THE PEOPLE, Plaintiff and Respondent, v. KEVIN LIPSCOMB, Defendant and Appellant.
A164755
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO
Filed 12/29/22
CERTIFIED FOR PUBLICATION; (San Francisco County Super. Ct.
In 2007, defendant Kevin Lipscomb pulled his car up next to Kenneth Lee in a crosswalk and shot him three times. After a jury found Lipscomb guilty of various crimes and found true certain firearm enhancements, he was sentenced to a prison term of 67 years to life. In 2019, Lipscomb petitioned for and was granted resentencing under People v. Vargas (2014) 59 Cal.4th 635, and in 2022, was resentenced to 35 years to life. As part of that resentencing, the trial court declined to dismiss a 25-year-to-life firearm enhancement in the interest of justice, finding that doing so would endanger public safety. Lipscomb primarily argues that under recently enacted legislation, the trial court was required to dismiss the firearm enhancement because its application could result in a sentence of over 20 years. He also argues that the $17,000 restitution fine imposed must be reduced to the statutory maximum of $10,000. We agree that the restitution fine must be reduced, and otherwise affirm.
The Shooting
In Lipscomb‘s direct appeal, we described the facts of the offense as follows:
“On June 4, 2007, at approximately 11:55 a.m., Kenneth Lee parked his car on Townsend Street in San Francisco, got out, and walked to a nearby crosswalk where he waited for the pedestrian crossing light to turn green. As he stood there, a silver Dodge Charger driven by [Lipscomb] pulled up into the crosswalk. [Lipscomb] made eye contact with Mr. Lee and kept looking over at him. Because Mr. Lee thought perhaps he knew the driver or that he was lost and wanted directions, he bent down to peer in through the open passenger side window and asked, ‘Can I help you?’ [Lipscomb], whom Mr. Lee did not recognize, looked at him with a smirk on his face and reached out as if he were going to hand him something. Instead, [Lipscomb] shot him two to three times. Mr. Lee, who suffered gunshot wounds to his left forearm and both groins, collapsed onto the sidewalk. [Lipscomb] drove away.” (People v. Lipscomb (June 29, 2012, A128549) [nonpub. opn.], p. 2.)
Lipscomb “was soon spotted by a number of San Francisco police officers, who began a pursuit. [Lipscomb] led them on a high-speed chase through the city streets, eventually abandoning his car to flee on foot when he became stuck in traffic. He was apprehended in an abandoned building and arrested.” (People v. Lipscomb, supra, A128549, p. 1.)
The Charges, Trial, and Sentence
In 2008, the San Francisco County District Attorney filed an amended information charging Lipscomb with attempted murder (
We affirmed on direct appeal, but ordered that the restitution fine be reduced to the statutory maximum of $10,000. (People v. Lipscomb, supra, A128549, pp. 10–11.)
The Resentencing
In 2019, Lipscomb petitioned for resentencing pursuant to People v. Vargas, supra, 59 Cal.4th 635, on the ground that two of his prior strike convictions were based on the same criminal act. On June 23, 2020, the trial court granted the petition.
On August 6, 2021, the trial court dismissed one of the prior strikes from the charging document.
On February 9, 2022, the trial court resentenced Lipscomb to a term of 35 years to life, as follows:
The trial court began by selecting count 4 as the principal term. The court found that imposing the lower term on count 4 under
The court then turned to the 25-year-to-life firearm enhancement with respect to count 4 (
“The Court declines to find that
Penal Code Section 1385(c)(2)(B) mandates dismissal of thePenal Code Section 12022.53(d) enhancement because it will result in a sentence over 20 years. However, the Court must abide byPenal Code Section 1385(c)(2) ‘s requirement that the Court determine whether dismissal of the enhancement would result in physical injury or serious danger to others.”
The trial court then noted that defendant‘s “primary focus” at resentencing had been on his mental health as a mitigating circumstance, and explained that it had, in preparation for sentencing, “meticulously” and “painstakingly” analyzed nearly 2,000 pages of Lipscomb‘s medical and disciplinary records from his time in prison. In a lengthy analysis, the trial court concluded that the current offense was not “connected to mental illness” under
However, even assuming that the offense was “connected to mental illness,” the trial court went on to find that dismissal of the enhancement “would result in physical injury or serious danger to others.” The court noted that the crime involved “great violence, great bodily harm, threat of great bodily harm, and other acts disclosing a high degree of cruelty, viciousness and callousness,” that Lipscomb‘s prison records showed “fighting, not following direct orders, [a] history of aggression, [and] impulsive behaviors,” that his “interest in changing has been non-existent,” that he “consistently refused to attend” psychiatric appointments and mental health treatment, that “he could not give a good reason to inspectors for shooting the victim,” and that his “remorse about his conduct was . . . perfunctory; his empathy, non-existent.”
And the court continued: “Based upon my evaluation of the record, I find there has been substantial evidence to support the conclusion that he has not done anything to prove that he would be anything other than a danger to the community if he were released, and for that reason I find there is a substantial likelihood that the dismissal of the enhancement would endanger public safety; i.e., result in physical injury or other serious danger to others as defined under
Slightly later on, the trial court concluded: “I declined to dismiss the
The trial court then dismissed the two five-year enhancements with respect to count 4 under
The trial court sentenced Lipscomb to the midterm of two years on each of counts 2 and 3, doubled in each case to four years because of the prior strike, and ordered these terms to run concurrently to the sentence on count 4 because the crimes were “sufficiently close in time and place.” The court struck the two five-year priors on each of counts 2 and 3 in the interest of justice. Finally, the court imposed the midterm of six years on count 5, doubled to 12 years because of the prior strike, as well as the midterm of four years for the
The trial court also imposed restitution fines under
Lipscomb filed a notice of appeal.
DISCUSSION
The Trial Court Was Not Required to Strike the Firearm Enhancement by Section 1385, Subdivision (c)(2)(C)
Lipscomb‘s primary argument is that the trial court erred in declining to strike the firearm enhancement on count 4 under
Before 2018,
pursuant to
In 2021, the Legislature enacted Senate Bill No. 81 (2021-2022 Reg. Sess.), which amended
“(c)(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) to (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.
“(A) Application of the enhancement would result in a discriminatory racial impact as described in paragraph (4) of subdivision (a) of Section 745.
“(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.
“(D) The current offense is connected to mental illness.
“(E) The current offense is connected to prior victimization or childhood trauma.
“(F) The current offense is not a violent felony as defined in subdivision (c) of Section 667.5. “(G) The defendant was a juvenile when they committed the current offense or any prior offenses, including criminal convictions and juvenile adjudications, that trigger the enhancement or enhancements applied in the current case.
“(H) The enhancement is based on a prior conviction that is over five years old.
“(I) Though a firearm was used in the current offense, it was inoperable or unloaded.”
Applicable Law
“‘As in any case involving statutory interpretation, our fundamental task here is to determine the Legislature‘s intent so as to effectuate the law‘s purpose.’ (People v. Murphy (2001) 25 Cal.4th 136, 142.) ‘We begin by examining the statutory language, giving it a plain and commonsense meaning. [Citation.] We do not, however, consider the statutory language in isolation; rather, we look to the entire substance of the statutes in order to determine their scope and purposes. [Citation.] That is, we construe the words in question in context, keeping in mind the statutes’ nature and obvious purposes. [Citation.] We must harmonize the various parts of the enactments by considering them in the context of the statutory [framework] as a whole. [Citation.] If the statutory language is unambiguous, then its plain meaning controls. If, however, the language supports more than one reasonable construction, then we may look to extrinsic aids, including the ostensible objects to be achieved and the legislative history.’ (People v. Cole (2006) 38 Cal.4th 964, 975.)” (Skidgel v. California Unemployment Ins. Appeals Board (2021) 12 Cal.5th 1, 14.) “In such circumstances, we ‘select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences.’ [Citation.] (People v. Coronado (1995) 12 Cal.4th 145, 151; see Escobedo v. Estate of Snider (1997) 14 Cal.4th 1214, 1223.)” (Day v. City of Fontana (2001) 25 Cal.4th 268, 272.)
Analysis
Lipscomb argues that the sentence “In this instance, the enhancement shall be dismissed” in
As noted, Lipscomb‘s argument is based entirely on the sentence in
Nor does our interpretation make the language “[i]n this instance, the enhancement shall be dismissed” surplusage. Absent a finding that dismissing the enhancement would endanger public safety, the language could require the trial court to dismiss the enhancement where it finds that doing so would be “in the furtherance of justice” under
To the extent that the statute is ambiguous, indicators of the Legislature‘s intent support our reading. Page 5 of the September 8, 2021 Senate Floor Analysis suggests that the trial court retains discretion to impose the enhancement where failing to do so would endanger public safety. This is what it says:
“Current law has a standard for dismissing sentence enhancements that lacks clarity and does not provide judges clear guidance on how to exercise this discretion. A ruling by the California Supreme Court noted that the law governing when judges should impose or dismiss enhancements remains an ‘amorphous concept,’ with discretion inconsistently exercised and underused because judges did not have adequate guidance. “Building on the California Rules of Court that guide judges in certain sentencing decisions, SB 81 aims to provide clear guidance on how and when judges may dismiss sentencing enhancements and other allegations that would lengthen a defendant‘s sentence. By clarifying the parameters a judge must follow, SB 81 codifies a recommendation developed with the input of the judges who serve on the Committee on the Revision of the Penal Code for the purpose of improving fairness in sentencing while retaining a judge‘s authority to apply an enhancement to protect public safety (emphasis added).”
The versions of Senate Bill No. 81 confirm the Legislature‘s intent that the trial court retain the ability to impose an enhancement where failure to do so would endanger public safety. The February 8, 2021 version of Senate Bill No. 81 provided that “the court shall dismiss an enhancement upon finding any of the following circumstances to be true,” and, after listing the mitigating circumstances in paragraph (1), further provided that “[t]he court may decline to dismiss a charged sentencing enhancement pursuant to paragraph (1) upon a showing by clear and convincing evidence that dismissal of an enhancement would endanger public safety.” As amended by the Senate on March 23, the bill provided that “[t]here shall be a presumption that it is in the furtherance of justice to dismiss an enhancement upon a finding that any of the mitigating 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.” This language remained unchanged through amendment by the Senate on April 8, April 27, and amendment by the Assembly on July 1. In the August 30 amended Assembly version—that would ultimately become law—the presumption language was replaced with the “shall consider and afford great weight” language in the final version of the statute.
Thus every version of the statute—including, as we conclude, the current one—expressly empowered the court to impose the enhancement upon a finding that dismissing it would endanger public safety.
This conclusion is confirmed by a September 10, 2021 letter from the bill‘s author, Senator Nancy Skinner, to the Secretary of the Senate for placement in the Senate Daily Journal, which provided as follows:
“As the author of Senate Bill [No.] (SB) 81, I wish to provide some clarity on my intent regarding two provisions of the bill. “First, amendments taken on August 30, 2021 remove the presumption that a judge must rule to dismiss a sentence enhancement if certain circumstances are present, and instead replaces 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 in
Penal Code § 1385(c)(2) .4“Second, I wish to clarify that in establishing the ‘great weight’ standard in SB 81 for imposition or dismissal of enhancements [
Penal Code § 1385(c)(2) ] it was my intent that this great weight standard be consistent with the case law in California Supreme Court in People v. Martin [(1986)] 42 Cal.3d 437 . . . . ¶ Thank you for this opportunity to clarify the intent of SB 81 (emphasis added).” (Sen. Daily J. (2021–2022 Reg. Sess.) at pp. 2638-2639.) In short, the bill‘s author expressly indicated the intent that the judge‘s discretion to decide whether to impose the enhancement be preserved notwithstanding the “shall be dismissed” language insection 1385, subdivision (c)(2)(C) .
In arguing that the legislative history supports his reading, Lipscomb asserts that because the “In this instance, the enhancement shall be dismissed” language in
In addition, as the Attorney General argues, Lipscomb‘s interpretation of the statute would produce absurd consequences. The firearm enhancement
at issue here,
Lipscomb‘s reliance on Sek, supra, 74 Cal.App.5th 657 is unavailing. There, the defendant was convicted of various crimes, including firing at an occupied motor vehicle for the benefit of a criminal street gang, and had certain gang enhancements applied to his sentence. (Id. at p. 664.) While his appeal was pending, the Legislature enacted Assembly Bill No. 333, which amended
Sek also briefly addressed Senate Bill No. 81, which had been enacted during the pendency of the appeal: “In 2021, the Legislature enacted Senate Bill No. 81, which amended
years,’ the trial court ‘shall . . . dismiss[ ]’ the enhancement. (Stats. 2021, ch. 721, § 1.) These requirements ‘shall apply to sentencings occurring after the effective date of Senate Bill No. 81. (Stats. 2021, ch. 721, § 1, enacting
Thus, Sek held only that Sek was entitled to have Senate Bill No. 81 applied upon his resentencing. We do not read Sek to hold, or even suggest, that where
The Restitution Fine Must Be Reduced to $10,000
As noted, the trial court imposed a total restitution fine of $17,000, and imposed and suspended a parole revocation fine “in the same amount” as required by
“We are unaware, however, of any authority suggesting that the $10,000 maximum fine established by
section 1202.4, subdivision (b)(1) is per count, rather than in the aggregate. We therefore order the abstract of judgment amended to reflect an aggregate restitution fine of $10,000.” (People v. Lipscomb, supra, A128549, p. 11.) Indeed: ” ‘[T]he maximum [restitution] fine that may be imposed in a criminal prosecution is $10,000 “regardless of the number of victims or counts involved.” [Citation.]’ ” (People v. Blackburn (1999) 72 Cal.App.4th 1520, 1534.) And a court may only impose one restitution fine per case, so it is “error to impose a restitution fine . . . as to each count.” (People v. Sencion (2012) 211 Cal.App.4th 480, 483.)
As before, we will order the restitution fine and the parole revocation fine reduced to $10,000.
DISPOSITION
The abstract of judgment shall be amended to reflect a restitution fine and a parole revocation fine of $10,000. In all other respects, the judgment is affirmed.
Richman, Acting P.J.
We concur:
Miller, J.
Van Aken, J. *
People v. Lipscomb (A164755)
*Judge of the San Francisco Superior Court, Judge Christine Van Aken, sitting as assigned by the Chief Justice pursuant to
Trial Court: San Francisco County Superior Court
Trial Judge: Honorable Garrett L. Wong
Attorney for Plaintiff and Respondent, People of the State of California: Rob Bonta, Attorney General of California; Lance E. Winters, Chief Assistant Attorney General; Jeffrey M. Laurence, Senior Assistant Attorney General; Seth K. Schalit, Supervising Deputy Attorney General; Arthur P. Beever, Deputy Attorney General
Attorney for Defendant and Appellant, Kevin Lipscomb: Athena Shudde, Attorney at Law, under appointment by the Court of Appeal, for Defendant and Appellant.