Opinion
F080908
07-16-2021
THE PEOPLE, Plaintiff and Respondent, v. DION EDWARD LOFTIS, Defendant and Appellant.
Lindsay Sweet and Michelle Livecchi-Raufi, under appointments by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Paul E. O'Connor, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F18908520. Jonathan M. Skiles, Judge.
Lindsay Sweet and Michelle Livecchi-Raufi, under appointments by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Paul E. O'Connor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT[*]
Defendant Dion Edward Loftis pled no contest to multiple felony counts, including two robbery counts, arising out of a single incident. He received a total term of 18 years in prison, composed of a 16-year term on one of the robbery counts and a consecutive two-year term on the other. The terms on the other counts were stayed.
He contends on appeal (1) the trial court abused its discretion when it refused to dismiss his prior strike conviction pursuant to Penal Code section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), and (2) defense counsel rendered ineffective assistance by not objecting to the court's failure to state reasons for imposing consecutive sentences for the two robbery counts.
Undesignated statutory references are to the Penal Code.
We conclude the trial court did not abuse its discretion in refusing to dismiss Loftis's prior strike conviction for sentencing purposes, and conclude counsel was not ineffective because the trial court did not have discretion to impose concurrent sentences on the two robbery convictions. We therefore affirm the judgment.
STATEMENT OF THE CASE
On March 21, 2019, the Fresno County District Attorney filed a consolidated complaint charging Loftis and a co-defendant with multiple counts. As to Loftis, the complaint charged two counts of second-degree robbery (§ 211; counts 1 & 2), one count of grand theft of personal property (§ 487, subd. (a); count 3), possession of a firearm by a felon (§ 29800, subd. (a)(1); count 4), and unlawful possession of ammunition (§ 30305, subd. (a)(1); count 5). As to the robbery counts, the complaint alleged that Loftis personally used a firearm within the meaning of section 12022.53, subdivision (b), and that he intentionally discharged a firearm within the meaning of section 12022.53, subdivision (c). The complaint further alleged Loftis had suffered a prior felony conviction within the meaning of the “Three Strikes” law (§§ 667, subds. (b)-(i), § 1170.12, subds. (a)-(d)) and a prior serious felony conviction (§ 667, subd. (a)), and had served a prior prison term (§ 667.5, subd. (b)).
Loftis pled no contest to all counts and admitted all allegations. The court indicated that it would strike the section 12022.53, subdivision (c), firearm enhancement and that Loftis would receive a sentence of no more than 19 years four months.
At sentencing on January 29, 2020, the court denied Loftis's motion to dismiss his prior strike offense. The court imposed a total term of 18 years in prison. On count 1, the court imposed the midterm of three years, doubled to six years because of the prior strike conviction, plus a consecutive 10 years for the section 12022.53, subdivision (b), firearm enhancement, for a total of 16 years on that count. The court struck the remaining enhancements as to count 1.
Effective January 1, 2020, section 667.5 was amended in a way that made the prior prison term enhancements inapplicable to this case. The trial court acknowledged it was aware of this change in the law.
On count 2, the court imposed a consecutive term of one year (one-third the midterm), doubled to two years because of the prior strike conviction. The court struck the remaining enhancements as to count 2.
The sentences on counts 3, 4, and 5 were stayed under section 654.
FACTS
The parties stipulated to the police report as a factual basis for Loftis's plea (§ 1192.5), and we therefore draw our statement of facts from that report.
On December 6, 2018, two men, S.A. and D.M., were riding an ATV, distributing payroll checks to farm workers working in the fields. S.A. and D.M. also were carrying several thousand dollars cash.
When S.A. and D.M. exited a row of vines, they saw two men wearing masks, later identified as Loftis and Jorge Pacheco, standing there. At that time, S.A. and D.M. had approximately $5,000 in cash and an unknown number of payroll checks still inside a satchel.
S.A. thought the men were wearing masks because of the cold weather but noticed as they got closer Loftis was holding a handgun. Loftis approached S.A., placed the gun to his temple, and yelled in English, “Give me your money or you're going to die!” When S.A. did not immediately comply, Pacheco repeated what Loftis said in Spanish.
D.M. handed his wallet to Loftis. Loftis then fired the gun into the air and yelled at S.A. to give him his money. S.A. handed Loftis the satchel with the cash and checks inside and gave Loftis $400 cash from his pocket. Loftis threw S.A. to the ground.
Loftis began to run away but tripped and fell and dropped his gun. S.A. ran and picked the gun up as Loftis and Pacheco were running toward a Dodge Durango parked nearby. S.A. believed the robbers could have had another gun and might have attempted to kill him and D.M., so S.A. fired three or four rounds at Loftis, aiming at his lower body. Loftis was hit in the leg and fell to the ground. Pacheco got into the waiting Durango and drove away. S.A. went over to Loftis, removed his mask, and told his coworkers to call police.
Loftis told the responding officers, “They put me up to it. It was Marco Perez and Jorge Pacheco.” He said Perez and Pacheco drove away in the Durango and left him there. He stated that the robbery was Pacheco's idea and that he felt pressured into participating. He further advised that Perez worked with the people at that vineyard.
DISCUSSION
I. Prior strike conviction
Loftis contends the trial court abused its discretion in denying his Romero motion. We disagree for the following reasons.
In the furtherance of justice, a trial court may strike or dismiss a prior conviction allegation. (§ 1385, subd. (a); Romero, supra, 13 Cal.4th at p. 504.) A court's ruling on a Romero motion is reviewed under the deferential abuse of discretion standard; that is, the defendant must show the sentencing decision was irrational or arbitrary. (People v. Carmony (2004) 33 Cal.4th 367, 375, 377 (Carmony).) It is not enough to show reasonable people might disagree about whether to strike a prior conviction. (Id. at p. 378.) The Three Strikes law “not only establishes a sentencing norm, it carefully circumscribes the trial court's power to depart from this norm.... [T]he law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper.” (Ibid.) Only extraordinary circumstances justify a finding that a career criminal is outside the Three Strikes law. (Ibid.) Therefore, “the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary.” (Ibid.)
When considering whether to strike prior conviction allegations, a court considers “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 (Williams).) The record before us reveals no basis for concluding, as a matter of law, Loftis falls outside the spirit of the Three Strikes law.
Loftis committed the current offenses when he was 21 years old, two days before his twenty-second birthday. He committed his prior strike offense in 2012 when he was 15. That conviction was for assault by means likely to produce great bodily injury (§ 245, subd. (a)(4)), with an enhancement for participating in a criminal street gang (§ 186.22, subd. (b)(1)). He and a codefendant punched a woman of unspecified age with closed fists.
The 2012 case was directly filed in adult criminal court. Loftis pled no contest to the assault and admitted the gang enhancement allegation; he was placed on probation for five years. The court revoked his probation after he was found in possession of a knife at his high school and sentenced him to four years in prison. He paroled in September 2017 and was on parole at the time of the current offenses.
Loftis contends the trial court abused its discretion in denying his Romero motion because he was young when he committed his first strike and because the prior strike was not that serious in nature. He stresses that 15-year-olds under the current law, as recently amended, may not be tried as adults for the crime he was convicted of in 2012. (Welf. & Inst. Code, § 707, subds. (a)(1), (a)(2), and (b)(14).) He also notes the assault offense was eligible to be a strike only because of the accompanying gang enhancement. (§ 1192.7, subd. (c)(28) [defining as a “serious felony” “any felony offense, which would also constitute a felony violation of Section 186.22”].)
However, these factors do not compel a finding that Loftis is outside the scope of the Three Strikes law. While his prior strike was not that violent in nature compared to other strike offenses, he violated his probation by bringing a knife to school. Also, while he was only 15 when he committed his first offense and his two strike offenses were separated by about six years, these factors are counterbalanced by the facts that he had only been out of prison for just over a year and was still on parole when he committed the current offenses.
Furthermore, as the trial court noted, Loftis's criminal conduct has increased in seriousness. Also, although only Loftis was injured during the robberies, the crimes were still severe in nature. Loftis pointed a loaded gun at S.A.'s head and threatened to kill him if he did not comply with Loftis's demands. When S.A. did not immediately comply, Loftis fired a shot in the air, apparently to convey to the victims his serious intent. Under these circumstances, we cannot conclude that this is one of those extraordinary cases where no reasonable people could disagree that the defendant falls outside the spirit of the Three Strikes law. (Carmony, supra, 33 Cal.4th at p. 378.) There was no abuse of discretion in denying Loftis's Romero motion.
II. Concurrent sentencing
Loftis argues his trial counsel was ineffective for not objecting to the trial court's failure to state reasons for imposing consecutive sentences on the two robbery counts. The People counter on two fronts. They first contend the trial court was required to impose consecutive sentences under Proposition 36's amendment to section 1170.12, subdivision (b)(7). They alternatively claim consecutive sentencing was proper because there were multiple victims, and therefore Loftis did not suffer any prejudice from his counsel's failure to object.
We agree with the People the trial court lacked discretion to impose the robbery terms concurrently. We therefore do not need to examine counsel's performance.
A. Analysis
Citing section 667, subdivisions (c)(6) and (c)(7), and section 1170.12, subdivisions (a)(6) and (a)(7), Loftis states that when a defendant has one or more prior serious felony convictions and is currently convicted of more than one felony, the sentences on the current convictions generally must be imposed consecutively. Loftis contends these statutes also provide, however, that consecutive sentences are not mandatory when the current offenses were committed on the same occasion or arose from the same set of operative facts. Loftis is correct, but his analysis stops short. As we will discuss, section 1170.12, subdivision (a)(7), provides that when a defendant has one or more prior serious felony convictions and is currently convicted of more than one serious or violent felony, the court must impose consecutive sentences on those convictions regardless of whether the crimes were committed on the same occasion or arose from the same set of operative facts.
1. Section 667, subdivision (c)
We begin our analysis with a discussion of the relevant provisions of section 667, which is the Legislature's version of the Three Strikes law. Section 1170.12, approved by voters in November 1994, is the initiative version of the Three Strikes law.
Section 667, subdivision (c), provides in relevant part:
“Notwithstanding any other law, if a defendant has been convicted of a felony and it has been pled and proved that the defendant has one or more prior serious or violent felony convictions, as defined in subdivision (d), the court shall adhere to each of the following:... [¶] (6) If there is a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts, the court shall sentence the defendant consecutively on each count.... [¶] (7) If there is a current conviction for more than one serious or violent felony as described in paragraph (6), the court shall impose the sentence for each conviction consecutive to the sentence for any other conviction for which the defendant may be consecutively sentenced in the manner prescribed by law.”
Our Supreme Court in People v. Hendrix (1997) 16 Cal.4th 508 (Hendrix), “considered whether a trial court has discretion to impose concurrent sentences under section 667, subdivision (c)(7), where the defendant is convicted of multiple serious or violent felonies the defendant committed at the same time.” (People v. Henderson (2020) 54 Cal.App.5th 612, 621, review granted Dec. 23, 2020, S265172 (Henderson).) Regarding subdivision (c)(7), the Hendrix Court “held that the phrase ‘ “more than one serious or violent felony as described in paragraph (6)” refer[red] to multiple current convictions for serious or violent felonies “not committed on the same occasion, and not arising from the same set of operative facts.”' [Citation.] Therefore, the Supreme Court held, ‘when a defendant is convicted of two or more serious or violent felonies “not committed on the same occasion, and not arising from the same set of operative facts, ” not only must the court impose the sentences for these serious or violent offenses consecutive to each other, it must also impose these sentences “consecutive to the sentence for any other conviction for which the defendant may be consecutively sentenced in the manner prescribed by law.”' [Citation.] … [T]he Supreme Court explained that, ‘[b]y implication, consecutive sentences are not mandated under subdivision (c)(7) if all of the serious or violent current felony convictions are “committed on the same occasion” or “aris[e] from the same set of operative facts.' ” (Id. at pp. 621-622.)
2. Proposition 36
“Before voters adopted Proposition 36 in 2012, subdivisions (c)(6) and (c)(7) of section 667 were substantially similar to subdivisions (a)(6) and (a)(7) of section 1170.12-the initiative version of the Three Strikes law. (See former § 1170.12, subds. (a)(6)-(a)(7), added by Prop. 184, § 1, as approved by voters Gen. Elec. (Nov. 8, 1994) and amended by Prop. 36, § 4, as approved by voters Gen. Elec. (Nov. 6, 2012); People v. Lawrence, supra, 24 Cal.4th at p. 222, fn. 1, […] [‘ “[t]he relevant portions of the initiative version of the three strikes law adopted by the voters in November 1994 (§ 1170.12), and the March 1994 legislative version (§ 667, subds. (b)-(i), are virtually identical” '].)” (Henderson, supra, 54 Cal.App.5th at p. 622.)
Proposition 36 amended section 1170.12, subdivision (a)(7), as follows: “If there is a current conviction for more than one serious or violent felony as described in subdivision (a)(6) subdivision (b), the court shall impose the sentence for each conviction consecutive to the sentence for any other conviction for which the defendant may be consecutively sentenced in the manner prescribed by law.” (§ 1170.12, subd. (a)(7), as amended by Prop. 36, § 4, as approved by voters Gen. Elec. (Nov. 6, 2012).)
Strikethrough indicates deleted language; bold indicates added language.
“Section 1170.12, subdivision (b), lists the felonies that qualify as serious or violent under the three strikes law. Therefore, because subdivision (a)(7) now refers to serious or violent felony convictions ‘described in subdivision (b),' rather than serious or violent felony convictions ‘described in subdivision (a)(6),' section 1170.12, subdivision (a)(7), ‘now applies not only when [current] serious or violent felonies were not committed on the same occasion or did not arise from the same set of operative facts, but whenever a defendant is convicted of multiple serious or violent felonies.' ([Citations]; see [People v.] Marcus [(2020)] 45 Cal.App.5th [201, ] 212 [(Marcus)], […] [section 1170.12, ‘subdivision (a)(7) no longer applies only to “serious or violent felonies ‘not committed on the same occasion, and not arising from the same set of operative facts,' ”' but to ‘all cases where the current multiple felonies are serious and/or violent-even when those felonies were committed at the same time and involve the same facts'].)” (Henderson, supra, 54 Cal.App.5th at pp. 622-623.)
Thus, the plain language of section 1170.12, subdivision (a)(7), as amended, requires a court to impose consecutive sentences on convictions for multiple serious or violent felonies as described in subdivision (b). Subdivision (b)'s definition of a serious or violent felony includes “[a]ny offense defined in subdivision (c) of Section 667.5 as a violent felony or any offense defined in subdivision (c) of Section 1192.7 as a serious felony in this state.” Section 667.5, subdivision (c)(9) defines “any robbery” as a violent felony, ” and section 1192.7, subdivision (c)(19) defines “robbery or bank robbery” as a “serious felony.” Therefore, the trial court here was required to impose the sentences on Loftis's two robbery convictions consecutive to each other.
In the recent case of Henderson, supra, 54 Cal.App.5th 612, the Second District, Division 7, considered the same question of interpretation of amended section 1170.12, subdivision (a)(7). The Henderson court held: “For convictions for serious or violent felonies only, amended section 1170.12, subdivision (a)(7), separately requires that the court impose the sentences consecutive to the sentences on other crimes (including each other), regardless of whether the court otherwise would have discretion to impose concurrent sentences.” (Id. at p. 626.) We agree with the Henderson court's reasoning and conclusion regarding the meaning of section 1170.12, subdivision (a)(7). As mentioned, our Supreme Court has granted review in Henderson on the same issue of whether the Three Strikes law requires consecutive terms on multiple current violent or serious felony convictions, regardless of whether the offenses occurred on the same occasion or arose from the same set of operative facts. (People v. Henderson (2020) 272 Cal.Rptr.3d 812 (Mem).)
We recognize, as did the Henderson court, that other courts have interpreted amended section 1170.12, subdivision (a)(7) differently. (Marcus, supra, 45 Cal.App.5th 201, People v. Gangl (2019) 42 Cal.App.5th 58 (Gangl); People v. Buchanan (2019) 39 Cal.App.5th 385 (Buchanan); People v. Torres (2018) 23 Cal.App.5th 185 (Torres).) The court in Torres and the majority opinions in the rest held that subdivision (a)(7) requires only that “other crimes must be sentenced consecutively to the serious and/or violent felonies sentenced either consecutively or concurrently under subdivision (a)(6).” (Marcus, supra, 45 Cal.App.5th at p. 212; see Buchanan, supra, 39 Cal.App.5th at pp. 391-392; see Gangl, supra, 42 Cal.App.5th at p. 71; see Torres, supra, 23 Cal.App.5th at p. 201.) “But, according to these opinions, Proposition 36 did not implicitly overrule Hendrix, [supra, 16 Cal.4th 508], and trial courts still have ‘discretion to sentence serious and/or violent felon[y convictions] concurrently' under subdivision (a)(6).” (Henderson, supra, 54 Cal.App.5th at p. 624; citing Marcus, at p. 213, Gangl, at p. 71, and Torres, at p. 201.)
We agree with the Henderson court that “[t]he problem with this interpretation is that it is not what section 1170.12 says. Before the voters adopted Proposition 36, section 1170.12, subdivision (a)(7), applied to multiple serious or violent felony convictions ‘as described by subdivision (a)(6)'-i.e., multiple serious or violent felony convictions not committed on the same occasion and not arising from the same set of facts. Therefore, the Supreme Court's holding in Hendrix, [supra, 16 Cal.4th 508] that courts had discretion to impose concurrent sentences when the defendant committed the felonies on the same occasion or the felonies arose from the same set of facts was consistent with subdivisions (c)(6) and (c)(7) of section 667 and subdivisions (a)(6) and (a)(7) of section 1170.12. But because the voters amended subdivision (a)(7) to refer to felonies described in subdivision (b)-i.e., serious and violent felonies-rather than felonies described in subdivision (a)(6), subdivision (a)(7) now requires the court to impose consecutive sentences on convictions for any and all serious or violent felonies. (See People v. Santa Ana (2016) 247 Cal.App.4th 1123, 1142[…] [‘ “[a]s a general rule, in construing statutes, ‘[w]e presume the Legislature [or, here, the electorate] intends to change the meaning of a law when it alters the statutory language [citation], as for example when it deletes express provisions of the prior version' ” ']; see also People v. Mendoza (2000) 23 Cal.4th 896, 916[…].) When the voters amended section 1170.12, subdivision (a)(7), they did not include an exception that would allow the court to impose concurrent sentences on felony convictions that fall outside the scope of section 1170.12, subdivision (a)(6). The voters could have approved such an exception, but they did not, and we cannot add it.” (Henderson, supra, 54 Cal.App.5th at pp. 624-625.)
We conclude, as the Henderson court did, that a plain reading of section 1170.12, subdivision (a)(7), requires the imposition of consecutive sentencing on Loftis's robbery counts.
DISPOSITION
The judgment is affirmed.
[*] Before Levy, Acting P.J., Poochigian, J. and Snauffer, J.