People v. DainPeople v. Dain
A jury found defendant Yacob Dain guilty of home invasion robbery, kidnapping, assault with a firearm, and additional offenses, and the trial court found true the allegations that he had two prior convictions for active gang participation that qualified as strikes under the Three Strikes law and as serious felony convictions under Penal Code section 667, subdivision (a) (
In the first appeal, we reversed the prior conviction findings and remanded to permit the prosecution to retry the prior conviction allegations under the current understanding of the gang participation offense. (People v. Dain (Dec. 21, 2021, A157756) 2021 WL 6031474, at *6 (Dain).) On remand, the prosecution chose to retry only one of the prior convictions, which was again found to be a strike and a serious felony conviction. The trial court
The People now contend in this second appeal that the trial court abused its discretion in dismissing the prior strike conviction for purposes of the Three Strikes law. In defending the trial court’s ruling, defendant relies on recently enacted Penal Code section 1385, subdivision (c) (
We are not persuaded by defendant’s arguments and conclude
The People also contend that the trial court abused its discretion in dismissing the five-year enhancement under
Accordingly, we reverse the order dismissing the prior strike conviction and remand for the trial court to resentence defendant as a person who has suffered one prior strike conviction.
FACTUAL AND PROCEDURAL BACKGROUND
Current Offenses
As we recounted in our opinion after defendant’s first appeal, “Around 2:00 a.m. on October 18, 2017, Jess and Brandi Smith and their two daughters were asleep in their home in Santa Rosa when Jess and Brandi were awakened by their dog barking. When Jess got up to check on the dog, he discovered three or four men entering his dining room through a large window. The intruders all had pistols, and they were wearing hoodies pulled tight around their faces. Jess ran toward his bedroom and was tackled from behind. His attacker put Jess in a chokehold, held a .45 caliber pistol to his head, and forced him to his bedroom. Another man pointed a gun at Brandi. The intruders cursed and said, ‘Where the fuck is it?’ and ransacked their bedroom.
“Jess was dragged to the garage, where there was a safe containing jewelry and firearms, and told to open the safe. After Jess attempted and failed to open the safe, he was struck in the head with the pistol. Jess yelled out the combination; the men opened the safe but continued to demand, ‘where is it?’ Jess was part of a marijuana collective, and he realized the intruders were looking for marijuana. He showed them a key to a shed, and they dragged him outside to the shed where he pointed to boxes that contained marijuana. One of the men told Jess, ‘shut up and lay here and I won‘t fucking shoot you,’ and the men started grabbing things in the shed.
“Meanwhile, the Smiths’ daughters (ages 20 and 9 years old at the time) had been forced into a bathroom. Brandi was dragged into the bathroom with her daughters. After it became quiet in the house, the older daughter left the bathroom and ran to a neighbor’s house, and the neighbor called 911.” (Dain, supra, 2021 WL 6031474 at *1–2.)
Soon after the intruders left, defendant was pulled over for a traffic stop about a mile from the Smiths’ house. In his vehicle, police found items that belonged to the Smiths, including a jewelry box, a bracelet, and 14 one-pound bags of marijuana. (Dain, supra, 2021 WL 6031474 at *2.)
Convictions, First Romero Motion, and Original Sentence
The jury convicted defendant of home invasion robbery (Pen. Code,2
The trial court found true allegations that defendant was convicted of felony active participation in a criminal street gang in violation of section 186.22, subdivision (a) (
The Probation Officer’s presentence report (probation report) recommended that factors in aggravation prevailed as to all counts.3 The report documented that defendant, then 33 years old, had an extensive criminal history. As a juvenile, he had sustained petitions for misdemeanor vandalism in 1998; misdemeanor theft in 1999; misdemeanor vandalism in 2001; misdemeanor theft in 2001; and misdemeanor resisting an officer in 2003, resulting at different times in community detention and various commitments, including several periods in Juvenile Hall. As an adult, defendant suffered convictions for misdemeanor theft in 2004; misdemeanor resisting an officer in 2005; misdemeanor driving in a willful or wanton disregard for safety of persons or property while fleeing a police officer in violation of Vehicle Code section 2800.2 in 2005; misdemeanor assault with a deadly weapon and felony active gang participation in 2006; felony possession of a firearm by a felon and felony active gang participation in 2007; misdemeanor false representation of identity to a peace officer in 2013; and felony violation of Vehicle Code section 2800.2, felony unlawful transportation of cannabis, and misdemeanor resisting an officer in 2014. For the 2006 convictions, committed when he was 20 years old, defendant was placed on three years’ formal probation with nine months in jail. For his 2007 convictions, he was sentenced to six years in prison. Defendant was paroled in 2011 and was subsequently found in violation of parole numerous times, including three occasions for associating with gang members and one
Defendant was sentenced in June 2019. Defendant filed a Romero motion inviting the court to dismiss the prior strike convictions, which the trial court denied.
Explaining its ruling on the Romero motion, the court (Hon. Bradford DeMeo) stated the prior strike convictions from 2006 and 2007 could not be considered remote in time because they were not followed by “a clear period of law-abiding conduct.” Noting the law disfavors dismissing strikes when “a person has a long and continuous criminal career,” it found defendant had “a long history of criminal conduct,” including “many misdemeanors . . ., parole violations, probation violations, and felonies.” Considering the nature and circumstances of the current offenses, the court described a “terrorizing event” involving “a violent, home-invasion robbery with guns brandished, pointed at people’s heads, point-blank range, yelling, grabbing people, hitting [Jess] with the gun, putting children into a bathroom, locking them in there with their mother, or at least guarding it, keeping them imprisoned in that when they had no idea what’s happening to husband and father.” The court observed that defendant “has been on probation, been on parole” and “[t]hat did not seem to discourage him from a life of violating the law and crime.”
After denying the Romero motion, the court sentenced defendant to a determinate term of 30 years and a consecutive indeterminate term of 27 years to life in prison.
In defendant’s original appeal, we found insufficient evidence to support the trial court’s findings that defendant’s prior convictions for active gang participation were strikes and serious felony convictions.4 In addition, the parties agreed that the false imprisonment conviction involving kidnap of victim Jess (count 5) had to be reversed because it was a lesser included offense of the kidnapping conviction (count 2) and that 10 years of the determinate term were improperly imposed under
Resentencing on Remand
On remand, the prosecution elected to retry defendant’s 2006 conviction for active gang participation, while conceding the 2007 conviction did not qualify as a prior strike conviction. The trial court (Hon. Robert LaForge)
Defendant filed a Romero motion to strike the 2006 conviction for active gang participation. The People opposed the motion and filed a statement in aggravation.
At resentencing in June 2023, the trial court (Hon. Bradford DeMeo) began the hearing by announcing its intention to grant the Romero motion and impose middle terms for a sentence of eight years, eight months. The prosecutor expressed surprise, given that the court previously denied defendant’s virtually identical Romero motion. The trial court responded that, in the four years since defendant’s original sentencing in 2019, the “California legislature has made it very clear things are changing, the law is changing. . . . [A]nd there are some cases that have come down since then that have talked about the general nature of California’s policy in these circumstances.” The court continued, “[I]n my reflection of what the spirit of the law is, and we do try to apply it, I think the legislature has been very clear that things are different, remoteness does count and I think under the current case law it’s appropriate to strike.”
The trial court granted the Romero motion, striking defendant’s prior conviction as a strike under the Three Strikes law and dismissed the enhancement under
The People appealed. (
DISCUSSION
A. Striking Defendant’s Prior Convictions for Sentencing Purposes
1. The Trial Court’s Authority to Dismiss Prior Convictions
In 1994, the Three Strikes law was enacted “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.” (
Section 1385, subdivision (a) (
In 2019, the Legislature granted trial courts authority to dismiss
Prior to 2022,
Here, at resentencing in June 2023, the trial court recognized that sentencing laws have changed since defendant was originally sentenced in 20197 and observed that “remoteness does count.” And, as we have just described, the fact that an enhancement is based on a prior conviction that is over five years old is now a mitigating circumstance entitled to great weight in favor of dismissal under
But
We agree with the Third District’s reasoning.
Furthermore, as to
2. Assembly Bill No. 600
After briefing was completed and the matter set for oral argument, defendant sent a letter notifying the court of A.B. 600, which amended
Section 1172.1 provides a recall and resentencing procedure that may be invoked when, for example, the Secretary of the Department of Corrections and Rehabilitation recommends resentencing. (
While recognizing
Defendant argues that the Legislature’s statement in A.B. 600 undermines Burke’s reasoning and suggests the Legislature intended
Moreover, the People correctly observe that
“An amendment is a legislative act designed to change an existing initiative statute by adding or taking from it some particular provision.” (People v. Cooper (2002) 27 Cal.4th 38, 44.) Here, even if we found defendant’s argument about A.B. 600 persuasive (we do not), we would reject his construction of
3. Applicable Law and Standard of Review
Now that we have determined
In People v. Williams (1998) 17 Cal.4th 148 (Williams), our high court offered the following guidance: “[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, ‘in furtherance of justice’ pursuant to Penal
In Carmony, our high court emphasized that the Three Strikes law “not only establishes a sentencing norm, it carefully circumscribes the trial court’s power to depart from this norm and requires the court to explicitly justify its decision to do so.” (Carmony, supra, 33 Cal.4th at p. 378.) The court described the Williams guidance as “stringent standards that sentencing courts must follow in order to find” a defendant outside the scheme’s spirit. (Carmony, at p. 377, italics added.) More recently, the high court reiterated, “[T]he Three Strikes law establishes a ‘strong presumption’ in favor of a harsher sentence and requires the court to explicitly articulate its reasoning if it is to depart from a harsher sentence by granting the Romero motion.” (People v. Salazar (2023) 15 Cal.5th 416, ___ [315 Cal.Rptr.3d 295, 307] [citing Williams and Carmony].)
A trial court’s decision whether to dismiss a prior strike conviction is reviewed for abuse of discretion. (Williams, supra, 17 Cal.4th at p. 162.) “This standard is deferential,” “[b]ut it is not empty. . . . [I]t asks in substance whether the ruling in question ‘falls outside the bounds of reason’ under the applicable law and the relevant facts.” (Ibid.)
The California Supreme Court concluded the trial court abused its discretion in vacating one of the strikes. (Williams, supra, 17 Cal.4th at p. 162.) The court explained, “There is little about Williams’s present felony, or his prior serious and/or violent felony convictions, that is favorable to his position. Indeed, there is nothing.” (Id. at p. 163.) His current felony for driving under the influence followed three other convictions for driving under the influence, and “[t]he record on appeal [wa]s devoid of mitigation” related “to his prior serious and/or violent felony convictions.” (Ibid.) Nor did Williams’s background, character, or prospects show he was outside the spirit of the Three Strikes law given that he was unemployed and, in the 13 years since he suffered his prior strike convictions, “he was often in prison or jail; when he was not, he violated parole and, apparently, probation and committed [further misdemeanor and felony] offenses.” (Ibid.) Under these circumstances, the decision to strike one of Williams’ prior strike convictions “fell outside the bounds of reason under the applicable law and the relevant facts.” (Id. at p. 164.)
In contrast to Williams, Garcia, supra, 20 Cal.4th 490, provides an example of circumstances under which dismissing a prior strike conviction may be in furtherance of justice. In Garcia, the defendant was convicted of two counts of burglary and found to have five prior strike convictions. (Id. at p. 493.) As to one of the current counts of burglary, the trial court “struck all
4. Analysis
The present case is much more akin to Williams than Garcia. Here, as in Williams, there is nothing favorable to defendant about his current or prior convictions or his background, character, or prospects. According to the probation report, defendant “stopped attending school because he ‘started going to jail a lot,’ ” and he was unemployed from 2004 to 2014. In the 11 years between his prior strike conviction in 2006 and his current offenses committed in 2017, defendant was on probation, in prison, on parole, and on probation. Like the defendant in Williams, defendant violated parole and committed additional misdemeanor and felony offenses after suffering the strike conviction. Unlike the defendant in Garcia, defendant’s prior conviction was not the result of a single period of aberrant behavior, there is no suggestion that he cooperated with the police or that his crimes are
“[T]he circumstances must be ‘extraordinary . . . 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.’ ” (Carmony, supra, 33 Cal.4th at p. 378, italics added.) There is nothing about the nature and circumstances of the present felonies and the prior strike conviction or the particulars of defendant’s background, character, and prospects that suggests defendant could be deemed outside the spirit of the Three Strikes law.
In granting the Romero motion, the trial court cited “remoteness.” However, as we have seen, remoteness, by itself, cannot be the basis for dismissing a prior strike conviction. (
Here, it cannot be said that defendant reformed his ways after his strike conviction. To the contrary, he continued to commit crimes, was sent to prison, was paroled, violated parole, committed further crimes, and was on probation when he committed the current offenses. Under these circumstances, the mere fact that defendant’s prior strike conviction was 11 years old cannot justify granting his Romero motion.
The trial court also stated that the “California legislature has made it very clear things are changing, the law is changing,” and, in considering “what the spirit of the law is, . . . I think the legislature has been very clear that things are different. . . .” However, the court was not free to dismiss the strike based on a perceived change in the “spirit” of sentencing laws in general when the Three Strikes law itself has not changed. (See Garcia, supra, 20 Cal.4th at p. 498 [“the court could give ‘no weight whatsoever . . . to factors extrinsic to the [Three Strikes] scheme’ ”].) The issue before the court was “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,” defendant could “be deemed out the scheme’s spirit” (Williams, supra, 17 Cal.4th at p. 161), but other than the remoteness of the strike offense, the court cited nothing about defendant’s
Defendant relies on Avila, supra, 57 Cal.App.5th 1134, to support the trial court’s decision, but his reliance is misplaced. In Avila, defendant Avila was sentenced to 25 years to life in prison, plus 14 years, for attempted second degree robbery and attempted extortion; the convictions were based on two incidents in which Avila approached street vendors selling oranges, demanded money, and “squashed” or “stomped on” bags of oranges. (Id. at pp. 1138–1139.) The Court of Appeal concluded, although “Avila indeed may be deserving of a lengthy sentence,” “no reasonable person could agree that the sentence [of life in prison] imposed on Avila was just.” (Id. at pp. 1144–1145.) Avila is easily distinguished. Defendant’s crimes of home-invasion robbery, kidnapping, and assault with a firearm are much more severe, dangerous, and violent than Avila’s crimes of “destroying fruit” (id. at p. 1151), and, even so, defendant does not face a life sentence under the Three Strikes law, as did Avila. The reasoning of Avila does not help defendant.
In sum, we conclude the trial court abused its discretion in granting defendant’s Romero motion. Striking his prior strike conviction under the circumstances of this case “ ‘falls outside the bounds of reason’ under the applicable law and the relevant facts.” (Williams, supra, 17 Cal.4th at p. 162.)
5. The Section 667(a) Enhancement
The People assert, “For these same reasons, the court’s decision not to impose the 5-year enhancement as required by Section 667(a) is also an abuse of discretion.” To the extent the People intend to separately challenge the dismissal of the enhancement under
In any event, the “same reasons” do not show the trial court abused its discretion in dismissing the enhancement under
B. Imposing the Middle Term
The People also contend the trial court abused its discretion in imposing the middle term for the principal offense of home-invasion robbery. Under the determinate sentencing law, the trial court is limited to imposing “a sentence not to exceed the middle term,” except in certain circumstances. (
DISPOSITION
The trial court’s order striking the prior strike conviction is reversed. The matter is remanded with directions to reinstate the strike finding and to resentence defendant as a person who has suffered a prior strike conviction under the Three Strikes law.
_________________________
Miller, J.
WE CONCUR:
_________________________
Stewart, P.J.
_________________________
Richman, J.