Filed 12/31/19 P. v. Dennis CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

—-

THE PEOPLE,

Plaintiff and Respondent,

v.

ROME ROBERT DENNIS,

Defendant and Appellant.

C082634

(Super. Ct. No. 15F00662)

After robbing a bank in distinctive clothing and leaving in a waiting taxi, defendant Rome Robert Dennis was apprehended a short time later and positively identified by bank employees with the money he had taken still on his person. A jury found him guilty of two counts of robbery (Pen. Code, § 211), and in a bifurcated proceeding, the court found true two serious felony and two prior strike conviction allegations attached to each count. (§§ 667, subds. (a), (b)-(i), 1170.12.) The court sentenced defendant to state prison for an aggregate term of 35 years to life.

On appeal, defendant contends the trial court failed to properly exercise its discretion to strike his prior strike convictions under section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497. In supplemental briefing, defendant contends the matter must be remanded for resentencing to allow the trial court to exercise discretion to strike or dismiss the prior serious felony enhancements under Senate Bill 1393.

We conclude the trial court did not abuse its discretion in declining to strike or dismiss defendant’s strike priors. We agree, however, that remand is necessary to permit the trial court to decide whether to exercise its discretion to strike or dismiss the prior serious felony enhancements.

FACTUAL AND PROCEDURAL BACKGROUND

On January 29, 2015, defendant took a taxi to a bank in south Sacramento and asked the cab driver, M.A., to wait while he went inside. At the time, he was wearing distinctive blue alligator shoes, a fedora hat, a blue coast guard shirt, and a zippered leather jacket.

Defendant went into the bank shortly after it opened. After speaking with the manager, defendant was directed to bank employee S.X. for help with a purported over-drafted account. While sitting at S.X.’s desk, defendant scribbled a note on a business card and slid it across for S.X. to read. The note said, “It’s a robbery. I need 9.” Defendant then stated he needed $9,000 and told S.X. he had a gun and a bomb.

Because S.X. did not have cash at his desk, he walked over to his colleague M.H. who was working as a bank teller that morning. S.X. asked M.H. for money and told him they were being robbed. Defendant then approached the teller window and said he needed money. He told M.H. he had three seconds to give him a large amount of money. M.H. handed over some cash from his teller drawer, but defendant demanded more money. In total, M.H. gave defendant $2,920.

After getting the cash, defendant walked outside and got into M.A.’s waiting taxi. M.A. drove defendant a short distance, and let him out on the street. Defendant took a large wad of cash from his pocket and paid M.A. $25.

The bank manager was able to get the taxi’s license plate number, and called police. Law enforcement subsequently arrived and interviewed S.X. and M.H. In the meantime, M.A. had received a call from the taxi company’s dispatcher asking him where he had dropped off defendant because defendant had robbed the bank. After describing the location, M.A. returned to the bank and was interviewed by police.

A short time later, police located defendant walking down a nearby street; he was still wearing the black leather jacket, blue shirt coast guard shirt, and blue alligator shoes. The officer saw defendant look side to side as if he was going to flee, and then throw a knife into the grass. Defendant turned and faced the officer with his hands behind his head, and kneeled down. Thereafter, he was taken into custody without incident. A pat search revealed a wad of cash in the inside pocket of defendant’s leather jacket. The cash totaled $2,895–the exact difference between the $2,920 M.H. gave defendant at the bank and the $25 cab fare defendant paid M.A.

After defendant was apprehended, officers took S.X. and M.H. to view defendant in a field show-up. Both men identified defendant as the person who robbed the bank earlier that morning. M.A. likewise positively identified defendant at a field show-up.

An amended information charged defendant with two counts of robbery, and alleged two prior serious felony convictions that also constituted strikes within the meaning of the three strikes law. (§§ 667, subd. (a), 667, subd. (b)-(i), 1170.12.) Although defendant originally pleaded not guilty by reason of insanity, he later withdrew that plea and pleaded not guilty to all counts and allegations.

S.X. positively identified defendant at trial, but neither M.H. nor M.A. were able to identify defendant as the robber during their trial testimony. Surveillance video from the robbery was shown to the jury.

The jury found defendant guilty of all charges. In a bifurcated proceeding, the court found the prior serious felony and strike allegations true. Prior to sentencing, defendant submitted a statement in mitigation asking the court to strike his prior strikes, arguing the court should grant him leniency because he had been self-medicating a mental illness or disability that did not amount to a defense and that he was “not ‘in the spirit’ ” of the three strikes law. The prosecution filed a statement in aggravation pointing out defendant’s long criminal history and the threat of force used during the bank robbery. The prosecution requested that the court impose an indeterminate term of 50 years to life, consecutive to a determinate term of 20 years.

The court sentenced defendant to an aggregate term of 35 years to life calculated as follows: an indeterminate term of 25 years to life for each robbery conviction, to be served concurrently, and a consecutive 10-year sentence imposed for two prior serious felony convictions attached to count 1. The court stayed the prior serious felony conviction enhancements on count 2.

DISCUSSION

I. Romero Motion

Defendant contends the trial court erred in failing to strike one or both of his prior strike convictions pursuant to Romero. In his view, the court either did not understand its sentencing discretion to strike the strike priors, or failed to exercise its discretion properly. We disagree.

A. Forfeiture Contention

Preliminarily, we dispose of the People’s contention that defendant forfeited his Romero challenge. The People contend that defendant never suggested the trial court exercise its discretion to dismiss his strikes and his attempt to litigate the issue on appeal must necessarily result in a forfeiture.

Regarding motion practice for Romero motions, “a defendant has no right to make a motion, and the trial court has no obligation to make a ruling, under section 1385. But he or she does have the right to ‘invite the court to exercise its power by an application to strike a count or allegation of an accusatory pleading, and the court must consider evidence offered by the defendant in support of his assertion that the dismissal would be in furtherance of justice.’ [Citation] . . . [A]ny failure on the part of a defendant to invite the court to dismiss under section 1385 following Romero waives or forfeits his or her right to raise the issue on appeal. [Citation]” (People v. Carmony (2004) 33 Cal.4th 367, 375-376 (Carmony).)

However, defendant did invite the court to exercise its section 1385 discretion. Following his convictions, defense counsel told the court he “intend[ed] to file a Romero [m]otion” after he had a chance to review the probation report. Understanding defense counsel’s plan and seeking to make sure defendant understood, the court told defendant: “You’ve heard what your attorney wants to do. He wants to file a Romero [m]otion and have an opportunity to sit and talk with you about the probation report before he does that.”

Thereafter, defendant filed a statement in mitigation expressly raising the issue of “striking strikes.” Defense counsel stated that “[t]he ultimate issue regarding striking strikes or striking prison terms is whether a defendant is ‘within the spirit of the three strikes law . . . ’ and whether in the court’s discretion it determines what sentence should be imposed for any of a myriad of considerations.” Defense counsel “request[ed] that the court strike [defendant’s] strikes so that he has real incentive to live and not ‘to rehabilitate’-but to habilitate.” At the sentencing hearing, the prosecution objected to defendant’s statement in mitigation, which it characterized a “quasi Romero motion,” because “defendant absolutely does come within the scheme of the Three Strikes Law . . . .”

It is clear from the record that the court was fairly apprised of the issue it was being called upon to decide–whether to strike or dismiss one or both of defendant’s prior strikes because he fell outside the spirit of the three strikes law. Nothing more was required to preserve the issue for appeal. (See Polanski v. Superior Court (2009) 180 Cal.App.4th 507, 528 [appellate review available for trial court’s ruling on the defendant’s invitation, whether termed a motion or an informal request, to dismiss criminal prosecution against him under section 1385].)

B. Discretion to Strike or Dismiss Prior Strike Convictions

It is well-settled that a trial court has discretion to strike a prior serious felony and/or violent felony conviction only if the defendant falls outside the spirit of the three strikes law. (People v. Williams (1998) 17 Cal.4th 148, 161.) “[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.” (Carmony, supra, 33 Cal.4th at p. 378.) In deciding whether to strike or dismiss a prior serious or violent felony conviction under section 1385, “or in reviewing such a ruling, the court in question 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 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.” (Williams, at p. 161.)

The trial court’s “failure to . . . strike a prior [felony] conviction allegation is subject to review under the deferential abuse of discretion standard.” (Carmony, supra, 33 Cal.4th at p. 374.) A trial court abuses its discretion when it refuses to strike a prior felony conviction only in limited circumstances, such as where the court is unaware of its discretion to dismiss or considers impermissible factors in refusing to dismiss, or if the sentencing norm under the three strikes law leads, as a matter of law, to an arbitrary, capricious, or patently absurd result under the circumstances of the individual case. (Ibid.) It is not sufficient to show that reasonable people might disagree about whether to strike a prior conviction. (Ibid.) “[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 p. 377.)

C. Analysis

1. Trial Court’s Comment

In arguing the court misunderstood its discretion to strike, defendant cites a statement in which the court purportedly “expressed the belief that it had no recourse but to sentence [defendant] based on his priors, and that it had no other option.” Later in his briefing, defendant argues that “[t]he court didn’t believe it had any recourse but to sentence [defendant] in accordance with the Three-Strikes law.”

We do not read or interpret the court’s statement in the same manner as defendant. The comment defendant focuses upon came in the following statements made by the court to defendant: “You had excellent representation by a very skilled attorney who has done a wonderful job for you. [¶] And I listened to everything. I listened to your letters and what [defense counsel] has said. [¶] And I don’t think I have any recourse but to give you a prison sentence, based on the history based on this and things I could do with that.” (Italics added.) As the italicized portion of the trial court’s comment shows, the court did not say it had no recourse but to sentence [defendant] based on his priors; nor did it say it didn’t believe it had any recourse but to sentence [defendant] in accordance with the Three-Strikes law as defendant argues on appeal. The court said it had no “recourse but to give [defendant] a prison sentence.” And under the circumstances, it did not. This statement does not indicate the court misapprehended its discretion to strike or dismiss defendant’s strike convictions.

The court considered the probation report, which chronicled defendant’s extensive criminal history, the People’s statement in aggravation, defendant’s statement in mitigation with an attached psychological evaluation documenting his mental health history and background, and two letters submitted by defendant discussing his upbringing, childhood, and his prior crimes. At the hearing, the prosecutor argued that “defendant [was] absolutely . . . within the scheme of the Three Strikes Law . . . .”

Because the court read and considered these materials as well as the arguments of counsel and then imposed a three strike sentence, we believe, the court impliedly found defendant to be within the spirit of the three strikes law and thus, the law proscribed his power to depart from the sentencing norm. (Carmony, supra, 33 Cal.4th at p. 378 [recognizing that “the three strikes law not only establishes a sentencing norm, it carefully circumscribes the trial court’s power to depart from this norm”].) Nothing the trial court said suggests the court misunderstood its discretion.

2. Abuse of Discretion Analysis

As noted above, the court stated it had considered the probation report, the statements in mitigation and aggravation, and the two letters defendant submitted directly to the court. The psychological evaluation defendant appended to his mitigation statement outlined his psychological history and mental status, his education and employment history, his past criminal offenses, and his current use of drugs to self-medicate his mental health issues. After considering defendant’s childhood and mental health history, the court imposed sentence.

Because we must consider the Williams factors in reviewing a trial court’s ruling whether to dismiss or strike the prior strike convictions (Williams, supra, 17 Cal.4th at p. 161), we shall now review the record reviewed by the trial court and highlight information relevant to the Williams factors.

a. Nature and Circumstances of Present Felony Conviction

The current offenses involved the threat of violence. According to the probation report, S.X. stopped working at the bank because he was traumatized by the incident.

However, the trial court noted at sentencing, “there was no actual violence” and “in the course of robberies, this one is more benign than many others.” Based on the nature of the robberies and the fact that they were part of a single transaction, the court imposed concurrent terms, stating, “That is what the Court is willing to do at this time.”

b. Nature and Circumstances of Prior Strike Conviction

In 1990, defendant was convicted of assault with intent to rape and in 1993, he was convicted of attempted robbery. He was sentenced to two years state prison on each conviction. Defendant points out that the strike convictions were 25 and 22 years old. However, as we next discuss, defendant’s background shows his failure to live a law abiding life since his last strike conviction. (See People v. Humphrey (1997) 58 Cal.App.4th 809, 813 [where a “defendant has led a continuous life of crime after the prior, there has been no ‘washing out,’ and there is simply nothing mitigating” about the remoteness of the prior].)

c. Background, Character and Prospects for the Future

In 1992, in between his two prior strike convictions, defendant was convicted of sale or transportation of a controlled substance and sentenced to one year county jail and probation. In 1994, defendant was convicted of felony evading and sentenced to four years state prison. In 2003, he was convicted of failure to register as a sex offender, and sentenced to 16 months state prison. In 2004, he was convicted again of felony evading, but this time sentenced to five years state prison. In 2009, he was convicted again of failing to register as a sex offender, and again sentenced to 16 months state prison. Additionally, defendant was convicted of misdemeanor offenses in 2007, 2008, 2012 and 2014. The 2012 conviction was for indecent exposure. According to the prosecution’s statement in aggravation, defendant violated parole more than 10 times. The probation report noted that while defendant was detained in jail pretrial, staff found a toothbrush broken in half and sharpened to a point in his cell.

The probation report stated that defendant began using methamphetamine two months before the offenses underlying the current convictions and was using it daily at the time he committed those offenses. Defendant said the drug made him do “stupid things.”

Defendant’s statement in mitigation focused on his childhood and his mental health history. Defendant’s mother died when he was only a year old. His father was frequently incarcerated. He was raised by an aunt who purportedly was abusive. According to the statement in mitigation, the “reasons for committing the instant crime are related to his untreated and unsupervised mental health. [Defendant] is not insane, the doctors opine. But he was severely depressed when the crimes occurred.” Attached thereto was a psychological evaluation. According to the report, defendant exhibited “significant psychiatric problems” including “depression . . . [and] self-injurious behaviors (cutting himself).” He had been hospitalized for mental illness in the past and the psychologist opined that defendant was in need of mental health treatment. In a letter to the trial court, defendant said he “came to jail on purpose,” and wanted to be placed in a mental hospital the rest of his life.

At sentencing, the trial court noted defendant’s lengthy history of convictions and parole violations and that there was no significant period where he was not incarcerated, stating: “It seems like it’s either on a violation or you pick up another case, or something like that.” Based on its reading of defendant’s two letters, the court stated, “I can sympathize with the course of your life,” but then stated, “we all have the ability to make choices in our life” and “we’re here now because of your choices and not because of anything that necessarily the Courts have done or anybody else has done.” The court further noted that although defendant suffered from depression, there was no evidence of mental illness that “warrants you going to a hospital.”

d. Conclusion

The court reviewed the same record from which we obtained the information summarized above in the rubric of the Williams factors. (Williams, supra, 17 Cal.4th at p. 161.) It is clear that the court did not use any impermissible factor in reaching its decision. Nor can we say that following the sentencing norms established by the three strikes law led, in this matter, to a result that was arbitrary, capricious, or patently absurd given defendant’s long criminal history. To the contrary, the trial court acted well within its discretion in imposing sentence, including its willingness to impose concurrent sentences on the two robbery counts. We conclude that despite his mental health history, defendant fell squarely within the spirit of the three strikes law. Defendant has failed to show any abuse of discretion.

II.

Prior Serious Felony Enhancement

The court imposed two five-year prior serious felony enhancements under section 667, subdivision (a). At the time defendant was sentenced, the court had no discretion to strike a prior serious felony enhancement. (See former § 667, subd. (a); former § 1385, subd. (b).)

While this matter was pending appeal, Senate Bill 1393 (S.B. 1393) amended section 667, subdivision (a) and section 1385, subdivision (b) to allow a court to exercise its discretion to strike or dismiss a prior serious felony conviction for sentencing purposes. (Stats. 2018, ch. 1013, §§ 1-2.)

Defendant argues, and the People concede, that the amendments apply retroactively in this case because defendant’s judgment was not final when S.B. 1393 went into effect. We agree. (See People v. Jones (2019) 32 Cal.App.5th 267, 272-273 [concluding S.B. 1393 applies retroactively to a judgment not final on the amendment’s effective date].)

Although the People concede retroactivity, they nevertheless argue remand is unwarranted because the trial court clearly indicated that it would not have dismissed the serious felony enhancements even if it had the discretion to do so. We disagree with the People’s interpretation of the court’s comments at sentencing.

While it is true that the trial court noted defendant’s lengthy history of incarceration, the court also expressed some sympathy towards defendant given the course of his life as reflected in defendant’s letters to the court. The court’s comments that it did not believe it had any recourse but to sentence defendant to prison rather than a mental health hospital, we believe, do not evince an implied intent to refuse to strike the five-year serious felony enhancements under any circumstances. Remand is required unless the record reveals a clear indication that the trial court would not have reduced the sentence, even if at the time of sentencing, it had the discretion to do so. (People v. Almanza (2018) 24 Cal.App.5th 1104, 1110 [remand required to allow court to exercise newly authorized discretion to strike or dismiss firearm enhancement under section 1385]; People v. McDaniels (2018) 22 Cal.App.5th 420, 425 [same].) Based on this record, there is a possibility that the trial court would strike one or both of the prior serious felony enhancements, and defendant should have an opportunity to argue to the trial court that it should exercise its newly authorized discretion. We therefore remand for this purpose.

 

DISPOSITION

Defendant’s convictions are affirmed. The matter is remanded to allow the trial court to determine whether to exercise its discretion to strike one or both of the prior serious felony enhancements imposed under Penal Code section 667, subdivision (a).

/s/

MURRAY, J.

We concur:

/s/

BUTZ, Acting P. J.

/s/

RENNER, J.