THE PEOPLE, Plaintiff and Appellant, v. ROBERT WAYNE ROGERS, Defendant and Respondent.
H051665
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT
Filed 1/27/25
CERTIFIED FOR PUBLICATION
In this appeal, the People challenge a trial court‘s authority at a resentencing proceeding under
A. Factual Background3
On May 9, 1997, defendant Robert Wayne Rogers entered a sandwich shop with a shirt wrapped around his hand. He went behind the register, pressed his hand into the manager‘s ribs, and told her to open the register. After the manager complied, Rogers took the money from the register and fled.
On May 12, 1997, Rogers entered a bakery with a piece of clothing wrapped around his hand. He told a bakery employee that he needed her to do him a favor, asked her if there was a safe, and ordered her to open it. Once she opened the safe, Rogers took bags out of it and ordered her to open the register. After she opened the register, Rogers took the money and ordered the employee to go into the back office.
On June 18, 1997, Rogers entered a pharmacy. He approached the counter with something wrapped around his hand, told the two cashiers he had a gun inside the bag he was carrying, and demanded money. A cashier began handing Rogers money from a register, but Rogers proceeded to reach over the counter and grab more money on his own. Rogers exited the pharmacy and fled the scene in a vehicle. One of the cashiers obtained the license plate number of Rogers‘s car.
The robbery victims identified Rogers as the perpetrator.
B. Procedural Background
1. Charges, Verdict, Original Sentence, and Appeal
In October 1997, the district attorney filed an information charging Rogers with four counts of robbery (
On February 13, 1998, the jury convicted Rogers of three counts of robbery (counts 1, 4 & 5) and false imprisonment (count 2). The jury found Rogers not guilty of one count of robbery (count 3) and found not true the firearm use allegation attached to count 5. The jury was unable to reach a decision on the firearm use allegations attached to counts 1, 2, and 4. The trial court declared a mistrial on those allegations and subsequently struck them at sentencing.
On February 23, 1998, the trial court held a bench trial and found true each of the prior conviction and prison prior allegations stated in the information.
On March 30, 1998, the trial court heard argument on Rogers‘s Romero motion and denied it. The court sentenced Rogers to consecutive terms of 25 years to life for each of the three robbery counts and stayed a two-year prison term for the false imprisonment count (
Rogers appealed. He raised several claims of error, including that the trial court erred in denying his Romero motion. (Rogers I, supra, H018398, at pp. 23-28.) This court affirmed the judgment. (Id. at p. 31.)
2. Section 1170.126 Petition
In 2014, Rogers filed a petition to recall his sentence pursuant to the Three Strikes Reform Act of 2012 (Reform Act, Act, or Proposition 36) and
3. Section 1172.75 Recall and Resentencing Proceedings5
a. Rogers‘s Motion
On June 29, 2023, Rogers, through counsel, filed a “resentencing motion pur[su]ant to Penal Code [section] 1172.75” (some capitalization omitted) (hereafter motion).6 Rogers asked the trial court to invalidate his legally invalid prison priors and conduct a full resentencing hearing.
Rogers asserted that after his sentence is recalled under
Rogers specifically asked the trial court to apply various “ameliorative laws” that had been enacted since his original sentencing, including: (1)
Regarding Senate Bill 81, Rogers asserted that that bill applied to his prior serious felony enhancements (
In his motion, Rogers proposed five potential sentences for the trial court‘s consideration. Four of the proposals involved the imposition of a determinate sentence following the granting of Rogers‘s Romero request as to all but one of his strike priors.
b. District Attorney‘s Opposition
The district attorney opposed Rogers‘s motion, urging the trial court to reject Rogers‘s “attempts to bootstrap two Penal Code section 667.5, subdivision (b) enhancements (and a third stayed enhancement) into a full resentencing.” The district attorney argued that Rogers‘s “lengthy criminal history, commitment offense, and poor conduct in custody mean that he is a threat to public safety and should not obtain the benefit of resentencing.” Alternatively, the district attorney asserted that if the court were to strike Rogers‘s prison priors, Rogers‘s sentence should not be reduced any further. The district attorney pointed to Rogers‘s lengthy criminal history and the facts of the instant offenses. The district attorney also noted that following a
c. Initial Hearing
On October 4, 2023, the trial court held a hearing on the matter. The prosecutor stated that the People were “absolutely fine with every prison prior enhancement, including the five-year enhancement being struck.” However, the prosecutor requested “that there be no additional modification to [Rogers]‘s sentence.” The prosecutor argued that although the court “has the authority to modify all of the one-year and five-year priors,” under “additional authority” (referring to a recent appellate court decision which the district attorney had not cited in his opposition), Senate Bill 483 could not be used to “modify a three-strikes sentence.”
Rogers‘s defense counsel noted that a petition for review was pending on the recent decision and reiterated the defense position that the trial court “has the authority to do a full resentencing” of Rogers.
The trial court stated that it did not want to act beyond its authority and continued the matter to “see what happens with the petition [for] review.”
d. Supplemental Briefing
On October 13, 2023, Rogers‘s defense counsel filed a supplemental brief addressing the decision that the prosecutor had raised at the hearing, People v. Kimble (July 14, 2023, C097389) (Kimble I) [previously published at 93 Cal.App.5th 582].
Rogers contended that Kimble I did not apply to him. He explained that Kimble I “involved a defendant who wanted the court to essentially resentence under Prop[osition] 36 to a second-strike sentence, based on a claim that his current conviction was not for a serious or violent felony.” Rogers argued that Kimble I‘s rejection of the defendant‘s contention was limited to defendants who were eligible for relief under
e. Further Hearing and Resentencing
On October 30, 2023, the trial court held a further hearing on the matter. At the hearing, Rogers‘s defense counsel reiterated the defense contentions regarding full resentencing, striking the strike priors under Romero, and the inapplicability of the conclusion stated in Kimble I. Counsel further noted that Rogers was currently in his early sixties and had had “some major surgeries.” Counsel argued that Rogers was not a
danger to public safety and the trial court had “a lot of options” for resentencing Rogers, including by imposing a 39-year determinate term (which included an upper term of five years for count 1, doubled).
In response, the prosecutor maintained that Rogers is a public safety risk and the trial court should “decline to exercise its discretion in striking any of the enhancements, other than the prison priors.” The prosecutor argued further that the court did not have the authority to strike Rogers‘s strike priors as part of a Senate Bill 483 resentencing because the Legislature did not expressly provide for such discretion in the language of the statute, and
The trial court decided that it had the discretion to strike Rogers‘s strike priors and resentence Rogers. When the prosecutor asked the court to provide “for the record” its “discretionary reasons for striking the strikes,” the court
When pronouncing Rogers‘s sentence, the trial court stated that one strike prior “remains. I‘m striking any other strike priors.” The court also struck the legally invalid prison priors. The court resentenced Rogers to a total determinate term of 39 years, comprising 10 years (upper term, doubled because of the remaining strike prior9) on count 1 (robbery); two years (middle term) on count 2 (false imprisonment), stayed pursuant to
The district attorney appealed.
II. DISCUSSION
In his opening brief, the district attorney raises two primary contentions. First, he contends the trial court erred in striking Rogers‘s strike priors because the plain language of Senate Bill 483 and
removing [Rogers] from the Three Strikes sentencing scheme.” The district attorney notes that neither Senate Bill 81 nor Assembly Bill No. 600 (2022-2023 Reg. Sess.) passed the Legislature with the two-thirds majority required to amend the Three Strikes law, so those laws do not amount to “change[s] in applicable sentencing laws that would permit reconsideration of strike allegations imposed.”10 Citing In re Alberto (2002) 102 Cal.App.4th 421 (Alberto), the district attorney contends that “permitting such reconsideration of a Romero motion risks putting one superior court judge in the position of overruling another superior court judge, which is not permitted.”
Second, the district attorney alternatively contends that if
Rogers responds that the trial court is authorized to conduct a full resentencing hearing under
did not abuse its discretion in granting him relief under Romero and resentencing him to a 39-year determinate term.
After completion of the appellate briefing, this court requested supplemental briefing from the parties regarding the impact of the decision of a different panel of this court in People v. Superior Court (Williams) (2024) 102 Cal.App.5th 1242 (Williams), review granted August 28, 2024, S286128.11
This court subsequently requested additional supplemental briefing on whether, under the circumstances of Rogers‘s
In his second supplemental brief, the district attorney asserts that Monroe “held that a full resentencing was required, but always under the terms of
Rogers maintains that
A. Standard of Review
The interpretation of a statute and the determination of the scope of a trial court‘s authority under relevant statutes are questions of law that we review de novo. (People v. Jimenez (2020) 9 Cal.5th 53, 61; see also People v. Christianson (2023) 97 Cal.App.5th 300, 308, review granted Feb. 21, 2024, S283189; City of Desert Hot Springs v. Valenti (2019) 43 Cal.App.5th 788, 793.)
In interpreting a statute, ” ’ ” ‘our fundamental task [] is to determine the Legislature‘s intent so as to effectuate the law‘s purpose. [Citation.]
” ’ “We review the [trial court‘s] ruling, not the court‘s reasoning and, if the ruling was correct on any ground, we affirm.” ’ ” (People v. Brooks (2017) 3 Cal.5th 1, 39.)
Regarding a trial court‘s decision to dismiss or strike a strike prior under
B. Legal Principles
1. Section 1172.75
Once a trial court has received information from CDCR and determined that a defendant‘s current judgment includes a prior prison term enhancement that is now legally invalid, ”the court shall recall the sentence and resentence the defendant.” (
Regarding resentencing,
“(3) The court may consider postconviction factors, including, but not limited to, the disciplinary record and record of rehabilitation of the defendant while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the defendant‘s risk for future violence, and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice.
“(4) Unless the court originally imposed the upper term, the court may not impose a sentence exceeding the middle term unless there are circumstances in aggravation that justify the imposition of a term of imprisonment exceeding the middle term, and those facts have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.”
2. Three Strikes Law
“The Three Strikes law was ‘[e]nacted “to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses” [citation], [and] “consists of two, nearly identical statutory schemes.” ’ [Citation.] In March 1994, the Legislature codified its version of the Three Strikes law by adding subdivisions (b) through (i) to
“Under the [Three Strikes] law, defendants who commit a felony after two or more prior convictions for serious or violent felonies were sentenced to ‘an indeterminate term of life imprisonment with a minimum term of’ at least 25 years. [Citation.] In 2012, Proposition 36 narrowed the class of third-strike felonies for which an indeterminate sentence could be imposed. Now a defendant convicted of a felony outside of that class can receive at most a sentence enhancement of twice the term otherwise provided as punishment for that felony. [Citations.] But Proposition 36 makes a defendant ineligible for this limitation on third-strike sentencing if one of various grounds for ineligibility applies.” (People v. Perez (2018) 4 Cal.5th 1055, 1061-1062.)
As mentioned ante (pt. I.B.2.), in Proposition 36 (the Reform Act), ” ‘the voters also established a procedure for “persons presently serving an
3. Section 1385(a) and Romero
The power of dismissal provided in
In Romero, our Supreme Court concluded 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.) “[W]hen facing a motion to dismiss a strike allegation, the trial court ‘must consider whether, in light of the nature and circumstances of [the defendant‘s] present felonies and prior serious and/or violent felony convictions, and the particulars of [the defendant‘s] background, character, and prospects, the defendant may be deemed outside the 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. Vargas (2014) 59 Cal.4th 635, 641, italics omitted.)
C. Analysis
1. Trial Court Authority to Strike a Strike Prior Under Section 1385(a) and Romero When Resentencing Under Section 1172.75
There is no dispute that the trial court received information from CDCR about Rogers‘s prison priors (see
The district attorney asserts that a defendant who qualifies for relief under
“legal change” that would serve as a basis for a modification of the defendant‘s original sentence.
We are not persuaded.
The Monroe court agreed with the defendant that he was entitled to have the trial court consider whether to exercise its discretion under the new laws as part of his resentencing pursuant to Senate Bill 483. (Monroe, supra, 85 Cal.App.5th at p. 399.) The court explained “there is no dispute that [defendant] was entitled to resentencing under
Regarding the defendant‘s request for a remand for resentencing, the Monroe court rejected the Attorney General‘s argument that defendant was “not entitled to a full resentencing on remand because his judgment of conviction was final and the prior prison term enhancements have already been stricken, such that no enhancements are being stricken on [appellate] review.” (Monroe, supra, 85 Cal.App.5th at pp. 401-402.) The court explained, “By its plain terms,
changes. (See Monroe, supra, 85 Cal.App.5th at p. 402.) In discussing the requirement of full resentencing, the Monroe court cited to Buycks for the proposition that ” ‘resentencing as to all counts is appropriate’ ” (ibid.) and provided examples from
The language of
Additionally,
punishment simply because his or her original sentence included a presently invalid prison prior.
Similarly, the mandatory directive in
We agree with the Monroe court that “section 1172.75 requires a full resentencing” (Monroe, supra, 85 Cal.App.5th at p. 402) for all defendants who qualify for a recall of their sentences under
tethered to a post-original sentencing change in the law or changes specifically identified in
We turn to the district attorney‘s argument that, even if Rogers qualified for a full resentencing under
Although
We likewise are not persuaded that interpreting
As for the Reform Act‘s resentencing procedure (
would unconstitutionally amend the Reform Act by eliminating the public safety inquiry required to avoid imposing a mandated third strike sentence of 25 years to life on defendant.“].)
It is true that, broadly speaking, some defendants serving a Three Strikes sentence might fall within the eligibility criteria for potential relief under both sections
It is well established that, even where a statute addresses a similar area to a prior initiative, ” ’ “the Legislature remains free to address a ‘related but distinct area’ [citations] or a matter that an initiative measure ‘does not specifically authorize or prohibit.’ ” ’ ” (People v. Rojas (2023) 15 Cal.5th 561, 568.) The application of
concerns about improper legislative amendment of the voter approved Reform Act that underlie the decisions cited by the district attorney.
There is nothing in the Reform Act that specifically authorizes or prohibits a recall of Rogers‘s sentence and his resentencing. The voter information guide for the Reform Act explicitly acknowledges the limited applicability of the initiative. It states, “This measure reduces prison sentences served under the [T]hree [S]trikes law by certain third strikers whose current offenses are nonserious, non-violent felonies. The measure also allows resentencing of certain third strikers who are currently serving life sentences for specified nonserious, non-violent felonies.” (Voter Information Guide, Gen. Elec. (Nov.
We are similarly unpersuaded by the district attorney‘s argument that it would be improper to permit a resentencing court to consider a renewed Romero motion if such a motion were denied at the defendant‘s original sentencing. The Court of Appeal in Alberto stated the “general rule” that “the power of one judge to vacate an order made by another judge is limited.” (Alberto, supra, 102 Cal.App.4th at p. 427.) The Alberto court explained the rationale for this rule as follows: “For one superior court judge, no matter how well intended, even if correct as a matter of law, to nullify a duly made, erroneous ruling of another superior court judge places the second judge in the role of a one-judge appellate court.” (Ibid.)
This general rule is inapposite here because the trial court properly recalled Rogers‘s original sentence, as required by
In sum, we conclude the trial court had the authority to exercise its discretion under
2. Trial Court Erred by Failing to State Reasons for Striking the Strike Priors Under Section 1385(a) and Romero
Notwithstanding that the trial court had the authority to strike the strike priors at Rogers‘s
A trial court “must explain its reasons for striking a prior.” (In re Large (2007) 41 Cal.4th 538, 550; see also People v. Williams (2021) 65 Cal.App.5th 828, 835;
As detailed ante (pt. I.B.3.e.), when the prosecutor asked the trial court to provide its “discretionary reasons for striking the strikes,” the trial court suggested its decision was motivated by “the changes in the three-strike law” and said it “probably would have” struck some of Rogers‘s strike priors had it conducted his original sentencing. Upon further inquiry by the prosecutor about the precise change in the law that prompted the court‘s decision to strike the strikes, the court said, “It‘s not so much a change in the law as a resentencing, I believe is appropriate [sic]. I have the authority to do that. And I still have the discretion to eliminate the one strike.”
We agree with the district attorney that the trial court offered “no reasons that would justify the extraordinary relief it bestowed by striking six of [Rogers]‘s seven strike allegations.” The “great power” to deviate from the Three Strikes law “should only be used in ‘extraordinary’ circumstances, when the ends of justice demand it. [Citations.] In determining whether such circumstances exist in a given case, the trial court must balance society‘s legitimate interest in imposing longer sentences for repeat offenders and the defendant‘s constitutional right against disproportionate punishment. [Citation.] It must also consider the nature of the defendant‘s present felonies and prior strike convictions, as well as his background, character and prospects. [Citation.] And, of course, the court must remember the Three Strikes law is not discretionary in nature. Rather, the law must be applied when the defendant has two or more prior strikes, unless the court concludes an exception to the law should be made because, for articulable reasons that can withstand scrutiny for abuse, the defendant lies outside the spirit of the law such that he should be treated as though he had not previously been convicted of one or more strikes.” (People v. Mayfield (2020) 50 Cal.App.5th 1096, 1105.)
The trial court‘s articulated reasons for striking Rogers‘s strike priors amount to general statements affirming its authority for and the propriety of imposing a lesser sentence under
The trial court‘s error in failing to set forth its reasons for striking Rogers‘s strike priors requires a reversal of the trial court‘s resentencing order and a remand for a hearing at which the trial court must state its reasons in accordance with
III. DISPOSITION
The trial court‘s resentencing order is reversed, and the matter is remanded for resentencing under
Danner, J.
WE CONCUR:
Bamattre-Manoukian, Acting P. J.
Wilson, J.
H051665
People v. Rogers
Trial Court: County of Santa Cruz
Trial Judge: Hon. Stephen Siegel
Jeffrey S. Rosell District Attorney, Tara L. George, Chief Deputy District Attorney, Lauren Apter Assistant District Attorney, for Plaintiff and Appellant.
Robert L.S. Angres, by appointment of the Court of Appeal under the Sixth District Appellate Program, for Defendant and Respondent.
H051665
People v. Rogers