect and applied here.

The court noted an allegation of a prior prison term "pursuant to [section ]667.5[, subdivision ](a)" that defendant had not admitted, although he had admitted his prior conviction. The court asked if either party wished to be heard regarding that allegation. Neither party asked to be heard.

The court gave defense counsel an opportunity to be heard before imposing sentence. Defense counsel noted agreement with the court on aggravating factors, but asked the court to "stay" the prior serious felony conviction enhancement. The prosecutor objected to striking that enhancement.

The court imposed the sentence recommended by the probation officer. It noted, "[t]he law and our State Legislature has constrained [the] Trial Court's ability to impose aggravated terms under certain circumstances and this case might have otherwise qualified for an upper term of 18 years given the conduct and also given the history of [defendant], but because the law changed recently, this month, actually, this year, the Court would only impose so much time." The court ruled to "exercise [section] 1385 relief only and solely as to the alleged prison prior term allegation pursuant to Penal Code Section 667.5[, subdivision ](a) and order that it be stricken."

B. Forfeiture

Defendant did not object at sentencing to imposition of the enhancements. The People argue that defendant forfeited objection to the enhancements by failing to raise the issue at sentencing. Although defendant may have forfeited objection to the enhancements, we exercise our discretion to address the issue. (§ 1259; People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6 [an appellate court is generally not prohibited from reaching a question that has not been preserved for review].) We therefore need not address defendant's argument that defense counsel rendered IAC for failure to raise application of Senate Bill 81 at sentencing.

C. Interpretation of Amended Section 1385

Section 1385 has long permitted the trial court to strike or dismiss an enhancement "in furtherance of justice." (Id., subd. (a); accord, People v. Thomas (1992) 4 Cal.4th 206, 209; People v. Williams (1981) 30 Cal.3d 470, 482-483.) The "amorphous concept" of "'in furtherance of justice'" has no statutory definition, leaving to the courts "the task of establishing the boundaries of the judicial power conferred by the statute." (People v. Orin (1975) 13 Cal.3d 937, 945.) Case law has established "some general principles to guide trial courts when deciding whether to dismiss under section 1385." (People v. Hatch (2000) 22 Cal.4th 260, 268.) Courts must consider "'the constitutional rights of the defendant, and the interests of society represented by the People,'" and "[a]t the very least, the reason for dismissal must be 'that which would motivate a reasonable judge.'" (Orin, supra, at p. 945.)

Effective January 1, 2022, Senate Bill 81 amended section 1385 to specify mitigating circumstances the trial court must consider in determining whether to dismiss an enhancement. (Stats. 2021, ch. 721, § 1.) 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 in subparagraphs (A) to (I) 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."

At the time of defendant's sentence, subdivision (c)(3) of section 1385 was codified before the mitigating circumstances outlined in subparagraphs (A)-(I) of subdivision (c)(2), which was understood to be a clerical error. (People v. Sek (2022) 74 Cal.App.5th 657, 674, fn. 7.) Subdivision (c)(3) was moved when section 1385 was amended again effective June 30, 2022. (Stats. 2022, ch. 58, § 15.)

The statute outlines nine mitigating circumstances the court must consider, including as relevant herein: "(B) Multiple enhancements are alleged in a single case. In this instance, all enhancements beyond a single enhancement shall be dismissed. [¶] (C) The application of an enhancement could result in a sentence of over 20 years. In this instance, the enhancement shall be dismissed." (§ 1385, subd. (c)(2)(B)-(C). Section 1385, subdivision (c)(3), further provides: "While the court may exercise its discretion at sentencing, this subdivision does not prevent a court from exercising its discretion before, during, or after trial or entry of plea."

Subdivision (c) of section 1385 is applicable to all sentences occurring after January 1, 2022, and thus applied to defendant when he was sentenced on January 13, 2022. (§ 1385, subd. (c)(7).)

The rules of statutory interpretation are well established. "The fundamental purpose of statutory construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of the law. [Citations.] In order to determine this intent, we begin by examining the language of the statute. [Citations.] But '[i]t is a settled principle of statutory interpretation that language of a statute should not be given a literal meaning if doing so would result in absurd consequences which the Legislature did not intend.' [Citations.] Thus, '[t]he intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act.' [Citation.] Finally, we do not construe statutes in isolation, but rather read every statute 'with reference to the entire scheme of law of which it is part so that the whole may be harmonized and retain effectiveness.'" (People v. Pieters (1991) 52 Cal.3d 894, 898-899.) We review questions of statutory interpretation de novo. (People v. Tirado (2022) 12 Cal.5th 688, 694.)

Defendant argues the ordinary meaning of "shall be dismissed" in subdivision (c)(2)(B)-(C) of section 1385 mandates dismissal of an enhancement where more than one enhancement is alleged or the enhancement results in a sentence of over 20 years. Defendant's construction of the statute has been consistently rejected by our sister courts. (People v. Lipscomb (2022) 87 Cal.App.5th 9, 17-21 (Lipscomb) [rejecting argument that an enhancement that results in a sentence of over 20 years must be dismissed where it would endanger public safety]; People v. Anderson (2023) 88 Cal.App.5th 233, 238-241 (Anderson), review granted Apr. 19, 2023, S278786 [rejecting argument that the "'shall be dismissed'" language in § 1385, subd. (c)(2)(B)-(C) requires dismissal of an enhancement]; People v. Mendoza (2023) 88 Cal.App.5th 287, 295-297 [holding that the "'shall be dismissed'" language in § 1385, subd. (c)(2)(C) applies only if the court does not find that dismissal would endanger public safety]; People v. Walker (2022) 86 Cal.App.5th 386, 396-398 (Walker), review granted Mar. 22, 2023, S278309 [amended § 1385 does not mandate dismissal of an enhancement where multiple enhancements are alleged].) These cases all hold that the "shall be dismissed" language does not require the trial court to dismiss an enhancement if doing so would endanger public safety.

We find the reasoning of our sister courts to be persuasive. Defendant's interpretation could have merit if subdivision (c)(2)(B)-(C) of section 1385 is read in isolation. However, we do not read parts of the statute in isolation, but must construe the statute as a whole and harmonize its contents internally. (Dyna-Med, Inc. v. Fair Employment &Housing Com. (1987) 43 Cal.3d 1379, 1387 (Dyna-Med), superseded by statute on another issue.) Subdivision (c)(1) of section 1385 establishes the statute's overall context for the trial court to "dismiss an enhancement if it is in the furtherance of justice to do so ...." Subdivision (c)(2) of section 1385 expressly refers to the court's discretion, but directs the court to "consider and afford great weight" to evidence of the mitigating circumstances. Subdivision (c)(3) of section 1385 further specifies when the "court may exercise its discretion." Finally, subdivision (c)(2) of section 1385 states in part that 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." "This language, taken together, explicitly and unambiguously establishes: the trial court has discretion to dismiss sentencing enhancements; certain circumstances weigh greatly in favor of dismissal; and a finding of danger to public safety can overcome the circumstances in favor of dismissal." (Anderson, supra, 88 Cal.App.5th at p. 239.)

A split of authority has emerged among the Courts of Appeal regarding how to construe and apply the requirement to "afford great weight" to evidence of the mitigating circumstances. (§ 1385, subd. (c)(2); see Walker, supra, 86 Cal.App.5th at p. 398 ["[T]rial courts are to rebuttably presume that dismissal of an enhancement is in the furtherance of justice (and that its dismissal is required) unless the court makes a finding that the resultingly shorter sentence due to dismissal 'would endanger public safety.'"]; People v. Ortiz (2023) 87 Cal.App.5th 1087, 10971098, review granted Apr. 12, 2023, S278894 [disagreeing with the analysis in Walker that affording "'great weight'" to the mitigating circumstances creates a rebuttable presumption].) In granting review in Walker, the California Supreme Court requested briefing on the following: "Does the amendment to ... section 1385, subdivision (c) that requires trial courts to 'afford great weight' to enumerated mitigating circumstances (Stats. 2021, ch. 721) create a rebuttable presumption in favor of dismissing an enhancement unless the trial court finds dismissal would endanger public safety?" (People v. Walker, S278309, Sup. Ct. Mins., Mar. 22, 2023 <https://supreme.courts.ca.gov/case-information/minutes> [as of Aug. 22, 2023].) The disputed statutory language does not affect our analysis here.

Defendant argues consideration of the statute's legislative history is unnecessary "because there is no textual ambiguity." Even if the statute's language is deemed ambiguous, the legislative history of Senate Bill 81 supports the construction followed here. (Sen. Rules Com., Off. of Sen. Floor Analyses, Rep. on Sen. Bill 81, as amended Aug. 30, 2021, p. 1 ["This bill provides guidance to courts by specifying circumstances for a court to consider when determining whether to apply an enhancement."]; see Lipscomb, supra, 87 Cal.App.5th at pp. 18-20 [the "versions of Senate Bill No. 81 confirm the Legislature's intent that the trial court retain the ability to impose an enhancement where failure to do so would endanger public safety"]; Anderson, supra, 88 Cal.App.5th at p. 240 ["The legislative history of Senate Bill 81 further supports our interpretation that dismissal of the enhancements is not mandatory."].)

Defendant's interpretation renders references to the court's exercise of discretion surplusage because the court has no discretion to exercise if dismissal of an enhancement is required for certain mitigating circumstances. "A construction making some words surplusage is to be avoided." (Dyna-Med, supra, 43 Cal.3d at p. 1387.) Similarly, defendant's construction would require dismissal of an enhancement even if the court finds doing so would endanger public safety. This conflicts with the statute's express language.

Defendant argues the specific language in subdivision (c)(2)(B)-(C) of section 1385 acts as an exception to the trial court's exercise of discretion under subdivision (c)(2). Defendant's reading would mean subdivision (c)(2)(B)-(C) is exempt from the court's discretion despite their placement in a subdivision specifying how the court exercise its discretion. If the Legislature intended to create an exception where more than one enhancement is alleged or the enhancement results in a sentence of over 20 years, it chose a circuitous way of doing so. We "generally presume that our Legislature takes the more direct route to achieve its purpose, which counsels against construing statutes to have a meaning that requires more complex linguistic gymnastics to reach." (Walker, supra, 86 Cal.App.5th at p. 398.) Established rules of statutory construction preclude following defendant's acrobatic interpretation of section 1385.

In conclusion, subdivision (c)(2)(B)-(C) of section 1385 does not mandate the trial court dismiss enhancements when those mitigating circumstances are present where the court finds doing so would endanger public safety. The court here impliedly found dismissing the enhancements would endanger public safety by declining to dismiss the enhancements and we discern no basis to disturb that finding.

Defendant argues in his reply brief that the court did not make the necessary finding with respect to "'endanger public safety'" by "'clear and convincing'" evidence. This is not the standard set forth in amended section 1385. Defendant does not argue the court must expressly find dismissing an enhancement would endanger public safety and we do not address whether that finding must be expressly made.

The trial court retains discretion to dismiss enhancements. (People v. Mendoza, supra, 88 Cal.App.5th at pp. 295-297; Anderson, supra, 88 Cal.App.5th at pp. 238-241; Lipscomb, supra, 87 Cal.App.5th at pp. 17-21.) Defendant does not contend that the trial court abused its discretion in declining to strike all but one of the enhancements and we do not consider the issue.

III. Failure to Dismiss the Section 667, Subdivision (a) Enhancement

Defendant alternatively argues the trial court abused its discretion by failing to dismiss the five-year enhancement for his prior serious felony conviction.

A. Standard of Review

We review a trial court's failure to dismiss a prior conviction allegation for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 373-374.) "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." (Id. at pp. 376-377.) "A court acting while unaware of the scope of its discretion is understood to have abused it." (People v. Tirado, supra, 12 Cal.5th at p. 694.)

B. Applicable Law and Analysis

Section 667, subdivision (a), requires a trial court to impose a five-year enhancement for each prior serious felony conviction. Prior to 2019, the trial court had no discretion to strike or dismiss the enhancement pursuant to section 1385. (People v. Shaw (2020) 56 Cal.App.5th 582, 586.) Effective January 1, 2019, Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Senate Bill 1393) amended section 1385 to permit the court to strike the five-year enhancement "in the furtherance of justice." (Stats. 2018, ch. 1013, § 2; accord, People v. Stamps (2020) 9 Cal.5th 685, 700.) Section 667, subdivision (a), was also amended to remove the cross-reference to section 1385, subdivision (b). (Stats. 2018, ch. 1013, § 1.)

Pursuant to further amendments enacted by Senate Bill 81 discussed above, one of the mitigating circumstances the trial court must consider in determining whether to dismiss an enhancement is whether "The enhancement is based on a prior conviction that is over five years old." (§ 1385, subd. (c)(2)(H).) Defendant contends the trial court had the discretion to dismiss the serious felony conviction enhancement allegation because the underlying prior conviction occurred in 2003. Defendant argues the court was unaware of its discretion to dismiss this enhancement pursuant to section 1385, subdivision (c)(2)(H).

"'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.' [Citation.] In such circumstances, .„ the appropriate remedy is to remand for resentencing unless the record 'clearly indicate[s]' that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion.'" (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) Remand is unnecessary if the trial court was aware of its sentencing discretion or "if the record is silent concerning whether the trial court misunderstood its sentencing discretion. Error may not be presumed from a silent record." (People v. Brown (2007) 147 Cal.App.4th 1213, 1229.)

The trial court discussed with the parties the impact of newly enacted laws during defendant's sentencing hearing. The court specifically asked the prosecutor how she would "calculate the aggregated or maximum term under [Senate Bill No.] 567 and new Penal Code Section 1170?" The prosecutor conceded that amended section 1170 applies to defendant's sentence. Defense counsel expressly asked the court not to impose the prior serious felony conviction enhancement: "I would ask this Court to stay the nickel prior. There is a one-year enhancement for the knife and the middle term that is being provided by Probation." The court imposed the prior serious felony conviction enhancement but did not explain the rationale for denying defendant's request to strike this enhancement. The court chose to "exercise [section] 1385 relief only and solely as to the alleged prison prior term allegation pursuant to Penal Code Section 667.5[, subdivision ](a) and order that it be stricken."

Effective January 1, 2022, section 1170 was amended by Senate Bill No. 567. Section 1170, subdivision (b), now permits imposition of a sentence exceeding the middle term only when aggravating circumstances have been found true beyond a reasonable doubt by a jury or judge (except prior convictions that may be shown by certified records). (Id., subd. (b)(2)-(3).)

Nothing in the record shows the trial court was unaware of its discretion to dismiss the five-year enhancement pursuant to amended section 1385. Defense counsel specifically asked the court to dismiss this enhancement, a request that implied the court's discretion to do so. Although the court must state its reasons for exercising relief under section 1385, the court is not required to state its reasons for declining to dismiss an enhancement. (§ 1385, subd. (a); rule 4.406(b)(7).) Accordingly, the court was not required to give reasons for rejecting defendant's request to dismiss the prior conviction enhancement.

Defendant focuses solely on the recent amendment to section 1385 wrought by Senate Bill 81, but does not acknowledge the prior amendment pursuant to Senate Bill 1393, effective since 2019. While Senate Bill 81 altered the calculus for determining whether to dismiss a prior conviction allegation, the court already had the discretion to dismiss the five-year enhancement for over two years before defendant was sentenced. The court's general discretion to dismiss the prior serious felony conviction enhancement in the "furtherance of justice" under section 1385 was thus not recently enacted when defendant was sentenced.

In any event, the trial court's discussion showed an awareness of recent statutory amendments effective January 1, 2022, that affected its discretion by making reference to amended section 1170. Nothing in the record suggests the trial court was unaware of its discretion under amended section 1385. We do not presume the court was unaware of its discretion to also dismiss the prior serious felony conviction enhancement from a silent record. (People v. Brown, supra, 147 Cal.App.4th at p. 1229; People v. Carmony, supra, 33 Cal.4th at p. 378.) The court's decision not to dismiss the serious felony conviction enhancement reflects its implied finding that doing so would endanger public safety. We find no abuse of discretion.

DISPOSITION

The judgment is affirmed.

WE CONCUR: DETJEN, Acting P. J. SMITH, J.


Summaries of

The People v. Mejia

California Court of Appeals, Fifth District
Aug 22, 2023
No. F084045 (Cal. Ct. App. Aug. 22, 2023)
Case details for

The People v. Mejia

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. GERONIMO MEJIA, Defendant and…

Court:California Court of Appeals, Fifth District

Date published: Aug 22, 2023

Citations

No. F084045 (Cal. Ct. App. Aug. 22, 2023)