Opinion
D072153
04-09-2018
THE PEOPLE, Plaintiff and Respondent, v. ALLAN MOLINA, Defendant and Appellant.
Nancy Olsen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD267796) APPEAL from a judgment of the Superior Court of San Diego County, Esteban Hernandez, Judge. Affirmed as modified. Nancy Olsen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
In March 2017, a jury found defendant Allan Molina guilty of assault with a firearm (Pen. Code, § 245, subd. (a)(2); count 1) and hit-and-run driving (Veh. Code, § 20002, subd. (a); count 2). The court found true that Molina had two strike prior convictions (§ 667, subds. (b)-(i)); two serious felony prior convictions (§ 667, subd. (a)(1)); and three prison prior convictions (§ 667.5, subd. (b)). The court sentenced Molina to a total term of 39 years to life in prison, consisting of 25 years to life for count 1; four years for the personal firearm use enhancement; and 10 years for the two serious felony priors. Molina received credit for time served on count 2, and the court struck the punishment for the three prison priors.
All further statutory references are to the Penal Code unless otherwise noted.
At sentencing, Molina filed a Romero motion asking the court to strike a prior strike conviction under section 1385. The prosecution filed opposition and the court denied the motion.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). --------
On appeal, Molina contends the court abused its discretion when it declined to strike one of his two prior strike convictions. Molina further requests remand for resentencing in light of a recently enacted amendment to section 12022.5, subdivision (c). We conclude the court properly exercised its discretion when it denied Molina's Romero motion. However, we remand the matter for resentencing to allow the trial court to reconsider the recently enacted amendment to section 12022.5, subdivision (c).
STATEMENT OF FACTS
As the factual basis for Molina's conviction of assault with a firearm, on July 3, 2016, police responded after Molina fired a shot from a .9-millimeter pistol and bullet fragments struck victim, J.E., in the leg. On the night of the offense, J.E. arrived home from work and saw Molina and an unidentified male standing in the parking area near J.E.'s apartment. Molina approached, asked J.E. to drive him somewhere, and J.E. refused. Molina got upset, said, "I'll be back," and walked away. J.E. went inside his apartment.
About 15 minutes later, J.E. heard a knock at the door. He opened the door and Molina was standing there with a gun in his hand. Molina looked J.E. in the eye and raised the gun. J.E. swatted Molina's arm down just as Molina fired the gun. A bullet struck the tile floor and hit J.E. in the leg. Molina ran away. J.E.'s roommate, who saw the shooting from the living room, called 911. Police officers found a spent cartridge casing outside J.E.'s doorway.
Molina was convicted of a hit-and-run incident that occurred on July 8, 2016, when he took a car belonging to victim J.W., led police on a high-speed chase, and ended up crashing the car into a fence. Molina ran from the car and police officers apprehended him nearby. Officers found a .9-millimeter semiautomatic handgun near the fence outside the crashed car and ammunition for that gun inside the car. Police later determined that gun was the same gun that had fired the cartridge casing found outside J.E.'s doorway.
Prior to sentencing, as noted Molina moved under section 1385 and Romero to strike one of his prior "strike" convictions. The court reviewed the probation officer's report, sentencing memoranda from the People and the defense, and heard argument. The court denied the Romero motion.
In his Romero motion, Molina argued the court should exercise its discretion to strike one of his prior strikes because he committed these offenses at a relatively young age and "science has now informed the law in how we treat . . . 'youthful offenders.' " Molina noted that "[i]individuals between the ages of 18 and 23 are now seen in courtrooms as being different because of the[ir] brain development." Molina also argued the court should consider other mitigating factors, such as his remorsefulness for the current offenses and the jury's determination that the injury to J.E. did not constitute "great bodily injury."
The People in their sentencing memorandum argued that Molina committed vehicle theft at age 18 and had been on formal probation for that offense for only seven months when, at age 19, he committed his first prior strike offense (an assault where he personally inflicted great bodily injury on the victim); that he was again granted formal probation but committed his second prior strike offense (threatening to kill his ex-girlfriend with a knife) at age 20, only six months after being released from custody; that he received a sentence of 44 months in prison and was paroled in March 2012 at age 23; and that he absconded parole, was convicted of another felony in December 2012, and was sentenced to 16 months in prison.
The People further argued that in March 2014, at age 25, he was released on post release community supervision (PRCS). Within two months of his release, he led police on a high-speed chase through residential areas and a school zone with children present, ultimately crashing into a parked car. In December 2014, he was convicted of felony reckless evading and sentenced to 32 months in prison. In December 2015, at age 27, he was again released on PRCS. Molina continued to violate the conditions of his release and refused to participate in court-ordered drug treatment programs. In July 2016, at age 28, Molina committed the current offenses. The People thus argued that Molina not only violated PRCS by committing his current offenses, but he had previously violated PRCS, probation, and parole by committing new crimes.
When the court denied the Romero motion, it noted that Molina was on PRCS when he committed his current offenses, and that Molina had "repaid the court's prior leniency by committing new offenses." The court also noted that Molina's prior convictions as an adult were numerous and had increased in seriousness. The court stated that it found no applicable factors in mitigation and, even assuming arguendo that there were some factors in mitigation, it found under California Rules of Court, rule 4.421(B)(2), that "the defendant's prior convictions as an adult [were] numerous and have increasing seriousness." As a result, the court ruled that this one factor qualitatively outweighed any and all possible factors in mitigation.
DISCUSSION
I
A. Three Strikes Law
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 serious and/or violent felony offenses." (§ 667, subd. (b).) If a defendant is convicted of a felony and has had one, two or more prior convictions that qualify as "strikes," the defendant will be sentenced for the current offense under the three strikes law. Although prior strikes most commonly are serious (§ 1192.7, subd. (c)) or violent (§ 667.5, subd. (c)) felonies, the current conviction can be based on the commission of any felony. (People v. Terry (1996) 47 Cal.App.4th 329, 331-332.) If the defendant has one prior strike, the defendant is to receive a mandatory state prison sentence of twice the term otherwise provided. (§ 667, subd. (e)(1).) If the defendant has two prior strikes, as is the case here, he or she is to receive a mandatory indeterminate life sentence to state prison with the minimum term of 25 years. (§ 667, subd. (e)(2)(A)(ii).)
B. Section 1385, subdivision (a)
This section allows a trial court to exercise its discretion to dismiss a strike in furtherance of justice. A defendant convicted of the requisite triggering second or third conviction is presumed to fall within the provisions of the three strikes law. (Romero, supra, 13 Cal.4th at p. 508.) The "Three Strikes initiative . . . was intended to restrict a trial court's discretion in sentencing repeat offenders," and thus not only establishes a sentencing norm, but carefully circumscribes the trial court's power to depart from this norm and requires the court to explicitly justify its decision to do so. (Id. at p. 528.) The law creates a strong presumption that any sentence conforming to these sentencing norms is both rational and proper. (People v. Carmony (2004) 33 Cal.4th 367, 378 (Carmony); see People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).)
In order to dismiss a prior strike, the court must analyze "whether, in light of the nature and circumstances of his [or her] present felonies and prior serious and/or violent felony convictions, and the particulars of his [or her] 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 [or she] had not previously been convicted of one or more serious and/or violent felonies." (Williams, supra, 17 Cal.4th at p. 161.) Striking a prior serious felony conviction is an extraordinary exercise of discretion and is therefore reserved only for extraordinary circumstances. (People v. Philpot (2004) 122 Cal.App.4th 893, 905.) Only by extraordinary circumstances may a career criminal be deemed to fall outside the spirit of the Three Strikes sentencing scheme. (Carmony, supra, 33 Cal.4th at p. 378.)
A trial court's decision to deny a Romero motion is reviewed for abuse of discretion. A trial court does not abuse its discretion unless the decision to deny is so irrational or arbitrary that no reasonable person could agree with it. (Carmony, supra, 33 Cal.4th at pp. 376-377.) "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, [the reviewing court] shall affirm the trial court's ruling, even if [the reviewing court] might have ruled differently in the first instance." (People v. Myers (1999) 69 Cal.App.4th 305, 310.) The trial court is presumed to have considered all of the relevant factors in the absence of an affirmative record to the contrary. (Ibid [noting "the fact that the court focused its explanatory comments on the violence and potential violence of appellant's crimes does not mean that it considered only that factor"].)
C. Analysis
Here, we find no abuse in the court's decision to deny Molina's Romero motion. The record shows the court was fully aware of its discretion to strike a strike and based its decision not to do so largely on Molina's numerous prior convictions and the fact that he was on PRCS at the time he committed the current offenses. The court's decision was reasonable in light of Molina's extensive criminal history; that is, from age 18 to 28, despite myriad opportunities to reform his behavior, Molina consistently lived a life of crime, did so with increasing seriousness and dangerousness, and was undeterred by criminal sanctions. In his first strike offense, Molina robbed and beat the victim, fracturing the victim's face. In his second strike offense, he held a knife to his former girlfriend's throat and threatened to kill her.
Moreover, the nature and circumstances of Molina's current and prior strike offenses also rendered the court's decision a proper exercise of discretion. Molina's current offense was serious and extremely dangerous. Molina shot the victim over a petty dispute and—had the victim not swatted Molina's arm down at the moment he fired—could have killed him.
Molina argues the court erred in not considering his mental health issues as a mitigating factor, noting he was diagnosed with depression in 2009 and with posttraumatic stress disorder in 2014, attributed to his prison experience and the environment where he grew up. Molina further argues his mental health issues were not discussed during the Romero hearing or at sentencing.
The record belies this argument, however, as this information was included in the probation officer's report that was considered by the court in connection with Molina's Romero motion.
In any event, the existence of one or more mitigating factors does not render a trial court's denial of a Romero motion an abuse of discretion. A showing that reasonable people might disagree about whether to strike a prior conviction allegation is insufficient to establish an abuse of discretion; rather, by denying a Romero motion, "a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Carmony, supra, 33 Cal.4th at pp. 376-378.) We thus reject this argument.
Molina also argues the court abused its discretion by considering only his criminal record and not considering other factors, including the relatively young age in which he committed his prior strike offenses and his remorsefulness for his actions. Again, the record shows otherwise, as the court did consider the circumstances surrounding Molina's past offenses, including the fact that Molina was only 19 and 20 years old when he committed them. The court stated it had reviewed the court file, Molina's Romero motion, the People's opposition to the motion, and the probation report, which set forth the circumstances surrounding the current and past offenses. To the extent the court was silent regarding relevant factors other than criminal history, such as the particulars of Molina's background, age, and mental health issues, we presume the court correctly applied the law and took those factors into account. (See Carmony, supra, 33 Cal.4th at p. 378, citing People v. Gillispie (1997) 60 Cal.App.4th 429, 434 [noting where the record is silent in a post-Romero case, it is presumed that the trial court correctly applied the law.].)
Given Molina's 10-year criminal history and his failures on probation and parole, we conclude the court properly exercised its discretion when it ruled he fell within the spirit of the three strikes law.
II
Molina in a supplemental brief seeks remand for resentencing in light of a recently enacted amendment to section 12022.5, subdivision (c). On October 11, 2017, the Governor signed Senate Bill 620, which ended the statutory prohibition on a court's ability to strike a firearm enhancement under sections 12022.5 and 12022.53. Although this legislation became effective on January 1, 2018, Molina argues—and the People concede—that the amendment is retroactive. Molina therefore requests that this court remand his case to allow the court to exercise its discretion whether to strike the four-year term for the firearm enhancement imposed in this case. We agree with the parties that remand for resentencing is necessary in light of the newly enacted amendment.
DISPOSITION
We grant Molina's request to remand the matter for resentencing, to allow the trial court to reconsider whether the firearm enhancement under newly amended section 12022.5, subdivision (c) should be stricken. In all other respects, his judgment of conviction is affirmed.
BENKE, J. WE CONCUR: McCONNELL, P. J. IRION, J.