THE PEOPLE,
A168182 (Contra Costa County Super. Ct. No. 05009804170)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE
Filed 11/26/24
Defendant Gregory Lynn Dowdy appeals from a resentencing order under
Sess.) (Assembly Bill 600)). In addition, Dowdy contends that remand is required to correct an error in the calculation of his presentence credits.
We will affirm the order but remand for the trial court to file amended abstracts of judgment reflecting Dowdy‘s custody credits up to the date of the resentencing hearing.
I. FACTS AND PROCEDURAL HISTORY
In January 1998, while on parole for robbery and attempted robbery, Dowdy entered a bank, presented a teller with “a demand note which threaten[ed] to blow her head away,” received $2,600 from the teller, and left the bank. He was positively identified in a police lineup. In February 1998, Dowdy was arrested during a suspected drug sale. During the arrest, he swallowed a balloon containing a large amount of a substance later determined to be heroin. A subsequent search of his residence revealed additional heroin and drug paraphernalia as well as evidence connecting him to the robbery.
A jury convicted Dowdy of second degree robbery (
In 1998, the trial court sentenced Dowdy to an aggregate term of 32 years to life in prison, as follows: 25 years to life for second degree robbery
A. Change in the Sentencing Laws
When Dowdy was sentenced, former
Effective January 1, 2020, Senate Bill No. 136 (2019–2020 Reg. Sess.) (Senate Bill 136) amended
B. Dowdy‘s Petition for Resentencing under Section 1172.75
In May 2023, Dowdy filed a petition in the trial court for resentencing pursuant to
Citing the probation department‘s presentence report for his 1998 sentencing, Dowdy argued that he was neglected as a child, his father was a recovering alcoholic, he had a history of abusing substances since childhood, he became a heroin addict, and he dropped out of high school. As to his felony robbery convictions in 1981 and 1989 for which he went to prison, he was 19 and 26 years old when he committed those crimes, and while one of them may have involved the use of a gun to intimidate his victim, there were no sentencing enhancements applied for personal use of a firearm. Dowdy added that he was addressing his substance abuse issues in prison and had written a letter of apology to the teller he robbed. He also presented letters supporting him. He argued that one or both strikes should be stricken due to their age and the relatively nonviolent nature of his commitment offense, and that he no longer fell within the spirit of the Three Strikes law given his rehabilitation, reentry plan, and other mitigating factors identified in
The prosecutor did not oppose Dowdy‘s request to strike the five-year enhancement, but it did oppose the dismissal of Dowdy‘s prior strikes, urging that Dowdy had not established that he fell outside the spirit of the Three Strikes law.
The trial court struck Dowdy‘s two prison term priors and exercised its discretion to dismiss the five-year enhancement imposed for a serious felony. It denied Dowdy‘s request to strike either of his prior strike convictions, concluding that the record did not show Dowdy to be outside the spirit of the Three Strikes law. The court noted that, while Dowdy provided information that he had a difficult childhood, it did not rise to the level of childhood trauma. The court also observed that Dowdy had not provided sufficient information regarding his participation in substance abuse treatment and rehabilitative programming during his incarceration. While acknowledging Dowdy‘s recent efforts, the court imposed an indeterminate sentence pursuant to the Three Strikes law, sentencing him to a term of 25 years to life in prison rather than the 32 years to life that was originally imposed.
Dowdy filed a timely appeal. Amended abstracts of judgment purported to state his presentence credits.
II. DISCUSSION
A. Denial of Dowdy‘s Request to Strike His Prior Strike Convictions
Dowdy contends the trial court abused its discretion by not dismissing his prior strike convictions pursuant to
1. No Abuse of Discretion
A trial court has discretion to strike prior conviction findings under the Three Strikes law in the furtherance of justice. (
In deciding whether to dismiss a prior strike 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.” (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).)
Here, the trial court was presented with information regarding the nature and circumstances of Dowdy‘s convictions, character, and prospects. (See Williams, supra, 17 Cal.4th at p. 161.) It ultimately decided that Dowdy had not shown that he was outside the spirit of the Three Strikes law. Dowdy fails to establish that the court abused its discretion.
Dowdy argues that his prior strike offenses are remote in time, he was only 19 years old when he committed his first strike offense, and that his criminality was a byproduct of his substance abuse issues. The remoteness of prior strikes, however, does not mean that a defendant falls outside the spirit of the Three Strikes law. (People v. Strong (2001) 87 Cal.App.4th 328, 343 (Strong); see Williams, supra, 17 Cal.4th at p. 163 [“Certainly that [the defendant] happened to pass about 13 years between his prior serious and/or violent felony convictions and his present felony, and proceeded from about 20 years of age to 32, is not significant“].) To the contrary, “older strike convictions do not deserve judicial forgiveness unless the defendant has used them as a pivot point for reforming his ways.” (People v. Mayfield (2020) 50 Cal.App.5th 1096, 1107–1108.)
It was reasonable for the trial court to conclude that Dowdy had not reformed his ways. According to the probation department‘s report for his 1998 sentencing, Dowdy was sentenced in 1981 to four years in state prison for robbery and paroled in April 1984. He violated his parole in 1987 and was sentenced in 1989 to 160 months in state prison for two felony robberies (one conviction for robbery and one for attempted robbery). He was paroled in July 1995 and, during the next two years, had at least 30 dirty drug tests. In June 1997, he was arrested for absconding and petty theft and returned to custody for eight months. In October 1997, he was paroled and continued to test “dirty.” His overall conduct on probation was “poor.” He “absconded, continued to test positive for heroin, was referred to a drug program, and continued to reoffend.” As of the time of his sentencing for his felony robbery conviction in 1998, Dowdy had “exhausted all probation and parole resources, and [his] conduct should be considered highly unsuccessful.” When not incarcerated, he was “generally unemployed” preceding his 1998 sentencing. (See Williams, supra, 17 Cal.4th at p. 163 [we cannot ignore “the fact that [the defendant] was unemployed and did not follow through in efforts to bring his substance abuse problems under control“].) Dowdy was in prison for the majority of the time between his second strike conviction and his most recent offenses, which he committed shortly after being released from prison while he still was on parole. These are the marks of a career criminal, not a changed man.
Dowdy relies on People v. Avila (2020) 57 Cal.App.5th 1134 (Avila)—a case that respondent surprisingly does not address in its brief. Nonetheless, Avila does not help Dowdy. In Avila, the defendant was convicted of attempted robbery and attempted extortion based on demanding money from two roadside fruit vendors and “squash[ing],” “stomping on,” and tossing into the dirt some of their oranges. (Id. at p. 1139.) He was sentenced to 25 years to life plus 14 years under the Three Strikes law. (Ibid.) The court of appeal reversed, concluding that “no reasonable person could agree that the sentence imposed on Avila was just.” (Id. at p. 1145.) The court explained that “Avila‘s prior strikes were remote and committed when he was of diminished culpability based on his age, a factor the trial court erroneously concluded was inapplicable to the formulation of his sentence.” (Ibid.) Further, the court observed: “Avila‘s current offenses were not violent and, on the spectrum of criminal behavior, fall closer to the end of less reprehensible conduct. Much of his criminal conduct appears to be related to his drug addiction rather than to sinister motives and falls well outside the realm of what could be considered the work of a career criminal.” (Ibid.) Dowdy argues that, like Avila, his first strike was committed when he was young and of diminished culpability, his robberies involved intimidation rather than actual violence, and his life has been marred by drug abuse that underlies his criminal history.
Avila is inapposite. In Avila, the trial court erroneously concluded that it was irrelevant whether the defendant‘s prior strikes were remote and committed when he was of diminished culpability. Here, by contrast, there is no indication that the trial court in this case harbored any similar misconceptions. Moreover, while Avila‘s offenses were based on destroying fruit, Dowdy threatened a bank teller that he would blow her head off if she did not give him money. And when he was arrested for that offense, he was in the midst of a suspected drug sale and was holding enough heroin in his home to constitute possession for sale. Dowdy‘s crimes were much more dangerous and serious than Avila‘s crimes. Accordingly, Dowdy fails to establish an abuse of discretion.
2. Independent Judgment
Dowdy contends that the trial court failed to exercise its independent judgment and discretion at the resentencing hearing. He claims that the court instead “acted like an appellate court, presuming the original sentencing court‘s refusal in 1998 to strike one or both strikes to be correct,” despite defense counsel‘s reminders that Dowdy was entitled to be sentenced anew. Noting that a court abuses its discretion when it is unaware of the scope of its discretion (People v. Panozo (2021) 59 Cal.App.5th 825, 837), Dowdy argues for reversal because it is not clear that the court would have imposed the same sentence if it knew the law. (See People v. Salazar (2023) 15 Cal.5th 416, 431.) We are not persuaded.
In support of his argument, Dowdy points us to the trial court‘s suggestion that the issue was whether the original sentence should be undone. The court stated: “[W]e‘re talking about imposition of a strike, which was considered at the time of sentencing by the Court then. [¶] So what I want to understand, and I‘ll start with [defense counsel] is: Why should I disturb that finding that was explicitly made at that time?” (Italics added.) “I just want to see, as applied to Mr. Dowdy‘s circumstances, what you think would cause me to do this, noting that . . . this occurred after a trial” and “the judge had the context of all of that in front of them.” “Any other special considerations you want me to take into account in revisiting the consideration of whether to strike the strike?” “And so I think it‘s—it‘s a bit thin for me to revisit something that was considered at the time . . . I don‘t think it rises to that level here.” (Italics added.) “I‘m not seeing a reason to disturb the indeterminate portion of the sentence.” (Italics added.) Dowdy argues that the “question [for the trial court] was not ‘why should I disturb what was done in 1998?’ ” but ” ‘what sentence should be imposed now given all the current criteria and all known relevant facts?’ ”
As a threshold matter, we must presume the trial court knew and correctly applied the law. (People v. Gillispie (1997) 60 Cal.App.4th 429, 434.) Although in some cases this presumption can be overcome by the record, this is not one of those cases. The court confirmed its understanding of the law when it struck the prison term priors and when it exercised its discretion to strike the prior serious felony conviction for purposes of dismissing the five-year enhancement under
3. Section 1385, Subdivision (c)
Dowdy argues that remand is needed to allow the trial court to consider “guidance of the statement of legislative intent from Assembly Bill 600 that
Effective January 1, 2022, Senate Bill No. 81 (2021–2022 Reg. Sess.) amended
It is well established, however, that
Dowdy nonetheless argues that we should reconsider this position because of Assembly Bill 600, which amended
Dowdy does not rely on any part of Assembly Bill 600 that was codified in
For several reasons, the uncodified legislative intent pertinent to
First, Assembly Bill 600 amended the resentencing procedure established by
Nonetheless, Dowdy argues that the statement of legislative intent in Assembly Bill 600 applies to resentencing proceedings authorized by
But Dowdy fails to establish any equal protection problem or address the significance of the distinction between
Second, even if Assembly Bill 600 purported to state a legislative view relevant to resentencing proceedings under
Indeed, Division Two of this court rejected the argument that Assembly Bill 600 reflected an intent to apply the
Undaunted, Dowdy argues that Dain is “wrongly decided” and that his argument is not that Assembly Bill 600 changed the meaning of “enhancement” in
Third, even if the Legislature had harbored such an intent in drafting the uncodified preamble to
Finally, even if Dowdy were right, and the uncodified legislative intent in Assembly Bill 600 was sufficient to require the application of
4. Meaningful Modification
Dowdy contends that the superior court “should be ordered to strike at least one of [his] prior strikes to comply with the statement of legislative intent from Assembly Bill 600 that resentencing result in a meaningful modification.” Assembly Bill 600 states in this regard: “It is the intent of the Legislature that, in cases where the judge concludes that recall and resentencing pursuant to Section 1172.1 [] is appropriate, the resentencing result in a meaningful modification. ‘Meaningful modification’ means it will cause some actual change in the person‘s circumstances, including, but not limited to, immediate release, earlier release, and newly acquired entitlement to review by the Board of Parole Hearings or the advancement of eligibility for a parole hearing.” (Stats. 2023, ch. 446 § 1, subd. (d), italics added.)
Dowdy‘s argument lacks merit. First, as mentioned above, Assembly Bill 600 amended the resentencing procedure commenced under
Second, Dowdy did obtain a meaningful modification to his sentence.
Dowdy argues that this modification resulted in no actual change in his circumstances. He asserts that he was already in the parole process, which had not advanced, and with good time credit he may have already served the 32-year portion of his indeterminate sentence. He argues that the only way
Dowdy‘s argument is untenable. If, in a resentencing under
B. Presentence Custody Credits
Dowdy contends that remand is required to correct his presentence custody credits. Respondent agrees that the trial court must prepare amended abstracts of judgment that set forth the actual days Dowdy spent in the custody of the California Department of Corrections and Rehabilitation (CDCR) from the date of his initial sentencing to the date of his resentencing hearing in May 2023. We will so order.
After the conclusion of the resentencing hearing, amended abstracts of judgment for count 1 (robbery) and count 2 (possession of heroin for sale) were filed on June 20, 2023. Each abstract of judgment included a calculation of 8,924 total credits, comprised of 8,722 actual days and 202 days as
As set forth in
Because Dowdy‘s conviction was not reversed, he was not eligible for additional presentence conduct credits (see
But as respondent notes, the trial court was required to calculate Dowdy‘s credit for all actual days spent in custody, whether in jail or prison, up to the date of the resentencing hearing. (Buckhalter, supra, 26 Cal.4th at p. 37.) The amended abstracts of judgment filed on October 9, 2023, do not include that calculation. In light of the parties’ agreement, we will order the court to prepare amended abstracts of judgment stating not just the presentence credits awarded as of the initial sentencing date, but also the actual days Dowdy spent in CDCR custody after the initial sentencing date to the date of his resentencing hearing in May 2023.
III. DISPOSITION
The order is affirmed. The matter is remanded to the trial court to prepare amended abstracts of judgment that include the actual days Dowdy spent in the custody of the California Department of Corrections and Rehabilitation after the time of his initial sentencing to the date of his resentencing hearing.
CHOU, J.
We concur.
JACKSON, P. J.
SIMONS, J.
(A168182 – People v. Dowdy)
Trial Court: Superior Court of California, County of Contra Costa
Trial Judge: Hon. Julia Campins
Counsel: Steven S. Lubliner, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Eric D. Share and Benjamin Bonnello, Deputy Attorneys General, for Plaintiff and Respondent.