People v. PonderPeople v. Ponder
At sentencing, defendant moved to strike all the firearm enhancements in the furtherance of justice pursuant to
On remand, the trial court struck the 25-year-to-life enhancement under
Defendant now appeals from the new sentence. He contends the trial court failed to follow recent amendments to the sentencing laws, specifically
FACTUAL AND PROCEDURAL BACKGROUND
Underlying Offenses, Motion to Strike Enhancements, and First Appeal
In April 2016, Lakeya Venson and her fiancé Lavon Mitchell were at a house party celebrating the birthdays of two young family members, including Venson‘s 11-year-old daughter, when a car pulled up, and defendant got out and started shooting. At trial, defendant admitted he shot and killed Venson and shot at Mitchell but claimed he was reacting to a man pulling a gun on him.
Defendant was convicted of second degree murder (count 1), assault with a firearm (count 2), and shooting at an inhabited building (count 3). The jury found, for counts 1 and 3, that he personally discharged a firearm
At his original sentencing, defendant supported his motion to strike the firearm enhancements with voluminous records, including evidence showing, as we characterized it, that “he grew up with domestic violence and substance abuse in the home, he was himself the victim of violence, his father was murdered when he was 11 or 12, and he had a history of low cognitive ability and brain-based deficits that affected his executive functioning and decision making.” (Ponder, supra, 2021 WL 6059119, at p. *1.) An evaluating psychologist diagnosed defendant with atypical depressive disorder and documented defendant‘s history of neurodevelopmental disorder, ADHD, and learning disability. (Id. at pp. *3, 9–10.) In addition, three jurors submitted letters “urg[ing] leniency in sentencing based on defendant‘s life circumstances, including his age, background of trauma, mental capacity, and ADHD diagnosis.” (Id. at p. *8.)
The trial court (Hon. Rhonda Burgess) denied the motion to strike the enhancement for count 1 but did strike the enhancement for count 2, citing ” ‘several factors and circumstances in mitigation which relate to the defendant‘s background, individual life circumstances, and the nature of the present offense.’ ” (Ponder, supra, 2021 WL 6059119, at p. *10.) The court noted defendant was 18 years old at the time of the offense, he had ” ‘history of neuro-developmental disorder . . . from as early as first grade’ ” and ” ‘overall borderline low-to-average intellectual ability with weaknesses in executive functioning,’ ” and a family history that included ” ‘significant family dysfunction and adverse childhood experiences and trauma.’ ” (Ibid.) The court stated it also considered research (described by the defense psychologist) regarding ” ‘immature brain development in adolescence
Defendant was sentenced to 40 years to life in prison for count 1, comprising 15 years to life for murder and a consecutive 25 years to life for the firearm enhancement. After striking the firearm enhancement associated with count 2, the trial court imposed concurrent determinate terms for counts 2 and 3 and stayed the firearm enhancement for count 3 pursuant to
In defendant‘s first appeal, we concluded, “given the trial court‘s own express findings regarding the constellation of issues and circumstances affecting defendant (including his immaturity, neurodevelopmental deficits, and traumatic upbringing) and its determination that the interest of justice would be served by striking the firearm enhancement in connection with count 2, . . . this [wa]s the rare case where the court‘s ruling falls outside the bounds of reason.” (Ponder, supra, 2021 WL 6059119, at p. *11.) Therefore, we remanded the matter for the court to reconsider its sentence.
Resentencing on Remand
At the resentencing hearing held August 29, 2022, the trial court (Hon. Morris Jacobson) adopted the findings made by the original sentencing court as to defendant-related mitigating factors. The court also considered the aggravating factors the original sentencing court found: the crime involved great violence, the victim was particularly vulnerable, defendant engaged in violent conduct indicating a serious danger to society, and defendant‘s previous sustained juvenile adjudications were of increasing seriousness.2
Balancing the mitigating and aggravating factors, the trial court replaced the 25-years-to-life enhancement for personal and intentional discharge of a firearm causing great bodily injury or death under
Defendant timely appealed.
DISCUSSION
A. Remand is Not Required Under A.B. 518
Defendant contends the trial court misunderstood the scope of remittitur and that we should again remand so the court can consider the effect of A.B. 518 (which amended
When defendant was originally sentenced in December 2019,
In briefing filed in May 2022 in advance of the resentencing, defense counsel asserted the original sentencing court “found that his convictions for
The trial court determined that it could not reach defendant‘s argument regarding A.B. 518 on remand because considering
Despite the trial court‘s clear statement that it would not change the sentence under
B. Remand is Not Required Under S.B. 81
In 2021, the Legislature enacted S.B. 81, which amended
1. Background
As relevant to this appeal,
“(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.” (
§ 1385(c)(2)(C) –(E) .)4
On remand, defendant urged the trial court to strike the firearm enhancement associated with count 1 outright because the offense was connected to prior victimization, childhood trauma, and mental illness and application of the enhancement would result in a sentence over 20 years. He filed numerous supporting exhibits, including the evaluating psychologist‘s report, school and institutional records, and probation reports filed in juvenile court. Defendant further argued that striking the enhancement would not endanger public safety because he would still receive a sentence of 15 years to life for the murder conviction and “[a]ny release would be dependent on the parole board agreeing that he is not a risk to public safety.”
The prosecution asked the court to replace the 25-year-to-life term under
At sentencing, the trial court went through each of the
The trial court then stated its ruling, explaining: “When I balance this out, what I find is that the appropriate sentence—when I apply that information against the aggravating factors that I see here, and when I consider the amount of harm that was caused in this case as well as the sort
“I‘ve given an enormous amount of thought over a number of months. . . . I‘ve taken a deep dive on this case and thought about the equities and what the court of appeal indicated in their opinion, the mitigating evidence that was produced, what the meaning of that is, the harm, the incalculable harm, the harm that cannot be cured to the family of Lakeya Venson. And when I factor all of that together, what I find is appropriate, the appropriate amount of reduction in mitigation is . . . ten years in the state prison to be added to the 15-to-life.”
2. Analysis
Defendant contends the matter must be remanded for resentencing again because the trial court failed to decide whether dismissing the enhancement would endanger public safety. He argues that once the court found mitigating circumstances related to his neurodevelopmental deficits, youth, and history of childhood trauma,
There is a split of authority on this issue. People v. Walker (2022) 86 Cal.App.5th 386, review granted March 22, 2023, S278309 (Walker) supports defendant‘s position. There, the Second District Court of Appeal, Division Two, “conclude[d] that section 1385‘s mandate to ‘afford great weight’ to mitigating circumstances erects a rebuttable presumption that obligates a court to dismiss the enhancement unless the court finds that dismissal of that
The Sixth District Court of Appeal, however, disagreed with Walker‘s reading of
The Ortiz court based its interpretation on the statute‘s plain language and legislative history: “The plain language of
We also have had occasion to consider the legislative history of S.B. 81. In Lipscomb, supra, 87 Cal.App.5th at page 20, we noted that the bill‘s author, in a letter to the Secretary of the Senate intended to provide clarity on the legislator‘s intent, wrote: ” ‘[A]mendments . . . remove the presumption that a judge must rule to dismiss a sentence enhancement if certain circumstances are present, and . . . replaces that presumption with a “great weight” standard where these circumstances are present. The retention of the word “shall” in
Considering the plain language of the statute and the legislative history, we reject defendant‘s argument that
Defendant also argues the trial court erred in finding
The ultimate question before the trial court was whether it was in the furtherance of justice to dismiss the enhancement. (Ortiz, supra, 87 Cal.App.5th at p. 1098.) Here, the record shows the trial court was aware of its discretion and the mitigating circumstances it was required to consider under
Clearly, the trial court considered all the mitigating circumstances related to defendant and gave great thought to whether to dismiss the firearm enhancement. We see no abuse of discretion, and, indeed, defendant does not claim the trial court abused its discretion. Moreover, on this record, we cannot say it is reasonably probable the trial court would have reached a different result if it believed the mitigating circumstance of
DISPOSITION
The judgment is affirmed.
Miller, J.
WE CONCUR:
Stewart, P.J.
Richman, J.
Notes
The Attorney General argues, however, that it is not the determinate enhancement that results in a sentence over 20 years; it is the indeterminate life term for the murder that results in the long sentence because the life term begins to run after the determinate term. This argument relies on