People v. LipscombPeople v. Lipscomb
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.)
In 2008, the San Francisco County District Attorney filed an amended information charging Lipscomb with attempted murder (
In January of 2009, a jury deadlocked on the attempted murder charge (count 1) but found Lipscomb guilty on the remaining counts and found the firearm allegations true. The trial court then found the prior conviction allegations true. The trial court sentenced Lipscomb to 67 years to life in prison. (People v. Lipscomb, supra, A128549, p. 7.) It also imposed a restitution fine of $27,800. (Ibid.)
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.)
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
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
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
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
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,
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
“(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
“(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
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
“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
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
“Second, I wish to clarify that in establishing the ‘great weight’ standard in SB 81 for imposition or dismissal of enhancements [
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
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
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
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. *