Opinion
F086548
06-27-2024
THE PEOPLE, Plaintiff and Respondent, v. JULIO CAMPOS, Defendant and Appellant.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez and Hannah Janigian Chavez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County. No. 94CM7571 Randy L. Edwards and Valerie R. Chrissakis, Judges.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez and Hannah Janigian Chavez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
PENA, J.
INTRODUCTION
In 1995, a jury convicted defendant Julio Campos of discharge of a firearm at an inhabited dwelling (Pen. Code, § 246; count I); discharge of a firearm from a vehicle (former § 12034, subd. (c); count II); two counts of assault with a firearm (§ 245, subd. (a)(2); counts III &IV); attempted murder (§§ 664, 187, subd. (a); count V); and attempted voluntary manslaughter (§§ 664, 192, subd. (a); count VI). As to each count, the jury found true a firearm enhancement pursuant to section 12022.5, subdivision (a), a strike conviction (§§ 667, subds. (c)-(j); 1170.12, subds. (a)-(e)), and two prior prison term enhancements (§ 667.5, former subd. (b)). (Undesignated statutory references are to the Penal Code.) The court sentenced defendant on count I to the midterm of five years doubled to 10 years based upon defendant's strike prior, plus a midterm of four years for the section 12022.5, subdivision (a) enhancement, plus two years for the two prior prison enhancements (§ 667.5, former subd. (b)), for a total of 16 years and, on count V, to a consecutive indeterminate sentence of life with the possibility of parole plus four years for the section 12022.5, subdivision (a) firearm enhancement. The sentences on counts II, III, IV, and VI were ordered stayed.
In 2023, the court held a resentencing hearing at which it struck the prison priors pursuant to section 1172.75. It resentenced defendant to life in prison with the possibility of parole on count V with a minimum parole eligibility of 14 years, plus four years for the section 12022.5, subdivision (a) firearm enhancement, and to a consecutive 10-year term on count I, plus four years for the section 12022.5, subdivision (a) firearm enhancement. The sentences on counts II, III, IV, and VI were again ordered stayed.
On appeal, defendant asserts dismissal of his firearm enhancements was mandatory pursuant to section 1385, subdivision (c)(2)(B) and (C), added by Senate Bill No. 81 (2021-2022 Reg. Sess.) (Senate Bill 81).
We affirm.
FACTUAL AND PROCEDURAL HISTORY
In 1995, a jury convicted defendant of unlawful discharge of a firearm at an inhabited dwelling (§ 246; count I), discharge of a firearm from a motor vehicle (§ 12034, subd. (c); count II), two counts of assault with a firearm (§ 245, subd. (a)(2); counts III &IV), and of attempted murder (§§ 664, 187; count V) and attempted manslaughter (§ 664, 192, subd. (a)). As to each count, the jury also found true an allegation that defendant personally used a firearm during the commission of the offense (§ 12022.5, subd. (a)). In a bifurcated proceeding, the court found true an allegation defendant had suffered two prior prison terms (§ 667.5, former subd. (b)) and a prior strike conviction (§§ 667, subds. (c)-(j); 1170.12, subds. (a)-(e)). The court sentenced defendant on count I to the midterm of five years doubled to 10 years based upon defendant's strike prior, plus a midterm of four years for the section 12022.5, subdivision (a) enhancement, plus two years for the two prior prison enhancements (§ 667.5, former subd. (b)), for a total of 16 years and, on count V, to a consecutive indeterminate sentence of life with the possibility of parole plus four years for the section 12022.5, subdivision (a) firearm enhancement. The court imposed additional sentences on counts II, III, IV, and VI, which it stayed pursuant to section 654.
The court initially imposed a sentence, in February 1995, of 16 months (one-third the midterm of four years) for the section 12022.5, subdivision (a) firearm enhancement attached to count V, but it recalled defendant's sentence in August 1995 and resentenced him to a full four-year term on that firearm enhancement.
On August 15, 2022, the court filed an order stating it had received information from the Secretary of the Department of Corrections pursuant to former section 1171.1, subdivision (c) (now § 1172.75) that defendant may have a sentence enhancement imposed pursuant to section 667.5, former subdivision (b) that was not imposed for a prior sexually violent offense. Thus, he may be eligible for resentencing under former section 1171.1.
In 2022, defendant filed a motion for resentencing pursuant to section 1172.6 and a separate petition asking the court to recall his sentence under sections 1172.1 and 1385. The court denied both in June 2023, concluding defendant failed to establish a prima facie case for relief under section 1172.6 and he lacked standing to file a motion under section 1172.1. The court continued the matter to determine whether defendant's prior prison enhancements should be dismissed in light of the changes to section 667.5.
Thereafter, the court struck the prison priors and held a resentencing hearing. Before resentencing defendant, the court noted it considered "the seriousness and circumstances of the offenses being extremely serious when compared to other instances of the same offense in that defendant willfully and deliberately and with premeditation attempted to kill two human beings by shooting at them from a vehicle. The defendant was armed and did personally use a firearm. ... [T]he victims were vulnerable as they were standing in the front yard." The court noted the "criminal sophistication in the case stands out" and "[t]here's a serious danger to society based upon the conduct, and [defendant's] past conviction for assault with a deadly weapon and attempted murder."
The court then resentenced defendant to life in prison with the possibility of parole (with a minimum parole eligibility of 14 years) plus four years for the firearm enhancement on count V and 10 years on count I plus an additional four years for the firearm enhancement. The sentences on counts II, III, IV, and VI were again ordered stayed.
DISCUSSION
I. Resentencing Proceedings Under Section 1172.75
In October of 2021, the Governor signed Senate Bill No. 483 (2021-2022 Reg. Sess.) (Senate Bill 483), effective on January 1, 2022, which added section 1171.1 to the Penal Code, subsequently renumbered as section 1172.75. This section declares: "Any sentence enhancement that was imposed prior to January 1, 2020, pursuant to subdivision (b) of Section 667.5, except for any enhancement imposed for a prior conviction for a sexually violent offense ... is legally invalid."
Section 1172.75 establishes a mechanism to provide certain affected defendants an avenue for relief from now invalid prison prior enhancements. Subdivision (b) directs the Secretary of the Department of Corrections and Rehabilitation (CDCR) and the correctional administrator of each county to "identify those persons in their custody currently serving a term for a judgment" that includes a now legally invalid prior prison enhancement, and to provide the names of such persons, their dates of birth, and the relevant case numbers or docket numbers to the sentencing court that imposed the enhancement. (§ 1172.75, subd. (b).) After the court receives from the CDCR and county correctional administrator the information included in subdivision (b) of section 1172.75, "the court shall review the judgment and verify that the current judgment includes a sentencing enhancement described in subdivision (a)," and if so, "recall the sentence and resentence the defendant." (§ 1172.75, subd. (c).)
When resentencing a defendant under section 1172.75, the court must "apply the sentencing rules of the Judicial Council and apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing." (§ 1172.75, subd. (d)(2).) "The court may consider postconviction factors, including, but not limited to, the disciplinary record and record of rehabilitation of the defendant while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the defendant's risk for future violence, and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice." (§ 1172.75, subd. (d)(3).)
II. Dismissal of the Enhancement Was Not Statutorily Mandated
Defendant argues the court erred in refusing to dismiss his two section 12022.5, subdivision (a) firearm enhancements, asserting the court was statutorily required to dismiss them pursuant to amended section 1385. We reject defendant's contention.
A. Standard of Review and Applicable Law
"In 2021, the Legislature enacted [Senate Bill 81], which amended section 1385 to specify mitigating circumstances that the trial court should consider when deciding whether to strike enhancements from a defendant's sentence in the interest of justice. (Stats. 2021, ch. 721, § 1.)" (People v. Lipscomb (2022) 87 Cal.App.5th 9, 16.) As modified by Senate Bill 81, section 1385, subdivision (c) now provides, in part:
"(1) Notwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute.
"(2) In exercising its discretion under this subdivision, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in subparagraphs (A) through (I) are present. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety. 'Endanger public safety' means there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others."
The statute then enumerates multiple mitigating circumstances, including the provisions defendant relies upon here:
"(B) Multiple enhancements are alleged in a single case. In this instance, all enhancements beyond a single enhancement shall be dismissed.
"(C) The application of an enhancement could result in a sentence of over 20 years. In this instance, the enhancement shall be dismissed." (§ 1385, subd. (c)(2)(B) &(C).)
We note Senate Bill 81 initially codified these provisions under section 1385, subdivision (c)(3)(B) and (C), respectively, but section 1385 was further amended pursuant to Assembly Bill No. 200 (2021-2022 Reg. Sess.), effective June 30, 2022, and these provisions were amended to fall under subdivision (c)(2)(B) and (C), respectively. (Stats. 2022, ch. 58, § 15.) Pursuant to Senate Bill 81, section 1385, subdivision (c)(7) provided: "This subdivision shall apply to sentencings occurring after the effective date of the act that added this subdivision." (Stats. 2021, ch. 721, § 1.) Thereafter, Assembly Bill No. 200 modified subdivision (c)(7) of section 1385 to state: "This subdivision shall apply to all sentencings occurring after January 1, 2022." (Stats. 2022, ch. 58, § 15.) Because Senate Bill 81 became effective January 1, 2022, this modification did not result in a substantive change.
The meaning of the phrase "shall be dismissed" in section 1385, subdivision (c)(2)(B) and (C) is a question of statutory interpretation we review de novo. (See People v. Lewis (2021) 11 Cal.5th 952, 961; People v. Cota (2023) 97 Cal.App.5th 318, 335.) Our fundamental task is to determine the Legislature's intent so as to effectuate the law's purpose. (People v. Lewis, at p. 961; People v. Cota, supra, at p. 335.) "'"'"We begin by examining the statute's words, giving them a plain and commonsense meaning."'"' [Citation.] '"[W]e look to 'the entire substance of the statute ... in order to determine the scope and purpose of the provision .... [Citation.]' [Citation.] That is, we construe the words in question '"in context, keeping in mind the nature and obvious purpose of the statute .." [Citation.]' [Citation.] We must harmonize 'the various parts of a statutory enactment . by considering the particular clause or section in the context of the statutory framework as a whole.'"'" (People v. Lewis, at p. 961; People v. Cota, supra, at p. 335.) "If there is no ambiguity in the language, we presume the Legislature meant what it said and the plain meaning of the statute governs." (People v. Snook (1997) 16 Cal.4th 1210, 1215.)
Since the enactment of Senate Bill 81, courts, including our own, have considered and uniformly rejected the argument that the "shall be dismissed" language in section 1385, subdivision (c)(2)(B) and (C) amounts to a statutory mandate requiring trial courts to dismiss enhancements when the listed mitigating circumstance is present. (See, e.g., People v. Cota, supra, 97 Cal.App.5th at p. 335 [agreeing "with those courts that have held section 1385, subdivision (c)(2)(B) does not mandate dismissal of all enhancements beyond a single enhancement"]; People v. Walker (2022) 86 Cal.App.5th 386, 396 [concluding "text and purpose of section 1385 in general, and Senate Bill No. 81 in particular, as well as the canons of statutory construction counsel in favor of concluding" "subdivision (c)(2)(B) does not obligate trial courts to automatically dismiss all but one enhancement whenever a jury finds multiple enhancements to be true"], review granted Mar. 22, 2023, S278309 (Walker); People v. Lipscomb, supra, 87 Cal.App.5th at pp. 1718 [rejecting argument language in § 1385, subd. (c)(2)(C) that states, "In this instance, the enhancement shall be dismissed," is a mandatory command]; People v. Anderson (2023) 88 Cal.App.5th 233, 239-241 [interpreting "shall be dismissed language" in § 1385, subd. (c)(2)(B), in context, means that "dismissal shall occur but only if, in exercising its discretion and giving great weight to certain factors, the court finds dismissal is in the interests of justice or would not endanger public safety'"], review granted Apr. 19, 2023, S278786; People v. Mendoza (2023) 88 Cal.App.5th 287, 295297 [holding "'shall be dismissed'" language in § 1385, subd. (c)(2)(C) "applies only if the court does not find that dismissal of the enhancement would endanger public safety"].)
B. Analysis
Defendant argues the resentencing court was required to dismiss the firearm enhancements in light of the "shall be dismissed" language in section 1385, subdivision (c)(2)(B) and (C). He concedes his counsel did not raise the issue below or object to the imposed sentence on this basis but asserts the issue may be raised on appeal because the resulting sentence was unauthorized.
"As a general rule, a criminal defendant who fails to object at trial to a purportedly erroneous ruling forfeits the right to challenge that ruling on appeal." (People v. Anderson (2020) 9 Cal.5th 946, 961.) There are exceptions to this rule, however, including for an unauthorized sentence. (In re Sheena K. (2007) 40 Cal.4th 875, 886.) "The unauthorized sentence doctrine is designed to provide relief from forfeiture for 'obvious legal errors at sentencing that are correctable without referring to factual findings in the record or remanding for further findings.' [Citation.] It applies when the trial court has imposed a sentence that 'could not lawfully be imposed under any circumstance in the particular case.'" (People v. Anderson, supra, at p. 962.)
We conclude defendant's claim section 1385, subdivision (c)(2)(B) and (C) mandates dismissal of one of the imposed enhancements amounts to an assertion the imposed sentence is unauthorized. That is, if section 1385, subdivision (c)(2)(B) obligates the trial court to dismiss one of the enhancements and the trial court failed to do so, then the resulting sentence imposing both enhancements was not one that could be legally imposed under any circumstance. Accordingly, this claim represents an exception to the forfeiture doctrine, and we shall consider it. (People v. Anderson, supra, 88 Cal.App.5th at p. 239, fn. 7, review granted.)
Nevertheless, we reject on its merits defendant's claim that the "shall be dismissed" language in section 1385, subdivision (c)(2)(B) and (C) amounts to a statutory mandate requiring dismissal of an enhancement when the listed circumstances are present. As defendant acknowledges, and we have discussed, all the courts that have considered this argument have rejected it. And we decline defendant's invitation to declare that these cases were wrongly decided. Rather, we agree with Cota, Walker, Lipscomb, Anderson, and Mendoza in their construction of the shall be dismissed language in section 1385, subdivision (c)(2)(B) and (C) and conclude section 1385, subdivision (c)(2) unambiguously preserves the court's discretion to dismiss an enhancement.
Notably, the People also argue in their response that section 1385, subdivision (c)(2)(C) did not apply here because "[i]t cannot be said that application of the firearm enhancements 'could result' in a sentence of over 20 years because [defendant]'s sentence already exceeded that based on his sentence of life with the possibility of parole." Because we reject defendant's argument that dismissal of the enhancements was mandatory on other grounds, we do not address the People's alternate contention further.
We are not persuaded by defendant's assertion that such an interpretation results in the word "shall" being written out of the statute. We simply may not view this term in isolation but must consider the statute as a whole. (People v. Lipscomb, supra, 87 Cal.App.5th at p. 18; accord, People v. Walker, supra, 86 Cal.App.5th at pp. 396-397 ["we are not permitted to pluck this phrase out of its placement in the statute and consider it in isolation," "we are required to consider where it fits into the '"context of the statute as a whole"'"], review granted.) The phrase "shall be dismissed" is not a "standalone mandate of section 1385." (People v. Walker, at p. 397.) Rather, it is used as a subpart to the provision that a "court shall dismiss an enhancement if it is in the furtherance of justice to do so." (§ 1385, subd. (c)(1); see People v. Anderson, supra, 88 Cal.App.5th at p. 239, review granted.) And it is included among nine mitigating circumstances that are to weigh greatly in favor of dismissal as the court is exercising its discretion to determine whether dismissal is in furtherance of justice (unless the court finds that dismissal of the enhancement would endanger public safety). (§ 1385, subd. (c)(1) &(2); People v. Walker, at p. 397.) "If we were to read the phrase appended to the multiple enhancements mitigating factor as automatically mandating dismissal of all but one enhancement whenever multiple enhancements exist, then the existence of multiple enhancements would not 'weigh greatly' in favor of dismissal-it would weigh dispositively. But that is not what the statute says, and we are not allowed to rewrite the statute." (Walker, at p. 397.) Additionally, interpreting the "shall be dismissed" language in section 1385, subdivision (c)(2)(B) and (C) "as mandatory would give 'no effect to the clause "unless the court finds that dismissal of the enhancement would endanger public safety."'" (People v. Cota, supra, 97 Cal.App.5th at p. 337.) "Canons of statutory interpretation require us to reject this interpretation, inasmuch as it would render portions of the statute surplusage and would lead to an absurd result." (Ibid.; accord, People v. Mendoza, supra, 88 Cal.App.5th at p. 296.)
Said differently, the plain language of the statute as a whole establishes the court is to consider the enumerated circumstances in exercising its "discretion" to dismiss the enhancement "if it is in the furtherance of justice to do so," and such circumstances may be overcome by a finding that striking of the enhancement would endanger public safety. (People v. Anderson, supra, 88 Cal.App.5th at p. 239 [interpreting "shall be dismissed language" in context of § 1385, subd. (c)(2) to mean "the trial court has discretion to dismiss sentencing enhancements; certain circumstances weigh greatly in favor of dismissal; and a finding of danger to public safety can overcome the circumstances in favor of dismissal"], review granted; see generally Wheeler v. Appellate Division of Superior Court (2024) 15 Cal.5th 1193, 1206 [requirement that a dismissal be "'in furtherance of justice' ... cabins a trial court's authority" and "requires '"consideration both of the constitutional rights of the defendant and the interests of society represented by the People"'"].)
And as we have previously reasoned, although the plain language is dispositive, the legislative history behind Senate Bill 81 also supports a conclusion the "shall be dismissed" language in section 1385, subdivision (c)(2)(B) and (C) does not mandate dismissal in all circumstances. (See People v. Cota, supra, 97 Cal.App.5th at p. 337.) As Anderson noted:
"The initial drafts of [Senate Bill 81] stated, 'There shall be a presumption that it is in the furtherance of justice to dismiss an enhancement upon a finding that any of the circumstances in subparagraphs (A) to (I), inclusive, are true. This presumption shall only be overcome by a showing of clear and convincing evidence that dismissal of the enhancement would endanger public safety.' (Sen. Amend. to Sen. Bill No. 81 (2021-2022 Reg. Sess.) Apr. 27, 2021.) However, the Assembly removed the presumption requiring clear and convincing evidence to overcome, replacing it with the more flexible discretionary language that now appears in section 1385, subdivision (c)(2). (See Assem. Amend. to Senate Bill No. 81 (2021-2022 Reg. Sess.) Aug. 30, 2021.) Shortly thereafter, in a letter to the Secretary of the Senate that was placed by unanimous consent in the Senate Journal, the author of Senate Bill 81 stated, 'I respectfully request the following letter be printed in the Senate Daily Journal expressing our intent with respect to this measure: [¶] ... [¶] [A]mendments taken on Aug. 30, 2021 remove the presumption that a judge must rule to dismiss a sentence enhancement if certain circumstances are present, and instead replace[] that presumption with a "great weight" standard where these circumstances are present. The retention of the word "shall" in Penal Code § 1385(c)(3)(B) and (C) should not be read as a retention of the previous presumption language-the judge's discretion is preserved.' (Sen. Nancy Skinner, letter to Secretary of the Sen. (Sept. 10, 2021) 121 Sen. J. (2021- 2022 Reg. Sess.) p. 2638.)
As discussed, the version of section 1385 effective January 1, 2022, included mitigating circumstances (A) through (I) within subdivision (c)(3). (Stats. 2021, ch. 721, § 1.) Effective June 30, 2022, the mitigating circumstances are listed in subdivision (c)(2). (Stats. 2022, ch. 58, § 15.)
"Thus, not only did the Legislature remove the presumption in favor of dismissal, instead explicitly stating the court had discretion to dismiss enhancements, but also the author of Senate Bill 81 anticipated the precise argument [the defendant] raises-that the word 'shall' in section 1385, subdivision (c)(2)(B) and (C), could be misconstrued as a mandate to automatically dismiss applicable enhancements. The author's unambiguous rejection of this interpretation, placed in the official record with the unanimous consent of her colleagues, supports our conclusion that a trial court is not required to dismiss all but one enhancement or an enhancement that could result in a sentence of more than 20 years, but rather that the trial court has discretion in deciding whether to do so." (People v. Anderson, supra, 88 Cal.App.5th at pp. 240-241, review granted, fns. omitted.)
Defendant argues Anderson's cited reasoning was flawed, in part, because it "reached the wrong conclusion about the change made to subdivision (c)." He contends the original legislation included a presumption for dismissal if the circumstances in subparagraphs (A) through (I) applied, meaning "there was only a presumption of dismissal when subdivision[] (c)(2)(B) and (C) applied." He asserts, the Legislature would have retained the presumption if it had wanted to preserve the trial court's discretion to strike the enhancements in the circumstances described in subdivision (c)(2)(B) and (C). But, he contends, the presumption was removed and the word "shall" was included in subdivision (c)(2)(B) and (C), which suggests dismissal is mandatory.
We disagree with defendant's characterization and interpretation of the legislative history. Notably, the word "shall" appeared in subdivision (c)(2)(B) and (C) when the presumption was still included in the prior versions of the statute, and that language remained in those subparagraphs through enactment; thus, the Legislature did not add the phrase "shall be dismissed" after removing the presumption in favor of dismissal. (See Sen. Amend. to Sen. Bill No. 81 (2021-2022 Reg. Sess.) Mar. 23, 2021.) And if the Legislature wanted to remove the court's discretion in dismissing an enhancement in the circumstances listed in subdivision (c)(2)(B) and (C), it could have amended the language in section 1385 that clearly provides for such discretion; it did not. (See § 1385, subd. (c)(1) &(2).)
Defendant also argues it is error to rely "on an after-the-fact letter written by the legislative author of SB 81." We have previously acknowledged there is debate as to whether Senator Skinner's September 10, 2021, letter properly may be considered part of the statute's legislative history. (People v. Cota, supra, 97 Cal.App.5th at p. 338; see People v. Walker, supra, 86 Cal.App.5th at p. 400 [declining to afford weight to the letter because it reflects "the view of a single legislator rather than the legislative body that enacted the statute"], review granted; but see People v. Anderson, supra, 88 Cal.App.5th at p. 241 , fn. 9 [discussing letter as support for interpretation dismissal of enhancements is not mandatory, noting legislator's statement is entitled to consideration when it is a reiteration of legislative discussion and events leading to adoption of proposed amendments rather than an expression of personal opinion], review granted.) But, even without the letter, the statute's evolution confirms the Legislature always intended for the court to maintain discretion to impose an enhancement upon a finding that dismissal would endanger public safety. (See People v. Lipscomb, supra, 87 Cal.App.5th at p. 19.) Thus, we cannot conclude the court was required to dismiss defendant's firearm enhancements such that their imposition resulted in an unauthorized sentence.
Accordingly, we reject defendant's sole contention.
DISPOSITION
The judgment is affirmed.
WE CONCUR: LEVY, Acting P. J. DETJEN, J.