Filed 12/31/19 P. v. Paul CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

RONALD UDELL PAUL,

Defendant and Appellant.

F078018

(Super. Ct. No. CRF49772)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Tuolumne County. James A. Boscoe, Judge.

Elisa A. Brandes, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Amanda D. Cary and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Defendant Ronald Udell Paul contends on appeal that remand is required for the trial court to consider whether to exercise discretion recently granted by Senate Bill No. 1393 (2017–2018 Reg. Sess.) to strike his prior serious felony conviction enhancement. The People respond that remand is unnecessary because the record clearly indicates the trial court would not have exercised this discretion. We affirm.

BACKGROUND

On March 17, 2016, defendant owned a cab company. When the victim, who was under the influence of alcohol and methamphetamine, took one of the company’s vehicles to take a joyride, defendant got in a cab and pursued him. About a half-mile later, the victim decided to end his ride, so he pulled into a gas station, parked, and exited the vehicle. Defendant drove the cab up to the vehicle as the victim, whom he knew, started walking toward the intersection. Defendant backed up the cab and drove forward toward the victim, striking him and causing him to fall to the ground. Defendant then accelerated toward the victim and ran over him. Defendant stopped, put the cab in reverse, and backed over the victim. Defendant got out and looked at the victim but did not provide any aid.

The victim suffered massive head trauma, a broken jaw, broken teeth, a broken collarbone, broken foot bones, and road rash. The parties stipulated he suffered great bodily injury.

Defendant stayed on the scene and told officers the victim slipped and fell in front of his vehicle. But when defendant learned there were surveillance cameras, his demeanor changed, and he became distraught and started shaking. After learning this, he gave a second version of the facts. Neither version involved his intentionally driving over the victim. Defendant’s stories, however, did not match the physical evidence, and the surveillance video established what had occurred. Defendant was arrested.

On February 15, 2018, a jury found defendant guilty of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1); count 2), but not guilty of attempted premeditated murder (§§ 664, 187; count 1). The jury found true the allegation that defendant personally inflicted great bodily injury on the victim (§ 12022.7). The trial court found true allegations that defendant had suffered a prior “strike” conviction within the meaning of the “Three Strikes” law (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)) and had suffered a prior serious felony conviction (§ 667, subd. (a)(1)), both based on a 2005 prior conviction.

The probation officer’s report noted the current crime was a serious and violent felony and recommended the court impose the aggravated sentence due to the circumstances in aggravation. The victim had submitted hundreds of pages of medical bills and was requesting $1,000,000 in restitution. The officer explained that now, a year and one-half after the crime, defendant told a story of remorse, explaining that the incident weighed heavily on him. He explained that at the time of the crime, he knew the victim was under the influence and he had to get him off the road, so he would not hurt anyone. Defendant said he took this responsibility seriously and could not have lived with that outcome. The officer noted that at the time of the crime, defendant never mentioned the victim had been under the influence, nor did he mention any concern about protecting the public.

The probation officer noted defendant had been convicted of lewd or dissolute conduct in a public place (§ 647, subd. (a), disorderly conduct) in 1993, assault with a deadly weapon other than a firearm (§ 245, subd. (a)(1)) in 1999, and vehicular manslaughter (§ 192, subd. (c)(1)) in 2005. The officer added:

“It should be noted [defendant] served a four year State Prison term in 2005, after running over and killing his friend. [Defendant] indicated he was young and made a poor decision that has forever affected him. Unfortunately, [defendant] has once again found himself in a similar situation which is of concern. [Defendant’s] actions are serious in nature and this officer does believe he poses a risk to the community. That coupled with the fact the defendant is statutorily ineligible for probation; it will be recommended he be sentenced to State Prison for a term of sixteen years.”

On August 28, 2018, the trial court refused to dismiss (or strike) defendant’s prior 2005 strike conviction and his great bodily injury enhancement pursuant to section 1385. The court noted the vehicular manslaughter prior had “eerie similarities” to defendant’s current offense. The court stated:

“A vehicle was used, false statements were given to the police officers after the incident occurred just as they happened in this case.

“And the Court witnessed the event on the video. And the facts that the Court observed and the jury found clearly support the conviction for the [section] 245[, subdivision ](a) and the [great bodily injury] enhancement.

“With respect to [defendant’s] character, there is really a lot in here about his character. I don’t know [defendant]. I only know him based upon his criminal history and the letters that those individuals, several individuals, sent on his behalf. [Defense counsel] enumerated them in his brief. There were about 10, I believe, letters of support attributing and discussing [defendant’s] character.

“Many of these events that occur like this are outside people’s normal behavior. They occur under circumstances that precipitate this character or quality for or trait for violence, that isn’t necessarily a part of their everyday lives.

“The fact that thirteen years has spanned between the prior similar event and this one, I don’t think speaks to his good character strongly enough for the Court to grant your motion.

“I don’t think that [defendant’s] conduct is outside the spirit of the three strikes law and I am going to deny the Romero[ ] motion to strike the strike—strike the strike as well as to strike the punishment for the [great bodily injury] enhancement.”

The court repeated it was “really disturb[ed]” by the “eerily similar conduct between that 2005 conviction and the conduct in this case,” and, despite “a span of that period of time, … the crimes are the same.” The court turned to consideration of the circumstances in aggravation and mitigation, as follows:

“… The circumstances in aggravation are: the violent conduct which resulted in serious injuries to the victim in this case; he has served a prior prison term; and I don’t know the circumstances of his parole violation, but his parole was violated in that earlier prison commitment following completion of that earlier prison commitment; and again, the … allegation that his record shows increasing seriousness, again there is that long period between 2005 even[t] and this event, but it’s the similarity in conduct that indicates to the Court a propensity to violence, and a likelihood that this type of behavior could occur again.

“So the Court is going to find that the circumstances in aggravation outweigh those in mitigation, which the only factor in mitigation was his cooperation in preparation of this report. So the Court will find that circumstances in aggravation outweigh those in mitigation.”

The court then imposed a total of 16 years in prison, as recommended by the probation officer: eight years for the assault (the upper term of four years, doubled pursuant to the Three Strikes law), plus five years for the prior serious felony conviction enhancement and three years for the great bodily injury enhancement. The court retained jurisdiction over victim restitution.

On August 29, 2018, defendant filed a notice of appeal.

DISCUSSION

When defendant was sentenced, the trial court had no power to strike the prior serious felony conviction enhancement imposed pursuant to section 667, subdivision (a). (See former § 1385, subds. (b), (c)(2); Stats. 2014, ch. 137, § 1.) However, Senate Bill No. 1393, which took effect on January 1, 2019, amended sections 667 and 1385 to provide trial courts discretion to strike prior serious felony conviction enhancements in the interest of justice. We agree with the parties that the law applies retroactively to defendant because his appeal was not yet final on the law’s effective date. (People v. Garcia (2018) 28 Cal.App.5th 961, 973.)

Defendant contends we should remand to give the trial court the opportunity to exercise its newly granted discretion. He explains the court did not discuss the enhancement, but simply imposed it as a matter of course.

The People, on the other hand, argue remand is unwarranted because the trial court’s comments at sentencing and its other sentencing choices clearly demonstrate the court would not have dismissed the enhancement even had it possessed the discretion to do so. We agree with the People.

The Supreme Court has reiterated that “ ‘[d]efendants 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 Supreme Court has] held that 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; see People v. McVey (2018) 24 Cal.App.5th 405, 419 [Sen. Bill No. 620; remand not required where the trial court stated, “ ‘[t]his is as aggravated as personal use of a firearm gets,’ and ‘the high term of 10 years on the enhancement is the only appropriate sentence on the enhancement’ ”; “[i]n light of the trial court’s express consideration of the factors in aggravation and mitigation, its pointed comments on the record, and its deliberate choice of the highest possible term for the firearm enhancement, there appears no possibility that, if the case were remanded, the trial court would exercise its discretion to strike the enhancement altogether”]; People v. Jones (2019) 32 Cal.App.5th 267, 274–275 [Sen. Bill No. 1393; remand not required where the trial court exercised no sentencing leniency and it “made clear its intention to impose the most stringent sentence it could justifiably impose,” including stating the court felt “ ‘great satisfaction’ in imposing the ‘very lengthy sentence’ ”].)

On the other hand, as defendant recognizes, many courts have remanded “out of an abundance of caution,” sometimes where the trial court showed sentencing leniency, and sometimes even where the trial court has stated it would not strike the enhancement if it had the discretion. (See People v. Johnson (2019) 32 Cal.App.5th 26, 69 [Sen. Bill Nos. 1393 & 620; remanded even though trial court stated it “ ‘ha[d] no discretion to strike’ ” and “ ‘wouldn’t strike if [it] did have discretion’ ”]; People v. Almanza (2018) 24 Cal.App.5th 1104, 1110–1111 [Sen. Bill No. 620; remanded where no clear indication of the trial court’s intent; “speculation about what a trial court might do on remand is not ‘clearly indicated’ by considering only the original sentence,” such as imposition of consecutive terms]; People v. Billingsley (2018) 22 Cal.App.5th 1076, 1081 [Sen. Bill No. 620; remanded where, “[a]lthough the trial court noted the facts of the case ‘could have been a lot worse,’ the court did not express an intention to impose the maximum possible sentence,” and the court “expressed concern the consequences for Billingsley’s sentence were ‘unfortunate’ and ‘tragic’ ”]; People v. McDaniels (2018) 22 Cal.App.5th 420, 427–428 [Sen. Bill No. 620; remanded where record contained no clear indication of trial court’s intent not to strike enhancement; court imposed midterm and struck prior convictions; “nothing in the record rule[d] out the possibility that the court would exercise its discretion to strike the … enhancement”].)

Here, the record clearly indicates the trial court would not have struck the enhancement even if it could have. The court had already refused to strike the prior strike felony conviction and the great bodily injury enhancement, and it repeatedly stated it was deeply troubled by defendant’s commission of a second, eerily similar crime in which he also intentionally ran over his victim. The court discussed this and other aggravating factors, then imposed the maximum sentence for the crime. Having reviewed the record, we are confident the court would not have struck the five-year section 667, subdivision (a) enhancement. Thus, we decline to remand.

DISPOSITION

The judgment is affirmed.