Filed 1/24/20 P. v. Jefferson CA4/2

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

TERRANCE TYRON JEFFERSON, SR.,

Defendant and Appellant.

E070627

(Super.Ct.No. RIF1704206)

OPINION

APPEAL from the Superior Court of Riverside County. Samuel Diaz, Jr., Judge. Affirmed in part, reversed in part with directions.

Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Tami Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.

I.

INTRODUCTION

Defendant and appellant, Terrance Tyron Jefferson, was convicted of one count of felony second-degree burglary of a vehicle. (Pen. Code, § 459.) In a bifurcated proceeding prior to trial, defendant admitted to having suffered one prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and two prior prison terms (§ 667.5, subd. (b)). Defendant was sentenced to the low term of 16 months, doubled to 32 months for the second-degree burglary, plus one year for each of the two prison priors for a total of four years eight months in state prison with 340 days’ credit for time served. On appeal, defendant claims the trial court erred in (1) refusing to strike under section 1385 his 2004 strike conviction for first-degree burglary conviction, and (2) declining to reduce his current conviction from a felony to a misdemeanor under section 17, subdivision (b)(5).

In an opinion issued in September 2019, we rejected defendant’s contentions and affirmed the judgment. After our opinion issued, the Supreme Court vacated our opinion and transferred the cause back to us to consider the effect of recently enacted Senate Bill No. 136 (SB 136) on defendant’s sentence and judgment. We received supplemental briefing from the parties, who agree that defendant’s two one-year prison prior enhancements should be stricken under SB 136, but disagree as to whether we should strike the enhancements or remand the matter for resentencing. We agree with the parties that defendant’s two one-year enhancements should be stricken under SB 136. We also agree with the People that the matter should be remanded to the trial court for resentencing. We affirm the judgment in all other respects.

II.

FACTUAL AND PROCEDURAL BACKGROUND

Mario Mejia, a Time Warner technician, parked his work van in front of his home on the night of December 2, 2014. The next morning, Mejia found his van with its side door open, a window broken, glass on the driver’s seat, and blood on the driver’s seat and center console. Mejia noticed that several items, including his keys, a sweater, and other personal effects, were missing. Mejia also noticed that the van’s GPS unit had been damaged. The blood found in the van was identified as defendant’s blood. Defendant was subsequently arrested. At the time of his arrest, defendant was on parole for a separate offense, and in custody for another burglary offense.

On April 25, 2018, an amended information was filed charging defendant with one count of felony burglary. (§ 459.) Defendant also was charged with three prison priors for: (1) unlawful sex with a minor (§ 261.5); (2) receiving stolen property (§ 496, subd. (a)); and (3) second-degree burglary (§ 459).

On April 26, 2018, a jury found defendant guilty of felony second-degree burglary. On May 14, 2018, defendant admitted to the two prior convictions for unlawful sex with a minor (§ 261.5), and for receiving stolen property (§ 496, subd. (a)). The trial court then reduced defendant’s prior conviction for second-degree burglary (§ 459) from a felony to a misdemeanor.

Defendant’s sentencing hearing was held on May 24, 2018. At the beginning of the hearing, defense counsel made an oral motion under section 17, subdivision (b)(5), to reduce his current conviction from a felony to a misdemeanor. The trial court denied the motion, finding that defendant’s conduct was felonious “under the totality of the circumstances.”

The trial court then addressed defendant’s Romero motion under section 1385. The court informed the parties it had “read and considered” defendant’s probation report, as well as defendant’s Romero motion and the People’s sentencing recommendation. The trial court noted defendant’s “extensive criminal history” laid out in the probation officer’s report, and observed that defendant “ha[d] not been law-abiding,” and had been “in custody on other matters” since committing his current offense. The trial court therefore denied defendant’s Romero motion to strike his prior conviction.

The trial court imposed the low term of two years eight months for defendant’s burglary conviction. The court then imposed an additional one year for two of the three prior prison terms for a total sentence of four years eight months. Defendant timely appealed.

III.

DISCUSSION

A. Denial of Defendant’s Motion to Strike Prior Conviction
B.
Defendant contends the trial court erred by denying his Romero motion to strike his 2004 strike conviction for first-degree burglary. We disagree.

1. Legal Principles and Standard of Review
2.
“As the Supreme Court explained in Romero, section 1385 permits a trial court to strike an allegation of a prior felony conviction in cases brought under the “Three Strikes” law, in the interests of justice.” (People v. Thimmes (2006) 138 Cal.App.4th 1207, 1213, citing Romero, supra, 13 Cal.4th at pp. 529-530.) “[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation . . . 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.” (People v. Williams (1998) 17 Cal.4th 148, 161.)

The purpose of the Three Strikes law is “to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of one or more serious or violent felony offenses.” (§ 667, subd. (b).) 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 trial court determines the defendant falls outside the scheme’s spirit. (People v. Strong (2001) 87 Cal.App.4th 328, 337-338.) “[E]xtraordinary must the circumstance be 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.” (Id. at p. 338.) Thus, the Three Strikes law “not only establishes a sentencing norm, it carefully circumscribes the trial court’s power to depart from this norm.” (People v. Carmony (2004) 33 Cal.4th 367, 378.)

“The trial court is not required to state reasons for declining to exercise its discretion under section 1385.” (People v. Gillispie (1997) 60 Cal.App.4th 429, 433.) The trial court “is presumed to have considered all of the relevant factors in the absence of an affirmative record to the contrary.” (People v. Myers (1999) 69 Cal.App.4th 305, 310.)

A trial court’s decision not to strike a prior conviction allegation is reviewed under the abuse of discretion standard. (People v. Carmony, supra, 33 Cal.4th at p. 371.) “This standard is deferential . . . it asks in substance whether the ruling in question ‘falls outside the bounds of reason’ under the applicable law and the relevant facts.” (People v. Williams, supra, 17 Cal.4th at p. 162.) “Under that standard an appellant who seeks reversal must demonstrate that the trial court’s decision was irrational or arbitrary. It is not enough to show that reasonable people might disagree about whether to strike one or more of his prior convictions. Where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court’s ruling, even if we might have ruled differently in the first instance.” (People v. Myers, supra, 69 Cal.App.4th at pp. 309-310.)

3. Analysis
4.
Contrary to defendant’s assertion, nothing in the record suggests defendant falls outside the spirit of the Three Strikes law. When denying the Romero motion, the trial court explained that it had reviewed the probation report, which summarized the nature of defendant’s present offenses and his extensive criminal history.

As a juvenile, defendant was convicted of one count of burglary (§ 459), one count of theft by false pretenses (§ 484), two counts of possessing marijuana for sale (Health & Saf. Code, § 11357), and one count of violating a court order. (Welf. & Inst. Code, §§ 602, 777.)

As an adult, defendant has 21 convictions, nine of which are felonies. Between 2003 and 2017, defendant was convicted for the following offenses: two counts of possession of cannabis for sale (Health & Saf. Code, §§ 11357, 11359); one count of resisting arrest (Pen. Code, § 148, subd. (a)(1)); four counts of burglary (Pen. Code, § 459); one count of shoplifting (Pen. Code, § 459.5); five counts of possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)); one count of possession of drug paraphernalia (Health and Saf. Code, § 11364); two counts of receiving stolen property (Pen. Code, § 496, subd. (a)); one count of unlawful sexual intercourse with a minor (Pen. Code, § 261.5); one count of purchasing a stolen vehicle (Pen. Code, § 496d, subd. (a)); one count of petty theft (Pen. Code, § 488); one count of being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)); and one count of taking or driving a vehicle with a prior conviction for the same offense (Pen. Code, § 666.5, subd. (a)). Eight of these convictions occurred after defendant committed his current offense.

The report further outlined defendant’s unsuccessful efforts on probation and parole, and noted that, at the time of his current offense, defendant was on parole for a prior offense and in custody for another burglary offense. The trial court specifically acknowledged defendant’s “extensive criminal history,” including that he had been “in custody on other matters” since committing the current offense.

Given the trial court’s statements that it had reviewed the probation report and defendant’s Romero motion, we cannot conclude that the trial court erred in denying defendant’s motion or that it failed to consider the Williams factors in denying the motion. Indeed, the record affirmatively shows the trial court considered the nature of the current offense, defendant’s prior serious and/or violent felony convictions, his criminal history, and his “background, character, and prospects,” all of which was outlined in detail in the probation officer’s report. (People v. Williams, supra, 17 Cal.4th at p. 161.)

Defendant nonetheless contends the trial court abused its discretion in refusing to strike his prior conviction because that conviction was remote, none of his offenses were violent, and the majority of his convictions were misdemeanors. Courts have rejected similar arguments where the defendant did not live a crime-free life between his or her strike prior and current crimes. (E.g., People v. Gaston (1999) 74 Cal.App.4th 310, 321 [holding trial court abused its discretion in striking 17-year-old prior where the defendant’s “continuous crime spree . . . substantially spanned his entire adult life”]; People v. Barrera (1999) 70 Cal.App.4th 541, 554-555 [holding trial court did not abuse its discretion by refusing to dismiss 14-year-old strike justified where the defendant’s criminal activity “‘continued unabated’” upon his release from prison].) A remote prior may be stricken if the record establishes “a crime-free cleansing period of rehabilitation after a defendant has had the opportunity to reflect upon the error of his or her ways.” (People v. Humphrey (1997) 58 Cal.App.4th 809, 813.)

That is not the case here. As the probation officer put it, defendant “has dedicated his life to crime since the young age of 16.” His criminal record since 2001 shows he is “the kind of revolving-door career criminal for whom the Three Strikes law was devised.” (People v. Gaston, supra, 74 Cal.App.4th at p. 320.) On this record, the trial court could rationally conclude defendant was “a career criminal” with a “long and continuous criminal record” who should not “be deemed to fall outside the spirt of” the Three Strikes law. (People v. Strong, supra, 87 Cal.App.4th at p. 338.) We therefore cannot find an abuse of discretion in the denial of defendant’s Romero motion.

C. Failure to Reduce Offense to a Misdemeanor
D.
Defendant contends the trial court abused its discretion by not reducing his felony burglary conviction from to a misdemeanor under section 17, subdivision (b)(5). We reject this contention as well.

“[S]econd degree burglary is a ‘wobbler,’ and may be punished as either a misdemeanor or a felony.” (People v. Mooney (2011) 194 Cal.App.4th 850, 856) A trial court’s reduction of a wobbler offense to a misdemeanor under subdivision (b) of section 17 is an act of leniency to which a convicted defendant is not entitled as a matter of right. (People v. Tran (2015) 242 Cal.App.4th 877, 892.) Because a court has broad discretion when deciding to reduce a wobbler offense, the court’s decision will not be disturbed on appeal unless it is clearly shown to be irrational or arbitrary. (Id. at p. 887.) “‘Absent such a showing, we presume the court acted to achieve legitimate sentencing objectives.’” (Ibid.) A court exercises its discretion to impose misdemeanor punishment for a wobbler when rehabilitation does not require or would not be served by incarceration. (People v. Park (2013) 56 Cal.4th 782, 790.)

Here, the record establishes the trial court acted within its discretion in denying defendant’s motion to reduce his felony conviction to a misdemeanor. The probation officer considered defendant’s current offense to be “calculated and planned” given that “it was not [defendant’s] first or second burglary” and he seemingly waited until nighttime “to burglarize the van and go undetected.” The probation officer also noted defendant’s extensive criminal history dating back to 2003, including four burglaries and eight offenses he committed after his current offense. The report also explained defendant was on parole and in custody at the time of his arrest for his current offense. According to the probation officer, defendant had “been given several opportunities to succeed through probation, parole, and mandatory supervision,” but had “failed to use” them.

The probation officer therefore reported five aggravating factors: (1) the manner in which defendant committed the burglary indicated planning, sophistication, or professionalism; (2) the burglary involved an attempted or actual taking or damage of great monetary value; (3) defendant’s numerous convictions; (4) defendant’s prior prison terms; and (5) defendant’s unsatisfactory performance on probation and parole. The probation officer did not find any mitigating factors. In light of defendant’s apparent “unwillingness to change and [his] continuous threat to the community,” the probation officer recommended defendant be sentenced to prison instead of probation.

Given these findings and recommendations, which the trial court considered, we find nothing irrational or arbitrary about the court’s decision to deny defendant’s motion under section 17, subdivision (b)(5). We therefore conclude the trial court did not abuse its discretion in not reducing defendant’s felony second-degree burglary conviction to a misdemeanor.

E. S.B. 136
F.
After we issued our September 2019 opinion affirming the judgment, the parties filed supplemental briefs on the applicability of recently enacted SB 136. SB 136 amended section 667.5, subdivision (b), which now limits one-year prior prison term enhancements to convictions for certain sexually violent offenses. (See People v. Lopez (2019) 42 Cal.App.5th 337, 339.) SB 136 became effective on January 1, 2020. (People v. Jennings (2019) 42 Cal.App.5th 664, 667.)

Defendant contends—and the People agree—that his two one-year terms for his prison priors should be stricken under SB 136. We agree with the parties.

The trial court imposed two one-year enhancements for defendant’s two prior prison terms. However, none of defendant’s prior prison terms were for sexually violent offenses. Accordingly, defendant is entitled to have his two one-year enhancements for his prison priors stricken under SB 136 so long as it applies retroactively.

We agree with the parties that SB 136 applies retroactively to defendant’s case. Under In re Estrada (1965) 63 Cal.2d 740, unless the Legislature provides otherwise, ameliorative legislation applies retroactively to all judgments that are not final when the legislation goes into effect. Defendant’s judgment was not final on January 1, 2020, when SB 136 went into effect. (See People v. Vieira (2005) 35 Cal.4th 264, 306.) Accordingly, defendant is entitled to have his two one-year prison prior enhancements stricken under SB 136. (See People v. Jennings, supra, 42 Cal.App.5th at p. 667 [holding S.B. 136 applies retroactively].)

Defendant urges us to strike the enhancements, whereas the People argue the case should be remanded so the trial court can resentence defendant. We agree with the People. Because the trial court did not impose the maximum possible sentence, the trial court could reassess defendant’s total sentence on remand based on the prison prior enhancements being stricken. (See People v. Lopez, supra, 42 Cal.App.5th at p. 342 [“Because the trial court imposed the maximum possible sentence, there is no need for the court to again exercise its sentencing discretion” due to SB 136]; People v. Buycks (2018) 5 Cal.5th 857, 896 fn.15 [“Because the resentencing court had imposed the maximum possible sentence, regardless of whether the two-year on-bail enhancement was stricken, there is no need to remand the matter to the trial court to exercise its sentencing discretion anew.”].) We therefore conclude remand is appropriate for the trial court to resentence defendant in light of SB 136. (See People v. Jennings, supra, 42 Cal.App.5th at p. 667 [remanding for resentencing in part because defendant was entitled to have enhancements stricken under S.B. 136].)

IV.

DISPOSITION

The judgment with respect to the convictions is affirmed. The judgment with respect to the sentence is reversed, subject to the following directions. On remand, the trial court shall strike the two one-year enhancements imposed for defendant’s prison priors as improper under SB 136. The trial court is directed to resentence defendant accordingly. After resentencing defendant, the trial court is directed to issue an amended abstract of judgment and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

J.

We concur:

McKINSTER

Acting P. J.

SLOUGH

J.