Filed 1/21/20 P. v. McKinney CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

WILLIE LEWIS MCKINNEY,

Defendant and Appellant.

B291300

(Los Angeles County

Super. Ct. No. KA116759)

APPEAL from a judgment of the Superior Court of Los Angeles County, Thomas C. Falls, Judge. Affirmed in part; reversed in part and remanded for resentencing.

Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and Heidi Salerno, Deputy Attorneys General, for Plaintiff and Respondent.

_______________________

Willie Lewis McKinney appeals from a judgment of conviction of a transient’s failure to register as a sex offender upon his release from custody (Pen. Code, § 290.011, subd. (a)) and failure to update his sex offender registration annually within five days of his birthday (§ 290.012, subd. (a)). On appeal, McKinney only challenges his 11-year sentence, arguing the trial court abused its discretion in denying his motion to strike his prior conviction of a serious or violent felony pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).

In supplemental briefing, McKinney also contends that, pursuant to Senate Bill No. 136 (2019-2020 Reg. Sess.), we should strike four of the five 1-year sentence enhancements the trial court imposed based on McKinney having served prison terms for prior felony convictions within the meaning of section 667.5, subdivision (b). Senate Bill No. 136 eliminated the one-year enhancements for prior prison terms, effective January 1, 2020, except for those based on conviction of sexually violent offenses. The People concede Senate Bill No. 136 applies retroactively to McKinney, but they argue we should remand for the trial court to exercise its discretion in resentencing McKinney because he was not sentenced to the maximum term. Upon our review of McKinney’s record, he has not been convicted of a sexually violent offense. We affirm the trial court’s denial of McKinney’s Romero motion but remand for the trial court to strike all five 1-year sentence enhancements and resentence McKinney.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Evidence at Trial
B.
The parties stipulated McKinney had suffered a prior conviction that required lifetime registration as a sex offender. On April 28, 2015, while McKinney was in state prison, correctional counselor Robert Parr provided to McKinney a “notice of sex offender registration requirement” that listed McKinney’s name and stated his date of birth as September 7, 1954. The form also stated that upon his release, McKinney would be residing by himself as a “transient to Pomona, California.” The notice stated McKinney had to register in person with the local law enforcement agency within five working days of his release from custody and every year within five working days of (before or after) his birthday. After Parr and McKinney reviewed the registration requirements in the notice, McKinney initialed the paragraphs containing the requirements, indicating he understood them, and McKinney signed and dated the notice at the bottom of the document. McKinney also initialed the paragraph that stated, “My responsibility to register as a sex offender in California is a lifetime requirement except as provided by Penal Code section 290.005 and 290.5 or by court order.” Parr believed McKinney could read at a ninth grade reading level based on McKinney’s reading of the form back to Parr and McKinney’s articulation of what the form meant.

McKinney was released from state prison on August 13, 2017. He was required to report the next working day (August 14) to his parole agent, Willie Mack, who was assigned to the sex offender unit. Mack planned to install a GPS monitor on McKinney’s left ankle. McKinney failed to report that day or within five working days of his release. On August 17, at Mack’s request, the court issued a warrant for McKinney’s arrest. McKinney also failed to report within five working days of his September 7, 2017 birthday. On October 20, 2017 McKinney was arrested in Pomona. The last time McKinney had registered was September 15, 2016, as a transient in Pomona.

C. The Verdict and Priors Trial
D.
The jury convicted McKinney of the charged offenses of transient’s failure to register as a sex offender upon release from custody (§ 290.011, subd. (a)) and failure to update registration annually (§ 290.012, subd. (a)).

McKinney waived his right to a jury trial on the allegations he suffered prior convictions. McKinney admitted he had two prior convictions of failure to register as a sex offender (in 2013 and 2016), which made the current offenses felonies. After a court trial, the court found true the allegation McKinney suffered a 1971 conviction of manslaughter, a violent or serious felony under the three strikes law (§§ 667, subds. (b)-(j), 1170.12), and seven prior felony convictions for which he served separate prison terms within the meaning of section 667.5, subdivision (b).

E. McKinney’s Romero Motion and Sentencing
F.
McKinney’s attorney filed a Romero motion to dismiss McKinney’s prior strike conviction, arguing McKinney faced a long sentence even without the strike, McKinney was 63 years old and homeless at the time of the offenses, and there was no victim or monetary loss. The People opposed the motion, arguing McKinney had multiple prior convictions of serious offenses over the prior 37-year period, including sexual battery and burglary, seven prison priors, and two convictions of failure to register within the four-year period prior to the current offenses. Further, McKinney had not remained free from custody for any significant period of time during the 37-year period.

At the hearing on McKinney’s motion, the trial court stated it had reviewed the pleadings and the probation report. The court pointed out Romero and its progeny set forth 12 factors for the court to consider. Further, McKinney’s 1971 strike for manslaughter occurred “a long time ago.” The court then reviewed McKinney’s criminal record, starting when McKinney was 11 years old. The court observed McKinney had not been free of custody or arrest for longer than six years in the more than 50 years following his initial offense. During that period, McKinney was repeatedly returned to the California Youth Authority (CYA) as a juvenile until he was released at 16 and committed manslaughter. McKinney was returned to the CYA, then escaped in 1972. When he was 18, McKinney was arrested for second degree burglary, followed by another burglary, each time being returned to the CYA. When he was 24, McKinney was convicted of grand theft automobile. After he was released from custody, McKinney was convicted of sexual battery when he was 31, and he was sentenced to three years in state prison. As a result of this conviction, McKinney was required to register as a sex offender for life.

Over the next 20 years, McKinney continued to commit crimes and violate his probation and parole, including suffering convictions of corporal injury on a spouse, second degree burglary, possession of narcotics, and a 2006 failure to register as a sex offender. After McKinney was sentenced to prison for failure to register, then released, he suffered multiple subsequent convictions and parole violations, leading up to his 2013 conviction for failure to register. After he was released in 2013, McKinney again violated his parole, then in 2016 suffered another conviction of corporal injury to spouse. In 2016 McKinney was again convicted of failure to register and sentenced to prison. His failure to register upon release from that prison sentence formed the basis of the current charges.

The trial court denied McKinney’s motion based on this lengthy record and lack of mitigating circumstances. The court stated it had considered “the individualized considerations of [McKinney], his age, family status, whether his crimes resulted in a state prison sentence, efforts to obtain rehabilitation, the prospects of the defendant, [and whether] he conducts his life in a way that suggests a law-abiding future . . . .” In denying McKinney’s motion, the court explained, “There is no indication that the defendant has made any efforts to rehabilitate himself, and though I fully concede and I acknowledge the arguments of [defense counsel] with regard to the age of the prior conviction, as I said, 10 years ago, the defendant had a period of time where it looked like maybe he was turning things around. Since then, it appears he spent more time in prison than out, and he cannot follow terms and conditions of parole or probation. Every single case I have seen, he has violated those terms, and he has gone back for further custody time. . . . For those reasons, I have considered the facts set forth in Romero, and I do not find that the defendant falls within the category of persons in which the strikes should be struck. I fully acknowledge that I understand my discretion, that I have the discretion to do so, and I am choosing not to exercise my discretion. The strike will stand.”

The trial court imposed the upper term of three years on count 1 for transient’s failure to register, doubled under the three strikes law, plus five 1-year terms for five of the prison priors, for an aggregate sentence of 11 years in state prison. Over the People’s objection the court imposed a concurrent sentence of six years on count 2 (the upper term of three years doubled). The court struck two of the prison priors (for the prior failures to register).

DISCUSSION

A. The Trial Court Did Not Abuse Its Discretion in Denying McKinney’s Motion To Strike His 1971 Conviction
B.
1. Governing law and standard of review
2.
A trial court has discretion under section 1385, subdivision (a), to dismiss a strike conviction allegation for purposes of sentencing in furtherance of justice. (Romero, supra, 13 Cal.4th at p. 530; People v. Williams (1998) 17 Cal.4th 148, 158 (Williams).) “[A] court’s failure to dismiss or strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard.” (People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony); accord, In re Large (2007) 41 Cal.4th 538, 550 [petitioner failed to rebut “‘strong presumption’ [citation] that the trial judge properly exercised his discretion in refusing to strike a prior conviction allegation”]; People v. Solis (2015) 232 Cal.App.4th 1108, 1124 [trial court did not abuse its discretion in refusing to dismiss 30-year-old strike convictions for assault with a deadly weapon and first degree burglary]; People v. Leavel (2012) 203 Cal.App.4th 823, 837 [trial court did not abuse its discretion in denying motion to strike 20- and five-year-old strike convictions].)

A trial court does not abuse its discretion unless its ruling “is so irrational or arbitrary that no reasonable person could agree with it.” (Carmony, supra, 33 Cal.4th at p. 377; accord, People v. Leavel, supra, 203 Cal.App.4th at p. 830.) The party challenging the sentence has the burden to show the sentence was irrational or arbitrary. (Carmony, at p. 376; Leavel, at p. 830.)

“‘“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.] . . . [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.’”’” (Carmony, supra, 33 Cal.4th at pp. 376-377.)

In determining whether to strike a prior conviction, the trial court “must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the [three strikes] scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (Williams, supra, 17 Cal.4th at p. 161; accord, People v. Johnson (2015) 61 Cal.4th 674, 689; People v. Solis, supra, 232 Cal.App.4th at p. 1124.)

Because the three strikes “law creates a strong presumption that any sentence that conforms to [the law’s] sentencing norms is both rational and proper,” there are very limited circumstances under which the appellate court will find an abuse of discretion. (Carmony, supra, 33 Cal.4th at p. 378.) These circumstances include where the trial court is unaware of its discretion to strike a prior conviction, it considers impermissible factors, or, under the circumstances, imposition of a three strikes sentence would be irrational or arbitrary. (Ibid.; People v. Leavel, supra, 203 Cal.App.4th at p. 837.) Only under “extraordinary” circumstances does the trial court’s failure to strike a prior conviction constitute an abuse of discretion. (Carmony, at p. 378; accord, People v. Finney (2012) 204 Cal.App.4th 1034, 1040 [“Once a career criminal commits the requisite number of strikes, the circumstance must be ‘extraordinary’ before he can be deemed to fall outside the spirit of the three strikes law.”].)

Even where a prior strike conviction is remote in time, a trial court does not abuse its discretion in refusing to strike the conviction where the defendant continues to reoffend. (Carmony, supra, 33 Cal.4th at pp. 378-379 [trial court did not abuse its discretion in refusing to strike three remote prior strike convictions, including 16-year-old conviction, where the defendant was a “‘“revolving door” career criminal’” and had not addressed his substance abuse problem]; see People v. Pearson (2008) 165 Cal.App.4th 740, 749 [trial court did not abuse its discretion in refusing to strike three prior robbery convictions suffered up to 24 years before the current offense, noting “the defendant has led a continuous life of crime”]; People v. Philpot (2004) 122 Cal.App.4th 893, 906 [trial court did not abuse its discretion in denying a motion to strike a remote prior strike conviction where the “defendant consistently committed criminal offenses for the past 20 years”]; People v. Strong (2001) 87 Cal.App.4th 328, 345 [reversing trial court’s grant of motion to dismiss strike conviction where the defendant had a 22-year criminal record and was “a career criminal with a long and continuous criminal history”].)

3. The trial court’s denial of McKinney’s motion to strike his 1971 conviction was not irrational or arbitrary
4.
McKinney contends the trial court abused its discretion because it failed to consider the circumstances surrounding the current offense, McKinney’s personal traits (including that he was 63 years old and homeless), the danger McKinney presented to society; and the significant sentence McKinney could have served without imposing a three strikes sentence. The court did not abuse its discretion.

The trial court was aware of its sentencing discretion, noting Romero and subsequent cases have set forth 12 factors for the trial court to consider. In denying the motion, the court explained, “I have considered the facts set forth in Romero, and I do not find that the defendant falls within the category of persons in which the strikes should be struck. I fully acknowledge that I understand my discretion, that I have the discretion to do so, and I am choosing not to exercise my discretion.”

While McKinney is correct the current offenses of failure to register are not serious or violent offenses, this was only one of the factors the trial court could properly consider in exercising its discretion whether to strike McKinney’s prior attempted robbery conviction. (See, e.g., Carmony, supra, 33 Cal.4th at pp. 376-377 [affirming trial court’s denial of motion to dismiss prior strike conviction where the underlying conviction was for failure to register as a sex offender]; Williams, supra, 17 Cal.4th at pp. 162-163 [affirming denial of motion to dismiss prior strike conviction where the underlying conviction was for felony driving under the influence of a controlled substance]; People v. Strong, supra, 87 Cal.App.4th at pp. 331, 346 [reversing grant of motion to dismiss prior strike conviction where the underlying conviction was for the sale of a substance falsely represented to be cocaine].)

The trial court highlighted McKinney’s long and continuous criminal record in concluding McKinney did not fall within the category of persons falling outside the spirit of the three strikes law. Specifically, McKinney had not been free of custody or arrest for longer than six years in the prior 50 years, dating back to McKinney’s first arrest when he was 11. Since that time, McKinney suffered multiple convictions of sexual battery, burglary, grand theft automobile, possession of narcotics, corporal injury to spouse, and repeated parole and probation violations. Further, following his conviction of sexual battery, McKinney was convicted of failure to register as a sex offender in 2006, 2013, and 2016. Thus, although McKinney’s manslaughter conviction was over 35 years old, McKinney was “‘an exemplar of the “revolving door” career criminal to whom the Three Strikes law is addressed.’” (Carmony, supra, 33 Cal.4th at p. 379; see People v. Pearson, supra, 165 Cal.App.4th at p. 749 [remoteness of the prior conviction did not support motion to strike where “the defendant has led a continuous life of crime”].)

McKinney argues the trial court should have considered that he was a 63-year-old homeless man who was suffering from depression and a potential drug problem (in light of his prior convictions of drug offenses). But McKinney did not present evidence in the trial court to show his convictions were related to his mental health or a drug addiction. Further, to the extent McKinney had mental health or drug addiction issues, the trial court found the record did not reflect any efforts by McKinney “to rehabilitate himself.” As the Supreme Court found in Carmony, in affirming the trial court’s denial of the motion to dismiss the prior strikes, the defendant there “had also done little to address his substance abuse problems.” (Carmony, supra, 33 Cal.4th at pp. 377, 378; see also People v. Leavel, supra, 203 Cal.App.4th at p. 837 [the defendant failed to cite evidence showing “treatment for his mental health and substance abuse problems that he claims led to the crimes”].)

McKinney also points out the trial court could have imposed the maximum nonstrike sentence of nine years eight months instead of the 11-year second strike sentence. Although the court could have imposed a lesser sentence, in light of McKinney’s “background, character, and prospects,” the court’s denial of McKinney’s motion to strike his 35-year-old manslaughter conviction was not “irrational or arbitrary,” and the trial court did not abuse its discretion in denying McKinney’s motion. (Carmony, supra, 33 Cal.4th at p. 373; People v. Leavel, supra, 203 Cal.App.4th at p. 829.)

C. Remand for Resentencing Is Necessary Pursuant to Section 667.5, Subdivision (b)
D.
McKinney contends, the People concede, and we agree the prison prior enhancements imposed under section 667.5, subdivision (b), must be stricken. We also agree with the People that remand is appropriate for the trial court to exercise its discretion in resentencing McKinney.

Effective January 1, 2020, Senate Bill No. 136 (2019-2020 Reg. Sess.) amended section 667.5, subdivision (b), to provide for a one-year prior prison term sentence enhancement only for sexually violent offenses, as defined in Welfare and Institutions Code section 6600, subdivision (b). (People v. Jennings (2019) 42 Cal.App.5th 664, 681; People v. Lopez (2019) 42 Cal.App.5th 337, 340-341.) Senate Bill No. 136 applies retroactively to McKinney because McKinney’s sentence was not final at the time the new law became effective on January 1, 2020. (See Jennings, at p. 682 [“Senate Bill No. 136’s amendment to section 667.5, subdivision (b) applies retroactively to all cases not yet final as of its January 1, 2020, effective date.”]; Lopez, at pp. 341-342 [applying Sen. Bill No. 136 retroactively]; see In re Estrada (1965) 63 Cal.2d 740, 744-745 [Absent contrary legislative intent, “[i]f the amendatory statute lessening punishment becomes effective prior to the date the judgment of conviction becomes final then, in our opinion, it, and not the old statute in effect when the prohibited act was committed, applies.”].)

Because the trial court did not sentence McKinney to the maximum sentence, instead sentencing him to concurrent sentences on counts 1 and 2, we remand to allow the trial court to exercise its discretion in resentencing McKinney. (Cf. 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.”]; People v. Lopez, supra, 42 Cal.App.5th at p. 342 [striking the prison priors but not remanding for resentencing where trial court imposed maximum sentence].)

DISPOSITION

The convictions are affirmed. We reverse the sentence and remand with instructions for the trial court to strike the five 1-year prison prior sentence enhancements and to resentence McKinney.

FEUER, J.

We concur:

PERLUSS, P. J.

ZELON, J.